VAW (Kurri Kurri) Pty Ltd v Scientific Committee
[2002] NSWLEC 60
•06/07/2002
Reported Decision: (2002) 122 LGERA 231
Land and Environment Court
of New South Wales
CITATION: VAW (Kurri Kurri) Pty Ltd v Scientific Committee [2002] NSWLEC 60 PARTIES: APPLICANT
RESPONDENT
VAW (Kurri Kurri) Pty Ltd
Scientific CommitteeFILE NUMBER(S): 40110 of 2001 CORAM: Cowdroy J KEY ISSUES: Administrative Law :- extent of application of the rules of natural justice LEGISLATION CITED: Threatened Species Conservation Act 1995, s 4, s 6, s 12, s 17(1), s 18, s 19(1), s 20, s 21, s 22, s 23, s 24, s 127, s 128, s 129(3), s 133(5)
National Parks and Wildlife Act 1974CASES CITED: Annetts v McCann (1990) 170 CLR 596;
Attorney-General for Victoria v Parkin [1975] VR 942;
Chan v Minister for Immigation & Ethnic Affairs (1989) 169 CLR 379;
Commissioner of Police v Tanos (1958) 98 CLR 383;
Corowa v Ministerial Coporation (2000) 107 LGERA 404;
Dalton v Deputy Commissioner of Taxation of the Commonwealth of Australia (1986) 160 CLR 246;
Iveagh (Earl) v Minister of Housing and Local Government [1964] 1 QB 395;
Fawcett Properties Limited v Buckingham County Council [1960] 3 All ER 503;
Haines v Annwrack Pty Ltd (1980) 39 LGRA 404;
Haoucher v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 648;
James v Minister of Housing and Local Government [1966] 1 WLR 135 (Court of Appeal); [1967] 1 WLR 171 (House of Lords);
Kioa & Ors v West & Anor (1985) 159 CLR 550;
Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273;
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611;
Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd & Ors (1996) 91 LGERA 31;
Mison v Randwick Municipal Council (1991) 23 NSWLR 734;
Project Blue Sky Inc and Anor v Australian Broadcasting Authority (1998) 194 CLR 355;
Public Service Board of New South Wales v Osmond (1985-1986) 159 CLR 656;
Queensland Medical Laboratory & Ors v Blewett & Ors (1988) 84 ALR 615;
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247;
Scott v Wollongong City Council (1992) 75 LGRA 112;
The Director-General of the Department of Transport of New South Wales and Ors v Oliveri Transport Services Pty Ltd [2001] NSWCA 231;
Vanmeld Pty Ltd v Fairfield City Council & Ors (1999) 46 NSWLR 78;
Videto v Minister for Immigration & Ethnic Affairs (1985) 69 ALR 342;
Winn v Director-General of National Parks and Wildlife & Ors [2001] NSWCA 17;
Woods v Bate (1986) 7 NSWLR 560DATES OF HEARING: 2/04/02; 3/04/02, 4/04/02, 5/04/02 DATE OF JUDGMENT:
06/07/2002LEGAL REPRESENTATIVES:
APPLICANT
Mr S Rares, SC with Mr M Leeming (Barrister)SOLICITORS
Blake Dawson WaldronRESPONDENT
SOLICITORS
Mr B Preston, SC with Ms S Pritchard (Barrister)
National Parks and Wildlife Service
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 40110 of 2001
CORAM: Cowdroy J
DECISION DATE: 7/06/2002
v
Scientific Committee
1. In these proceedings the applicant claims that the respondent has made an invalid determination pursuant to s 23 of the Threatened Species Conservation Act 1995 (“the Threatened Species Act”).
FACTS
2. The respondent (hereafter referred to as “the Committee”) is a body corporate established pursuant to s 127 of the Threatened Species Act. Its functions as detailed in s 128 of the Threatened Species Act include the determination of populations which are to be listed under the Threatened Species Act as endangered and to advise the Director-General of National Parks and Wildlife under the National Parks and Wildlife Act 1974 (“the Director-General”) of their critical habitat. The term “population” is defined in s 4 of the Threatened Species Act as follows:-
- population means a group of organisms, all of the same species, occupying a particular area.
3. Part 2 Div 1 of the Threatened Species Act provides for the listing of threatened species which may be included in Pt 1 of Schedule 1 for the purposes of the Threatened Species Act (s 6). Part 2 Div 3 provides the procedure for listing. Section 18 of the Threatened Species Act provides:-
- 18 Who may initiate action for listing
(2) The Scientific Committee may also make a determination:
4. Section 19(1) of the Threatened Species Act provides that any person may nominate any species, population or ecological community for insertion in or omission from Schedule 1 or 2 of such Act. Section 20 allows the Committee to gather further information from the person making the nomination and provides:
- 20 Scientific Committee may request additional information
- The Scientific Committee may request a person who makes a nomination to provide additional information about the subject matter of the nomination within a specified period.
5. Section 21(1) of the Threatened Species Act requires the Committee to consider each nomination after it has been made, or after additional information has been supplied. The Committee is entitled to reject the nomination (s 21(3)) and if it does so it is required to notify the relevant Minister and the Director-General and the person who made the nomination and to provide reasons for such rejection (s 21(4)). In the absence of any definition in the Threatened Species Act of the term ‘Minister’ the Court infers that it refers to the Minister for the Environment New South Wales.
6. Having considered a proposal raised on its own initiative, or in response to a request from the Minister, or upon a nomination, the Committee must make a preliminary determination “… as to whether the proposal should be supported or not supported” (s 22(1)). Following its preliminary determination the Committee is required by virtue of s 22(2) to take certain steps. It must, inter alia:-
(d) publish notice of the making of the preliminary determination in the Gazette.22 (2) (c) publish notice of its preliminary determination and the reasons for it in a newspaper circulating generally throughout the State and, if the determination is likely to affect a particular area or areas (other than the State as a whole), in a newspaper circulating generally in that area or areas, and
7. The content of the notice is required to state various matters as follows, as prescribed by s 22(3):-
- (3) The notice must:
8. Notices are to provide a place to which written submissions can be sent as well as a date by which they must be received (s 22(4)). By virtue of s 22(5) the Committee is obliged to consider all such submissions.
9. Section 23(1) provides for a final determination to be made by the Committee as follows:-
(1) The Scientific Committee must either accept or reject a proposal for inclusion, or amendment, of matter in or omission of matter from Schedule 1,2 or 3, and must give reasons for the determination.
10. Section 24 provides that upon final determination the Committee is to make its determination public as follows:
On making a final determination, the Scientific Committee must, as soon as practicable:
(d) publish notice of the making of the determination in the Gazette.
