Tasmanian Conservation Trust Incorporated v Forest Practices Authority
[2022] TASSC 29
•16 May 2022
2022] TASSC 29
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmanian Conservation Trust Incorporated v Forest Practices Authority [2022] TASSC 29
PARTIES: TASMANIAN CONSERVATION TRUST
INCORPORATED
v
FOREST PRACTICES AUTHORITY
JOHN WILLIAM TUCKER
JOHN EWART TUCKER
FILE NO: 239/2015
DELIVERED ON: 16 May 2022
DELIVERED AT: Hobart
HEARING DATES: 2, 3 May 2022
JUDGMENT OF: Estcourt J
CATCHWORDS:
Administrative Law – Judicial review – Generally – Review sought of decision of Forest Practices Authority to certify a forest practices plan on a reapplication after refusal of compensation – Whether the plan was the same plan as originally applied for – Whether the delegate of the Authority held an appropriate delegation – Whether the delegate acted at the behest of another – Whether the correct legislative provisions were applied in the decision to certify – Decision to certify quashed.
Acts Interpretation Act 1931 (Tas), s 23AA.
Forest Practices Act 1985 (Tas), ss 18, 19, 22, 23 and 24.
Judicial Review Act 2001 (Tas), ss4, 5, 7, 8, 17 and 18.
Nature Conservation Act 2002 (Tas), ss 33, 41, 41A, 43, 44 and 47.
The Australian Gas Light Co v The Valuer-General (1940) 40 SR (NSW) 126, applied.
Re Bolton; Ex Parte Douglas Beane (1987) 162 CLR 514; Forest Marsh Pty Ltd v Resource Planning and Development Commission [2007] TASSC 50; 16 Tas R 280; Lacey v Attorney-General (Qld) [2011] HCA 10, 242 CLR 573; Registered Organisations Commissioner v Australian Workers Union [2020] FCAFC 202: 281 FCR 518; Northern Land Council v Quall [2020] HCA 33, 383 ALR 378, referred to.
Aust Dig Administrative Law [1001]
REPRESENTATION:
Counsel:
Applicant: L De Ferrari SC, K Chan
First Respondent: Paul Turner SC
Third Respondent: A Spence SC
Solicitors:
Applicant: Environmental Defenders Office (Tas)
First Respondent: Solicitor-General
Third Respondent: Page Seager
Judgment Number: [2022] TASSC 29
Number of paragraphs: 91
Serial No 29/2022
File No 239/2015
TASMANIAN CONSERVATION TRUST INCORPORATED v
FOREST PRACTICES AUTHORITY & JOHN WILLIAM TUCKER &
JOHN EWART TUCKER
REASONS FOR JUDGMENT ESTCOURT J
16 May 2002
The proceedings
The applicant has applied by originating application to quash a decision made on 27 January 2015 by the first respondent, the Forest Practices Authority (the FPA) certifying a forest practices plan that would allow the second respondent John William Tucker, or at least his heir[1] (Mr Tucker Snr), the third respondent, John Ewart Tucker, (Mr Tucker Jnr) to clear 1,800 hectares of native forest at Anson's Bay in north-east Tasmania, formerly owned by Mr Tucker Snr, (the decision).
[1] Mr Tucker Snr died on 17 November 2016.
The application is made under the Judicial Review Act 2000 (Tas) (the JR Act) and/or pursuant to the Court's residual jurisdiction to grant relief in the nature of certiorari. Application is also made pursuant to s 27(1)(c) of the JR Act or r 103 of the Supreme Court Rules 2000 for a declaration that it is not open to Mr Tucker Jnr to rely, for any purpose, upon a decision having been made "in fact" by the FPA on 27 January 2015, in circumstances where the FPA has disavowed in this Court that any decision has been made "in law by it". And finally, application is similarly made for a declaration that s 20 of the Forest Practices Act 1985 (Tas) (the FP Act) does not apply to the document that was certified "in fact" by the FPA on 27 January 2015.
The grounds of the application for judicial review are, as summarised by the applicant in its written submissions, that:
·the FPA purported to certify the plan upon a misunderstanding that s 44(8) of the Nature Conservation Act 2002 (Tas) (the NC Act) deprived the FPA of the power to refuse to certify, when in fact s 44(8) had no operation at all (ground 1).
·the person who purported to make the decision as delegate of the FPA exceeded the scope of his delegation and acted under the direction and at the behest of another (ground 2).
·the power to certify in s 19 of the FP Act was not, in any event, enlivened as the jurisdictional conditions for its exercise were not met (ground 3).
A very useful analysis of the applicant's case is set out in the written submissions of Mr Spence SC, counsel for the third respondent, as follows:
" The Applicant challenges the decision of the Forest Practices Authority (Authority) (via delegation) before this Court on the basis of three asserted legal errors:
i Section 44(7) of the Nature Conservation Act 2002 (NCA) was not satisfied because (ground 1):
1 The 2015 forest practices plan (Certified FPP) is not a reapplication of the 2009 forest practices plan (2009 FPP); and
2 The failure to enter into a conservation covenant or a management agreement precluded a compensation application from being made pursuant to s 41 of the NCA.
ii Greg Williams (Mr Williams) did not have delegated authority to certify the Certified FPP because the instrument of delegation from the Board of the Authority to Mr Williams was vitiated by legal error on the following bases (ground 2):
1 The limitation of the functions and power of the delegation do not include certification of the Certified FPP;
2 The condition of the delegation that states it is subject to the directions of the Chief Forest Practices Officer is unlawful; and
3 The email of 27 January 2015 directing Mr Williams to certify the Certified FPP was wrongly directed by Graham Wilkinson (Mr Wilkinson) and Mr Williams wrongly followed the direction.
iii No valid application was made for certification of the Certified FPP on the following bases (ground 3):
1 The application did not comply with section 18(2)(a) and (3) of the Forest Practices Act 1985 (FP Act); and
2 The application did not comply with section 19(1AA) of the FP Act."
The FPA does not actively oppose or support the case of either of the other parties. Whilst it filed a notice of submission in the proceeding, it nonetheless seeks, "as a model litigant", to adduce evidence and make submissions to assist the Court, in relation to the powers of the FPA.
