Yates Security Services Pty Limited v The Honourable Paul Keating

[1991] HCATrans 47

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl48 of 1990

B e t w e e n -

YATES SECURITY SERVICES PTY

LIMITED

Applicant

and

THE HONOURABLE PAUL KEATING

First Respondent

ROCKVALE PTY LIMITED

Second Respondent

VALTONE PTY LIMITED

(Provisional Liquidator

Appointed)

Third Respondent

REGISTRAR-GENERAL OF NEW SOUTH

WALES

Fourth Respondent

Application for special leave

Yates 1 15/2/91

to appeal

MASON CJ
DEANE J
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 FEBRUARY 1991, AT 9.34 AM

Copyright in the High Court of Australia

MR B.W. RAYMENT, OC:  May it please Your Honours, I appear

with my learned friend, MR R.J.H. DARKE, for the

applicant. (instructed by Michael Mobbs)

SIR M. BYERS, QC: If the Court pleases, I appear with my

learned friend, MR A. ROBERTON, for the first

respondent. (instructed by the Australian

Government Solicitor)

MR D.F. JACKSON, OC:  May it please the Court, I appear with

my learned friends, MR B.C. OSLINGTON, QC, and

MR P.F. ESLER, for the second respondent, Rockvale

Pty Limited. (instructed by Giam and De Rubeis)

MASON CJ:  The Registrar has been advised by the solicitors

for the third respondents that they do not intend

to appear in the matter but are instructed to abide

by any order save as to costs. Likewise, the

Registrar has been informed by the solicitor for the fourth respondent, the Registrar-General, that

he has been instructed to consent to such orders as

the Court may make with respect to the above matter

except as to costs. Yes, Mr Rayment?

MR RAYMENT:  Your Honours, may I hand up an outline of our argument together with - - -

MASON CJ: It is not that large, is it?

MR RAYMENT: - - - some materials, Your Honours. It will

only be necessary to refer, I think, to a few pages

within that volume but they are complete rather

· than piecemeal. Your Honours, the last of those

documents is a document I propose to seek to tender

in due course. It is the most recent communication

we have had about the question of a fiat. Could I

come to that at the appropriate time?

MASON CJ: Yes.

MR RAYMENT:  Your Honours, the merits of the debate between

these parties raise, in our submission, a number of
issues of general public importance. In the first
place there would be, once issues of standing were

resolved, the question of the meaning·of section 30

Yates 2 15/2/91

of the Australian Heritage Commission Act. One of

the things that we have just handed up is a print

of that Act. Section 30 is at page 13 of the

print.

The issues in the Federal Court concerned both

subsections (1) and (3), principally, of that

section. In particular, Your Honours, the

concluding expression in section 30(1), the words:

and shall not himself take any such action

unless he is so satisfied -

in that the Treasurer's own activity was in issue

in the case. The question upon which there is

dicta in the Full Court of the Federal Court, contrary to the judgment of the learned trial

judge~ is upon the issue of the meaning of the

expression "adversely affects". Your Honours will

see that by the picking up in relation to the

"Minister" of the obligations referred to in the

opening words of subsection (1), the:

Minister shall ..... not himself take any such

action .... that adversely affects, as part of

the national estate, a place that is in the

Register unless he is satisfied that there is

no feasible and prudent alternative to the

taking of that action and that all measures

that can reasonably be taken to minimize the

adverse effect will be taken.

MASON CJ:	By that, you are raising the question whether the revocation by the Treasurer of the prohibition was
sufficiently, as it were, close or direct to result
in something that adversely affected something that
was part of the national estate.
MR RAYMENT:	Yes.
MASON CJ:	When, in fact, it did not relate to anything like

improvement, destruction, some physical

alteration?

MR RAYMENT:  Yes, the competing views may perhaps be

characterized in this way, Your Honour: the trial

judge took the view that you looked at the

consequences of the taking of the action in the

context in which the action was taken in a

practical way. Two members of the Full Court took

the view that you looked at only the direct legal

effect of the taking of the action. They said,

"All that you have done is to remove a bar upon the

acquisition of a leasehold interest." That has

nothing to do with a national estate, it will

depend upon the actions of others as to whether

Yates 15/2/91

there is any adverse effect upon the national

estate.

