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Federal Court of Australia - Full Court Decisions |
Last Updated: 30 August 2005
FEDERAL COURT OF AUSTRALIA
Administration of Norfolk Island v Pitcher [2005] FCAFC 179
STATUTES – validity of legislation – enactment by
Legislative Assembly of the Territory of Norfolk Island – whether
enactment
valid – whether Deputy Administrator validly assented to the
proposed law – whether Deputy Administrator properly formed
the opinion
that the proposed law did not make provision only for or in relation to matters
specified in Schedule 2 or Schedule
3 of the enabling Act – meaning
of ‘only for or in relation to’ – enactment not repealed by
subsequent enactment
of temporary Emergency legislation – trial judge did
not wrongly construe matters in Schedule 2 as a limitation to Territory
legislative power – interpretation of Norfolk Island Act in line with
object of provisions – consideration of whether
legislation only for or in
relation to quarrying, public works, mines and minerals or industry –
legislation not able to be
characterised as planning
legislation
Norfolk Island Act 1979 (Cth) ss 3, 4(1), 5(1),
5(2), 5(3), 6, 7, 7(1)(a), 8, 9, 9(2), 19(1), 21, 22, 23(1), 27, 29,
Northern Territory (Self-Government) Act 1978 (Cth)
s 7(2)(a)
Trade Practices Act 1974 (Cth)
Quarrying
and Related Public Works Act 2004 (NI) s 4
Emergency Provision of
Crushed Rock and Aggregates Act 2005 (NI) s 8
Planning Act
2002 (NI)
Terminally Ill Act 1995 (NT)
Airservices
Australia v Canadian Airlines International Ltd [1999] HCA 62; (1999) 167 ALR 392
cited
Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268
cited
Cadbury-Fry Pascal Pty Ltd v Federal Commissioner of Taxation [1944] HCA 31;
(1944) 70 CLR 362 cited
Commissioner of Taxation v Northwest Iron Co
Ltd (1985) 9 FCR 463 cited
Deputy Commissioner of Taxation v Moorebank
Pty Ltd [1988] HCA 28; (1988) 165 CLR 56 cited
Doessett v TKJ Nominees Pty Ltd [2003] HCA 69;
(2003) 202 ALR 428 cited
Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1
cited
Herald and Weekly Times Ltd v Commonwealth [1966] HCA 78; (1966) 115 CLR 418
cited
Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004] HCA 59
cited
Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337
cited
Pritchard v Racecage Pty Ltd (1997) 72 FCR 203
followed
Shergold v Tanner [2002] HCA 19; (2002) 209 CLR 126 cited
South
Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 cited
Wake v Northern Territory
of Australia [1996] NTSC 161; (1996) 109 NTR 1 considered
ADMINISTRATION OF
NORFOLK ISLAND v DAVID KENDALL PITCHER, MICHELLE JAN SAAL PITCHER, RAYMOND DAVID
GRUBE, KIM VANESSA PARTRIDGE and
ROBERT TERRY RYAN
NSD 37 of
2005
BLACK CJ, NICHOLSON and EDMONDS JJ
30 AUGUST
2005
SYDNEY
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF NORFOLK ISLAND
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BETWEEN:
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ADMINISTRATION OF NORFOLK ISLAND
APPELLANT |
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AND:
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DAVID KENDALL PITCHER
FIRST RESPONDENT MICHELLE JAN SAAL PITCHER SECOND RESPONDENT RAYMOND DAVID GRUBE THIRD RESPONDENT KIM VANESSA PARTRIDGE FOURTH RESPONDENT ROBERT TERRY RYAN FIFTH RESPONDENT |
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DATE OF ORDER:
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WHERE MADE:
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SYDNEY
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THE COURT ORDERS THAT:
Note: Settlement and entry of orders
is dealt with in Order 36 of the Federal Court Rules.