11. On 20 March 2000 Mr Max S. Elliott (“the nominator”) made a nomination of an ecological community pursuant to s 19(1) of the Threatened Species Act described by him as “Kurri Kurri Open Forest” (“KKOF” or “the community”) as follows:
- Description: This community occurs on old sandy and lateritic soils around the townships of Heddon Greta, Kurri Kurri, Weston and Cessnock. The dominant tree species are Eucalyptus parramattensis sub. sp . Decadens and Angophora bakeri . The understorey contains a diverse flora of heath plants, many epacrids , pea bushes, grevillea sp., banksia sp . And cycads .
12. The nomination identified the threats to the community as follows:-
- The community should be considered for listing as at least vulnerable for the following reasons:
1) Restricted distribution (see attached map)
2) A number of threatening processes:
i) Increased urbanisation around the townships of Heddon Greta, Kurri Kurri, Weston and Cessnock.
ii) The proposed New England Highway corridor will cut through a large portion.
iii) The Tomalpin Industrial Zone [also known as the Tomalpin Employment Zone] to the south of Kurri Kurri and Weston (over 3000 hectares) will impact on a large area of this community.
The nomination provided data, including an extract from an environmental impact statement (“the EIS”) prepared for a proposed new highway known as the New England Highway corridor. A map accompanied the nomination which depicted the approximate distribution of the KKOF.
13. The Committee acknowledged the nomination by letter dated 30 March 2000 and noted it at its 45th meeting held on 18 April 2000. As empowered by s 133(5) of the Threatened Species Act the Committee sought the advice of experts. It consulted Mr Roger Lembit who had carried out detailed studies for the purposes of the EIS prepared for the New England Highway corridor; Dr Jim Shields of State Forests of NSW (“State Forests”); Mr Robert Payne (an ecologist); and Mr Bob Conroy, Director-Central, Directorate of National Parks and Wildlife Service (“NPWS”). The Committee also requested (as provided by s 20) the nominator to provide additional data relating to the species composition of the community and of any features which distinguished it from other communities.
14. In response the nominator provided additional information, and Mr Lembit by letter dated 9 May 2002 provided details which supported information concerning the nomination. Mr Lembit explained that the community occurred on old sandy and lateritic soils in the vicinity of Kurri Kurri in the lower Hunter Valley and that the community was not constrained to one particular geological formation. Mr Lembit stated that the soils upon which the community was established appeared to be similar in structure to the soils of the Castlereagh area in western Sydney and that the vegetation had certain affinities to Castlereagh Scribbly Gum Woodland. Mr Lembit continued:-
- The community is distinct from other plant communities in the lower Hunter Valley as:
· it is present on lateritic soils
· it typically occurs as an open-scrub, low woodland or low open-woodland
· the dominant species are Eucalyptus parramattensis ssp. decadens, Angophora bakeri, E. capitellata and E. fibrosa
· the suite of understorey species it supports include species uncommon or rare in other communities and other species restricted to the community. These species include Macrozamia flexuosa, Grevillea montana, Acacia elongata and Ptilanthelium deustum.
In my opinion, there is no doubt the community can be distinguished from other communities in the lower Hunter valley .
Further information on the floristics may be available from recent work mapping the vegetation of this area which Doug Benson [an ecologist] is aware of.
Mr Lembit observed that the distribution map prepared by the nominator was reasonably accurate from his recollection but he did not discount the possibility that there might be additional sites which he would include. Mr Lembit confirmed the threats identified by the nominator and concluded as follows:-
Conclusion
I believe the community should be listed as an Endangered Ecological Community. It is of restricted distribution, of scientific interest due to its affinities to communities on laterite in the Cumberland Plain and elsewhere and is threatened with extinction due to a range of threatening processes including clearing, high fire frequency, rubbish dumping and associated weed invasion.
15. Mr Robert Payne was also readily able to identify the nominated vegetation type which he noted was found on poorly drained soils and was distinctly recognisable. He noted that in such types, certain species may be present or absent, and stated in his letter to the Committee dated 11 May 2000:-
I also have another quadrat in my fieldbook also on poorly drained soils, with a similar understorey, but the canopy is Eucalyptus maculata and Eucalyptus fergusonii. The applicant is possibly placing the main distinguishing difference on the presence of canopy species and the distinguishing factor of Angophora bakeri.For example, Eucalyptus parramattensis can be present or absent. The two attached sheets show Eucalyptus parramattensis to be absent, but Daniel Connolly holds some of my CRA quadrats for this vegetation type which will show this species to be present.
Mr Payne suggested that he would resort to recent mapping carried out for a locality known as Mapping Unit 35 “Kurri Sand Swamp Woodland (“KSSW”) which is referred to hereafter as “Map Unit 35”. In concluding Mr Payne agreed with the rarity of the species referred to in the nomination.
16. Mr Conroy responded to the Committee by letter dated 25 May 2000. Such letter confirms that the areas referred to in the nomination had been sampled, described and mapped. Mr Conroy described the community as “Kurri Kurri Open Forest” which he observed had been identified by the Roads and Traffic Authority (“RTA”) in 1995 and referred to in Map Unit 35. He stated:
The community “Kurri Kurri Open Forest” identified by RTA (1995) is floristically aligned to Map Unit 35 : Kurri Sand Swamp Woodland ” defined by the LHCC vegetation mapping project. The community is part of a group of communities occurring as disjunct and unique assemblages on Tertiary Alluviums from the Castlereagh Sand Deposits in Western Sydney to the Mellong Swamps in Wollemi National Park north of Windsor.
The letter enclosed an attachment which provided a summary of data and a list of diagnostic plant species. His letter stated inter alia:-
Eucalyptus parramattensis subsp decadens and Angophora bakeri are key features of the community .
The letter confirmed that the community was endemic to the Kurri Kurri area, its presence located on poorly drained Tertiary sand deposits and that the distribution of the community was “… as described in the nomination is largely the same as modelled by NPWS. It is most accurate for the North-eastern extent surrounding Kurri Kurri ”. Mr Conroy observed:-
NPWS mapping has also identified a patch not recognised in the nomination.
The letter then specifies various other localities where the community existed which were not included in the nomination.
17. Mr Conroy’s letter contained detail of the distinct features of the KSSW as follows:-
Kurri Sand Swamp Woodland is often a visually striking feature from the surrounding Spotted Gum- Ironbark Forests. The characteristic sandy substrate is also easily discernible as are the suite of species that prefer these soils to the adjoining Permian shales and sandstones. Banksia spinulosa, Lambertia formosa and Hakea dactyloides are examples.The species composition is however quite distinct and difficult to confuse with neighbouring assemblages. Eucalyptus parramatensis subsp. decadens is at most sites that have defined this Map Unit. It is distinctive in that this species has only been recorded from NPWS site data within this Map Unit and on the Tomago sand beds in the Port Stephens Shire.
18. Mr Conroy’s letter identified the threat to the community as the proposed highway link F3 Freeway to Branxton and stated:-
- The proposed preferred corridor for the F3 Freeway to Branxton, as outlined (RTA, 1985) runs directly through the north-eastern extent of this community. The impacts of the proposed route is described in the EIS and SIS.
