State of South Australia v Honourable Peter Slipper MP
[2003] FCA 1414
•8 DECEMBER 2003
FEDERAL COURT OF AUSTRALIA
State of South Australia v Honourable Peter Slipper MP [2003] FCA 1414
NUCLEAR WASTE FACILITY
LAND ACQUISITION – urgent necessity
JUDICIAL REVIEW – right to be heard – statutory code – jurisdictional fact – satisfaction of decision maker – illegal purpose
NATIVE TITLE ACT – right to negotiate – effect of non-compliance – ‘statement’ – whether duty to communicate
Commonwealth Constitution ss 51(xxxi), 75(v), 109
Lands Acquisition Act 1989 (Cth) ss 6, 22, 23, 24, 26, 27, 28, 33, 40, 41, 42
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 13, 16
Federal Court of Australia Act 1976 (Cth) s 21
Australian Radiation Protection and Nuclear Safety Act 1998 (Cth)
Native Title Act 1993 (Cth) ss 24AA, 25, 26, 28, 29, 31, 35
Nuclear Waste Storage Facility (Prohibition) Act 2000 (SA)Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57
Byrnes v The Queen (1999) 199 CLR 1
Kioa v West (1985) 159 CLR 550
Annetts v McCann (1990) 170 CLR 596
Coco v The Queen (1994) 179 CLR 427
R v Angel; ex parte van Beelan (1984) 34 SASR 34
R v City of Munno Para; ex parte John Weeks Pty Ltd (1987) 46 SASR 400
Commonwealth v Crowe (1992) 111 ALR 193
Dutton v Republic of South Africa (1999) 162 ALR 625
Upham v Grand Hotel (SA) Pty Ltd (2000) 74 SASR 557
Blinco v Speer (2000) 76 SASR 341
Baba v Parole Board of New South Wales (1986) 5 NSWLR 338
Hill v Green (1999) 48 NSWLR 161
Barratt v Howard (1999) 165 ALR 605
Amstad v Brisbane City Council (1967) 16 LGRA 379
Little v Minister for Land Management (1993) 79 LGERA 374
Commonwealth v Tasmania (1983) 158 CLR 1
Attorney-General (Qld) v Riordan (1997) 192 CLR 1
Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
A v Hayden (1984) 156 CLR 532
Re Residential Tenancies Tribunal of New South Wales; ex parte Defence Housing Authority (1997) 190 CLR 410
State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253
North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595
Lardil Peoples v Queensland (2001) 108 FCR 453
Fejo v Northern Territory (1998) 195 CLR 96
Campbell v Strangways (1877) 3 CPD 105
R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170
Shop & Distributive Assistants v Minister for Industrial Affairs (1995) 183 CLR 552
Reid v Sinderberry (1944) 68 CLR 504
Bienke v Ministerfor Primary Industries and Energy (1996) 135 ALR 128
R v District Council of Berri; ex parte Eudunda Farmers (1982) 31 SASR 342Brown, Land Acquisition, 4th edn, Butterworths, Sydney, 1996
THE STATE OF SOUTH AUSTRALIA v THE HONOURABLE PETER SLIPPER MP and ANOR
S 629 of 2003SELWAY J
8 DECEMBER 2003
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 629 OF 2003
BETWEEN:
THE STATE OF SOUTH AUSTRALIA
APPLICANTAND:
THE HONOURABLE PETER SLIPPER MP
FIRST RESPONDENTTHE COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENTJUDGE:
SELWAY J
DATE OF ORDER:
8 DECEMBER 2003
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1. The application is dismissed.
2. The applicant to pay the respondents’ costs to be taxed in the absence of agreement.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 629 OF 2003
BETWEEN:
THE STATE OF SOUTH AUSTRALIA
APPLICANTAND:
THE HONOURABLE PETER SLIPPER MP
FIRST RESPONDENTTHE COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT
JUDGE:
SELWAY J
DATE:
8 DECEMBER 2003
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
The State of South Australia has instituted proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’) and s 39B of the Judiciary Act 1903 (Cth) arguing that the issue of a certificate by the first respondent (‘the Minister’) under s 24 of the Lands Acquisition Act 1989 (Cth) (‘LAA’) and the subsequent acquisition of land by the Commonwealth was invalid. There are many and various reasons put forward by the State as to why the certificate and acquisition are invalid. For the reasons given below, I am of the view that none of those reasons can be sustained and the proceedings must be dismissed with costs.
The Commonwealth Government has determined that a low level nuclear waste facility should be established near Woomera in South Australia. (For present purposes it is sufficient to refer to the relevant area of the facility as ‘Site 40a’). Site 40a is situated on the Arcoona pastoral lease. The State of South Australia held the relevant radical title over the pastoral lease. It also held the mineral rights to the relevant area. Mr and Mrs Pobke hold the pastoral lease. Mr McKenzie, on behalf of the Kuyani people, is the registered native title claimant to the area.
In order to establish the nuclear waste facility the Commonwealth intended to acquire under the LAA all of the relevant interests of the State, of the pastoralists and of the native title claimants over Site 40a.
The Minister is the Parliamentary Secretary to the Minister for Finance and Administration. It is accepted that he is relevantly a ‘Minister’ who administers the LAA and that he may exercise the powers of ‘the Minister’ under the Act.
The LAA contemplates that land can be acquired by agreement (s 40) or by compulsory process (s 41). In either case, before an acquisition can be effected, the Commonwealth would ordinarily need to comply with the pre-acquisition procedures specified in the LAA (see ss 40, 41 and 44 LAA). For present purposes the pre-acquisition procedures can be summarised as follows:
(a)The Minister makes a pre-acquisition declaration which identifies the acquiring authority, the land, the interest in the land and the public purpose (s 22 LAA);
(b)The Minister gives a copy of the declaration to persons who have an interest in the land affected by the declaration (s 22 (7) and (10) LAA);
(c)A copy of the declaration must be published in the Gazette and in a newspaper circulating in the district where the land is situated (s 23 LAA);
(d)A person having a relevant interest in the land may apply to the Minister for a re-consideration of that decision by the Minister (s 26 and s 27 LAA); and
(e)Unless the pre-acquisition declaration contains a statement that the acquisition is for a specified and essential policy purpose and that it is, for that reason, not subject to review by the Administrative Appeal Tribunal (s 22(6)), a person affected by a declaration who is dissatisfied with the Minister’s re‑consideration, may apply to the Administrative Appeals Tribunal to review the declaration (s 28 LAA). Where the Tribunal recommends that the Minister take any particular action the Minister is obliged to consider that recommendation (s 33 LAA). Up to 90 days after the recommendation is given the Minister may reject it, but must report to the Houses of Parliament as to the reasons for the rejection (s 33(3) LAA).
It may be assumed that the Commonwealth expected to comply with these pre-acquisition procedures in relation to the acquisition of the relevant interests in Site 40a.
