The Honourable Mr David Llewellyn v The Resource Management and Planning Appeal Tribunal

[2007] TASSC 21

[2007] TASSC 21

CITATION:The Honourable Mr David Llewellyn v The Resource Management and Planning Appeal Tribunal [2007] TASSC 21

PARTIES:  THE HONOURABLE MR DAVID LLEWELLYN

MINISTER FOR PRIMARY INDUSTRIES & WATER

v
  THE RESOURCE MANAGEMENT AND PLANNING

APPEAL TRIBUNAL
CLEMENT, David

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M340/2006
DELIVERED ON:  20 April 2007
DELIVERED AT:  Hobart
HEARING DATE:  13 February 2007
JUDGMENT OF:  Underwood CJ

CATCHWORDS:

Statutes – Acts of parliament – Interpretation – Rules of construction – Generally – Purposive approach – Dictionaries to be used with caution.

Threatened Species Protection Act 1995 (Tas), Pt3, Div2.
Acts Interpretation Act 1931 (Tas), s8A.
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, applied.
Aust Dig Statutes [15]

REPRESENTATION:

Counsel:
             Appellant:  P Turner
             First Respondent:  No Appearance

Second Respondent:  R A Browne
Solicitors:
             Appellant:  Director of Public Prosecutions
             First Respondent:  No Appearance
             Second Respondent:  FitzGerald & Browne

Judgment Number:  [2007] TASSC 21
Number of paragraphs:  37

Serial No 21/2007
File No M340/2006

THE HONOURABLE MR DAVID LLEWELLYN MINISTER FOR PRIMARY INDUSTRIES & WATER v THE RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL AND DAVID CLEMENT

REASONS FOR JUDGMENT  UNDERWOOD CJ

20 April 2007

Introduction

1. This application for a judicial review concerns three taxa of lichen, viz Coccocarpia erythroxyli, Xanthoparmelia canoblasensis and Coccocarpia pellita.  For those who, like me prior to hearing this application, are unaware of the word "taxa", the OED instructs that taxonomy is the classification of living organisms.  "Taxa" is the plural of "taxon" and a taxon is a species or genus of living organisms.

1. On 8 March 2005, Dr Kantvilas made a nomination pursuant to the Threatened Species Act 1995 ("the Act"), s16, to have four taxa of lichen listed in Schs3 and 5 of the Act. 

1. The Scientific Advisory Committee ("the committee") made a preliminary recommendation that the nomination be supported.  There followed public notice of that recommendation and subsequently the committee's final recommendation to the Minister ("the applicant") was that the nomination be supported.  However, the applicant's decision was that the taxa of lichen not be added to the list in the schedules to the Act.

1. A Mr David Clement, the second respondent, appealed to the Resource Management and Planning Appeal Tribunal ("the Tribunal") against this decision so far as it concerned three of the four taxa.  In the Tribunal, a preliminary issue arose as to whether there was a right of appeal against the applicant's decision not to add the taxa to the schedule. 

1. On 8 December 2006, the Tribunal held that there was such a right of appeal and that Mr Clement's appeal was competent.  The applicant seeks a review of that decision on the following grounds:

"AThe decision involved an error of law in that the Respondent, in making the decision, considered that the Applicant had made a decision under s13(5) of the Threatened Species Act when, in fact and in law, the Applicant had made no such decision, but had made a decision under s21(1) of that Act [s17(1)(f) of the Judicial Review Act].

BThe decision involved an error of law in that the Respondent, in making the decision, misconstrued part of s13(5) of the Threatened Species Act in finding that the word 'omit' meant 'leave out, fail to include', when the proper construction of the word 'omit' in the context of the sub-section did not mean that but means 'remove' or 'take away' [s17(1)(f) of the Judicial Review Act].

CThe decision involved an error of law in that the application of the wrongly construed provision to the facts, resulted in the Respondent making the decision, when, upon the application of the provision properly construed, the only decision the Respondent could properly make, was to dismiss the purported appeal [s17(1)(f) of the Judicial Review Act]."

The statutory scheme

1. The preamble to the Act describes it as an Act "to provide for the protection and management of threatened native flora and fauna and to enable and promote the conservation of native flora and fauna".

1. In construing the provisions of the Act, the Court is required by virtue of the Acts Interpretation Act 1931, s8A, to adopt an interpretation that promotes the purpose or object of the Act in preference to one that does not promote the purpose or object of the Act. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, the joint judgment of Brennan CJ, Dawson Toohey and Gummow JJ, said at 408:

"Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy."

I shall approach the task at hand in accordance with the above principle.

1. Mr Browne submitted that the Act was part of a suite of legislation for land environment protection which involved public participation and an appeal process which gave any person a right to appeal.  He submitted that the Court should adopt a construction that promoted that end. 

1. The Act, s10, directs the Secretary to prepare a strategy for the conservation of threatened native flora and fauna.  In the discharge of this obligation, the Secretary is to be given assistance from the committee, established by the Act, s8, and a community review committee, established by s9. 