The background
The factual background to the proceedings is set out in short form in the following paragraphs. Where it becomes necessary to elaborate on the factual background to the decision or to refer to exhibits, I will do so.
On or about 26 June 2009, Mr Tucker Snr applied to the FPA, pursuant to s 18(1)(b) of the FP Act, for certification of Forest Practices Plan MAC 1435 (the 2009 Plan).
The 2009 Plan was for clearance and conversion to pasture of 1804 ha of native vegetation. This included 495 ha of threatened native vegetation, including 491 ha of eucalyptus ovata forest.
On 26 June 2009, the FPA refused to certify the 2009 Plan on the basis that it did not adequately protect threatened species and vegetation communities in accordance with the requirements of the FP Act and the Forest Practices Code 2000 (the conservation determination).
On 30 June 2009, Mr Tucker Snr appealed to the Forest Practices Tribunal (the Tribunal) and on 27 October 2009, the Tribunal dismissed the appeal.
Upon the dismissal of the appeal, Mr Tucker Snr came within the definition of an "affected owner" under s 33 of the NC Act, and the conservation determination satisfied the definition of a "relevant conservation determination" under that section.
On 4 December 2009, Mr Tucker Snr applied to the Minister for Environment, Parks and Heritage (the Minister) for compensation under s 41(1) of the NC Act and on 13 August 2014, the Minister refused the compensation application pursuant to s 41A of that Act and subsequently wrote to Mr Tucker Snr notifying him of that refusal in the following terms.
"… following an assessment of your claim under the provisions of section 41A of the [NC Act], I have determined that your claim is refused on the basis that I am not satisfied that you have undertaken to manage the threatened native vegetation community under a conservation covenant or management agreement."
On 27 January 2015, Mr Tucker Jnr, acting on his father's behalf, applied to the FPA (pursuant to s 44(7) of the NC Act), under s 18(1)(b) of the FP Act, submitting a plan (the 2015 Plan), that was in material respects different from the 2009 Plan.
On 27 January 2015, Forestry Practices Officer (FPO) Greg Williams, purportedly as a delegate of the FPA, purported to certify the 2015 Plan.
On 3 March 2015, the FPA provided a statement of reasons for the decision, which stated:
"Certification of FPP MAC1435
The provisions of s 44(8) of the NC Act, (Effect of failure to pay compensation) state:
Subject to subsection (9), if a forest practices plan is submitted to the Forest Practices Authority under subsection (7), the Forest Practices Authority has no power –
(a) to refuse to certify the plan on the grounds that implementation of the plan would adversely affect a threatened species of flora or fauna or a threatened native vegetation community which has previously been considered by that Authority in respect of that plan; or
(b)to amend the plan for the purpose of protecting a threatened species of flora or fauna or a threatened native vegetation community which has previously been considered by that Authority in respect of that plan.
FPP MAC 1435 was re-submitted for certification on 27/1/15. The Authority noted that the FPP contained the same provisions for threatened species and threatened native vegetation communities as were previously considered by the Authority in respect of the FPP. The FPP satisfied the requirements of the Forest Practices Code with respect to the other provisions contained within the plan.
On this basis, pursuant to s 44(8) of the NC Act, the Authority had no power to refuse to certify or to amend the plan and the FPP was therefore duly certified by FPO Greg Williams under delegation from the Authority, on 27/1/15."
Ground 1
Reapplication or a different plan?
I will deal first with the question of whether the submission of the 2015 plan constitutes a reapplication for certification of the 2009 plan.
Section 41 of the NC Act provides for the entitlement of an "affected owner" to apply for compensation. Relevantly, it provided in 2015:
"(1)A landowner may apply to the Minister for compensation for any financial loss suffered by that landowner as a result of becoming an affected owner.
…
(3)… As soon as practicable after receiving an application for compensation, the Minister must, subject to section 41A , notify the affected owner that the application is –
(a) accepted; or
(b) refused."
Section 33 of the NC Act defines an affected owner as:
"affected owner means an owner of land in respect of which, under section 19(1) of the Forest Practices Act 1985, an application to the Forest Practices Authority for the certification of a forest practices plan –
(c)… has been refused wholly or partially on the ground that implementation of the forest practices plan would threaten a threatened species or involve the clearance and conversion of a threatened native vegetation community, and where an appeal to the Forest Practices Tribunal under section 25(1) of that Act in respect of that refusal has been wholly or partially dismissed…".
Section 44 of the NC Act provides for the effects of the Minister's decision to refuse an application under s 41(3)(b). One of them, set out in s 44(7), is that:
"A landowner to whom this section applies may reapply to the Forest Practices Authority under section 18(1)(b) of the Forest Practices Act 1985 for the certification of the relevant forest practices plan."
Thus it can be seen that the question becomes one of whether the 2015 Plan was the "relevant forest practices plan". That is to say, was it the forest practices plan the application for certification of which was refused by the Minister. As will be seen, clearly it was not.
The applicant's counsel, Ms Di Ferrari SC and Ms Chan, argue in their written submissions that while Mr Tucker Snr satisfied the definition of an "affected owner" in s 33 of the NC Act, he did so only in respect of the 2009 Plan. Section 44(7) of the NC Act they argue, gave him no right to apply in respect of some different forest practices plan, which was what he purported to do, by submitting the 2015 Plan. They submit that the 2015 Plan was a different plan and that the differences include:
·The 2015 Plan and 2009 Plan were prepared by different people.[2]
·The applicants for the plans were different people.
·The 2015 Plan sought approval for 14 stream crossings, whereas the 2009 Plan sought approval for seven stream crossings.
·The 2015 Plan sought approval for landings and snig tracks (which allow logs to be hauled from felling point to a log landing), and a volume of 2000 cu.m/t of firewood, whereas the 2009 Plan did not. These changes are significant, as they indicate a change of purpose of the 2015 Plan from one to include harvesting (as opposed to solely for clearing and conversion, as in the 2009 Plan).
·The grid references in the two plans are different.[3]
·The 2009 Plan stated that John Tucker would be "responsible for pasture establishment". The 2015 Plan omits any reference to pasture establishment.