For various reasons the State Government has opposed the establishment of a nuclear waste facility in South Australia. In an attempt to defeat or forestall the planned Commonwealth acquisition a Bill to enact a Public Park Act 2003 (SA) (‘the Bill’) was introduced into the South Australian Parliament on 3 June 2003. If the Bill had been passed its purported effect would have been to establish a public park at Site 40a. The apparent reason for this was to rely upon s 42 of the LAA which provides:
‘The Minister may not make a declaration under subsection 41(1) [declaring that the interest is acquired by compulsory process] regarding an interest in land that consists of, or is in, a public park unless the Government of the State or Territory in which the land is situated has consented to the acquisition of the interest.’
On its face the Bill, if enacted, would have meant that the Commonwealth could not acquire the land without the consent of the State or without amending the LAA. For the reasons discussed below, it is unnecessary in this case for me to consider whether the Bill, if enacted, would have been effective for this purpose.
The South Australian Parliament was adjourned before the Bill was debated or otherwise considered.
In response to the introduction of the Bill into the South Australian Parliament on 7 July 2003 the Minister purported to make a certificate under s 24 LAA. That section provides:
‘(1)Where, in relation to the proposed acquisition of an interest in land by an acquiring authority, the Minister is satisfied that:
(a)there is an urgent necessity for the acquisition and it would be contrary to the public interest for the acquisition to be delayed by the need for the making, and the possible reconsideration and review, of a pre-acquisition declaration; or
(b)to require the making of a pre-acquisition declaration in respect of the proposed acquisition would result in a disclosure of information that would be prejudicial to the security, defence or international relations of Australia;
the Minister may certify in writing that he or she is so satisfied.
(2)The certificate may include such information relating to the proposed acquisition as the Minister considers appropriate.
(3)If the Minister gives a certificate, the interest may be acquired by the acquiring authority without the preparation of a pre-acquisition declaration.
(4) The Minister shall:
(a)cause a copy of the certificate to be laid before each House of the Parliament within 3 sitting days of that House after the giving of the certificate; and
(b)as soon as practicable, cause a copy of the certificate to be served on each person whom the Minister believes, after diligent inquiry, to be a person affected by the certificate.
(5)The Minister may cause a copy of the certificate to be published in the Gazette, in a newspaper circulating in the district in which the land is situated, or in both the Gazette and such a newspaper.
(6)The certificate ceases to be in force if:
(a) the interest is acquired under this Act;
(b) the certificate is revoked; or
(c) the certificate ceases to have effect because of subsection 46(3).
(7)For the purposes of this Act, a person shall be taken to be affected by the certificate if, and only if:
(a)the person is an owner of the interest in land to which the certificate relates (in this subsection called the certificate interest); or
(b)the person is an owner of some other interest in land that, if the certificate interest were acquired by compulsory process, would be in whole or in part divested, extinguished or diminished because of paragraph 41(4)(b).’
The certificate provided:
‘I hereby certify, pursuant to the provisions of subsection 24(1) of the Lands Acquisition Act 1989, that in relation to the proposed acquisition by the Commonwealth of Australia of all the interests (including all native title rights and interests (if any) and all mineral rights) in the land described hereunder, I am satisfied that there is an urgent necessity for the acquisition of those interests and that it would be contrary to the public interest for the acquisition to be delayed by the need for the making, and the possible reconsideration and review, of a pre-acquisition declaration.
And I state on behalf of the Commonwealth of Australia, for the purpose of subsubparagraph 26(1)(c)(iii)(A) of the Native Title Act 1993, that the purpose of the compulsory acquisition of all native title rights and interests (if any) in relation to the land described hereunder is to confer rights or interests in relation to the land on the Commonwealth of Australia.’
The Minister’s reasons for his decision included the following:
‘28.I found that the decision to build a national repository was made in the 1980s, and the current project, which commenced in 1992, was the result of a joint decision by the Commonwealth, State and Territory Governments in recognition of the risks to public health and safety of the existing inadequate storage arrangements. The Commonwealth had undertaken a comprehensive and detailed study of potential sites Australia wide. That study had identified a very limited number of sites (three) which had been shown to fully meet the stringent site requirements under the NHMRC Code. An approval for the construction and operation of the national repository had been given by the Commonwealth Minister for the Environment and Heritage under the EPBC Act. A condition of the approval required that the Commonwealth construct and operate the national repository on one of two sites, known as Sites 40a and 45a. Site 40a is the repository site.
29. I found that on 2 June 2003 the South Australian Minister for Environment and Conservation had announced that legislation would be introduced in the South Australian Parliament to create public parks at Sites 40a and 45a. On 3 June the Public Park Bill 2003 was tabled in the South Australian House of Assembly and read a first time. The stated intention of the South Australian proposal was to make Sites 40a and 45a ‘public parks’ for the purposes of the LAA. The part of the proposed park covering Site 40a also covered part of the relevant land. The Bill, if enacted, would have had the effect of reserving an area that included the repository site and part of the relevant land as a ‘public park’ within the meaning of the LAA. If Sites 40a and 45a were established as public parks for the purposes of the LAA, section 42 of the LAA would have applied in relation to any proposal by the Commonwealth to acquire either of them for the purposes of the national repository. The effect of section 42 is that an interest in relation to land that consists of, or is in, a public park cannot be compulsorily acquired under section 41 unless the Government of the State or Territory concerned consents to the acquisition of the interest. Statements made by the South Australian Premier and Minister for Environment and Conservation had made it clear that the Government of South Australia intended to refuse to consent to any acquisition of land for the national repository. If Sites 40a and 45a were included within public parks and consent was refused by the South Australian Government, the Commonwealth would not have been able to compulsorily acquire either Site 40a or Site 45a under the LAA. As a result, the Commonwealth would not have been able to construct and operate the national repository in accordance with the approval under the EPBC Act, unless some other power to acquire the land was created by legislation, or the LAA was amended.
30.I found that if a pre-acquisition declaration was required in relation to the acquisition of the relevant land, the proposal by South Australia to create a public park covering part of the relevant land and the repository site could well have been put into effect by the time the pre-acquisition declaration became absolute under section 43 of the LAA. As a result, the Commonwealth would not have been able to acquire interests in the relevant land under the LAA without the consent of the South Australian Government. It was clear that such consent would not be forthcoming.
31.I found that there was a substantial chance that the Public Park Bill 2003 would pass, given that legislation which sought to prevent the establishment of the national repository in South Australia (the Nuclear Waste Storage Facility (Prohibition) Act 2000 as amended) had previously been enacted by the South Australian Parliament during the term of the present Government.