ON APPEAL FROM A SINGLE JUDGE OF THE
SUPREME COURT OF NORFOLK ISLAND
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AND:
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REASONS FOR JUDGMENT
BLACK CJ:
1 The principal question in this appeal from the Supreme Court of Norfolk Island is whether the Quarrying and Related Public Works Act 2004 of Norfolk Island ("the Act") is invalid because, as a proposed law, it was assented to by the Administrator and not reserved for the Governor-General’s pleasure.
2 The learned trial judge declared that the Act was null and void and that approvals for the sorting and crushing of rock, purportedly granted under the Act, were of no effect. The Administration of Norfolk Island appeals against that decision.
3 I have had the advantage of reading the joint reasons for judgment of Nicholson and Edmonds JJ and I agree that the appeal should be allowed with costs and the challenge to validity dismissed. I agree generally with their Honours’ reasons but would add the following observations.
4 Norfolk Island is an external territory of the Commonwealth. The preamble to the Norfolk Island Act 1979 (Cth)(the NI Act) outlines the development of the Island’s legal status from 1843 to the enactment of the NI Act in 1979. The preamble recites the settlement in June 1856 of persons who had previously inhabited Pitcairn Island and the Parliament’s recognition of the special relationship of the resident descendants with Norfolk Island. The preamble also recites that the Parliament considers it to be desirable and to be the wish of the people of Norfolk Island that the Island achieve, over a period of time, internal self-government.
5 In fact, the NI Act granted a substantial measure of internal self-government to the people of Norfolk Island. By section 19 of the NI Act there is a plenary grant to the Legislative Assembly of power "with the assent of the Administrator or the Governor-General, as the case may be, to make laws for the peace, order and good government of the Territory." The grant is expressed to be subject to the Act and is subject to the specific exclusions, few in number, provided for by s 19(2).
6 Nevertheless, the NI Act provides for the Commonwealth to retain a role in the legislative process of the Territory. It does so principally by provisions that require some proposed laws to be reserved for the Governor-General’s pleasure and by others that require the Administrator to act in accordance with instructions given by the responsible Minister of the Commonwealth. These are set out in the joint judgment. Other provisions, also set out in the joint judgment, provide for certain proposed laws to be assented to by the Administrator only on the advice of the Executive Council of Norfolk Island, without any reference to the Commonwealth.
7 The principal provision with which this appeal is concerned is s 21. It provides that every proposed law passed by the Legislative Assembly shall be presented to the Administrator for assent: s 21(1). If the proposed law is one which, in the opinion of the Administrator, makes provision only for or in relation to matters specified in Schedule 2 or 3, or both, the Administrator must declare either that he or she assents to the proposed law or that he or she withholds consent. In any other case the Administrator must declare that he or she reserves the proposed law for the Governor-General’s pleasure: s 21(2). The Administrator may return a proposed law to the Legislative Assembly with amendments he or she recommends: s 21(3).
8 Importantly, in the case of a proposed law which in the opinion of the Administrator makes provision "only for or in relation to matters specified in Schedule 2", the Administrator is not to assent or withhold assent, or return the proposed law to the Legislative Assembly with recommended amendments, except in accordance with the advice of the Executive Council of Norfolk Island: s 21(5). The Commonwealth has no role in such a case.
9 As the joint judgment notes, the matters specified in Schedule 2 are matters of domestic or local concern. The matters specified in Schedule 3 are matters of a more general nature, in which it might be expected that the Commonwealth would have a particular interest.
10 The evident object of these provisions was to allow for the full exercise of the plenary power conferred upon the Legislative Assembly in relation to the matters of domestic or local concern specified in Schedule 2 whilst allowing for the exercise of Commonwealth executive power in relation to Schedule 3 matters and providing also for its exercise in relation to matters within neither Schedule 2 or 3. In this way the establishment of internal self-government was to be advanced whilst providing for the exercise of Commonwealth power in respect of some matters.