A further threat comprised the application made to Cessnock Council to rezone an area described as the Tomalpin Employment Zone (“TEZ”) proposed for industrial, residential and environmental protection zoning. He observed that such zone contained KSSW .
19. A study entitled Vegetation Survey, Classification and Mapping Lower Hunter and Central Coast Region prepared in April 2000 the (“Vegetation Survey”) was provided to the Committee by Mr Conroy together with a map detailing the location of the KSSW and a description of the KSSW. At the 47th meeting of the Committee held on 20 June 2000, the Committee noted the receipt of a recoloured map of the KSSW.
FURTHER INVESTIGATIONS
20. By letter dated 28 June 2000 the nominator submitted a further vegetation map in support of his nomination and identified the sources. He informed the Committee that further mapping was being undertaken by the Department of Urban Affairs and Planning. The nominator also identified a species list prepared from six localities which were observed during his inspections on 18 June 2000 and provided a sketch showing the location of such sites. The nominator provided extracts from a publication dating from 1941 entitled the “Orchids of NSW” in which the eminent author, HMR Rupp referred to “the sandy scrubs” of Weston and Kurri Kurri which the nominator said aptly described the eucalyptus parramatensis woodland. The nominator also forwarded an extract of the Flora and Fauna Investigation and Planning Assessment prepared on the 26 February 1999 for the TEZ which identified Eucalyptus parramatensis subsp. decadens as a vulnerable species in the section entitled Threatened Flora Species. Other portions of such assessment referred to the risks to the species and identified its known locations in the Kurri Kurri area.
21. At its 48th meeting held on 18 July 2000 the Committee referred to the nomination. The minutes record as follows:-
j) Kurri Kurri Open Forest S Chate will follow up any outstanding advice. D Benson will prepare a draft Preliminary Determination.
22. The minutes of the 49th meeting of the Committee held on 29 August 2000 record the deferral of the nomination and the minutes of the 50th meeting held on 12 September 2000 record in respect of the nomination:-
D Benson will prepare a Preliminary Determination for this Community.
23. It should be noted that the acknowledgements contained in the Vegetation Survey express appreciation to Mr Doug Benson, Robert Payne, Stephen Bell and others for their provision of site data used in the Vegetation Survey.
24. On 27 September 2000 Ms Sue Chase, Executive Officer of the Committee, wrote to the nominator advising him that information had only recently been received and the Committee would contact him regarding their decision concerning his nomination.
25. The 51st meeting of the Committee was held on 3 October 2000 and the minutes disclose that Mr Benson was to prepare a preliminary determination. At the 52nd meeting of the Committee held on 14 November 2000 the following entry appears in relation to the nomination:-
- a) Kurri Sand Swamp WoodlandThe Committee noted and amended the draft preliminary determination. S Chate will seek advice regarding the use and access to the NPWS report.
C Dickman moved that the Committee make a preliminary determination to support the proposal to list the Kurri Sand Swamp Woodland as an endangered ecological community on Part 3 of Schedule 1 of the Act. Seconded: D Benson. The Committee unanimously agreed to support the proposal.
Notice of Preliminary Determination
NSW SCIENTIFIC COMMITTEE
The Scientific Committee, established by the Threatened Species Conservation Act, has made a Preliminary Determination to support a proposal to list the Kurri Sand Swamp Woodland in the Sydney Basin Bioregion as an ENDANGERED ECOLOGICAL COMMUNITY on Part 3 of Schedule 1 of the Act.
The Committee is of the opinion that this Ecological Community is likely to become extinct in nature in NSW unless the circumstances and factors threatening its survival or evolutionary development cease to operate.
Any person may make a written submission, which should be forwarded to:Copies of the Determination may be inspected at the National Parks Centre 102 George Street, The Rocks, Sydney and at all NPWS District Offices during business hours.
- Director-General
National Parks & Wildlife Service
PO Box 1967
Hurstville NSW 2220
Attention: Executive Officer, Scientific Committee
Submissions must be received by 25th January 2001.
Associate Professor Paul Adam[Signed]
Deputy Chairperson
Scientific Committee
26. The text of the Preliminary Determination describes the species which characterise the KSSW, identifies the plant community and notes their presence on poorly-drained Tertiary sand deposits which cover Permian Sediments around Kurri Kurri. The report is detailed and refers to the fragmentation of such Woodland and of the threats thereto. The Preliminary Determination concluded as follows:-
12. In view of the small size of existing remnants, and the threat of further clearing, disturbance and degradation, the Scientific Committee is of the opinion that Kurri Sand Swamp Woodland in the Sydney Basin Bioregion is likely to become extinct in nature unless factors threatening its survival or evolutionary development cease to operate and that listing as an endangered ecological community is warranted.
RESPONSE TO PRELIMINARY DETERMINATION
27. In response to the notice the Committee received various letters in support of the nomination. It also received a letter dated 20 January 2001 from Blake Dawson Waldron (the applicant’s solicitors) stating numerous grounds of objection to the proposed listing, itemising legal reasons preventing such listing and suggesting that the Committee was required to place the information held by it on public exhibition. A report prepared by Dr David Robertson, Senior Ecologist, Manager of ERM Ecological Services accompanied the letter.
28. At its 54th meeting held on 30 January 2001 the Committee considered the letter of the applicant’s solicitor and resolved to forward it to the NPWS. The Committee also resolved to seek legal advice from sources outside the NPWS. The minutes record the following additional matter:-
C Dickman moved that the Committee make a final determination to list the Kurri Sand Swamp Woodland in the Sydney Basin Bioregion as an endangered ecological community on Part 3 of Schedule 1 of the Act subject to any matters raised by NPWS Legal Services or Central CPPD requiring further consideration by the Committee. Seconded: J Hosking. The Committee unanimously agreed to support the motion.
29. By letter dated 9 February 2001 Dr Chris Dickman, the Chairperson, of the Committee responded to the applicant’s solicitor and set out in detail the matters which it had taken into consideration. The letter concluded:-
The next meeting of the Scientific Committee will be held on 20th February. If your client wishes to provide information to the Committee they are welcome to do so before close-of-business on 16th February, 2001. Any additional submission should be for the purpose of bringing to the Committee’s attention relevant issues and not for the purposes of debate.
THE FINAL DETERMINATION
30. On or about 12 February 2001 Dr Dickman wrote to Mr D R Murphy, Parliamentary Counsel, informing him that the Committee had made a final determination to list the KSSW as an endangered ecological community pursuant to Part 3 of Schedule 1 of the Threatened Species Act and sought assistance for the preparation of a notice of Final Determination for publication in the Government Gazette. Such request was in fact made in anticipation since no unconditional resolution to make the Final Determination had yet been adopted by the Committee.
31. By letter dated 16 February 2001 the applicant’s solicitor again wrote to the Committee challenging the adequacy of the response received and raising numerous matters in opposition to the making of a final determination. Again such letter was supported by an advice from Dr David Robertson.