32.I found that it was possible that there were other sites in Australia, apart from the three sites mentioned in paragraph 28 above, which could have been shown to fully meet the stringent siting requirements set out in the NHMRC Code. However, there was also a possibility that such sites could not be found, and that even if they were found, they would not satisfy the criteria to the same standard as the three sites that had been identified. Further detailed investigations would have been needed to find out if there were any further sites that satisfied the siting criteria. Even if further sites which fully met the siting criteria were identified, they would not necessarily have been suitable sites for the national repository. Broader environmental and social considerations would need to have been taken into account. Such considerations had led to the decision by the Minister for the Environment and Heritage not to approve the establishment of the national repository at one of the three sites mentioned above. Depending on the location of any further sites, such broader considerations could well have included Aboriginal heritage and existing land uses, as well as community perceptions about such matters.
33.I found that the investigations needed to identify a further site which met all scientific, environmental and social criteria could not have been as comprehensive, rigorous and transparent as the process followed to identify the three sites mentioned above. The process was undertaken over 11 years, involved a high degree of transparency and comprehensiveness (including the release of three public discussion papers prior to the environmental assessment process and extensive regional consultation over a period of more than four years), had the initial agreement of States and Territories (including South Australia, which had subsequently indicated that they considered that States should look after their own radioactive waste), and involved investigations covering the whole of Australia. Any attempt to identify another site would need to have been undertaken over a much shorter timeframe. A licence to operate the proposed Replacement Research Reactor (RRR) might not have been granted by the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) if progress towards establishing the national repository was not made by the time the operating licence application was considered in the second half of 2004. Establishing a national repository was implicitly relevant to ARPANSA’s consideration of the application for an operating licence for the RRR, in the context of the management of low level wastes arising from the RRR, and also in the context of the Federal Government’s commitment to establishing purpose-built radioactive management facilities in general. Furthermore, until a national repository was established, Australia’s low-level radioactive waste would have to have been stored under ad hoc arrangements which did not represent international best practice in radioactive waste management. I therefore found that an alternative site which could only have been identified after a process taking longer than a year or so could not have been as appropriate for the national repository, or even nearly as appropriate, as Sites 40a and 45a. I found that it would probably take longer than a year just to obtain an environmental approval, even if an alternative site could have been identified immediately.
34.I found that if any other site was found to be as appropriate as Sites 40a and 45a in respect of scientific, environmental and social criteria, there would be a significant risk that the State or Territory in which that site was located would take steps to reserve that site as a public park (unless it was located on Commonwealth land) and would not consent to the acquisition of the site, thereby effectively preventing its acquisition by the Commonwealth under the LAA and its use for the national repository. Therefore I found that it was unlikely that any other site could have been considered appropriate for the national repository unless it was located on land that was already owned by the Commonwealth.
35.In light of my findings in paragraphs 28-34 above, I found that if the acquisition of the interests in land described in paragraph 3 above did not proceed immediately and before the repository site and part of the relevant land became a public park, a likely consequence would have been that the national repository project would not have been able to proceed in accordance with the approval given under the EPBC Act, and perhaps ultimately not at all. The consequences of this in terms of national health and safety would have been wide-reaching. I therefore concluded that there was an urgent necessity to proceed immediately to acquisition without the usual pre-acquisition process involving the making of a pre-acquisition declaration.
36.I found that the normal pre-acquisition processes of the LAA were intended to provide a public statement of the Commonwealth’s intentions, and to provide the means through which persons directly affected by a decision to acquire land can seek review of those intentions. In this instance, the Commonwealth’s intentions were quite clear for a considerable period of time, both to those directly affected and the general public. The repository site was one of only three areas, all located in the central-north region of South Australia, which were considered in the EIS. A draft of the EIS was published by the Commonwealth on 29 July 2002. The finalised EIS was published on 23 January 2003. The Minister for Science announced on 9 May 2003 that the repository site was the preferred site for the national repository.
37.I found that on the introduction of the Public Park Bill 2003 into the South Australian Parliament, the South Australian Minister for Environment and Conservation stated in the [Parliament] that the Bill was a means of honouring the South Australian Government’s commitment to ‘prevent the Commonwealth Government from establishing a low level and short-lived intermediate level radioactive waste repository in this State’. These comments indicated that the primary concern of the South Australian Government was to frustrate the Commonwealth’s radioactive waste disposal policy. This was also indicated by the relatively small area being considered for the proposed park compared to the very large area of the Stony Plains Bioregion, and the fact that the Report spoke only of the ‘capacity’ rather than the ‘intention’ to instigate conservation programs in this relatively small area of the Stony Plains Bioregion.
38.In light of my findings in paragraphs 36-37 above, I concluded that it was in the public interest for the acquisition to proceed without undertaking the usual process involving the making, and the possible reconsideration and review, of a preacquisition declaration.
39.In light of my conclusions in paragraphs 35 and 38 above, I found that it would be contrary to the public interest for the acquisition to be delayed by the need for the making, and the possible reconsideration and review, of a pre-acquisition declaration.
40.I also took into account whether there was a need to provide procedural fairness to persons whose interests might have been affected by the giving of the certificate, by giving them notice of any proposed decision to give the certificate. However, I considered that any need to give notice to such persons prior to deciding to give the certificate was negated as a result of my findings and conclusions in paragraphs 35 and 36 above.’
As a result of the issue of the certificate the Minister has not complied with the pre-acquisition procedures described in par 5 above. Instead, on 7 July 2003, following the making of the certificate, the Minister declared that the relevant interests in Site 40a were acquired by the Commonwealth.
The State says that the s 24 certificate is invalid. Mr and Mrs Pobke, the pastoralists, intervened in support of the State, but did not put any separate submissions. The proceedings by the State include an application for orders quashing and setting aside both the s 24 certificate and the resultant acquisition pursuant to s 5 and s 16 of the ADJR Act. Section 5 of the ADJR Act provides:
‘(1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:
(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b)that procedures that were required by law to be observed in connection with the making of the decision were not observed;
(c)that the person who purported to make the decision did not have jurisdiction to make the decision;
(d)that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
(e)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
(f)that the decision involved an error of law, whether or not the error appears on the record of the decision;
(g)that the decision was induced or affected by fraud;
(h)that there was no evidence or other material to justify the making of the decision;
(i) that the decision was otherwise contrary to law.
(2)The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:
(a )taking an irrelevant consideration into account in the exercise of a power;
(b)failing to take a relevant consideration into account in the exercise of a power;
(c)an exercise of a power for a purpose other than a purpose for which the power is conferred;
(d)an exercise of a discretionary power in bad faith;
(e)an exercise of a personal discretionary power at the direction or behest of another person;
(f)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
(g)an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
(h)an exercise of a power in such a way that the result of the exercise of the power is uncertain; and
(i)any other exercise of a power in a way that constitutes abuse of the power.
(3)The ground specified in paragraph (1)(h) shall not be taken to be made out unless:
(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or
(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.’