1. As part of this strategy, the Act, Pt3, Div2, comprising ss13 – 21 inclusive, enacts a procedure for the creation of lists in schedules of taxa of native flora and fauna. The Act, s13, provides that:

(1)extant endangered taxa are listed in Sch3, Pt1 and taxa presumed to be extinct are listed in Pt2;

(2)vulnerable taxa are listed in Sch4; and

(3)rare taxa are listed in Sch5.

1. The Act, s15, specifies the criteria for determining whether flora or fauna is endangered, "endangered because it is presumed to be extinct", vulnerable or rare.  Section 15(5) adds a criterion with respect to a taxon of native flora or fauna that is below the level of subspecies and subs(6) and subs(7) require the committee to prepare guidelines of how the various criteria are to be applied to various groups. 

1. Sections 16 – 21 enact a chronological procedure leading up to the Minister making a decision whether to add to, or omit from, Schs3, 4 or 5, a taxon of flora or fauna.

1. Section 16 provides that "any person may nominate an eligible taxon of flora or fauna to be added to, or an ineligible taxon of flora or fauna to be omitted from Schedules 3, 4 or 5".

1. The Act, s17, obliges the committee to consider each nomination and empowers it to reject a nomination if the taxon is already listed or the nomination is vexatious or not in the prescribed form.  Section 17(3) obliges the committee to advise the Minister of any rejection and to give reasons for it.  It is to be noted that s17 provides a very limited initial screening process.  Provided the nominated taxon is not already listed, the nomination not vexatious and in proper form, the committee must consider it and must act as directed by the Act, s18.

1. Section 18 provides for public input into the process, regardless of whether the committee thinks the nomination should be rejected or supported.  Subsection (1) requires the committee to make a preliminary decision whether the nomination is to be supported or rejected.  Within 30 days of the making of that decision, the committee must:

·     give the nominator notice of its decision;

·     advertise it as prescribed; and

·     consider any public comment made within a 30 day period after public notice has been given.

1. The next step is prescribed by s19.  Subsection (1) requires the committee to make a final recommendation to the Minister that the nomination is to be supported or rejected and must give its reasons for the recommendation.  It could be a slow process because subs(2) provides that the final recommendation must be made within a year after the nomination was made.

1. Section 20 requires the committee to advise the Community Review Committee of any public notice given pursuant to s18.  This is, no doubt, to ensure that the Community Review Committee is aware that public comment on a nomination is being solicited, and thus secure any input from the Community Review Committee within the 30 day period.

1. The last step in this process is s21.  Subsections(1) and (2) provide:

"(1)   The Minister must, within 30 days after receiving a final recommendation, decide whether or not a taxon of flora or fauna is to be added to, or omitted from, Schedule 3, 4 or 5.

(2)    In considering a recommendation for the listing of a taxon of flora or fauna in Schedule 3, 4 or 5, the Minister must have regard only to matters of nature conservation."

1. The remaining subsection deals with public notification of the Minister's decision.

1. Thus far, there is no statutory right of appeal to the Tribunal.  It is necessary to return to the start of this whole process.  Section 13(4) provides:

"(4)   SAC may recommend to the Minister that an eligible taxon of native flora or fauna be added to Schedule 3, 4 or 5 or that any taxon of native flora or fauna which is no longer eligible be omitted from Schedule 3, 4 or 5."

1. It may be noted that this subsection empowers the committee to act on its own initiative to make a recommendation.  Pursuant to this subsection, the committee's role is quite different from that set out in ss16 – 19 which direct the committee to consider a person's nomination for listing.

1. In addition, the consequences that follow the committee acting on its own initiative pursuant to s13(5) are quite different from those that follow the committee's preliminary consideration of a nomination.  In the latter case there must be public notification and the committee must notify the Community Review Committee and must consider any public comment before making a final recommendation to the Minister.  In the case of the committee acting on its own initiative and making a recommendation pursuant to s13(5), the consequences are prescribed by the following subsection which enacts:

"(5)   After considering a recommendation of SAC and after giving notice in accordance with section 14, the Minister may, by order published in the Gazette, add an item to, amend an item in, or omit an item from, Schedule 3, 4 or 5."

1. It is s14 that confers a right of appeal.  The critical provisions are subs(1) – subs(3).  Before the Minister makes an order pursuant to the committee's recommendation, s14(2) requires him to give public notification of the "proposed order."  Sections 14(1) and (3) provide:

"(1)     In this section, 'Tribunal' means the Resource Management and Planning Appeal Tribunal.

(2)      ….

(3)      During a period of 30 days after the public notification, a person may appeal to the Tribunal against the proposed order and the appeal is to be brought in accordance with the regulations."

1. The statutory scheme emphasises, rightly if I may say so, the importance and significance of the committee, all the members of which must have "special knowledge and experience in the sciences of flora and fauna conservation or ecology" (s8(4)).

1. If the process of adding to or omitting from the list is started by a nomination, that nomination will be advertised (absent vexatious, etc, nominations) and any public input considered by a scientific advisory body upon whose opinion the Minister is entitled to rely.  There is no need to provide for a right of appeal to the Tribunal when the nomination has gone through this process.  But what if the committee initiates a change?  In that case, by the Act, s14, Parliament has enacted a safeguard by providing a right of appeal by any person to the Tribunal.  One would imagine that such an appeal would be unusual, but ss13(5) and 14 provide a check against any possible excesses or erroneous decisions by the committee which otherwise would not get the benefit of any public comment.  Section 14 requires the Minister to give public notification that he is proposing to make an order, and the right conferred by subs(3) is not against an order but "against the proposed order".