[2] The 2015 FPP lists the FPP as being prepared by Mark Chin and Greg Williams. The 2009 FPP listed the FPP as being prepared by Mark Chin.
[3] In the 2009 FPP the grid reference was 600000/5448000 not 601000/5448000 listed in the Certified FPP.
The reference to the applicants for the plan being different people is, I take it, a reference to the fact that the 2009 Plan was submitted by Mr Tucker Snr and the 2015 Plan was submitted on his behalf by Mr Tucker Jnr with the written authority of his father. I do not accept that such a circumstance amounts to a material difference between the two plans.
Counsel for Mr Tucker Jnr argues that the certification of the "relevant practices plan" is subject to ss 44(8)-(10) of the NCA and that in that respect, the FPA must ensure any plan re-submitted meets the requirements of those provisions, including restrictions contained in the Forest Practices Code 1987.[4] Counsel argues that the legislation does not require the "relevant forest practices plan" to be identical to the forest practices plan that was originally submitted, as it specifically provides for the Authority to ensure the re-submitted plan meets, for example, the requirements of the Forest Practices Code as they apply at the time of the reapplication.
[4] Section 44(9) of the Nature Conservation Act 2002
Counsel for Mr Tucker Jnr submits that the differences between the plans were the result of changes made at the request of FPO Mr Williams.
Counsel notes that a comparison of the 2009 Plan the certified 2015 Plan shows the following differences:
"(a) Change to the Grid Reference number from 600000/5448000 to 601000/5448000
It is reasonable and indeed necessary to allow possible variation to mapping systems.
(b) Addition of Part "C Harvesting or Clearing of Timber" in the Certified FPP.
This was to cater for the salvage of timber off the operational area.
(c) Addition of Acknowledgement forms 2, 3, and 4 in the Certified FPP.
This is to take into consideration minor variations in the standard form of the forest practices plan.
(d) Changes to the 4 maps at the end of the Certified FPP.
To add crossings, landings and snig directions. The operational boundaries / area and reserves remained the same. These are restrictions as imposed by the Forest Practices Code 1987.
(e) Change from 7 stream crossings being approved to 14 stream crossings being approved.
To allow for extraction of salvaged timber.
(f) Removal of the following sentence 'operations will not be conducted on saturated soils or when silt is likely to enter defined water courses' from page 6 of the Certified FPP."
I do not necessarily accept the submission that s 47(9) of the NC Act "specifically provides for the Authority to ensure the re-submitted plan meets, for example, the requirements of the Forest Practices Code 1987 as they apply at the time of the reapplication". That section provides:
"(9) Nothing in subsection (8) prohibits the Forest Practices Authority from enforcing a restriction contained in the Forest Practices Code, 1987."
It is not necessary for me to construe that subsection however, as not all of the differences in the 2015 Plan were in order to comply with restrictions in the Code and the fact that the differences came about because they were required by FPO Williams is irrelevant to the question under consideration.
Next, counsel for Mr Tucker Jnr submits that to interpret s 44(7) of the NC Act as requiring reapplication by way of an identical plan would result in an absurd outcome given that as "a matter of fact, a number of minor variations must be provided for, such as the change of date or a change in the forest practice officer due to staffing variability etc." Counsel submits that minor variations between the two plans are envisaged in the reference in the provision to the "relevant forest practices plan" would avoid an absurd outcome and is therefore the preferred statutory construction of the statute. It is submitted that the extent of the variation is a matter of fact and degree which may vary depending on the circumstances and that, by way of analogy with planning law principles, "the test is whether the forest practices plan has been transformed or metamorphosed into something new that meant it was no longer identifiable as the original entity".
I agree that it must be a question of fact and degree as to whether a resubmitted plan meets the statutory description of "the relevant forest practices plan" or is a new plan, however I do not agree that the changes must be such as to enable it to be said that the resubmitted plan must be "no longer identifiable" as the original plan. In the present case, the differences between the two plans are such that it cannot be said that the 2015 Plan was the "relevant forest practices plan". It follows that it was not a plan that could be the subject of an application pursuant to s 18(1)(b) of the FPA as authorised by s 44(7) of the NC Act. On this ground alone the decision of the FPA to certify it should be quashed.
To so hold is not, as submitted by counsel for Mr Tucker Jnr, to make an impermissible decision on a contestable question of fact, rather than a question of law as the question of whether "the facts inferred ... from the evidence ... are necessarily within the description of a word or phrase in a statute or necessarily outside that description" is a question of law, see The Australian Gas Light Co v The Valuer-General (1940) 40 SR (NSW) 126 at 138. The statutory description here being "the relevant forest practices plan" appearing in s 44(7) of the NC Act. The facts in this case were to my mind necessarily outside that description and a contrary decision is wrong in law.
I note in passing that in amelioration of the strictness of this view of the relevant provisions of the NC Act, that it would have been open to Mr Tucker Snr to have reapplied for certification of the original plan, which could not be refused on conservation grounds, and then to have made application for variations to that plan pursuant to s 23 of the FP Act which provides as follows:
"23 Application for variation of certified forest practices plan
(1) A person who applied to the Authority under section 18 for the certification of a forest practices plan and who wishes to have the provisions of the plan varied after it has been certified by the Authority may make application to the Authority for a variation of the plan."
Lack of a conservation covenant
Section 44(1) of the NC Act explains that for the purposes of s 44(7) a "landowner to whom this section applies" includes:
"an affected owner whose application to the Minister for compensation has been refused by the Minister pursuant to section 41(3)(b)."
As already noted, the applicant argues that the failure of Mr Tucker Snr to enter into a conservation covenant or a management agreement precluded a compensation application from being made pursuant to s 41 of the NC Act.
At the relevant time s 41 of the NC Act provided as follows:
"41 Affected owner entitled to apply for compensation
(1) A landowner may apply to the Minister for compensation for any financial loss suffered by that landowner as a result of becoming an affected owner.
(2) An application for compensation is to be made in writing to the Minister within 180 days of the day on which the landowner became an affected owner.