The State alleges various breaches of the ADJR Act. These are considered in more detail below. Clearly enough these allegations are of technical and procedural obligations imposed by the ADJR Act, reflecting, as the Act does, the usual requirements imposed or presumed by the common law. This does not mean that the alleged breaches, if they occurred, are not important or serious. It does mean, however, that the allegations do not involve any review by this Court of the merit of the respective policies being pursued by the Commonwealth or the South Australian governments.
In proceedings S 598 of 2003, Mr McKenzie (on behalf of the Kuyani people) also says that the s 24 certificate and the resultant acquisition are invalid. He seeks prohibition pursuant to s 39B of the Judiciary Act 1903 (Cth) and orders pursuant to s 5 and s 16 of the ADJR Act. Mr McKenzie also seeks declarations under s 21 of the Federal Court of Australia Act 1976 (Cth) and certiorari to quash the decisions of the Minister.
The cases were argued together. The State and Mr McKenzie each have put at least some arguments that are not adopted by the other, but they each make some arguments that are similar to that of the other. It is convenient to deal with all arguments in these reasons.
RIGHT TO BE HEARD
The first argument put by both the State and Mr McKenzie was that, before making a certificate under s 24 of the LAA, the Minister was required to afford each of them a fair hearing and that the Minister failed to do so. Both the State and the Mr McKenzie argued that the Minister and the Commonwealth contravened s 5(1)(a) of the ADJR Act in that they did not afford natural justice to the State or Mr McKenzie. This argument is based upon the admitted fact that the Minister did not afford any right to be heard to the State, or any other interest holder, before making the s 24 certificate or acquiring the relevant interests.
Where the exercise of a statutory power would deprive a person of some right, or interest, or the legitimate expectation of some benefit, it is usually a condition of the exercise of that power that the decision-maker afford the relevant person a right to be heard before the power is exercised.
The existence of the condition is clear, but the source of it has not yet been finally established in Australia. As Gaudron J pointed out in Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 (‘Miah’) at 83:
‘Two views have emerged in the decided cases with respect to the obligation of an administrative decision-maker to act in accordance with the rules of natural justice. In Kioa v West, Mason J identified the obligation as “a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention”. On the other hand, Brennan J, in the same case, identified the rules of natural justice as an implication to be drawn from the legislation conferring decision-making authority. The difference between the two views may not be as great as might at first appear. Thus, in Annetts v McCann, Brennan J explained that the implication arises because “the common law will usually imply a condition that a power be exercised with procedural fairness to parties whose interests might be adversely affected by the exercise of power”. [footnotes omitted]’
It seems to me to be at least arguable that in relation to administrative decisions made under Commonwealth statutes there may be at least one further source which would need to be considered. It seems to me to be at least arguable that s 5 of the ADJR Act, whilst expressed in terms of jurisdiction, in fact performs a double function - it both confers jurisdiction and establishes the normative law that is to apply to those who might be subject to the jurisdiction: see Byrnes v The Queen (1999) 199 CLR 1 at 22-23. It is established by the authorities that most of the provisions of s 5 ADJR Act reflect the usual rules of administrative law, whether those rules are derived from common law norms or from some presumption of statutory interpretation: see Kioa v West (1985) 159 CLR 550 at 567. However, there is at least one exception where the issue may be of some importance - the duty to give reasons in s 13 of the ADJR Act. That duty may extend beyond the ‘usual’ rules of natural justice from wherever they are derived. If it is the ADJR Act that establishes the relevant normative rules for the making of administrative decisions under Commonwealth Acts then that requirement would be applicable not only to applications under the ADJR Act, but also in appropriate cases to proceedings seeking prohibition or mandamus against Commonwealth officers pursuant to s 75(v) of the Commonwealth Constitution.
In this case it would not seem to make any practical difference whether the source of the requirement to afford natural justice is derived from the common law, or from a presumption of statutory interpretation or from the ADJR Act. The requirement clearly exists, unless it has been excluded by the terms of the LAA. It is clear that natural justice will not be excluded unless by ‘plain words of necessary intendment’: Annetts v McCann (1990) 170 CLR 596 at 598; Coco v The Queen (1994) 179 CLR 427 at 438.
There are many examples where the courts have accepted that the ‘usual’ requirements of natural justice have been excluded, or at least replaced, by a statutory procedure intended to be exclusive: see, for example, R v Angel; ex parte van Beelan (1984) 34 SASR 34 at 53-54 (‘van Beelan’); R v City of Munno Para; ex parte John Weeks Pty Ltd (1987) 46 SASR 400 at 406-407; Commonwealth v Crowe (1992) 111 ALR 193 at 201-202; Dutton v Republic of South Africa (1999) 162 ALR 625 at 626; Upham v Grand Hotel (SA) Pty Ltd (2000) 74 SASR 557 at 570-574; Blinco v Speer (2000) 76 SASR 341 at 350-352. On the other hand, there are also many examples where the argument that the ‘usual’ requirements have been excluded by an alternative procedure has not succeeded: see, for example, Baba v Parole Board of New South Wales (1986) 5 NSWLR 338; Hill v Green (1999) 48 NSWLR 161; Barratt v Howard (1999) 165 ALR 605; Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57. As might be expected, the question of whether the usual rules of natural justice have been excluded by implication in any particular case requires the detailed analysis of the statutory scheme in question. Previous authorities will be of interest, but will rarely be other than guides on how others have approached the task in different circumstances.
The first question then is whether such ‘plain words of necessary intendment’ exist in this case. In my view they do. In particular:
(a)The decision to acquire land for a public purpose (in contrast to the decision as to the amount of compensation that is payable) frequently involves broad policy issues that may not be amenable to the usual processes of a fair hearing. As in this case, the question whether nuclear waste should be stored in South Australia raises policy and other issues that extend beyond the land holding interests of the parties. Often the resolution of those broad policy issues may dictate what land should be acquired. It is no longer the case that such considerations exclude the obligation to provide natural justice: contrast Amstad v Brisbane City Council (1967) 16 LGRA 379 at 383-384. Nevertheless, it is not surprising that Parliaments are aware of these issues. It is not unexpected that statutes conferring acquisition powers often contain a statutory code as to the procedure to be followed in the compulsory acquisition of land: see Brown, Land Acquisition, 4th edn, Butterworths, Sydney, 1996 at p 3.
(b)In this case there is no dispute that compliance with the statutory pre-acquisition procedure specified in the LAA and discussed in par 5 above satisfied whatever obligations there might otherwise be for a fair hearing. No‑one has argued, for example, that the Minister, having complied with those procedures, was then required to give a further hearing before exercising the acquisition power. Of course, the parties were right to do so. It is clear that those pre-acquisition procedures are intended to comprise the whole of the procedural requirements for a fair hearing prior to acquisition. The obligations are detailed and comprehensive. In this regard I note that the statutory provisions operate in at least some circumstances to limit the extent of a right to a fair hearing that might be applicable under the ‘usual’ rules. In particular, those provisions provide a procedure by which the Minister may limit the extent to which government policy may be subject to independent review: see ss 22(5) and (6) and 28(2) LAA. This does not mean, of course, that the usual rules of natural justice may not be referred to in order to understand what the statutory code means: see van Beelan at 61-64; Little v Minister for Land Management (1993) 79 LGERA 374 at 381. But it does mean that the statutory code is intended to comprise the whole of the procedural requirements necessary to afford a fair hearing in relation to the acquisition of land under the LAA.