11 In this context there is no warrant for a narrow view to be taken of the content of the various items in Schedule 2. Plenary power having been conferred by s 19, the question is whether the exercise of the power in relation to a matter specified in Schedule 2 is to be potentially subject to the exercise of Commonwealth executive authority.
12 In the same context, there is no warrant for a narrow view to be taken of the concept of a proposed law which makes provision "only for or in relation to matters specified in Schedule 2" (s 21(5)) or "only for or in relation to matters specified in Schedule 2 or 3 or both": s 21(2)(a). When viewed in relation to Schedule 2 matters, the object of the provision is not to narrow the plenary powers already conferred upon the Legislative Assembly or the responsibilities of the Executive Council of Norfolk Island, by imposing a requirement for external assent. Rather, the evident object is to guard against disturbance of the balance that the NI Act seeks to make between the exercise of the plenary powers of the self-governing Territory and the retention of Commonwealth oversight and authority in relation to matters considered by the Parliament to be of Commonwealth concern.
13 These conclusions are supported if not confirmed by the presence as well in the NI Act of a general provision for the disallowance of laws by the Governor-General within 6 months after the Administrator’s assent to a proposed law: s 23, and see also s 24.
14 I agree with Nicholson and Edmonds JJ that the Quarrying and Related Public Works Act is a law in relation to "industry", being extractive industry, and thus is a law in relation to a matter specified in Schedule 2. As I have said, there is no reason to take a narrow view of the specified matters. Moreover, s 4(2) points in the same direction since it provides that the specification of a matter in an item in Schedule 2 or 3 is not to be taken to limit the generality of any matter specified in any other item.
15 I agree too that the Act is a law that makes provision "only for or in relation to" matters specified in Schedule 2 or 3 (it not being suggested that Schedule 3 is relevant here). It is beside the point that the Act deals with matters that might be found in a Planning Act. The same could be said of other laws that would fall squarely within many of the matters specified in Schedule 2. Obvious examples include laws in relation to recreation areas, cemeteries, quarrying, building control, advertising hoardings, nuisances, noxious trades, boarding houses and hotels, markets and street stalls, coastlines, foreshores, wharves and jetties, housing, mining and minerals. Regulatory laws in relation to matters of this nature do not lose their character merely because the same activities could also be the subject of regulation under a comprehensive law in relation to planning. The true character of the law in question here is a law that makes provision only for or in relation to industry.
16 Consistently with the objects of the Norfolk Island Act it cannot have been intended that the naturally broad scope of the matters set out in Schedule 2 was to be effectively narrowed, and thus proposed laws taken out of the domain of Norfolk Island authority and responsibility, by an expanded notion of what "makes provision only for or in relation to" a matter.
17 Finally, although I agree that the law in question is not a law for or in relation to public works I see the competing contentions on that issue as finely balanced and I would not wish to be taken to be disagreeing with the conclusion reached by Kiefel J in Check v Administration of Norfolk Island [2005] NFSC 1 that the Emergency Provision of Crushed Rock and Aggregates Bill 2005 (NI) was a proposed law in relation to public works. Although similar to the Quarrying and Related Public Works Act there are also significant differences. It may be that the preamble to the Bill, with its reference to the public interest for crushed rocks and aggregates to be made available as a matter of public safety and public health and for the purposes that include roads and footpaths, may sufficiently illuminate the public interest requirement in s 4(3) of the Bill as to give it the character of a Bill in relation to public works.