The matter had been put to the Treasurer when

he was asked to revoke the prohibition on the basis

that the - instead of the proposal which had been
previously put forward which led to the prohibition

of the acting Treasurer in June last year, there

would be a lower tower put up. It would be a

26-storey tower instead of a 36-storey tower, and the lost space would be redistributed through the balance of the building.

Your Honours, subsection (4), in our

respectful submission, gives a clue about the

meaning of the expression "adversely affects" in

the section. It refers to the question of "direct
financial assistance" granted to the States. It

refers to:

the issue of a licence or the granting of a

permission -

as being, respectively, recommendations and actions
for the purposes of the section. If a permission
or a licence be granted to someone to do something,
the adverse effect, in a physical sense, upon the

national estate, could only be done by the person.

Subsequent to the issue of the licence, it merely

removes a bar or grants an authority without itself

adversely affecting the national estate. It, in

other words, will be something done by the licence

holder perhaps with the permission of another

authority which would have any adverse effect in

the usual case.

Now that, we submit, is a question of general

public importance about section 30. It is a
question upon which the views of judges, both in

this case and in another case to which we will

refer, have differed.

MASON CJ: Assume you are successful on that point, what is

the effect of non-compliance by the Treasurer with

· either subsection (1) or the following subsections?

MR RAYMENT: That, in our respectful submission, is the next

question of general public importance in this case.

The effect of a breach of section 30 was debated

below in both courts. It was the subject of a

judgment by Mr Justice Wilcox to the effect that it

led to invalidity and it was the subject of a

number of comments by Mr Justice Pincus rather

doubting - - -

MASON CJ:  He would have been against you on that point,

would he not?

Yates 4 15/2/91

MR RAYMENT:  He was at least tentatively against my client

on that point. He discussed it without perhaps

arriving at a firm view about it. Whether he

p~ecisely - - -

MASON CJ:  I thought the tenor of his mind was fairly clear

from his judgment.

MR RAYMENT:  It was expressed in rather tentative terms.

That is my only reason for saying that,

Your Honour, but I agree, certainly, that he was at

least reaching for a conclusion contrary to

Mr Justice Wilcox's.

MASON CJ:  And are not the views expressed in the earlier

case in this Court, the Australian Conservation

Foundation case, against you on that question?

MR RAYMENT:  That was an issue which was itself debated

below in the Federal Court in both courts, that is

to say, what the precise effect of those remarks in

the Australian Conservation Foundation case was.

Indeed, it is a matter, in our respectful submission, which needs clarification because they

are open to a number of constructions, with

respect, those remarks in the Conservation

Foundation case. Mr Justice Wilcox read them one

way; Mr Justice Pincus and perhaps to some extent
Mr Justice Lockhart read them another. That

itself, in our respectful submission, the effect in

Commonwealth law of section 30, is a real matter of public importance.

If it has no consequence as to the validity of

actions, then the section has, as it were, an

admonitory effect rather than some kind of binding

effect.

MASON CJ:  Do you concede that if the view were to be taken

that non-compliance did not result in invalidation,

that you would not then be entitled to relief?

MR RAYMENT:	Yes, Your Honour.
MASON CJ:	You have not, at any stage, sought a declaration limited to a declaration that the Minister's act
was unlawful.

MR RAYMENT:  No, we have not. The point of the proceedings,

principally, is to seek to undo, so far as my

client is concerned, what was done by the Treasurer

in July with a view to inducing him to seek to
divest - obtain an order for divestiture against

Rockvale, and to do that we concede that it would be necessary to have it declared invalid rather

than merely unlawful.

Yates 15/2/91

Your Honours, what subsection (1) does, in our

respectful submission, is this, and this is, I

indicate, really a submission that we would make on

an appeal if special leave were granted: it, so

far as the Minister is concerned, directs him, so

long as the expression "consistently with any

relevant law" has been satisfied, to take certain

matters into account in taking a decision or taking

action and it specifies the weight which he must

give to those factors. That is to say, it

prohibits him from taking the action unless he

comes to the view upon the issues that he must take

into account that each of the two matters is

satisfied.