(c)Section 24 LAA is an exception to that exclusive procedure. This is not enough in itself to establish that natural justice is not required in relation to the exercise of power under s 24 LAA (see, for example, Miah at 96), although it is not irrelevant to the question (contrast Miah at 73-75). However, in this instance the terms of s 24 LAA confirm that it is intended to exclude the requirements of a fair hearing. This is because, in its terms, s 24 LAA is only applicable where the Minister is satisfied that:
a. there is an urgent necessity for the acquisition such that it would be contrary to the public interest for it to be delayed ‘by the need for the making, and the possible reconsideration and review, of a pre-acquisition declaration’; or
b. compliance with the pre-acquisition procedure would result in the disclosure of information that would be prejudicial to the security, defence or international relations of Australia.
Both of these bases are reasons why compliance with the usual rules of natural justice would be inappropriate in any event. See, for example, as to urgency: Miah at 100. The very fact that one of the two specified reasons for the exercise of the power under the Act is that there is insufficient time to comply with the statutory code (which itself limits the usual rules of natural justice in some respects) and that the other involves security issues (which may also do so) must carry a necessary implication that the Parliament did not intend that the usual rules apply instead of the pre-acquisition procedure.
It was argued that the usual rules of natural justice are sufficiently flexible that they can be adjusted from case to case so as to accommodate the ‘real’ urgency or the ‘real’ prejudice to security, defence or international relations that might exist in that case. This argument is apparently based on the view (discussed further below) that it is for the court, rather than the Minister, to make some judgment as to the extent to which the matter is urgent or the relevant national interest might be prejudiced. Certainly the rules of natural justice are flexible and they can be adjusted to accommodate the relevant statutory context and the relevant circumstances: see Kioa v West (1985) 159 CLR 550 at 585. But the initial task is not to identify some natural justice regime which might be consistent with the court’s perception of what the Parliament could have done and which would be fair in the actual circumstances of the particular case. Rather, it is to identify whether the statutory scheme that Parliament has enacted evinces a necessary intent to exclude the usual rules as to a fair hearing in relation to the grant of a certificate under s 24 LAA. A fair reading of the statutory scheme seems to me to admit of only one answer. There is no requirement to afford a fair hearing before the making of a certificate under s 24 LAA.
If I am wrong in that conclusion, the Commonwealth nevertheless argued that the Minister did comply with any such requirement for a fair hearing in that affording a right to be heard would be futile, or in that in this case the urgency was such that no hearing could be afforded. In that regard the Commonwealth argued that the Minister was entitled to take into account the risk that the State would recall its Parliament and proceed to enact the Bill. This argument is only reached if it is accepted that there is not a statutory code; that the usual rules of natural justice are applicable and that it is for the court, rather than the Minister, to determine how the usual rules should apply in a particular case and for this purpose to make an assessment of the relative urgency or prejudice that might be involved. On that assumption and on the facts that have been put before me I am not satisfied that any such duty was complied with. However, in my view that basis is erroneous.
The State put a further argument that by reason of some correspondence between the State’s lawyers and Senator Minchin (the Minister for Finance for the Commonwealth) the State had a legitimate expectation that the State would have a right to be heard. The State argued that, by reason of the failure to take that correspondence into account, the Minister and the Commonwealth breached s 5(1)(e) and s 5(2)(b) of the ADJR Act in that they failed to take a relevant consideration into account, namely the request by the State that it be heard before any decision was made. It is unnecessary to deal with this issue at any length. Certainly the State Crown Solicitor’s Office and the State Attorney-General requested that they be heard before the Commonwealth Minister exercised any powers under s 24 LAA. The only response was a letter to the effect that the Commonwealth would comply with the law. I am not able to see that there could be any other expectation, or that it gave rise to any additional right to be heard. Nor can I see that the correspondence gave rise to any matter that the Minister was required to consider before he could be relevantly ‘satisfied’.
Mr McKenzie put a similar argument - that he had a legitimate expectation of a right to be heard arising from his status as a registered native title claimant. He argued that the Minister failed to take into account a relevant consideration in the exercise of his power under s 24 LAA, namely Mr McKenzie’s interests in being heard. This argument is similar to that argued by the State and referred to in par 26 above. The answer is the same as that made in relation to the State. Mr McKenzie cannot have any higher expectation than that the Minister and the Commonwealth would comply with their legal obligations.
Finally Mr McKenzie put a further argument that the procedure adopted by the respondents failed to afford Mr McKenzie ‘just terms’ as required by s 51(xxxi) of the Constitution. He argued that in order to afford the Kuyani people ‘just terms’ the Commonwealth was obliged to give them a fair hearing. Section 51 (xxxi) of the Constitution provides:
‘The Parliament shall...have power to make laws...with respect to the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.’
It is clear enough that the Commonwealth must provide ‘just terms’ in relation to the acquisition of property. It may be that ‘just terms’ may require that the Commonwealth provide a fair mechanism for the determination of compensation: see Commonwealth v Tasmania (1983) 158 CLR 1 (Tasmanian Dam Case) at 291, although I would still treat that question as an open one. However, in my view it is clear that ‘just terms’ in s 51 (xxxi) is directed to the compensation payable upon an acquisition. It does not apply to the acquisition process itself. In my view there is no constitutional obligation to afford a fair hearing before the acquisition is completed.
FAILURE TO TAKE ACCOUNT OF CHANGE OF POLICY
The State argued that the Minister, in making his decision, failed to take account of a fact which was relevant and true. The State argued that the Minister and the Commonwealth breached s 5(1)(e) and s 5(2)(b) of the ADJR Act in that they failed to take into account a relevant consideration, namely the policy decision by the Commonwealth not to co-locate the medium level waste with the low level waste intended to be dumped at the acquisition site. In particular, it was argued that in par 33 of the Minister’s reasons (quoted above) the Minister referred to and relied upon the possible reaction of ARPANSA in regard to the licensing of a new research reactor in Australia (apparently to be located in New South Wales) if the Commonwealth failed to identify and proceed with a nuclear waste repository (which the Commonwealth has decided to locate in South Australia). The State said that, properly understood, the reaction of ARPANSA was irrelevant. Referring to the EIS conducted by the Commonwealth in relation to the proposed creation of a nuclear waste facility, the State said that the proposed new research reactor will produce medium level waste. The State said that subsequent to the EIS the Commonwealth had made a policy decision that only low-level waste will be stored at the site intended to be acquired. The State said that the Minister, in failing to appreciate the significance of this change in policy, has taken into account an irrelevant fact.