18 I agree with the orders proposed by Nicholson and Edmonds JJ.
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I certify that the preceding eighteen (18) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Chief Justice Black
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Associate:
Dated: 30 August 2005
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Counsel for the Appellant:
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P MacSporran
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Solicitor for the Appellant:
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Phillip Densham White
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Counsel for the Respondents:
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A Cook QC
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Solicitor for the Respondents:
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WG McNally & Co
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Date of Hearing:
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16 May 2005
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Date of Judgment:
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30 August 2005
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IN THE FEDERAL COURT OF AUSTRALIA
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NEW SOUTH WALES DISTRICT REGISTRY
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NSD 37 OF 2005
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ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF
NORFOLK ISLAND
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BETWEEN:
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ADMINISTRATION OF NORFOLK ISLAND
APPELLANT |
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AND:
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DAVID KENDALL PITCHER
FIRST RESPONDENT MICHELLE JAN SAAL PITCHER SECOND RESPONDENT RAYMOND DAVID GRUBE THIRD RESPONDENT KIM VANESSA PARTRIDGE FOURTH RESPONDENT ROBERT TERRY RYAN FIFTH RESPONDENT |
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JUDGES:
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BLACK CJ, NICHOLSON and EDMONDS JJ
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DATE:
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30 AUGUST 2005
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
NICHOLSON AND EDMONDS JJ:
19 This is an appeal from a decision of a judge of the Supreme Court of Norfolk Island delivered on 17 December 2004 (Pitcher v The Administration of Norfolk Island [2004] NFSC 5). His Honour declared that the Quarrying and Related Public Works Act 2004 (NI) (‘the 2004 Act’) was null and void. He further declared that approvals given by the Norfolk Island Minister for the Environment (‘the Minister’) on 19 November 2004 in purported reliance upon the 2004 Act were of no effect.
20 In his reasons for judgment his Honour, noting that the 2004 Act was relatively short and because its terms were critically important to the issues before him, set out the relevant provisions in full. It reads as follows:
‘2. This Act commences on the day on which notification of assent is published in the Gazette.
3. In this Act –
"extractive industry" means the quarrying or other extraction of sand, clay, gravel, turf, soil, rock, stone or similar material from land and includes the sorting, crushing or other treatment of, or the manufacture of products from such materials whether on the land from which such materials are quarried or extracted, or on adjacent land, or on land to which the materials have, with approval, been removed for such purposes;
"extractive material" means material that has been quarried or otherwise extracted from land as part of an extractive industry.
4. (1) Subject to this section, the executive member may, upon application, grant approval for a person to sort, crush, or otherwise treat extractive material, or manufacture products therefrom at a place, being a place that is not situated in a Residential, Business, Mixed Use, Light Industry, or Conservation Zone.
(2) The executive member must not grant an approval under sub-section (1) unless the Legislative Assembly has approved the form of approval.
(3) An approval granted under this section may only be given if –
(a) the executive member and the Legislative Assembly are of the opinion that the work required to be done in accordance with such an approval is required in the public interest;
(b) the approval when granted is granted for work to be done over a period not exceeding a total of 7 working days;
(c) the approval expires upon completion of 7 working days or 60 days after the grant of approval whichever first occurs;
(d) work using the extractive material is prohibited before the hours of 7:30 am and after 5:00 pm on any day;
(e) when more than one person has sought approval under subsection (1), the executive member must ensure that each applicant is treated as equally as is reasonably possible in the circumstances, or as may be agreed between the applicants and the executive member, to the intent that neither is given greater preference than the other.
(4) An approval given under this section permits the loading and carriage of extractive material from one place to an approved place in order to treat the extractive material at the approved place and may include approval to load and take treated material from the approved place to another place.
...
5. If more than one approval is given under section 4 in respect of a particular place work must not be done at that place for more than 7 working days in any period of 21 consecutive days.
6. If an approval is granted under section 4, no person may object thereto or make any claim against the Administration on any basis or for any reason whatever.
7. A person who fails to observe the terms of a condition imposed in respect of an approval granted under section 4 commits an offence.
Penalty: 1000 penalty units.’
21 On 19 November 2004, the Norfolk Island Government Gazette published a notice of the Deputy Administrator’s Assent to the 2004 Act. As his Honour’s reasons also record, on the same day the Minister granted the two approvals referred to in the second declaration. The Minister did so in reliance on s 4 of the 2004 Act. The approvals related to different grantees. Each approval was in similar terms and read as follows:
‘The person named in the schedule (the grantee) is authorised to remove from a place of stockpile (the site) such rock and stone as may be directed by the person named in the schedule (the supervisor) and then at the place referred to in the schedule (the works area) crush and sort (the work), such rock and stone as may be directed by the supervisor and take the material produced thereby and load and unload, the same and move it from one place to another and to deliver the same to such place as the supervisor may approve or to such person or persons who, by agreement with the grantee, may take delivery thereof at the works area.