32. The 55th meeting of the Committee was held on 20 February 2001. The minutes record that the letter of the applicant’s solicitors (dated 16 February 2001) be referred to NPWS for advice. Such advice was duly sought on 23 February 2001. In addition, by letter dated 11 March 2001 the Committee sought advice from Mr Brian Preston S.C. in respect of the matters raised by the applicant’s solicitors.
33. By letter dated 12 March 2001 the applicant’s solicitor requested information concerning progress of the nomination and requested a further period of two months in which to prepare submissions.
34. The Committee debated the nomination at its 57th meeting held on 24 April 2001. It noted the advice from Senior Counsel and the threats to the community identified by Mr Lembit. The minutes continued:-
… On reviewing the information the Committee was satisfied that the Community is likely to become extinct in nature unless the circumstances and factors threatening its survival cease to operate.
The Committee noted the advice to consider whether any further information on the Community exists. The Committee noted Mr Robertson indicated in his submission that he had undertaken inspections of some sites but had not advised the location of the sites. The Committee provided an opportunity for Mr Robertson, through Blake Dawson Waldron to provide any further relevant information to the Committee. The Committee agreed to seek advice from Brian Preston SC on whether a further more explicit request for information is required.
C Dickman moved that, subject to the advice from Brian Preston SC indicating that further action was required by the Committee, the Committee make a Final Determination to list the Kurri Sand Swamp Woodland as an endangered ecological community on Part 3 of Schedule 1 of the Act. Seconded: P Adam. The Committee unanimously agreed to list the Community.
35. By letter dated 31 May 2001 the Deputy Chairperson of the Committee, Associate Professor Paul Adam, wrote to the applicant’s solicitor acknowledging the letter of 16 February 2001 and advising as follows:-
The Scientific Committee has considered your letter of 16th February, 2001 and the annexured document dated 16th February, 2001 by Mr D Robertson and the matters raised in them.
On the same day the applicant’s solicitor wrote to the Committee seeking information upon the status of the nomination.
36. The evidence does not disclose any further deliberations. However, by notification published in the Government Gazette of the 1 June 2001 Notice of Final Determination was published. The notification is as follows:-
THREATENED SPECIES CONSERVATION
ACT 1995 No 101Notice of Final Determination and Amendment of Schedule 1 to Act
The Scientific Committee established under the Threatened Species Conservation Act 1995 has, in pursuance of Division 3 of Part 2 of that Act, made a final determination to insert the following ecological community in Part 3 of the Schedule 1 to that Act (Endangered ecological communities) and, accordingly, that Schedule is amended as set out in Annexure “A” to this Notice:
Endangered ecological communities
Kurri Sand Swamp Woodland in the Sydney Basin Bioregion (as described in the final determination of the Scientific Committee to list the ecological community)
The final determination to insert this ecological community in Part 3 of Schedule 1 has been made because the Scientific Committee is of the opinion that the ecological community is likely to become extinct in nature in New South Wales unless the circumstances and factors threatening its survival cease to operate.
Copies of the final determination may be inspected at:
The National Parks Centre
102 George Street
The Rocks
Sydney
and at all District Offices of the National Parks and Wildlife Service during business hours.Signed at Sydney, this 28th day of February 2001.
Dr CHRIS DICKMAN
Chairperson
Scientific CommitteeThreatened Species Conservation Act 1995 No 101 – Final Determination
Annexure “A”
Kurri Sand Swamp Woodland in the Sydney Basin Bioregion (as described in the final determination of the Scientific Committee to list the ecological community)Schedule 1 to the Threatened Species Conservation Act 1995 is amended by inserting in Part 3 in alphabetical order the matter:
37. The date of 28 February 2001 published in the notification was the day subsequent to the receipt of an opinion from Parliamentary Counsel that such form was appropriate for gazettal.
38. The Final Determination of the Committee contains details of the species in the flora and fauna list of its opinion concerning the threat and of the community’s location in the Kurri Kurri-Cessnock area.
THE APPLICANT’S CHALLENGES
39. The applicant challenges both the Preliminary Determination and the Final Determination. Each ground of challenge is determined hereunder as follows:-
Claim 1: Preliminary Determination and nomination: different ecological communities?
40. Section 22(1) of the Threatened Species Act provides:-
(1) The Scientific Committee, after considering a proposal raised on its own initiative or in response to a request from the Minister or a nomination by another person, must make a preliminary determination as to whether the proposal should be supported or not supported.22 Scientific Committee's preliminary determination
The applicant submits that the nomination was made for an ecological community described as the KKOF the species composition of which was identified by the nominator as Angophora bakeri/Eucalyptus parramattensis woodland. The Preliminary Determination was made in respect of the KSSW in the Sydney Basin Bioregion. The applicant claims that its determination was made in respect of a community having a different name, different species composition and different area from the ecological community nominated.
41. The respondent submits that there was ample evidence that the description of the community used by the nominator was associated with the KSSW as identified by the Vegetation Survey and that the map provided by the nominator was intended to identify only the approximate locations of the vegetation. It submits that the identified locations substantially correspond with the distribution of the KSSW as described in the Vegetation Survey.
42. The Committee is not confined by s 22 of the Threatened Species Act to making a preliminary determination in identical terms to that contained in the nomination. Pursuant to s 21(1) of the Threatened Species Act the Committee is required to consider each nomination as soon as practicable after it has been made or after further information has been supplied. The Threatened Species Act does not restrict the Committee to a consideration of the nomination solely by reference to the name selected by the nominator, nor to the precise content of the nomination. If the subject matter contained in the nomination is identifiable by reference to species, populations or ecological communities, the Committee is entitled to recognise it accordingly. The Committee is comprised of persons having expertise in such areas of study (s 129(3)) and it is empowered to utilise its own expertise and to receive advice from third parties (s 128(3)).
43. None of the experts namely Mr Lembit, Mr Payne or Mr Conroy have suggested that the community identified in the Preliminary Determination does not accord with the nomination, nor has the nominator made such suggestion. Although the Preliminary Determination may have included species which are not included in the nomination of the KKOF they are taxonomically related. The additional communities contained in the Preliminary Determination are subspecies of the species identified by the nominator. They are recognisable and have been assembled together for the purpose of the Preliminary Determination.
44. The applicant’s submission would leave no scope for the Committee to exercise its own judgment and would impose an unduly narrow constraint upon it. It would render its powers of investigation and the obtaining of information from third parties, otiose. Accordingly the submission is rejected.
45. The Committee also submits that it was entitled to make the Preliminary Determination on its own initiative (s 18(1)) even if the community was broader than that contained in the nomination. It relies on the doctrine that “a mistake in the source of the power works no invalidity”: see Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd & Ors (1996) 91 LGERA 31 at 85 per Cole, JA.