(3) As soon as practicable after receiving an application for compensation, the Minister must, subject to section 41A, notify the affected owner that the application is –
(a) accepted; or
(b) refused." (Italics added.)
At the relevant time s 41A of the NC Act provided as follows:
"41A Restrictions on entitlement to compensation
(1) A landowner is not entitled to compensation pursuant to section 41 unless the Minister is satisfied that –
(a)the relevant conservation determination has the effect of requiring the landowner to exercise a higher duty of care for the conservation of natural and cultural values on the relevant land than is required under the Forest Practices Code as in force on the date of the determination; and
(b)the landowner is not entitled to any, or adequate, financial consideration from other sources
(including voluntary, public or private, conservation funds) for the financial loss referred to in that section.
(2) Also, without limiting the generality of subsection (1), a landowner is not entitled to compensation pursuant to section 41 in so far as the relevant conservation determination prevents the complete or partial clearance and conversion of a threatened native vegetation community unless the Minister is satisfied that –
(a)at the date of the determination, the proposed clearance and conversion was not prohibited under –
(i)a law of the State other than this Act or the Forest Practices Act 1985 ; or
(ii)a law of the Commonwealth; and
(b)for at least 2 years before the date of the determination, the landowner was actively managing the relevant land with the reasonable intention of undertaking the proposed clearance and conversion; and
(c)the landowner has undertaken to manage the threatened native vegetation community under a conservation covenant or management agreement."
At the relevant time, s 44 of the NC Act provided, for present purposes, as follows:
"44 Effect of failure to pay compensation
(1) This section applies to –
(a)an affected owner whose application to the Minister for compensation has been refused by the Minister pursuant to section 41(3)(b) ; and
(b)an affected owner in respect of whom the Minister has not accepted the determination of an arbitrator made pursuant to section 42(3) ; and
(c)an affected owner or other landowner who has entered into a conservation covenant under this Division but has not, within the period of 180 days immediately after the day on which he or she notified the Minister that he or she would accept an offer of compensation under this Part, received –
(i)any compensation; or
(ii)the full amount of the initial instalment of compensation provided for in the covenant.
(2) The 180 day period referred to in subsection (1)(c) is exclusive of any period of time during which the affected owner has been a party to any arbitration or legal proceedings in respect of a matter under this Part.
(3) A landowner to whom subsection (1)(c) applies may notify the Minister in writing that he or she requires the conservation covenant referred to in that subsection to be discharged.
(4) If the Minister receives a notification from a landowner under subsection (3) , the Minister must –
(a)if satisfied that there has been a failure to pay compensation to that landowner; and
(b)if any compensation paid to that landowner has been repaid to the Minister – lodge an executed discharge of the relevant conservation covenant with the Recorder without undue delay.
(5) A landowner is not required to pay interest in respect of any compensation that is repaid to the Minister under this section.
(6) If a conservation covenant is discharged at the request of a landowner in accordance with this section, an action does not lie against the Crown in respect of any failure to pay compensation to the landowner under this Part.
(7) A landowner to whom this section applies may reapply to the Forest Practices Authority under section 18(1)(b) of the Forest Practices Act 1985 for the certification of the relevant forest practices plan.
(8) Subject to subsection (9) , if a forest practices plan is submitted to the Forest Practices Authority under subsection (7) , the Forest Practices Authority has no power –
(a)to refuse to certify the plan on the grounds that implementation of the plan would adversely affect a threatened species of flora or fauna or a threatened native vegetation community which has previously been considered by that Authority in respect of that plan; or
(b)to amend the plan for the purpose of protecting a threatened species of flora or fauna or a threatened native vegetation community which has previously been considered by that Authority in respect of that plan – and, if that plan is otherwise certified, the Forest Practices Authority has no power –
(c)to amend the plan under section 22 of the Forest Practices Act 1985 for the purpose of protecting a threatened species of flora or fauna or a threatened native vegetation community which has previously been considered by that Authority in respect of that plan; or
(d)to refuse an application to vary the plan under section 23 of the Forest Practices Act 1985 on the ground that implementation of the variation of the plan would adversely affect a threatened species of flora or fauna or a threatened native vegetation community which has previously been considered by that Authority in respect of that plan.
(9) Nothing in subsection (8) prohibits the Forest Practices Authority from enforcing a restriction contained in the Forest Practices Code, 1987.
(10) Subsections (7) and (8) have effect despite any other enactment." (Italics added.)
Counsel for the applicant argue that it is clear, from the Minister's reasons for refusing the compensation application (as notified in his letter to Mr Tucker Snr on 13 August 2014), that he was not satisfied that the threshold in s 41A of the NC Act was met and thus his mandatory refusal was not because of any relevant duty imposed on him pursuant to s 41(3), but by operation of s 41A of the NC Act.
In such circumstances, the argument runs, s 41(3)(b) of the NC Act confers a duty to notify an applicant of the result of the application, and nothing more. That is to say that whilst, if the proviso in s 41(3) "subject to section 41A" does not apply, the Minister has a discretion as to whether to accept or refuse the application for compensation, to be exercised according to law – taking into account all relevant considerations – this was not such a case.
The upshot of all of that, in the applicant's submission, is that, given that s 44(7) of the NC Act was not satisfied as the applicant was not "an affected owner whose application to the Minister for compensation has been refused by the Minister pursuant to section 41(3)(b)", s 44(8) of the NC Act did not operate to deny power to the FPA to refuse to certify the 2015 Plan. Thus the FPA was wrong to believe, as it evidently did, that it had no alternative but to certify the 2015 Plan.
Counsel for Mr Tucker Jnr argues that the NC Act establishes a single scheme for the compensation of affected owners, and that there is only one source of the Minister's power to refuse an application for compensation, being the power conferred by s 41(3)(b).
The argument runs that the applicant position seems to be that an affected owner cannot apply for compensation pursuant to s 41 of the NC Act in circumstances where the landowner fails to undertake "to manage the threatened native vegetation community under a conservation covenant or management agreement". The corollary of this, it is said, is that the Minister did not refuse the compensation application pursuant to s 41(3)(b) because Mr Tucker Snr was not lawfully entitled to apply under that section at all in the absence of a conservation covenant or management agreement in place.