When any material is removed from the site, it must be weighed at such time and place as agreed with the supervisor before it is taken or delivered to another place.’
22 The schedule to one of the notices of approval contained the following particulars:
‘Grantee: ISLAND INDUSTRIES PTY LTD
The site: CASCADE CLIFF STOCKPILE LOCATED AT
PORTION 5A
The works area: PORTION 49b2
(NB. The works area must not be a place that is in a Residential, Business, Mixed Use, Light Industry, or Conservation Zone).
The work: CRUSHING AND SORTING ROCK AND STONE AT
THE WORKS AREA
Supervisor:
Dates of approval: Between Monday 22 November 2004, and Wednesday
20 January 2005.’
23 The notice of approval set out eight items that were described as ‘Conditions of Approval’. This document was accompanied by a document called ‘Conditions of Sale’, being the conditions (including prices) upon which rock could be made available for sale at the Cascade Cliff Stockpile.
24 As his Honour’s reasons also record, the schedule to the second notice identified the grantee as Richard Cottle, trading as Norfolk Island Block Factory. In the schedule to that notice, the ‘site’ was also identified as the Cascade Cliff Stockpile located at Portion 5A, but there was a different ‘works area’ nominated, namely, part of Portion 183, Norfolk Island (Airport).
25 Although it is not an issue on the appeal, it was necessary for his Honour to refer to the standing of the plaintiffs, the present respondents. He said that all five respondents ‘live in close proximity to Portion 49b2, Stockyard Road, Norfolk Island’, the ‘works area’ identified in the first approval. They opposed the operation of the rock-crushing and screening plant by Island Industries Pty Ltd on the ground of its close proximity to their residences with a consequence that they would be adversely affected by excessive levels of dust and noise.
NORFOLK ISLAND ACT 1979 (Cth)
26 Central to the reasoning of the trial judge and to this appeal are the provisions of the Norfolk Island Act 1979 (Cth) (‘the NI Act’).
27 The challenge brought by the respondents was to the validity of the 2004 Act. Consequently, the provisions of the NI Act were determinative of issues of the powers of the legislature and the grant of assent to the legislation. The NI Act was enacted by the Commonwealth Parliament following a Royal Commission into Matters Relating to Norfolk Island by the Hon Sir John Nimmo, which reported in October 1976. In the second reading speech for the Bill for the NI Act the Minister for Home Affairs and the Capital Territory (the Hon RJ Ellicott QC) said that the NI Act would confer on the Island residents the opportunity to become increasingly involved in their own affairs. It would also contain provisions to ensure the preservation of the Commonwealth’s responsibility for Norfolk Island as a Territory of the Commonwealth. The Commonwealth Minister said:
‘Part IV deals with the legislation-making process. It provides for the continuation of existing laws and for the amendment and repeal of those laws. The Legislative Assembly will have power to make ordinances for the peace, order and good government of the Territory. This power is not limited to those matters in respect of which executive members will have executive authority as specified in Schedule 2 and 3. All ordinances passed by the Assembly will be presented to the Administrator for assent. The Administrator shall assent or withhold assent to all such proposed ordinances which in his opinion make provision for matters listed in Schedules 2 or 3. In all other cases he shall reserve the ordinance for the Governor-General’s pleasure. Where an ordinance is in relation to a Schedule 2 matter he will act in accordance with the advice of the Norfolk Island Executive Council. If Schedule 3 matters are involved, he will act in accordance with the instructions of the Minister.’ (Commonwealth, Parliamentary Debates, House of Representatives, 23 November 1978, 3312, Robert Ellicott, Minister for Home Affairs and Capital Territory)
28 It is convenient to refer to the relevant sections in the NI Act, the short title of which is ‘An Act to provide for the Government of Norfolk Island’.