46. Although it is unnecessary to decide this question in view of the finding already made, the Court observes that s 22(1) entitles the Committee to consider a proposal which was raised either on its own initiative or in response to a request from the Minister or upon a nomination prior to making the Preliminary Determination. Accordingly the Committee was invested with power to make a preliminary determination of its own volition.
Claim No. 2: Failure to accord procedural fairness to the applicant
47. The applicant claims that it has been denied procedural fairness. Such claim is made upon two bases. Firstly, it is said that the applicant was not supplied with the information upon which the Committee made its preliminary determination pursuant to s 22 of the Threatened Species Act. Secondly, it claims that the Committee did not notify the applicant that the location, existence and operation of the applicant’s aluminium smelter had been referred to the Committee and considered by it as a reason for supporting the proposed listing. Such submissions assume that the doctrine of procedural fairness has application to the fulfilment of the Committee’s statutory functions.
48. The doctrine of procedural fairness is one which has originated in the common law and attaches to the exercise of a public power (see Kioa & Ors v West& Anor (1985) 159 CLR 550 at 584-585 per Mason, J). In Haoucher v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 648 at 652 Deane J:-
Regardless of whether one can identify a right in the strict sense or a legitimate expectation, the requirements of procedural fairness must be observed in any case where, by reference to “the particular statutory framework” (see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [(1963) 113 CLR 475, at p.504]), it is proper to discern a legislative intent that the donee of governmental executive power or authority should be bound by them. There is a strong presumption of such a legislative intent in any case where a statute confers on one person a power or authority adversely and directly to affect the rights, interests, status or legitimate expectations of a real or artificial person or entity in an individual capacity (as distinct from merely as a member of a section of the general public).
His Honour continued (at p 653)
…Indeed, the law seems to me to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognized as applying generally to governmental executive decision-making (cf. Halsbury’s Laws of England, 4th ed. (1989), vol. 1(1), par. 85) and where the question whether the particular decision affects the rights, interests, status or legitimate expectations of a person in his or her individual capacity is relevant to the ascertainment of the practical content, if any, of those requirements in the circumstances of a particular case and of the standing of a particular individual to attack the validity of the particular decision in those circumstances.
49. Such authority was cited in Annetts v McCann (1990) 170 CLR 596 at 598. The limited scope of the application of the doctrine of procedural fairness was referred to by McHugh J in Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 311 as follows:-
I think that the rational development of this branch of the law requires acceptance of the view that the rules of procedural fairness are presumptively applicable to administrative and similar decisions made by public tribunals and officials.
50. In the context of statutory decision making the critical question in most cases will not be whether the principles of natural justice apply but rather the extent to which they will apply in the circumstances of a particular case. Since the Committee made its decision under a statutory procedure the extent of the duty to afford procedural fairness will depend largely but not entirely on the construction of the statute: see Mason J in Kioa at 584. The surrounding circumstances in each case must also be considered: Spigelman CJ in Vanmeld Pty Ltd v Fairfield City Council & Ors (1999) 46 NSWLR 78 at 91-92. In Public Service Board of New South Wales v Osmond (1985-1986) 159 CLR 656 at 676, Deane J observed:-
On the other hand, it is trite law that the common law rules of natural justice or procedural fair play are neither standardized nor immutable. The procedural consequences of their application depend upon the particular statutory framework within which they apply and upon the exigencies of the particular case.
51. In Queensland Medical Laboratory & Ors v Blewett & Ors (1988) 84 ALR 615 Gummow J at 638 said:-
Where decision or determination in question is one made under a statute and the duty to act fairly applies to the decision or determination, the content of the duty depends to a large extent on the construction of the statute itself.”
52. In support of the first ground relied upon the applicant submits that it was entitled to information including mapping data, vulnerability data, evidence of the threatening processes affecting KSSW and references to independent literature or expert opinion.
53. The Threatened Species Act requires the Committee to follow certain procedures when a nomination pursuant to s 18 of the Threatened Species Act is made. The Committee is empowered to seek additional information (s 20); to consider the nomination (s 21); to make a preliminary determination (s 22); to give notification to specified persons and to publish its preliminary determination as soon as possible after making the Preliminary Determination (s 22(2)). The content of the notice is prescribed by (s 22(3)). It must invite submissions (s 22(3)(c)) and specify the date by which written submissions are to be made (s 22 (3)(d). The Committee must consider all written submission (s 22(5)).
54. The statutory framework contained in the Threatened Species Act was intended to cover the scope of the Committee’s duty to involve the public, and to provide information to those intending to make submissions. Such Act did not impose any greater obligations on the Committee, no doubt because it would have placed an unrealistic burden upon it to disclose all information to every person potentially affected by the determination. The Committee is an expert body and it is entitled to utilise its own knowledge and experience to make decisions. It is not obliged to reveal its thought processes nor to cite references to independent expert opinion. No duty is owed as alleged to provide all of the information before the Committee to the applicant.
55. The second ground relates to the failure to notify the applicant that the location of the smelter was considered by the Committee. The Threatened Species Act provides a comprehensive procedure of notification following the making of a preliminary determination. It requires the Committee to notify the nominator, the Minister and the Director-General (s 22(2)(a)). The Threatened Species Act also makes provision for publishing a notice of a preliminary determination in regional and State newspapers (s 22(2)(c)).
56. The legislature has again provided statutory requirements governing the process of notification. Such provisions demonstrate the intention of the legislature to prescribe the Committee’s obligations with respect to notification.
57. The duty to afford procedural fairness is excluded only by “express words of plain intendment”: see Commissioner of Police v Tanos (1958) 98 CLR 383 at 396 as cited in Vanmeld per Spigelman CJ at 96. In the instant case, such intention is not evident. Instead Parliament has made express provision for notification and the provisions of the Threatened Species Act establish the procedures to be followed by the Committee in fulfilment of such duty. The Committee has satisfied the statutory requirements and has thereby satisfied any duty of procedural fairness. The legislative scheme does not extend to notifying individually all persons who might be potentially affected by a preliminary determination.
Claim 3: Failure to accord the applicant the opportunity to make submissions
58. The applicant claims that it has been denied the right to make submissions concerning the Preliminary Determination as foreshadowed by s 22(3), s 22(4) and s 22(5) of the Threatened Species Act. As a result it claims that the Final Determination is invalid.
59. The applicant made a written submission to the Committee prior to the 21 January 2001, being the date nominated in the notice of the Preliminary Determination published in accordance with s 22(2)(c) of the Threatened Species Act. The Committee responded to such submission and a further opportunity was offered to the applicant to make submissions. Additional information was supplied to the Committee by the applicant’s solicitors by letter dated 16 February 2001. Before the Committee resolved, on 24 April 2001 to make the Final Determination the Committee reviewed the information before it, as recorded in the minutes.