Counsel for Mr Tucker Jnr submits that upon a proper construction, s 40(1) of the NC Act explicitly provides that the Minister may enter into a conservation covenant with an affected owner who applies for compensation. So, it is argued, it is incorrect to assert that a conservation covenant is a precondition to compensation. In any event, it is said, when the provisions with respect to compensation in ss 40 to 44 of the NC Act are viewed in their entirety, the applicant's argument cannot be sustained as there is only a single power for the Minister to grant or refuse compensation, but it is provided for over several different sections. Section 41A provides for circumstances in which a landowner will not be entitled to compensation, however where those circumstances apply and provide grounds for refusal of the application, the refusal is nevertheless made by the Minister under the power in s 44(3)(1)(b).
In the submission of counsel for Mr Tucker Jnr, there is no conflict between ss 41 and 41A of the NC Act and therefore no need to consider which should be given primacy. The two sections work harmoniously in that the power under s 41 for the Minister to refuse an application for compensation is not enlivened until the decision-maker has considered whether the requirements under s 41A have been met. If the requirements under s 41A are not met, then the Minister refuses the compensation pursuant to s 41(3)(b) of the NC Act.
Counsel points out that the terminology in the sections is:
"in s 41A(2): 'a landowner is not entitled to compensation pursuant to section 41'; and
in s 41(3): 'the Minister must, subject to section 41A, notify the affected owner'. "(Italics added.)
It is submitted that the two provisions are referable to one another, that one does not act to the exclusion of the other and that any refusal of compensation under the provisions of the NC Act, as notified by the Minister, is a refusal pursuant to s 41(3)(b) of the NC Act. And it is submitted that on a proper construction, the NC Act and the FP Act are capable of being read together, with the NC Act, by virtue of s 44(10), overriding the FP Act in circumstances where the requirements under s 44(7) and (8) of the NC Act are met.
I prefer the submissions of Mr Tucker Jnr on this question to those of the applicant. In my view s 41 and s 41A when read together make it clear that the Minister may accept or refuse a claim for compensation made pursuant to s 41, but that refusal is mandated when the provisions of s 41A are engaged. Section 41A cannot realistically be regarded as a standalone provision and s 41(3) cannot be realistically regarded as providing only an obligation to notify refusal and not to be the source of the power to refuse in cases where "[a] landowner is not entitled to compensation pursuant to section 41" because of the application of s 41A(1) or s 41A(2).
It follows in my view that had there been a reapplication to the FPA under s 18(1)(b) of the FP Act for the certification of the "relevant forest practices plan" in this case and not for the certification of a different plan, it would have been incumbent on the FCA to apply the provisions of s 44(8) to the extent that they were applicable.
Senior counsel for the applicant argues that such a construction is absurd. She said in oral argument in an organic submission not unlike that of Dennis Denuto:
"That is, that the court might say, that's an absent – absurd result and that's not how you construe in that particular respect you have to construe it in a way that the parts [departs], perhaps more from the text and there's cases – and your Honour would know that, where – where the courts have read words in the statutes because otherwise it doesn't make any sense whatsoever.
So, I'd made the submissions about why the constructions that is put on s41 and s44 by the third respondent, which is an absolute result because parliament, in every way in which it has spoken has said you've got to protect that forest. So you don't go through the exercise over painfully nine years or whatever it is for Mr Tucker senior and junior to get to the point where we sort of say, 'Oh, well, now go and chop it all down.' That's just absurd."
Counsel for the applicant submitted that s 44 of the NC Act is not a good example of drafting and referred to a legislative explanatory memorandum or clause note to s 44 which stated as follows:
"Clause 44, Effect of Failure To Pay Compensation
… where compensation is not paid within 180 days of acceptance of an offer the owner may require the conservation covenant to be discharged and may then reapply to the Forest Practices Board for certification of a FPP, which cannot then be refused on grounds of threat to threaten flora or fauna."
Counsel for Mr Tucker Jnr on the other hand says that together with provisions of the FPA, the NC Act creates a regime, which provides that if a certified plan has been refused by the FPA, the landowner may appeal that to the Tribunal and upon the Tribunal upholding the appeal the provisions of the NC Act apply in respect of an entitlement to apply for compensation. Counsel points out that the way the legislation works there is no guaranteed path to compensation. That is to say that there is no way that an affected landowner has a right to compensation. He says that the regime "allows the minister, effectively, at any stage, to say, 'I don't – the compensation, put crudely, is too much, therefore I don't accept', and therefore, you – the landowner can invoke 44(7) and (8)."
Counsel for Mr Tucker Jnr submitted in his written contentions:
"The legislature has designed the framework in such a manner to ensure private landholders whose rights are curtailed by legislation have an avenue of recourse. That recourse is either monetary compensation or the certification of a forest practices plan which provides for clearance and conversion notwithstanding the possible impacts to threatened flora and fauna."
So whether or not the relevant provisions, read literally, produce an absurd result whereby a landowner refused compensation after the refusal to certify a proposed forest practices plan may resubmit the same plan, and not be refused on the ground of adverse effect on a threatened species of flora or fauna or a threatened native vegetation community which had previously been considered by that FPA in respect of that plan depends on one's perspective. From a conservation perspective it is clearly absurd but from a landowner perspective it is merely protective of the right to use one's land unless compensated for the loss of that right.
It does appear likely from the explanatory memorandum to s 44 that it was envisaged by Parliament that first, a conservation covenant should be in existence and if compensation was not paid by the Minister as required, the covenant was to be discharged at the landowner's request and only then might the landowner reapply to the FPA for certification of a previously refused forest practices plan, which could not then be refused on grounds of threat to threatened flora or fauna.
It is distinctly odd that certification of a forest practices plan might be refused by the FPA on the basis that it did not adequately protect threatened species and vegetation communities in accordance with the requirements of the FP Act and the Forest Practices Code and then compensation refused on the basis that the Minister was not satisfied that the landowner had undertaken to manage the threatened native vegetation community under a conservation covenant or management agreement, however I am wholly unable to accept however that it is therefore open to me to in effect rewrite the legislation or to judicially uncouple the clearly linked provisions of s 41(3)(b) and s 41A of the NC Act.