29 Among the recitals to the NI Act is a statement that it was by the Norfolk Island Act 1913 (Cth) that Norfolk Island was declared to be accepted by the Commonwealth as a Territory under the authority of the Commonwealth. It was further recited that the Commonwealth Parliament considered it desirable and to be the wish of the people of Norfolk Island that Norfolk Island achieve, over a period of time, internal self-government as a Territory under the authority of the Commonwealth and, to that end, to provide, among other things, for the establishment of a representative Legislative Assembly and other separate political and administrative institutions on the Island.
30 Part II of the NI Act addresses ‘Administration’. It provides for the office of Administrator of the Territory whose function is to ‘administer the government of the Territory as a Territory under the authority of the Commonwealth’: s 5(1). It is provided in s 5(2) that the Administration ‘is a body politic with perpetual succession by the name of the Administration of Norfolk Island’. By s 5(3) it is provided that, subject to the NI Act, the Administration of Norfolk Island is capable, amongst other things, of being sued.
31 Section 6 provides for the appointment of Administrator by the Governor-General.
32 Section 7 relates to the exercise of the Administrator’s powers and provides:
‘7.
(1) The Administrator shall exercise all powers and perform all functions that belong to his or her office, or that are conferred on him or her by or under law in force in the Territory, in accordance with the tenor of his or her Commission; and
(a) in relation to a matter that, in his or her opinion, is a matter specified in Schedule 2 – in accordance with such advice, if any, as is given to him or her by the Executive Council;
(b) in relation to a matter that, in his or her opinion, is a matter specified in Schedule 3 – in accordance with the advice of the Executive Council;
(c) where it is provided by this Act that he or she is to act on the advice of the Executive Council or the Legislative Assembly – in accordance with that advice;
(d) in forming an opinion as provided by this Act – at his or her own discretion; and
(e) in all other cases – in accordance with such instructions, if any, as are given to him or her by the Minister.
(2) Notwithstanding paragraph (1)(b), where the Executive Council advises the Administrator to take, or to refrain from taking, any specified action in relation to a matter to which that paragraph applies and that advice is inconsistent with instructions given to the Administrator by the Minister in accordance with subsection (3), the Administrator shall not take that action, or shall not refrain from taking that action, as the case may be.
(3) For the purposes of subsection (2), the Minister may give the Administrator instructions in respect of advice tendered to the Administrator for the purposes of paragraph (1)(b), and may give the Administrator instructions in respect of the referral to the Minister of any such advice.’
33 Schedule 2, referred to in s 7(1)(a), lists 93 matters. They may be broadly characterised as matters of domestic concern to Norfolk Island. They include:
‘...
4. Roads, footpaths and bridges.
...
19. Quarrying.
...
44. Public works.
...
81. Industry (including forestry and timber, pastoral, agricultural, building and manufacturing).’
34 Schedule 3 of the NI Act, on the other hand, is limited to some ten matters of broader concern:
‘1. Fishing.
2. Customs (including the imposition of duties).
3. Immigration.
4. Education.
5. Human quarantine.
6. Animal quarantine.
7. Plant quarantine.
8. Labour and industrial relations, employee’s compensation and occupational health and safety.
9. Moveable cultural heritage objects.
10. Social security.’
35 Section 8 provides for the appointment of an Acting Administrator. Section 9 provides for the office a Deputy Administrator of the Territory to be appointed by the Governor-General by commission and empowered by s 9(2) to exercise and perform the powers and functions of the Administrator in appropriate circumstances.
36 Part III of the NI Act provides for the establishment, membership and operations of the Executive Council.
37 Part IV of the NI Act concerns legislation. Division 1 deals with the continuance, amendment, repeal and application of laws and the application of Commonwealth Acts to the Territory.