It is rather like - if one thinks of

Peko-Wallsend - something more than the decision

maker being merely bound to take certain matters

into account and being at liberty to give what

weight he wishes to them, the weight is specified

by the section. Of course, the debate on that

issue would require some consideration of the law

which used to be characterized under the rubric of

mandatory or directory and would involve the Court

in determining what the legislative intention was

in enacting section 30. Was it merely an

admonition or was it intended to bind decision

makers and, if so, with what consequence?

Your Honours, in the next place it is

necessary to refer to those words which I read a

moment ago, "consistently with any relevant laws"

the Tasmanian Forest case and Your Honour said, I

in section 30. Those words were looked at by

think, that they included State law as well as

federal law on the better view. They were argued

before the Full Court to make section 30 applicable only when its provisions are not ousted, in effect,

by other laws. They were argued to make section 30

inferior to other laws, whether State or

Commonwealth.

It was submitted in the courts below that it

was not open to the Treasurer in taking action

under the Foreign Acquisitions and Takeovers Act to

give effect to section 30 because, in effect, its

provisions were ousted by the Foreign Acquisitions
and Takeovers Act. That submission was put,

particularly by Rockvale in the Full Court, as a

matter of construction of section 21A of the

Foreign Acquisitions and Takeovers Act, and

Your Honours we have put, in the folder - I think

the only way in which one can get the current form
of this legislation, it is a booklet. At page 65

of it Your Honours will see subsection (2), the

power to prohibit is there made available:

Yates 6 15/2/91

Where the Treasurer is satisfied that -

(a) a foreign person proposes to acquire an

interest in Australian urban land; and

(b) the proposed acquisition would be contrary

to the national interest,

the Treasurer may make an order prohibiting

the proposed acquisition.

That was, of course, the warrant for the making of

the order by the acting Treasurer prohibiting.	The
Treasurer then acted under section 23, on the
following page:

The Treasurer may at any time make an order

revoking an order made under -

inter alia -

section 21A.

It was put to the Federal Court that he could only exercise the power of revocation when

satisfied that it was no longer contrary to the

national interest for the acquisition to proceed

and it was further put to the Federal Court that

the national interest, to which he was required to

attend, had to be considered from the point of view

of the foreignness of the person whose conduct was

sought to be prohibited, and that was put on the

basis of a submission on the statutory scheme and other sections in the Act referring to foreigners

and the like.

Whether "national interest" in the Foreign

Acquisitions and Takeovers Act is to be read in

that limited way or whether it means the same as

the variety of matters of public interest which

would usually be taken into account in the taking

of Commonwealth action is another matter, in our

respectful submission, of general public

importance. It does not arise on a submission we

would make but, as we understand it, it would arise

if arguments are repeated here in the event of

special leave being granted which were put below.

Then, Your Honours, may I go to standing? We

respectfully submit that if a question of standing

arises on a special leave application and even if

the Court believes that that point may have
substance, that will not necessarily be a bar to

the grant of special leave. In particular, we

submit that even if the applicant failed in the

High Court on the issue of standing, it does not

follow that the issue of standing itself must be a

Yates 7 15/2/91

matter meriting the grant of special leave before

such leave would be granted. This is because it is

a technical defence which may not prevent the

writing of judgments on the merits of the dispute

and, Your Honours, we - - -

MASON CJ:  I do not quite follow the submission. Are you

suggesting that if the Court thought, for example,

that you did not have a sufficiently arguable case

on standing, that that would not operate as a bar

to the grant of special leave - - -

MR RAYMENT:	No, Your Honour.
MASON CJ:	- - if the Court thought that the questions of substance were of public importance and arguable?
MR RAYMENT:	Your Honour, it is not quite that submission

that I am making, it is something approaching it.

What we submit is that when Your Honours come to

write a judgment in this case it will be a

discretionary matter whether you put standing at the forefront of the judgment or standing at the

end of the judgment as this Court decided - - -

MASON CJ: But, logically, standing ought to be dealt with

first.

MR RAYMENT:  Yes.

MASON CJ: Although, of course, in determining standing, one

must have regard to the subject-matter of the case

and the relief that is sought.