Courts have always exercised caution when considering second reading speeches and other extraneous material in circumstances where parliamentary intention has not been made clear by analysis of the statute: Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518, as noted by Heydon J in Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 506 [86], who stated of second reading speeches:
"Excessive recourse to second reading speeches is one of the blights of modern litigation […] It may be accepted that what Ministers say about what they intended the enactment to provide is no substitute for an examination of what the enactment actually provides, only an aid to it. It may be accepted the proposition is particularly salutary when the enactment is said to derogate from fundamental rights or damage fundamental interests. But the fact remains the courts can investigate what Ministers say. There are rare occasions when that investigation has value."
I note that in Re Bolton; Ex Parte Douglas Beane, at 517-18 Mason CJ and Wilson and Dawson JJ said:
"The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law."
This aspect of ground 1 fails.
Ground 2
The scope of Williams' delegation
Counsel for the applicant submit that FPO Williams was authorised to exercise the Board's functions and powers under ss 19(1), (2) and (3), 22, 23 and 24 of the FP Act "only in relation to forest practices plans for forest roading, harvesting and reforestation and that his delegation did not permit him to make decisions about forest practices plans for clearance and conversion. Both the 2009 Plan and the 2015 Plan were for plans for clearance and conversion.
Counsel for Mr Tucker Jnr accepts that the delegation to Mr Williams was only in relation to forest practices plans for forest roading, harvesting and reforestation and did not include clearance and conversion, but points out that "clearance and conversion" is defined at s 3A(1) of the FP Act which section was inserted into the FP Act by virtue of the Forest Practices Amendment (Threatened Native Vegetation Communities) Act 2006 on 30 April 2007, whereas the instrument of delegation, delegating the Authorities powers and functions to Mr Williams, was dated 13 August 1999. Therefore, at the time of the delegation the Authority did not make reference to or make a distinction with clearing and conversion because the FP Act did not provide for this.
Counsel submits however that there also exists an alternative source of power which allowed Mr Williams to certify the 2019 Plan. The following passages setting out that argument appear in the written submissions filed on behalf of Mr Tucker Jnr:
" 167 In the case of Harris & Anor v Great Barrier Reef Marine Park Authority (Harris), Kiefel J observed that:
'The general rule has been stated that the validity of an administrative act is not necessarily impugned by there having been a mistake as to the source of power stated by the decision-maker as that upon which reliance was placed…'.
168 Her Honour went on to cite the following passage from the judgment of Fullagar J in Lockwood v Commonwealth, where his Honour found that it is a well settled principle that:
'an act purporting to be done under one statutory power may be supported under another statutory power.'
169 In Drewitt v Resource Management and Planning Appeal Tribunal it was held:
'Purported exercise of a power, not possessed, does not necessarily vitiate a decision if there exists another valid source of that power. It is the absence of power which renders the decision invalid (Dainford Ltd v Smith (1985) 155 CLR 342). This was not a case where reliance of one power alone creates "jurisdictional error" (Minister for Immigration v Bhardwaj). If the Tribunal had determined power from another source than that relied upon by Council, it would have obtained or retained jurisdiction. An alternate source of power preserves validity (VAW (Kurri Kurri) Pty Ltd v Scientific Committee (2003) 58 NSWLR 631; 128 LGERA 419...'. [our emphasis]
170 (sic)
171 In our submission, there was another source of power which establishes with certainty that Mr Williams had the power to certify the Certified FPP. On 23 January 2015 Mr Williams emailed Mr Wilkinson to request written approval from him as Chief Forest Practices Officer to certify the Certified FPP given the unusual nature of the plan. On 27 January 2015 Mr Wilkinson, via return email, advised:
'I confirm that you have the authority to certify the FPP under your delegation from the FPA'.
172 In our submission this email from Mr Wilkinson confirms that Mr Williams had the power to certify the Certified FPP notwithstanding that it relates to clearance and conversion.
173 As noted above, s 38(4) of the FP Act states that, in addition to the functions specified in the instrument of their appointment, they may also perform 'such other functions as the Authority may from time to time determine'.
174 Given Mr Wilkinson's email to Mr Williams of 27 January 2015, regardless of whether the power to certify the Certified FPP could be exercised pursuant to the instrument of delegation, Mr Wilkinson determined that Mr Williams had the authority to certify the Certified FPP."
The authorities relied upon are cited out of context and the submission is misconceived.
Typically cases involving reliance on an alternate source of power involve a decision maker erroneously exercising a power under a legislative provision which did not contain the power purportedly exercised but another provision existed at the relevant time which could have been relied upon as the source of power.
Moreover, Mr Wilkinson, although a member of the Board was not the FPA and his email cannot have extended Mr William's delegation and he was wrong as to the extent of FPO William's authority under his (Mr William's) existing instrument of delegation.
If I am wrong as to my view as to the materiality of the differences between the 2009 Plan and the 2015 Plan the applicant would nonetheless succeed on this aspect of ground 2.
Acting under direction
Counsel for the applicant further submit that the decision to certify the 2015 Plan is invalid because FPO Williams, as the person who purported to make the decision as delegate of the FPA, also acted beyond the scope of his power and authority by acting under the direction and at the behest of another and failing to give any real independent attention as to whether it was appropriate to make the decision.
Counsel observe that when a power or discretion is given by statute to a particular officer, that discretion must be exercised by that person and the decision must be their own decision. The law is clear that where a power is given to a particular person or office, that power cannot be exercised at the direction of someone else, whatever position they may occupy, see Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404, 418 (Gibbs CJ).
It is submitted that the Full Federal Court stated the relevant principles (in the context of the word "behest" in s 5(2)(e) of the Administrative Decisions (Judicial Review) Act 1977 (Cth)) in the following terms in Telstra Corporation Ltd v Kendall (1995) 55 FCR 221, at pp 231–232:
"There is a fine line between saying that a decision-maker has taken into account as evidence what is said by another person in arriving at his or her conclusion and saying that the decision was one made at the direction or behest of another. What is encompassed by the ground referred to in s 5(2)(e) of the ADJR Act is the case where the decision-maker gives no real independent attention to the discretion which is conferred upon him or her, so that the exercise of discretion is really the exercise of that discretion by some other person …
The word 'behest' is defined in the Oxford English Dictionary (2nd ed), relevantly as 'a command, injunction, bidding', stemming from middle English where its meaning was 'to command'.