60. In these circumstances the applicant exercised its right to make written submissions.
Claim No 4: Failure to make the Final Determination
61. The applicant submits that the minutes of the Committee’s meeting held on 24 April 2001 indicate that its resolution to make the Final Determination was conditional upon receipt of advice from Mr Brian Preston S.C. Thereafter the proposal to list the KSSW was not again considered before gazettal of the Final Determination on 1 June 2001.
62. The resolution of the Committee made on 24 April 2001 was conditional only upon the foreshadowed advice recommending further action be taken. It follows that if the advice when received recommended that no further action was required the determination would be unqualified.
63. In adopting its resolution the Committee was accepting the proposal for inclusion of the community in Schedule 1 as required by s 23(1) of the Threatened Species Act subject only to a specific contingency. The resolution of the 24 April 2001 was thus conditional but the condition was specific and self executing, being dependent only upon Mr Preston’s advice that further action might be required. There is no evidence that Mr Preston so advised. There was no uncertainty in the resolution concerning the substance of the Final Determination. Accordingly the resolution to make the Final Determination was an exercise of the statutory power which was “certain” and accords the “principle of finality” as considered by Spigelman CJ in Winn v Director-General of National Parks and Wildlife & Ors [2001] NSWCA 17. Other authorities support such construction: see Attorney General for Victoria v Parkin [1975] VR 942 at 946-947; Mison v Randwick Municipal Council (1999) 23 NSWLR 734; and Scott v Wollongong City Council (1992) 75 LGRA 112.
Claim No 5: Invalid delegation of power to make Final Determination
64. The applicant claims that the respondent purported to delegate its power under s 23 of the Threatened Species Act to “make a final determination listing KSSW” and that the respondent was not authorised to delegate the power provided by s 23. The alleged delegation is said to have resulted from the conditionality of the Committee’s resolution to make a final determination which was made subject to advice sought from Brian Preston S.C. The applicant contends that the whole Committee needed to consider the advice received to determine whether the condition of the resolution was satisfied and that this power could not be delegated.
65. No delegation to any other person occurred. The Court finds that upon a proper construction of the Committee’s resolution of 24 April 2001 the Committee made a final determination subject to satisfaction of the condition referred to above. In the absence of any further requirements as recommended by Mr Preston, the resolution became operative.
Claim No 6: Failure to form a jurisdictional opinion as required by s 12 of the Threatened Species Act
66. The applicant submits that the formation of an opinion under s 12 of the Threatened Species Act is jurisdictional fact. Section 12 provides:-
12 Ecological communities eligible for listing as endangered ecological communities
(a) it is likely to become extinct in nature in New South Wales unless the circumstances and factors threatening its survival or evolutionary development cease to operate, orAn ecological community is eligible to be listed as an endangered ecological community if, in the opinion of the Scientific Committee:
(b) it might already be extinct.
67. The applicant claims that neither the Preliminary Determination nor the Final Determination identify the requisite “ecological community” which is defined in s 4(1) of the Threatened Species Act as “an assemblage of species occupying a particular area” because there is no record of the Committee having formed such an opinion.
68. Paragraph 1 of the Preliminary Determination identifies the KSSW and its plant community as follows:-
1. Kurri Sand Swamp Woodland is the name given to the plant community characterised by the assemblage of species listed in paragraph 2 that occurs on poorly-drained Tertiary sand deposits that blanket Permian sediments around Kurri Kurri. All sites are within the Sydney Basin Bioregion.
Paragraph 2 of the Preliminary Determination provides:
2. Kurri Sand Swamp Woodland is characterised by the following assemblage of species ….
Thereafter 46 species are listed.
69. The Final Determination in par 1 and par 3 thereof contains text virtually identical to that of par 1 and par 2 of the Preliminary Determination and the same list of species.
70. In both the Preliminary Determination and the Final Determination the Committee has formed its opinion that the KSSW in the Sydney Basin Bioregion “… is likely to become extinct in nature unless factors threatening its survival or evolutionary development cease to operate and that listing as an endangered ecological community is warranted”.
71. The above conclusions demonstrate that the Committee formed the requisite opinion pursuant to s 12 before making the Preliminary Determination and the Final Determination. Accordingly this claim is rejected.
Claim No 7: Section 12 opinion was vitiated by error of law
72. The applicant claims the Committee had no jurisdiction to make either the Preliminary Determination or the Final Determination upon the ground that it was not reasonably open for the Committee to form the opinion that the KSSW was either an ecological community as defined in s 4(1) of the Threatened Species Act or was likely to become extinct. Particulars in support of such claim allege there was no evidence before the Committee of any significant weed invasion, clearing or disturbance to the KSSW; no basis for differentiation between the KSSW from another community known as Tomago Sand Swamp Woodland or other communities, nor of any threatened extinction of the KSSW.
73. Alternatively the applicant submits that the Committee had no jurisdiction to make either the Preliminary Determination or the Final Determination since it did not have regard to relevant considerations contained in the material before it prior to forming its opinion. Such considerations relate to the alleged unexplained discrepancy between 21 diagnostic species listed in the Vegetation Survey and the 46 species listed in the Preliminary Determination and Final Determination; the fact that the list of diagnostic species in both determinations are almost all common and wide spread plants; the need for definition of an endangered ecological community; and the matters raised in the applicant’s submissions to the Committee dated 21 January 2001 and 16 February 2001.
74. Alternatively the applicant claims the Committee had no jurisdiction to make either determination as it had regard to irrelevant considerations, namely documents pertaining to the F3 to New England Highway corridor EIS; and the alleged and unsubstantiated threat to the KSSW posed by the existence and operation of the aluminium smelter.
75. Lastly the applicant submits the Committee had no jurisdiction to make the determinations because it failed to ascertain facts relevant to its decision. The applicant submits that the Committee failed to pay regard to mapping data prepared for the Committee or for the Vegetation Survey; raw quadrat or sample data; the quadrats referred to in Mr Robert Payne’s letter to the Committee of 11 May 2000; the nature and size of any detrimental or proposed impact caused by the aluminium smelter.
76. As to the alleged absence of jurisdiction to make either of the determinations because of a lack of evidence, it is essential to have regard to the evidence before the Committee. Prior to the making of the Preliminary Determination the Committee had received responses from Mr Roger Lembit, Mr Payne, Mr Conroy of NPWS and supporting documentation relating to the F3 highway extension including relevant extracts of the EIS prepared in relation to that investigation and the proposed industrial zoning, the Vegetation Survey, further information from the nominator and maps showing the location of the various species. Those who were consulted by the Committee were unanimous in their support for a listing of the KSSW under Schedule 3 of the Threatened Species Act. Their evidence supported the claim of the nominator that there was a threat to the existence of the community by development, dumping of rubbish and other causes. The Committee accordingly had before it ample evidence to make the finding required under s 12 of the Threatened Species Act. The Committee’s members are experts in relevant areas and were able to bring their judgment on the material placed before them (s 129(3)) to determine whether any species, population or ecological community should be listed in the Schedules to the Threatened Species Act (s 17(1)).