MR RAYMENT:  It may certainly arise as logically first.

Whether it arises at the forefront of a judgment

has been said in Robinson's case which, I think,

was referred to again by several members of the

.Court in Onus v Alcoa as being a discretionary

matter. Robinson's case, Your Honours, is included

in the bundle that I have handed up.

Mr Justice Gibbs in that case - - -

MASON CJ:  Mr Rayment, I do not want to cut you short but

perhaps I might indicate at the moment that as I

see it standing may be the least of your problems.

In other words, it may be that when one looks at

the judgments of the Full Court of the Federal

Court, a good deal of their approach towards the

standing question may not be appropriate in terms

of the nature of the relief that you are seeking

and the subject-matter of the case. After all, in

cases of prohibition, for example, and certiorari,

a much wider view has been taken of the interest

that an applicant needs to have in order to seek

relief of that kind.

Yates 15/2/91

MR RAYMENT:  Yes. And, Your Honour, as it were, an approach

of great stringency was adopted in the Full Court

on this matter. They said the absence of evidence

of mobility to purchase was fatal, which would mean

tnat in a credit squeeze one would not have

standing; in a time of expanded credit, one would.

There was no sale of this land proposed. There was

no person willing to sell it to my client at the

time of the proceedings. He was a person who

wished to remove a competitor from the field.

DEANE J:  Mr Rayment, can I divert you? I do not quite

understand what you say about the relationship

between section 21A of the Acquisitions Act and

section 30(1) of the Heritage Act.

MR RAYMENT:  Our submission about those two sections is that

they are entirely consistent and that the

expression "national interest" in section 21A(2)

and, to the extent that it is relevant, to

revocation, section 23, would - - -

DEANE J:  I was more concerned with section 21A to start

with. I mean, that empowers the Treasurer to make

an order. Could section 30(1) apply to that, in

your view?

MR RAYMENT:  Yes, Your Honour, we submit so.

DEANE J: What, you would go so far as to say that if a

failure to make an order would adversely affect a

place as part of the national estate, the Treasurer is obliged to make an order even though he does not

think that overall it is in the national interest

to make it?

MR RAYMENT: Well, he only has a discretion to make an order

if - the Treasurer may make an order prohibiting

~he proposed acquisition where he is satisfied of

two things. As to the second thing, Your Honour, I

do not know that he would be obliged, unless "may"

means "shall". But, Your Honour, section 21A(2)(b)

requires him to examine the national interest or,

rather, empowers him to make an order only when he

is satisfied about a matter relating to the

national interest. Section 30(1) is, in our

respectful submission, such a matter.

DEANE J:  I follow that but what if it does adversely affect

a place as part of the national estate and the

Treasurer thinks it is not in the national interest

to make an order? How do the two provisions

interact, in your submission?

MR RAYMENT:  They interact, in our respectful submission -

on that view, since nothing in section 21A(2) would

require the Treasurer to act one way or the other

Yates 9 15/2/91

so that there is no relevant confining of the
obligation arising under section 30(1),

section 30(1) would - - -

DEANE J: Well, can I shortcut it? Assume the Treasurer is

of the view that the proposed acquisition would be
in the national interest notwithstanding that it

would adversely affect a place as part of the

national estate. Now, what does he do?

MR RAYMENT:  He prohibits, in our respectful submission.

Section 30 tells him that where he is dealing with a matter where his action will adversely affect a place in the national estate, he must be satisfied of certain things and if he is not he shall not so

act.

DEANE J: So, even though the power to make an order is

contingent upon satisfaction that the acquisition

would be contrary to the national interest, you

say, in the absence of that condition,

section 30(1) compels him to make an order if he

thinks failure to make the order would adversely

affect the place?

MR RAYMENT:

unless he is satisfied that there is no

feasible and prudent alternative -

and the like. If it falls within the proviso, then

he is not relevantly bound by subsection (1).	But
if it does not, then he is, as subsection (1) is
cast, bound to reach a certain result.

DEANE J:  If one does not accept your view in that regard

but takes the view that under section 21A he must
be guided by the national interest, it would

follow, would it not, that under section 23 he must revoke if he is satisfied that that is the national

interest?