This is consistent with its meaning as given in the Macquarie Dictionary (2nd Revised ed) of 'bidding or injunction; mandate or command'.
In the context in which it appears in the ADJR Act, the word 'behest' cannot simply be a substitution for request. Both words are used against the background of the ordinary administrative law principle that, for a discretion to be valid it must be a real exercise of discretion by the decision-maker, not an acceptance by the decision-maker of a direction by some other person to whom the making of the decision has not been entrusted: cf R v Anderson; Ex parte Ipec-Air Pty Ltd."
The instrument of delegation from the Forest Practices Board to Mr Williams, dated 13 August 1999, stated that "in the exercise of" the functions and powers delegated by the Board to Williams, Williams "shall at all times be subject to and shall obey any directions given to him by the Chief Forest Practices Officer".
Counsel for the applicant submit that the starting point in construing a power conferred by statute is the maxim delegatus non potest delegare. However by statute, the person on whom power is conferred may also be conferred with a power to delegate that power to another person. When power is so delegated, the delegate exercises "power as their own. They do not exercise the delegator's power through the delegator ... The delegate must exercise their own independent discretion in the exercise of their delegated power" (Northern Land Council v Quall [2020] HCA 33, [83] (Nettle and Edelman JJ)).
It is submitted that in 1999, no Act conferred a power on the Board to make a delegation in those terms. Section 43 of the FP Act as in force in 1999 did not contain a power to delegate that would allow the imposition of the condition and nor did s 23AA of the Acts Interpretation Act 1931 (Tas). Further and from first principles, counsel submit that the Board could not have limited itself to having to comply with directions given to it, as to what should be the outcome of the exercise of any of its powers, by a third person such as the Chief Forest Practices Officer. If the Board could not have so limited itself, then it could not so limit a delegate's exercise of the power.
Counsel for the applicant submit that only if the direction is able to be read down to refer to, for example, procedures to be followed to ensure a consistent process of administrative decision-making by diverse delegates; or the taking into account of certain government policy (although allowing for departure from such policy when an individual case warrants it) – could it be said to be consistent with law. If the direction can be so read down, however, it plainly could not have authorised what occurred in this case, namely that on 27 January 2015, Williams wrote to Mr Graham Wilkinson, the Chief Forest Practices Officer, stating:
"Hi Graham,
Ian Blades has asked me to be the certifying FPO for the John Tucker plan at Ansons Bay.
Given the unusual nature of the plan I request that you give me written CFPO approval to certify the FPP.
Regards,
Greg 'Diesel' Williams."
And on 27 January 2015, Wilkinson responded as follows:
"Hi Greg
As discussed at our meeting with John Tucker, Ian Blades, Fred (lawyer) and Angus today the FPA must certify the Tucker FPP in accordance with the requirements of s 44 of the [NC Act]
…"
Counsel submit that Mr Wilkinson's direction, and Mr Williams' deference to it, were wrong because the person entrusted with the power to decide, Mr Williams, acted under the dictation and at the behest of another, Mr Wilkinson, and also failed to give any real independent consideration as to whether it was even appropriate to do so, cf ID v Director General, Department of Juvenile Justice (2008) 73 NSWLR 158 at 194 [285].
Counsel for Mr Tucker Jnr submits that whilst there is a common law principle that a public authority entrusted with a discretionary power must exercise that power independently and not at the direction of some other decision-maker, that principle may be overridden by the express statutory power of the other decision-maker. It is submitted that while Mr Wilkinson did give directions to Mr Williams as to the exercise of the statutory power, s 43(4) of the FP Act, as in force at the time the 2015 Plan was certified, specifies that the delegate, in the performance and exercise of the delegated functions and powers, is subject to the direction of the Chief Forest Practices Officer. That section, it is argued, expressly provides a statutory intention that a delegate can be directed by the Chief Forest Practices Officer.
In Registered Organisations Commissioner v Australian Workers Union (2020) 281 FCR 518 it was observed at [224] that:
"This ground is often referred to as the dictation ground and key cases in this country dealing with that ground are R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177 ; Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 ; Bread Manufacturers (NSW) v Evans [1981] HCA 69; (1981) 180 CLR 404 (Bread Manufacturers); CPCF v Minister for Immigration & Border Protection [2015] HCA 1; (2015) 255 CLR 514 (CPCF). The Administrative Decisions (Judicial Review) Act 1977 (Cth) contains a ground of review of exercising a personal discretionary power at the direction or behest of another person (s 5(1)(e) and (2)(e)). It is not necessary to pursue the question of the appropriate general descriptions of the ground. The cases make it clear that the extent to which the holder of a statutory power can take into account or act upon the advice of another without committing a jurisdictional error very much depends upon the particular statutory context." (Italics added.)
There is no doubt that the FP Act provided that Mr Williams was subject to the direction of Mr Wilkinson in the performance and exercise of his delegated functions and powers but there can equally be no doubt that if Mr Wilkinson directed Mr Williams as to the very decision he had to make, as he appears to have done, and Mr Williams made the very decision he did solely because he was told to do so, as he appears to have done, then he acted beyond the scope of his power and authority. The power to direct him is not the relevant inquiry, the relevant inquiry is the consequence of using that power to dictate the outcome of another's power to decide. I am not aware of any case, whatever the statutory context may be, where a decision-maker has been found to have been directed by another to arrive at the very decision he or she did and was held to have lawfully done so even though no independent consideration was given to the decision.
Next, counsel for Mr Tucker Jnr submitted that the decision in Forest Marsh Pty Ltd v Resource Planning and Development Commission (2007) 16 Tas R 280 makes it clear that just because there had been delegation it did not mean that the delegator could not still exercise the function or powers delegated and notes that 23AA(6) of the Acts Interpretation Act 1931 states:
"A function or power that has been delegated may, notwithstanding the delegation, be exercised by the delegator."