The answer to this argument is that the powers exercised under s 24 LAA are conditional upon the Minister’s ‘satisfaction’ that relevant facts exist - not that they exist in fact. In the public law jargon, the relevant ‘jurisdictional fact’ is whether or not the Minister is satisfied, not whether or not his satisfaction is correct. Leaving aside decisions that are completely irrational or decisions involving ‘constitutional facts’ (see Attorney-General (Qld) v Riordan (1997) 192 CLR 1 at 14-16) the factual question properly before the Court is whether the Minister was satisfied or not, not whether he was mistaken in being satisfied. See Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303-304; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 651-654; Upham v Grand Hotel (SA) Pty Ltd (2000) 74 SASR 557 at 579-581.
In this case there is no dispute that the Minister was relevantly satisfied. There being no submission that the decision was relevantly ‘irrational’, that fully resolves the only factual issue that is relevant.
The Commonwealth argued that there was another answer. The Commonwealth referred to the relevant EIS and said that the proposed new reactor would produce both low level and medium level waste. The Commonwealth said that, to this extent, the Minister may have been correct in thinking that ARPANSA, in considering whether to approve the proposed new reactor, might take some account of any delay in identifying a waste site. This may be correct. However, these questions are for the Minister, not for me. It is not appropriate that I express any view on whether, as a matter of fact, the Minister was correct or not in the factual conclusion he reached.
NO EVIDENCE TO JUSTIFY THE DECISION
The State argued that the decision of the Minister to give a s 24 certificate breached s 5(1)(h) and s 5(3)(a) of the ADJR Act in that there was no evidence or other material to justify the decision he reached. The answer to this argument is the same as that discussed above. In this case the parties are agreed that the Minister was relevantly ‘satisfied’. That is the only factual issue that is relevant.
ILLEGALITY
The State argued that the Commonwealth cannot exercise its powers of acquisition for an illegal purpose. The State argued that the making of the relevant decisions was contrary to law for the purposes of s 5(1)(j) of the ADJR Act in that the purpose of the acquisition was contrary to the Nuclear Waste Storage Facility (Prohibition) Act 2000 (SA) and/or the Australian Radiation Protection and Nuclear Safety Act 1998 (Cth) (‘Safety Act’).
For the purpose of this argument it may be accepted that the operation of a storage facility would be illegal under both Acts unless a relevant licence is given under the Safety Act. It would also appear that the grant of the relevant licence would have the effect that the State Act would no longer be applicable to the operation of the facility by virtue of s 109 of the Constitution at least so long as the facility was operated in accordance with that licence. It may also be accepted that it is the intention of the Commonwealth to apply for and seek such a licence in due course. In any event there is nothing before me to suggest that the Commonwealth does not have this intention.
Once these factual matters are accepted then it becomes clear that there is no issue of high constitutional principle involved. It may be accepted that the Commonwealth and its officers are bound by State laws of general application (see A v Hayden (1984) 156 CLR 532), although there are very significant exceptions. One is where there is an inconsistent law of the Commonwealth for the purposes of s 109 of the Constitution. Another involves the implication derived from the federal structure of the Constitution which was considered and explained in Re Residential Tenancies Tribunal of New South Wales; ex parte Defence Housing Authority (1997) 190 CLR 410. Another involves the rule of statutory interpretation that criminal statutes are normally not understood as applying to government: see State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 at 270. But none of these exceptions can have any application in a case where the relevant statutes which prohibit relevant conduct do not purport to apply. That is this case. The relevant statutes do not apply generally to the possession of land - they certainly do not apply to the acquisition of land. The acquisition is not unlawful. The statutes apply to the operation of a nuclear facility. If the Commonwealth attempted to operate such a facility without a licence under the Safety Act then the relevant issue may need to be considered. But that is some way into the future.
The only issue that currently arises in relation to any issue of illegality is whether the acquisition is within the relevant statutory purpose. That question is considered below.
NATIVE TITLE ACT
Mr McKenzie argued that the acquisition is invalid to the extent that it affects native title because the Minister failed to comply with the requirements of s 26(1)(c)(iii)(A) of the Native Title Act 1993 (Cth) (‘NTA’). In order to understand that argument it is necessary to say something about the operation of the NTA as it affects this case.
Amongst other things the NTA establishes the pre-conditions for the validity of future governmental acts which affect native title. This is made clear in s 24AA NTA which provides in part:
‘Future acts
(1)This Division deals mainly with future acts, which are defined in section 233. Acts that do not affect native title are not future acts; therefore this Division does not deal with them (see section 227 for the meaning of acts that affect native title).
Validity of future acts
(2)Basically, this Division provides that, to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not.
…’
Where the relevant native title claimants have had their claim registered, then, where the relevant act would affect native title, there is an obligation in some circumstances to comply with what is the ‘right to negotiate’ procedure. This is summarised in s 25 NTA which provides in part:
‘(1)In summary, this Subdivision applies to certain future acts done by the Commonwealth, a State or a Territory that are of any of the following kinds:
(aa)certain acts covered by section 24IC (which deals with permissible lease etc. renewals);
(a) certain conferrals of mining rights;
(b)certain compulsory acquisitions of native title rights and interests;
(c)other acts approved by the Commonwealth Minister.
(2)Before the future act is done, the parties must negotiate with a view to reaching an agreement about the act.
(3)If they do not reach agreement, an arbitral body, or a Minister, will make a determination about the act instead.
(4)If the procedures in this Subdivision are not complied with, the act will be invalid to the extent that it affects native title.
…’
Under s 26 NTA a compulsory acquisition must, in some circumstances, comply with the ‘right to negotiate’ procedure. Failure to do so in circumstances where native title is affected may mean that the acquisition is invalid: s 28(1) NTA.
The ‘right to negotiate’ procedure includes an obligation to notify various parties, including registered claimants (s 29 NTA), an obligation to negotiate in good faith with those parties (s 31 NTA) and, if the negotiations are unsuccessful, a compulsory arbitration procedure (s 35 NTA).
It is accepted that the right to negotiate procedure was not complied with in this case.
The Commonwealth says that it was not obliged to do so. This is because s 26(1)(c)(iii) NTA provides:
‘This Subdivision also applies to a future act if:
...(c) subject to this section, the act is:
...
(iii)the compulsory acquisition of native title rights and interests, unless:
(A)the purpose of the acquisition is to confer rights or interests in relation to the land or waters concerned on the Government party and the Government party makes a statement in writing to that effect before the acquisition takes place; or
(B)the purpose of the acquisition is to provide an infrastructure facility;’
In this case it is clear that the acquisition was to confer rights and interests on the Commonwealth (rather than on some third party). It is also clear that the Minister made a ‘statement’ to that effect before the acquisition took place. The ‘statement’ is included in the s 24 certificate quoted above. On the face of it the acquisition falls within s 26(1)(c)(iii) NTA and there was no obligation upon the Commonwealth to comply with the ‘right to negotiate’ procedure.