1. This reinforces the distinction between the two processes, one commenced pursuant to s13(4) and the other pursuant to s16.  The former requires public notice of a proposal to make an order and confers a right of appeal against that order to the Tribunal, thus securing public input.  The latter also requires public notice of "a proposal" and provides for public input to be considered by the experts, but confers no right of appeal once that has been done and an order has been made. 

1. Section 13(6) obliges the committee to review all the taxa in Schs3, 4 and 5 once in every five year period and make recommendations.  Any resultant recommendation would attract a right of appeal to the Tribunal and thus provide a review of the work that the committee initiated.

1. That the provisions of the Act, ss13(5) and 21(1), contemplate discrete procedures is evident from an examination of the two subsections.  To construe the Act so that the provisions of s13(5) and, consequently, s14, to decisions made by the Minister pursuant to s21, would result in the following procedure:

(a)The Minister makes a decision pursuant to s21(1).

(b)Thereupon the Secretary:

·gives public notice of the decision;

·gives notice of the decision in an appropriate newspaper;

·advises the Consultative Review Committee; and

·makes the reasons available at his or her office in Hobart and Launceston.

(c)The Minister repeats the action taken by his or her Secretary and gives public notice of the proposed order.

(d)If there is no appeal within 30 days thereafter, the Minister makes an order in the same terms as the decision made pursuant to s21, by publication in the Gazette.

1. It seems to me unlikely that Parliament intended to enact such a repetitious and cumbersome procedure.  The construction that ss13(5) and 16 – 21 contemplate separate procedures is reinforced by the fact that s13(5) authorises action by the Minister upon consideration of a recommendation of the committee but s21(1) authorises action only after the Minister's receipt of the committee's final recommendation.

1. Once this scheme is understood and this construction adopted, it is apparent that the whole of the Act, Pt3, Div4, is enacted in a chronological sequence that deals first with recommendations made on the initiative of the committee and second with nominations made by a member of the public.

1. I draw attention to the provisions of s14(6)(b) which provide that if the appeal is upheld "the order is taken to be disallowed and ceases to have effect".  Given that the appeal is not against any order but only against a proposed order, it seems that subs(6)(b) should provide to the effect that in the event of the appeal being allowed, the Minister must not make the order that he or she proposed to make.

1. The Tribunal's reasons for its decision are brief.  Paragraph 4 erroneously asserts that "a right to appeal a decision under s13(5) is conferred by s14(3)".  As I have said, s14(2) directs that before making an order under s13(5), the Minister must give public notification of the proposed order and the right of appeal conferred by s14(3) against a proposed order.

1. The applicant's reasons dated 11 August 2006, which presumably were before the Tribunal, conclude:

"For the above reason and pursuant to section 21(1) of the Act, I have decided not to list Coccocarpia erythroxyli, Xanthoparmelia canoblasensis and Coccocarpia pellita on Schedule 5 of the Act as rare and Bunodupharon tibellii on Schedule 3 of the Act as endangered." [Emphasis added.]

1. Clearly, the applicant was not proposing to make any order pursuant to s13(5), but was exercising, as he said, the jurisdiction conferred on him pursuant to the Act, s21. 

1. In par5 of its reasons, the Tribunal refers to s13(5) conferring a power to add an item to, amend an item in, or omit an item from, Schs3, 4 or 5, and states that the Minister's decision does not relate to an addition or amendment to an item.  There follows this reasoning for the decision:

"7Omit is not defined in the Act.  It is necessary therefore to have recourse to external assistance.  The Shorter Oxford English Dictionary defines omit in the following terms.

'Leave out, fail to include'

8Applying this definition, there is no doubt in the Tribunal's mind that Minister [sic] has made a decision to omit the lichen from Schedule 5 and as such a right of appeal exists.

9The Tribunal is fortified in this conclusion when one has regard to the scheme of the Act which is plainly designed to provide a method of review of ministerial decisions with respect to threatened, rare and endangered species."

1. Although recourse to dictionaries is an accepted practice to ascertain the common meaning of a word (R v Peters (1886) 16 QBD 636 at 641), every word must be construed in the context of the legislation in which it appears and in accordance with its purpose as directed by the Acts Interpretation Act, s8A. As Anderson J said in Falconer v Pederson [1974] VR 185 at 187:

   "Mr Alston also referred to a number of dictionaries which gave a variety of meanings to the verb 'traffic', … I do not think one can select any one of the several meanings given in the various dictionaries and attribute to the phrase 'traffic in' appearing in s32(a) that particular dictionary meaning, and leave it at that.  One must interpret the phrase as used in its context, assisted as it may be, but not necessarily bound, by one of a variety of dictionary definitions."

2. The decision of the Tribunal dated 8 December 2006 is quashed.  I will hear counsel with respect to any consequential orders.