77. In answer to the submission that the Committee did not have regard to relevant considerations as particularised above, the Committee’s letter of 9 February 2001 to the applicant’s solicitor explains that it is not necessary that the species which form the assemblage in a particular area be individually endangered. Such letter states:
Under the TSC Act the definition of an ecological community is an assemblage of species occupying a particular area. Points 1 and 2 of the preliminary determination satisfy the legal definition of an ecological community as defined by the TSC Act. However, recognising that ecological communities are more complex than just a list of species in an area the Committee provides additional information relevant to the identification of the Community.
With regard to the comments regarding the alleged discrepancy between the report “NPWS (2000) Vegetation Survey, Classification and Mapping, Lower Hunter Central Coast Region” and the preliminary determination, the preliminary determination lists characteristic species and this provides a broader context for description than the diagnostic species derived for analysis from a particular data set.
The Committee also noted the assumption that an ecological community must contain threatened species. It is not a requirement that the species present in the assemblage of species be rare or threatened. There are many examples of rare assemblages which are particular combinations of otherwise common species.It is suggested that the Committee should provide a minimum number or proportion of species that must be found in an area to constitute KSSW. This is an impractical proposal for defining an ecological community as the number or proportion of species in a particular location can vary in the short and long term eg – some species may not be visible at certain times of the year and many species may not be found for some time after disturbance such as fire. Other areas may be degraded and contain many exotic species. One of the objectives of the TSC Act is to prevent extinction and promote the recovery of endangered ecological communities. Areas degraded with exotic species still have the ability to recover if properly managed. Improper assessment practices arising from a determination which result in the loss of areas with an ability to recover would conflict with the objectives of the Act.
So considered, there is no “unexplained discrepancy” between the 21 diagnostic species listed in the Vegetation Survey and 46 species listed in the Preliminary Determination. It is apparent that the Committee did not regard the list of diagnostic species in the Preliminary Determination as common and wide spread plants.
78. In answer to the submission that the Committee did not have regard to the matters raised by the applicant in its submission of 25 January 2001 and 16 February 2001 the minutes of the Committee’s 45th meeting held on 30 January 2001 and 55th meeting held on 20 February 2001 show that the matters raised by the applicant were considered. Despite such submissions the Committee was satisfied of the existence of the ecological community and formed the required opinion concerning its extinction under s 12 of the Threatened Species Act. Parliament has provided the Committee with a wide power in respect of its decision making (see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 653-654).
79. There is no evidence to justify the submission that the Committee failed to ascertain facts which were centrally relevant to the decision before it made either of its determinations. The Committee considered those matters relevant for the making of both determinations, including consideration of the material submitted by the applicant.
Claim No 8: That the Preliminary Determination and Final Determinations were vitiated by reviewable errors of law
80. For the reasons provided above there is no merit in such claim.
Claim No 9: Alleged misconstruction of the Threatened Species Act
81. The applicant submits that the Committee held the view that the Threatened Species Act did not allow surveys or “long term studies” to be undertaken as part of the listing process and in this respect it misdirected itself. Section 23(2) of the Threatened Species Act is relevant to this process, it provides:-
(a) the making of the nomination, or(2) In a case involving a nomination, the Scientific Committee must make a determination under this section within 6 months after:
(b) if additional information has been requested by the Scientific Committee, after that information has been provided or the period specified for its provision has expired.
Claim No 10: Uncertainty of Preliminary Determination and uncertainty of Final Determination
83. The applicant claims that both the Preliminary Determination and the Final Determination (“the Determinations”) lacked the certainty or precision required by the Threatened Species Act. The particulars allege that the KSSW is defined as being both an assemblage of 46 species and on occasion an assemblage of an unspecified lesser number of those 46 species. It is claimed that 44 of the 46 species are relatively common, yet par 3 of the Final Determination states that an unspecified combination of these common species would constitute KSSW.
84. In response the Committee’s letter of 9 February 2001 to the applicant’s solicitor (refer to para 77 above) explains that it is not necessary for the species forming an assemblage in a particular area to be individually rare. The Committee was required to determine whether the KSSW community as a whole was likely to become extinct in nature. For this purpose it is not necessary to determine whether the individual species comprising the assemblage of the KSSW are individually threatened.
85. It is also claimed that both the Determinations fail to specify a minimum number of species required to constitute the KSSW. The letter of 9 February 2001 informs the applicant that it is impractical to propose a minimum number of species to constitute KSSW as it can vary in both the short and long term. The Committee is therefore not required to specify a minimum number or proportion of species that must exist in order to constitute an endangered ecological community.
86. It is also claimed that the Determinations are uncertain with respect to the location of KSSW. In making this submission the applicant overlooks that Pt 2 of the Threatened Species Act is directed to the listing of threatened species, populations and ecological communities. Such communities comprise both fauna and flora. To enable a listing under Pt 2 of the Threatened Species Act specific mapping of the location on which an assemblage of species occurs is not required. Pursuant to that Pt 3 of the Threatened Species Act relating to critical habitat of endangered species, populations and ecological communities, different considerations apply and specific areas must be identified, but no such requirement applies to Pt 2.
87. In answer to the allegation that the Determinations are internally inconsistent because only 21 diagnostic species are referred to in the Vegetation Survey, the Committee’s letter of 9 February 2001 explains a distinction between diagnostic species and species which are characteristic of those present in KSSW.
Claim No. 11: Alleged uncertainty of the Preliminary Determination renders nugatory the statutory right to make submissions
88. The applicant claims that the uncertainty of the Preliminary Determination deprived it and other persons of the opportunity to make submissions pursuant to s 22 of the Threatened Species Act prior to the making of a final determination and as such there is no compliance with the Act.
89. The Court rejects the submission that the location of the KSSW is uncertain. If a meaning can be ascertained from the terms contained in the Determinations they are not uncertain: see The Director-General of theDepartment of Transport of New South Wales and Ors v Oliveri Transport Services Pty Ltd [2001] NSWCA 231 [105] in which the Court cited the observation of Denning LJ in Fawcett Properties Limited v Buckingham County Council [1960] 3 All ER 503 at 517.
90. Further, this claim overlooks the fact that the applicant made its submission to the Committee on 25 January 2001, which was responded to by the Committee on 9 February 2001. In a responding letter the Committee afforded the applicant an opportunity to provide additional information and the applicant exercised this opportunity by the submissions contained in the letter of 16 February 2001. The minutes of the Committee’s 54th meeting held on 30 January 2001 and 57th meeting held on 29 April 2001 established the Committee reviewed the material provided by the applicant including that of the applicant’s expert, Dr Robertson. Accordingly this submission is rejected.