38 Division 2 addresses the legislative power of the Legislative Assembly. It is these provisions which are central to the respondents’ claim before the trial judge that the 2004 Act was enacted invalidly. The general power of the Legislative Assembly is contained in s 19(1), which reads:
‘19
(1) Subject to this Act, the Legislative Assembly has power, with the assent of the Administrator or the Governor-General, as the case may be, to make laws for the peace, order and good government of the Territory.’
That subsection is subject to the limitations contained in subs (2) and clarification set out in subs (2A) and subs (3), none of which are relevant to this appeal.
39 The issue of validity which arose before the trial judge related to the application of the NI Act to the granting of assent to the 2004 Act by the Deputy Administrator. Section 21 of the NI Act sets out the procedure for presentation of proposed laws, in the following terms:
‘21
(1) Every proposed law passed by the Legislative Assembly shall be presented to the Administrator for assent.
(2) Upon the presentation of a proposed law to the Administrator for assent, the Administrator shall, subject to this section, declare:
(a) in the case of a proposed law which, in the opinion of the Administrator, makes provision only for or in relation to matters, specified in Schedule 2 or 3 or both:
(i) that he or she assents to the proposed law; or
(ii) that he or she withholds assent to the proposed law; or
(b) in any other case, that he or she reserves the proposed law for the Governor-General’s pleasure.
(3) The Administrator may return the proposed law to the Legislative Assembly with amendments that he or she recommends.
(4) The Legislative Assembly shall consider the amendments recommended by the Administrator and the proposed law, with or without amendments, may be again presented to the Administrator for assent, and subsection (2) applies accordingly.
(5) In the case of a proposed law which, in the opinion of the Administrator, makes provision only for or in relation to matters specified in Schedule 2, the Administrator shall not act under paragraph 2(a) or subsection (3) except in accordance with the advice of the Executive Council.
(6) In the case of a proposed law which, in the opinion of the Administrator, makes provision only for or in relation to matters specified in Schedule 3 or matters specified in Schedules 2 and 3, the Administrator shall not act under paragraph (2)(a) or subsection (3) except in accordance with the instructions of the Minister.’
40 Section 22 contains provisions applicable upon the reservation of a proposed law by the Administrator for the Governor-General’s pleasure. Section 23 provides for disallowance of laws by the Governor-General. Subsection (1) provides that, subject to the section, the Governor-General may, within six months after the Administrator’s assent to a proposed law, disallow the law or part of the law. Subsection (2) permits the Governor-General to recommend to the Administrator amendments to the laws.
41 The Governor-General is given legislative powers by s 27 to make ordinances in the circumstances there prescribed. In the event that an enactment by the Legislative Assembly is inconsistent with an ordinance made under s 27, it is the latter which prevails: s 29. The former to the extent of the inconsistency is invalid.
42 Part V contains provisions relating to the structure, election and procedure of the Legislative Assembly. Part VI concerns finance. Part VII relates to the judicial system. Part VIII contains miscellaneous provisions. Part IX contains transitional provisions. Generally, except so far as they may assist in the interpretation of the provisions in issue including, in particular, s 21 of the NI Act, these other provisions do not play any part in this appeal nor did they do so before the trial judge.
REASONING OF TRIAL JUDGE
43 After describing the contents of the NI Act so far as he considered them relevant to the issues before him, the trial judge reasoned as follows. His Honour said that in written submissions on behalf of the plaintiffs (the respondents in this appeal) before him, the meanings of the terms ‘quarrying’ and ‘public works’ in Sch 2 of the 2004 Act were relied upon. The effect of the argument was, that as a matter of law, the 2004 Act is not legislation that makes provision only for, or in relation to, either of these matters. Consequently, it was submitted by the respondents that it was not open to the Deputy Administrator to form the opinion that the enactment fell within Sch 2 of the NI Act. His Honour said it was not suggested that the 2004 Act makes provision in relation to a matter specified in Sch 3. The effect of these submissions, if correct, was that the 2004 Act was not legislation that fell within s 21(2)(a) of the NI Act so that s 21(2)(b) was applicable with the consequence that the Deputy Administrator had no power to assent to the 2004 Act.