It is accepted that the relevant ‘statement’ was not delivered to Mr McKenzie until some days after the acquisition was purportedly completed.
Mr McKenzie argued that the Commonwealth did not comply with s 26(1)(c)(iii) NTA. He says that the word ‘statement’ in that paragraph necessarily implies communication and that, in the absence of such communication no statement was made. Consequently, he said, the pre-condition to non compliance with the ‘right to negotiate’ procedure was not met and in the absence of compliance with that procedure, the acquisition was invalid.
The problem with this analysis is that, in ordinary usage, the word ‘statement’ does not imply any communication. It may be that it does imply an intention to communicate, but no more than that. Consequently a note written in a confidential diary might not be described as a ‘statement’ simply because it was never intended to be communicated. On the other hand, I do not think that it would be usual to describe only documents that had actually been communicated as being ‘statements’. If, for example, one was contemplating giving a written statement in court, it would be correct to describe the document as ‘a statement’ before it was given in court. Indeed, it would still be correct so to describe it if it was never given in court so long as it was intended to be so given when it was prepared. This intention to communicate is often, although not invariably, evidenced by some formality in the preparation of the statement - indeed, this is often a characteristic of ‘statements’ - but it seems to me that this is because the relevant formality evidences the intention to communicate.
I can see no reason why this usual meaning should not apply in this case. No specific right or interest of a registered native title claimant is affected by the failure to communicate the relevant ‘statement’ prior to the acquisition, at least so long as the claimant becomes aware of the statement before taking legal proceedings to challenge the acquisition. There is no reason why this would require the claimant to be given notice prior to the acquisition.
In this case there is no doubt that the Minister had an intention to communicate his ‘statement’ to Mr McKenzie. The formality of the document is evidence of this intention. Indeed, the Minister did communicate the statement to Mr McKenzie, although after the acquisition was complete. There is no reason to doubt that he had that intention to communicate with Mr McKenzie at the time he gave the s 24 certificate. In my view this is sufficient to satisfy the requirement of s 24 LAA. It was not necessary that Mr McKenzie have received that statement prior to the acquisition.
This conclusion makes it unnecessary to consider whether it would be necessary for Mr McKenzie to establish that the Kuyani people hold native title over the relevant land and that their interests would be affected by the proposed acquisition before he would be entitled to any relief for failure to comply with the ‘right to negotiate’ procedure. It would seem to have been accepted in North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 616, 631-632 that once a claimant was registered the right to negotiate procedure had to be complied with. However, it was not clear, even as the NTA then stood, that this meant that the relevant future act would be invalid in circumstances where the claimants had not shown that the relevant act had affected their native title rights. In Lardil Peoples v Queensland (2001) 108 FCR 453 (‘Lardil’) at 474, 477, 485-487 the Full Court of this Court accepted that the relevant future act may not be invalid unless it is established that the relevant future act affects native title. Indeed, this is clearly what the NTA says. On the other hand, it may be that the right to negotiate can be protected by equitable remedies even where all that has been established is that the applicant is a registered native title claimant: see Fejo v Northern Territory (1998) 195 CLR 96 at 121, 123, 139; Lardil at 477.
Given the conclusion I have reached about the meaning of ‘statement’ in s 26(1)(c)(iii)(A) NTA it is unnecessary for me to express any considered view on this question. Indeed, the parties submitted to me that if I accepted Mr McKenzie’s argument as to the meaning of the word ‘statement’ then I should seek further submissions from the parties as to what orders I could and should then make. The question of whether it is necessary for registered native title claimants to establish that they hold native title before challenging a future act on the basis of non compliance with the right to negotiate procedure has not been argued before me.
TIMING
Mr McKenzie said that the acquisition was in breach of s 5(1)(b) ADJR Act in that the procedures required by law to be observed in relation to the acquisition were not observed. Mr McKenzie said that those procedures required that Mr McKenzie be served with the s 24 certificate prior to the acquisition being made and that this did not occur. Mr McKenzie said that the law ignores part days, with the result that the relevant land is taken to have been acquired for the whole of the day of 7 July 2003. By reason of this legal rule (or, more correctly, fiction) the acquisition is taken to have preceded the giving of the s 24 certificate and the statement under s 26(1)(c)(iii)(A) NTA contained within it. The result, it was said, is that the pre-conditions for a valid acquisition were not complied with. The practical result of this argument, if it were correct, would be that an acquisition could never take place on the same day as the certificate or statement is given.
However, in my view the argument is not correct. The legal fiction that part days should be ignored can have no application in circumstances where the actual sequence of events is important. An example can be seen in the case of Campbell v Strangways (1877) 3 CPD 105. In that case a person kept a dog without a licence. He was spoken to by the relevant authorities and admitted the offence. Later on the same day he obtained a licence. He was prosecuted for not having a licence on that day. He relied on the fiction and said that he had a licence all day. This argument was rejected. It was held that the relevant question was whether he had a licence at the time it was alleged he committed an offence. This was a question to be answered by the actual sequence of relevant facts, not by the application of the fiction.
In this case it is accepted that the certificate under s 24 LAA and the statement under s 26(1)(c)(iii)(A) of the NTA were made before the acquisition occurred. That is sufficient, even though all of the relevant events occurred on the same day.
PURPOSE
This leaves the question of purpose. Both the State and Mr McKenzie put arguments on this ground, alleging that the s 24 certificate was issued for the ‘wrong’ or for an ‘improper’ purpose. The arguments put by them were similar, although not exactly the same. There were various arguments put by the State that can be considered under this head. The State argued that the respondents breached:
(a)s 5(1)(e) and s 5(2)(c) of the ADJR Act in that they exercised the relevant powers for a purpose other than the purpose for which the powers were conferred. The State argued that the purpose of the exercise of the relevant powers was to pre-empt the passage of the State law and to circumvent the prohibition imposed by s 42 LAA rather than for the purposes of s 24 LAA;
(b)s 5(1)(e) and s 5(2)(a) of the ADJR Act in that they took an irrelevant consideration into account. The State repeated the same argument as in par (a);
(c)s 5(1)(e) and s 5(2)(j) of the ADJR Act in that they exercised the power in a way that constituted an abuse of the power. The State repeated the same argument as in par (a);
(d)s 5(1)(d) of the ADJR Act in that the decision to give the certificate was not authorised by s 24 LAA. The State repeated the same argument as in par (a);
(e)s 5(1)(b) of the ADJR Act in that the procedures required by law to be observed in connection with the making of the acquisition were not observed. The State repeated the same argument as in par (a).