Claim No 12: Whether the Final Determination and nomination relate to different communities
91. The applicant claims that the species listed by the nominator differ from those included in the Final Determination.
92. It is a matter for the Committee to determine those species which it considers are endangered and the extent of the subspecies which derive from the species nominated. Because the Committee is entitled to exercise its discretion based upon the nomination, submissions and other information which it may receive, the determination of the list lies within the discretion provided to the Committee by virtue of s 23 of the Threatened Species Act. For the reasons already stated there is no requirement that the list of species in a final determination be identical to the nominated species.
Claim No 13: Non-compliance with required time period
93. The applicant submits that the Final Determination is invalid because it was not made within the six months period specified by s 23(2). It submits that the last “additional information” referred to in s 20 and s 23(2)(b) of the Threatened Species Act was received by the Committee on or about 28 June 2000 and that the Final Determination was required to be made before 28 December 2000.
94. Failing to make a determination within the six months period referred to in s 23(2) does not make a decision made after the expiration of such period invalid. The Threatened Species Act invests the Committee with powers of investigation and enquiry (s 128(3)). Upon receiving information the six months period applies. However the Court is satisfied that such provision is procedural in nature and is accordingly directory and not a mandatory requirement: see Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at 374-375 (per Brennan J) and at p 389-390 (per McHugh, Gummow, Kirby and Hayne JJ). Accordingly a determination made otherwise than in accordance with s 23(2) is one made in breach of the procedure described but it does not render the decision invalid: see James v Secretary of State for Wales & Anor (otherwise referred to as Minister of Housing and Local Government) [1966] 1 WLR 135 at 142, 145, 147 (Court of Appeal); [1967] 1 WLR 171 at 179, 192, 194 and 203 (House of Lords); see also Woods v Bate (1986) 7 NSWLR 560 at 566-567 per McHugh JA; see also Corowa v Ministerial Corporation (2000) 107 LGERA 404 at 418-420). For these reasons this ground is rejected.
Claim No 14: Failure to provide and publish reasons for the Preliminary Determination and Final Determination
95. Sections 22(2)(c) and s 24(c) of the Threatened Species Act require the Committee to publish the reasons for the Preliminary Determination and for the Final Determination in the newspaper notices. The applicant claims that the statement contained in the notice that the Committee had formed the view that the ecological community “… is likely to become extinct in nature in New South Wales unless the circumstances and factors threatening its survival or evolutionary development ceased to operate” is insufficient to constitute “reasons”. In support the applicant relies upon various authorities including Dalton v Deputy Commissioner of Taxation of the Commonwealth of Australia (1986) 160 CLR 246 at 250; Iveagh (Earl) v Minister of Housing and Local Government [1964] 1 QB 395 at 410; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280-281 (McHugh JA).
When determining the nature and extent of the reasons to be provided it is useful to examine the specific purpose and circumstances for such reasons. Unless reasons are required by statute a decision maker may not be required to furnish them. In Public Service Board of New South Wales v Osmond, Deane J considered that a statute might require reasons to be provided and said at 676:-
Where such circumstances exist, statutory provisions conferring the relevant decision-making power should, in the absence of a clear intent to the contrary, be construed so as to impose upon the decision-maker an implied statutory duty to provide such reasons. As has been said however, the circumstances in which natural justice or procedural fair play requires that an administrative decision-maker give reasons for his decision are special, that is to say, exceptional.
96. The Threatened Species Act requires the Committee to give reasons at various stages of its deliberations. For example if the Committee determined to reject a nomination it is required to notify the Minister, the Director-General and the person who made the nomination and to give reasons for the rejection (s 21(4)); the notice of the preliminary determination is to contain reasons (s 22(2)(c)); in the acceptance or rejection of the final determination the Committee is required to give reasons (s 23(1)) and the notification in the newspaper of the final determination is to contain reasons (s 24(c)).
97. The nature and extent of the reasons required to be provided in respect of each occasion will differ according to the circumstances. In respect of a preliminary determination the notice must provide the address at which the determination may be inspected (s 22(3)(b)). There is no requirement to publish in detail the reasons relied upon by the Committee for the making of a preliminary determination and of a final determination. All that is required for the purposes of the notice is that reasons be notified sufficient to justify the Committee’s decision. In these circumstances the reasons provided by the Committee as published constitutes “reasons” for the purposes of the statutory notices.
Claim No 15: Date of Final Determination
98. During the hearing the applicant argued that the publication of the notice relating to the Final Determination was invalid because it was dated 28 February 2001. The Committee did not resolve conditionally to make the final determination until it 57th meeting held on 12 April 2001.
99. By 20 February 2001 the Committee had received the reports of its consultants and had received the submission dated 16 February 2001 from the applicant’s solicitor together with its expert’s report. At its 55th meeting held on 20 February 2001 the Committee determined that the correspondence from the applicant’s solicitor be referred to NPWS Legal for advice.
100. Thereafter Dr Dickman apparently in anticipation of the Final Determination being made dated the draft notice following its approval by Parliamentary Counsel.
101. The date of the notice is of no significance. Rather it is the date of the gazettal of the notice which renders the Final Determination effective (s 24(d)) and gazettal occurred on 1 June 2000. The dating of the determination of 28 February 2001 was unnecessary and in the circumstances an error. However, the Court would not regard such defect as one requiring any intervention since no legal consequences flow from the inclusion of the incorrect date.
ORDERS
102. The Respondent has foreshadowed an application for costs and accordingly the Court will reserve such issue.
103. The Court orders:-
1. That the application be dismissed.
2. That costs be reserved.
3. The exhibits be returned.
FACTS 1
THE DETERMINATION IN ISSUE – THE NOMINATION 3
EVENTS SUBSEQUENT TO THE NOMINATION 4
FURTHER INVESTIGATIONS 7
RESPONSE TO PRELIMINARY DETERMINATION 10
THE FINAL DETERMINATION 10
THE APPLICANT’S CHALLENGES 13
Claim 1: Preliminary Determination and nomination: different ecological communities? 13
Claim No. 2: Failure to accord procedural fairness to the applicant 15
Claim 3: Failure to accord the applicant the opportunity to make submissions 18
Claim No 4: Failure to make the Final Determination 18
Claim No 5: Invalid delegation of power to make Final Determination 19
Claim No 6: Failure to form a jurisdictional opinion as required by s 12 of the Threatened Species Act 19
Claim No 7: Section 12 opinion was vitiated by error of law 20
Claim No 8: That the Preliminary Determination and Final Determinations were vitiated by reviewable errors of law 23
Claim No 9: Alleged misconstruction of the Threatened Species Act 23
Claim No 10: Uncertainty of Preliminary Determination and uncertainty of Final Determination 24
Claim No. 11: Alleged uncertainty of the Preliminary Determination renders nugatory the statutory right to make submissions 25
Claim No 12: Whether the Final Determination and nomination relate to different communities 25
Claim No 13: Non-compliance with required time period 26
Claim No 14: Failure to provide and publish reasons for the Preliminary Determination and Final Determination 26
Claim No 15: Date of Final Determination 28
ORDERS 28
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