MR RAYMENT:

As a matter of fact, that raises a further

question which was debated below, namely, whether

the circumstances in which one may revoke under

section 23 are in any way limited by the terms of

section 21A(2).

DEANE J:  By the considerations that justify the making of

the order?

MR RAYMENT:  Yes. It may be that the discretion under

section 23 is at large rather than limited in the

way that subsection (2) is limited. So, strictly

in this case a question only arises about

section 23, we submit.

Yates 10 15/2/91

Your Honours see, as to the matter of

standing, in the written submissions we have

referred to a number of cases. Especially in the

light of what Your Honour the Chief Justice just

said to me, I would not propose to spend time with

those cases unless the Court would wish me to.

MASON CJ:  As present advised, there is no occasion to do

that.

MR RAYMENT:  So, Your Honours, in our respectful submission,

the case provides an opportunity for judgments to

be written in this Court on two issues of general
public importance concerning the Australian

Heritage Commission Act and its effect and in all

likelihood also upon the Foreign Acquisitions and

Takeovers Act. The latter Act, so far as we can

see, has not been previously the subject of this

Court's decision. The former Act has only been the

subject of rather isolated treatment in this Court for the purposes of several particular cases which

came up.

MASON CJ:  I do not think the provision of an opportunity to

the Court to write a 'judgment on the topic is a

particularly compelling ground for the grant of

special leave, Mr Rayment. I notice that it is
very much favoured in affidavits in support of

applications but it strikes me as being a proforma

ground that has no weight whatsoever.

MR RAYMENT:  Well, what I really meant to put by it was that

the statute is of real importance; genuine

questions arise concerning it.	One takes ttaffecttt,
for example.	Mr Justice Davies has written a

which a public servant would read, and the two

judgment about the meaning of the word "affecttt

which a public servant would read.

judges who dealt with the matter in the Full Court

have written different judgments about what it

means. In those circumstances, since the statute

is of such wide application in the

Commonwealth - - -

MASON CJ: Yes, but I think essentially the application

comes back to the question whether you have

sufficiently arguable prospects of succeeding in

obtaining the relief which you seek, putting

standing to one side altogether.

MR RAYMENT:  Yes, Your Honour.

MASON CJ: And that means establishing that the revocation

by the Treasurer was invalid.

Yates 11 15/2/91

MR RAYMENT:	Yes, Your Honour, and that really would come down to the question, "Is section 30 to be, as it
were, treated as stating circumstances which the
decision maker is bound to take into account and
the effect which he must give to them or is it to
be regarded merely as an admonition?" Legislation
was, of course, introduced with a view to doing
what the Commonwealth could to promote the interest of preserving items of heritage significance in the country. The terms of section 30 are mandatory in
their relevant respects. If a minister is free to
disregard the provisions of section 30 or a
Commonwealth officer is free to disregard the
directions given to him by the Minister then the
statute certainly does not have the effect that it
purports to have of prescribing the effect which me must give to the matters he is required to take
into account. That effect is not correctly stated.

MASON CJ: But it is not merely a matter of section 30. It

also involves the relationship between

section 21A(l) and section 23 of the Foreign

Acquisitions and Takeovers Act.

MR RAYMENT:  Yes, Your Honour. If Your Honours please,

those are our submissions.

MASON CJ: Yes, thank you, Mr Rayment. The Court need not

trouble you, Sir Maurice nor you, Mr Jackson.

The Court does not think that there is

sufficient prospect of the applicant persuading the

Court that the relationship between section 21A(l),

section 23 of the Foreign Acquisitions and

Takeovers Act 1975 and section 30(1) of the

Australian Heritage Commission Act 1975 is such as could found the relief which the applicant seeks in these proceedings.

SIR MAURICE:  We ask for costs, if Your Honour pleases.

MASON CJ:  You do not oppose that, Mr Rayment?

MR RAYMENT:	No, Your Honour.
MR JACKSON:	We ask for costs?

MASON CJ:  Yes. The application is refused with costs in

favour of the first and second respondents.

AT 10.07 AM THE MATTER WAS ADJOURNED SINE DIE

Yates 12 15/2/91