Mr McKenzie also argued that the issue of the s 24 certificate breached s 5(1)(e) and s 5(2)(c) of the ADJR Act in that the acquisition was for a purpose other than a purpose for which the power under s 24 LAA is conferred.
It is clear enough that a statutory power given to a body other than a Parliament may only be exercised for the purpose for which the power was granted: R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170 at 193, 215-216, 261-265; Shop & Distributive Assistants v Minister for Industrial Affairs (1995) 183 CLR 552 at 559. The question of the relevant purpose is a question of fact to be determined by evidence: see Reid v Sinderberry (1944) 68 CLR 504 at 514; Bienke v Ministerfor Primary Industries and Energy (1996) 135 ALR 128 at 136, although it would ordinarily be presumed that the statutory power has been exercised for a proper purpose: R v District Council of Berri; ex parte Eudunda Farmers (1982) 31 SASR 342 at 353. It is unnecessary in this case to rely upon presumptions. In this case the purpose of the exercise of the power is set out in the Minister’s reasons which are quoted above. The Minister issued the s 24 certificate to ensure that the acquisition was completed before the State enacted the Public Parks Bill. He was concerned that if the Bill were enacted before the acquisition was complete then the Commonwealth would need to re-commence the process of identifying an appropriate place for the nuclear waste facility.
The arguments come down to two, although, as discussed below, they tended to become merged and confused in the arguments put to me. The first argument is that it is inconsistent with the statutory purpose revealed in s 42 of the LAA for the Commonwealth to exercise the powers under s 24 LAA for the purpose of defeating an attempt by the State to establish a public park. In this regard I note that the Minister, in reaching his ‘satisfaction’, apparently accepted that the State Bill, if enacted, would have been effective. In the circumstances where the relevant ‘jurisdictional fact’ depended upon the Minister’s satisfaction this was a question for him. It is unnecessary for me to consider whether the Bill would have been effective.
There may well be a necessary implication that certain purposes do not fall within s 24 LAA. For example, if the Minister issued a s 24 certificate in order to effect an acquisition before legislation was enacted by the Commonwealth Parliament preventing such an acquisition, then it might be arguable that the power in s 24 LAA should be read down so that the word ‘urgency’ did not include the processes of the Commonwealth Parliament by reason of the implication of responsible government within the Constitution. But I can see no reason to make any such implication in relation to legislation introduced into a State Parliament. The only relevant constitutional implication in that context would be an implication in relation to federalism. On the fact of it, such an implication is denied by the terms of s 109 of the Constitution which expressly provides for what happens in the case of inconsistency between Commonwealth and State laws. Nor does it seem to me that s 42 LAA can give rise to any such implication limiting the terms of s 24 LAA. Section 42 only applies to ‘public parks’. It has nothing to say about prospective public parks. In my view the first argument must fail.
The second argument is that the purpose of the Minister in making the s 24 certificate was not the appropriate purpose under that section. Under s 24 LAA the Minister must be satisfied that there is an ‘urgent necessity’ and that it would be contrary to the public interest for the acquisition to be delayed ‘by the need for the making, or the reconsideration and review of a pre-acquisition declaration.’ The State and Mr McKenzie argued that the Minister’s purpose was unrelated to the pre-acquisition procedures - his purpose was solely to forestall the enactment of the State legislation. This was not because of delay caused by compliance with the pre-acquisition procedures. These would only take a period of months at most. Rather, the delay that concerned the Minister was because of the effect of s 42 LAA. This would have the result that the acquisition could not proceed at all.
The Commonwealth responded that it was sufficient if compliance with the pre-acquisition procedures provided the temporal context by which the urgent necessity arises. In this case, for example, the urgent necessity that actuated the Minister was the possibility that the acquisition would be defeated (or, at least, made nugatory) if it was delayed by compliance with the pre-acquisition procedures.
The argument by the State and Mr McKenzie has considerable force. At first sight it appears to give the words ‘by the need for the making, or the reconsideration and review of a pre-acquisition declaration’ clear work to do, whereas the Commonwealth argument would seem to give the relevant paragraph the same meaning even if these words were omitted.
However, I have come to the view that the Commonwealth argument is correct. On closer consideration the Commonwealth argument does not ignore the words ‘by the need for the making, or the reconsideration and review of a pre-acquisition declaration’. On that argument the urgency on the one hand and the delay occasioned by compliance with the pre-acquisition procedures on the other must be such that it is not in the public interest for the pre-acquisition procedures to be complied with. True it is that the paragraph would probably have the same meaning even if the relevant words had not been expressly included, but that is not because the words are given no meaning. It is because the words would be implicit in any event. The difference between the arguments of the Commonwealth and the applicants is not that one gives the relevant words no meaning whereas the other does, but that they each give them a different meaning.
On the other hand, the argument put by the State and Mr McKenzie, if accepted, would seem to have the effect that any ‘extraneous’ factual or legal circumstance which would defeat or render the acquisition pointless could not be taken into account. Assume, for example, that the interest being acquired was a mineral which was in the process of being mined by the current owner. On the argument put by the State and Mr McKenzie the power under s 24 LAA to effect the acquisition before the extraneous circumstance (namely the mining operation) rendered the acquisition pointless or impossible (or even less appropriate) would not fall within the legislative purpose. The relevant urgency would be to prevent the relevant mining activity; it would not be the delay caused by the pre-acquisition procedures. The delay caused by compliance with the pre-acquisition procedures would merely provide the ‘temporal context’ in which such destruction can occur. Yet both the State and Mr McKenzie accepted in argument that such a case would justify the exercise of the power under s 24 LAA. They were undoubtedly right to do so. There is simply no logical reason why the LAA would be read in such a way as to limit the power of the Minister to act in such a case. But having made that concession in the case of an extraneous circumstance which would destroy or affect the interest to be acquired there is no obvious basis upon which this case can be distinguished, except for the argument that forestalling legislation to establish a public park cannot be an appropriate purpose. I have already dealt with this argument above.
In my view reasons given by the Minister for the grant of a s 24 certificate reveal that he acted for the relevant and appropriate purpose.
Of course, the acquisition power under the LAA must be exercised for a ‘purpose for which the Parliament has power to make laws’: s 6 and s 42 LAA. Save for the specific arguments already discussed it was not disputed that the acquisition power was exercised in this case for such a purpose.
For these reasons the application by the State must be dismissed with costs. The relevant orders in relation to the action brought by Mr McKenzie (S 598 of 2003) can be found in [2003] FCA 1416.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway. Associate:
Dated: 8 December 2003
Counsel for the Applicant: C Kourakis QC with M Johns and N Charlesworth Solicitor for the Applicant: Crown Solicitor’s Office (State of South Australia) Counsel for the Respondent: D Bennett QC with T Howe and P Slattery Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 3, 4 November 2003 Date of Judgment: 8 December 2003
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