That is perfectly correct, but there is no suggestion in this case that the FPA exercised the relevant power.
Finally, counsel for Mr Tucker Jnr submitted that it was clear from the provisions of the FP Act and particularly the second reading speech of the Forest Practices Amendment (Administrative Reform) Bill 2004, in relation to ss 43(3) and (4), that the legislature intended that Mr Williams, as a Forest Practices Officer, was to act as an agent of the Authority and that given Mr Wilkinson's roles as Chief Forest Practices Officer and a member of the Board, his direction to Mr Williams to certify the 2015 Plan was "consistent with the statutory powers conferred by the FP Act".
I am unable to accept that submission. Whatever the Minister may have said in the second reading speech, Mr Williams held a delegation which, whatever was its scope, is inimical to him acting at the same time as the agent of the FPA in certifying, or more correctly, purporting to certify, the 2015 Plan. As was said by Nettle and Edelman JJ in their dissenting judgment in Northern Land Council v Quall [2020] HCA 33, 383 ALR 378 at [83]:
"In its most precise description, the concept of 'agency' should be used 'to connote an authority or capacity in one person to create legal relations between a person occupying the position of principal and third parties' ...
As to delegation, that concept is sometimes used loosely to describe only an authorisation to act. In that loose sense, a delegation to act in a way that will bind another can sometimes be indistinguishable from agency. Hence, in a passage relied upon by the appellants from Huth v Clarke, Wills J said that 'the word "delegate" means little more than an agent' ... In a more precise sense, the concept of delegation involves an authorisation to act personally rather than as an agent. … a delegate exercises 'power as their own. They do not exercise the delegator's power through the delegator ... The delegate must exercise their own independent discretion in the exercise of their delegated power…'." (Italics added.)
It follows that if I am wrong as to my view as to the materiality of the differences between the 2009 Plan and the 2015 Plan and wrong in my view that Mr Williams acted beyond the scope of his delegation by acting at the behest of Mr Wilkinson, the applicant would nonetheless succeed on this aspect of ground 2.
Ground 3
Application of ss 18(2) and 19(1AA) of the FP Act
Finally, counsel for the applicant argue that even if Mr Williams was properly authorised to exercise the power in s 19(1) of the FP Act to certify or refuse to certify the 2015 Plan he could not have been satisfied of the matters of which he was required to be satisfied before he could exercise the power to certify a forest practices plan. Those matters are set out in s 19(1AA), which states:
"However, the Authority is not to certify a forest practices plan involving the clearance and conversion of a threatened native vegetation community unless the Authority is satisfied of one or more of the following:
(a) the clearance and conversion is justified by exceptional circumstances;
(b) the activities authorised by the forest practices plan are likely to have an overall environmental benefit;
(c) the clearance and conversion is unlikely to detract substantially from the conservation of the threatened native vegetation community."
Counsel argue that Mr Williams did not consider, and therefore could not have been satisfied of, the matters in s 19(1AA) of the FP Act and that the state of non-satisfaction precluded him from exercising any power to certify.
In any event, they submit that there was no valid application "made in accordance with section 18" that could enliven the power in s 19(1) of the FP Act to certify or refuse to certify. For an application to be validly made in accordance with s 18 of the FP Act, they say, the forest practices plan must contain "specifications of the forest practices to be carried out on the land referred to in the plan in connection with the harvesting of timber or the clearing of trees or the clearance and conversion of a threatened native vegetation community… in accordance with the Forest Practices Code as in force at the time the forest practices plan is prepared", in accordance with s 18(2)(a) and (3) of the FP Act. The Forest Practices Code as in force at the time required forest practices plans to incorporate "an endorsed management prescription for the operational area" for threatened species. A table produced by the FPA in this proceeding, that appears to have been created by the FPA, sets out a number of threatened species of fauna and flora that were known to the FPA in 2009 and 2015, and notes that, in the 2015 Plan, "there are no specific prescriptions to reserve these species". That is, counsel submit, the 2015 Plan did not contain the specifications required.
Counsel for Mr Tucker Jnr submits that nothing turns on this issue because the forest practices plan was certified in accordance with s 44 of the NC Act, not s 19 of the FP Act, that ss 44(7) and 44(8) of the NC Act create a separate power to certify a forest practices plan to that in s 19(1) of the FP Act and s 44(10) of the NC Act provides that ss 44(7) and (8) have effect "despite any other enactment". Therefore, counsel submits ss 44(7) and 44(8) of the NC Act, and the power that they confer upon the Authority to certify forest practices plans in particular circumstances, prevail over the provisions of the FP Act to the extent of any inconsistency.
Counsel for Mr Tucker Jnr points out that s 44(7) of the NC Act states that the reapplication for certification of the relevant forest practices plan is to be made under s 18(1)(b) of the FP Act and that is the only provision that must be complied with in respect of s 18 of the FP Act. Section 18(1)(b) of the FP Act merely requires that a person make an application to the Authority for the certification of the relevant forest practices plan. To interpret s 44(7) as requiring the application to meet the provision of s 18 of the FP Act in their entirety would make s 44 redundant. It would, in essence, require a reassessment in accordance with the provisions of the FP Act, which are the basis for the refusal to certify in the first place. This, it is argued would leave the affected owner without any recourse and would be inconsistent with the purpose of section 44 of the NC Act, "which is to ensure that landowners valuable rights are not curtailed by legislation without compensation".
The same submissions are made with respect to the application of s 19(1AA).
I have already expressed a preference for the submissions made on behalf of Mr Tucker Jnr as to the construction of s 44 of the NC Act and my view is unchanged. Both aspects of ground 3 fail.
Objections to evidence
It is unnecessary for me to rule on the admissibility of parts of the affidavit material I admitted de bene esse as I have not found the need to have recourse to any of the impugned evidence.
Disposition
For the reasons I have given, the application to review succeeds and the decision made on 27 January 2015 to certify Forest Practices Plan MAC 1435 is quashed pursuant to s 27(l) (a) of the JR Act.
Given the way the application was argued I see no basis for declaratory relief however I will hear counsel as to that and as to the question of relief in the nature of certiorari and the question of costs.
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