44 His Honour considered the critical provision in the 2004 Act was s 4(1). He saw the 2004 Act, in the light of that section, as intended to permit the Executive member to make lawful something that would otherwise have been unlawful. He said the unlawfulness perhaps came from the zoning of the place where the proposed activity was to be carried out, or from conditions of any consent granted in respect of the proposed activity, or from legislation concerning the transport or storage of extractive materials. He said, however, that what was important was that s 4(1) was concerned with the treatment of already extracted material, not the obtaining of material from the earth. His Honour then said:
‘[35] As Schedule 2 of the NI Act lists possible subject matters of legislation, it is appropriate to read each item in the Schedule in a wide and generous way. This is the accepted approach to construing the enumerated powers of the Commonwealth set out in s 51 of the Constitution of the Commonwealth of Australia. Consequently, I would regard the term ‘quarrying’ as extending to activities incidental to actual extraction of rock and stone, such as on-site storage and treatment (including crushing and sorting) of materials extracted at that same place. The term probably also includes the making of rules regarding sales at the quarry and removal of extracted material from the quarry site. Although these incidental activities have their own importance, it is reasonable to regard them as activities subsidiary to the dominant use of the quarry site – the extraction of rock and stone from the earth. Consequently, if performed on-site, those activities can fairly be regarded as quarrying.
[36] However, it seems to me impossible to read ‘quarrying’ so broadly as to cover legalising the treatment of the extracted material at another site, remote from the quarry itself. Treatment at such a site is a separate activity. What was incidental at the quarry site is now the sole or dominant activity.’
He continued:
‘[38] No doubt the Legislative Assembly contemplated that some of the material to be treated pursuant to a s 4(1) authorisation would be used on public roads within the Territory, or for other public works. However, that circumstance does not mean the Act can be characterised as legislation in relation to public works. The legislation does not authorise the carrying out of, or provide funds for, any particular public works, or public works in general. It simply authorises an industrial process that might result in the production of materials suitable for public works.’
45 His Honour concluded that as a matter of law the 2004 Act could not properly be described as a law for, or relating to, either Item 19 or Item 44 in Sch 2 of the NI Act. Therefore, it was not open to the Deputy Administrator to have concluded otherwise. His Honour considered that as those items were the only items advanced specifically in the appellant’s submission to his Honour, it was not open to the Deputy Administrator to conclude that the legislation fell within that Schedule. It followed that the Deputy Administrator had no power to assent to the 2004 Act. His assent being invalid, the 2004 Act was null and void.
SUBSEQUENT ENACTMENT AND LITIGATION
46 His Honour’s judgment was given on 17 December 2004. On 13 January 2005 assent was given to an enactment of the Norfolk Island Legislative Assembly entitled Emergency Provision of Crushed Rock and Aggregates Act 2005 (NI) (‘the Emergency Act’). Section 8 of that Act made it subject to a ‘sunset provision’ whereby the Emergency Act expired on 30 June 2005. The Emergency Act is also in short compass and reads as follows (variations from the form of the 2004 Act being highlighted):
‘1. This Act may be cited as the Emergency Provision of Crushed Rock and Aggregates Act 2005.
2. This Act commences on the day on which notification of assent is published in the Gazette.
3.
(1) The Preamble forms part of this Act.
(2) In this Act --
"extractive industry" means the washing, sorting, crushing or other treatment of, extractive materials in order to produce crushed rock and aggregates that may be used for such purposes as road construction and repair and production of concrete whether on the land from which such materials are or have been quarried or extracted or on adjacent land or on land to which such materials have, with approval, been removed for such purposes;
"extractive material" includes rock and other material that has been quarried or otherwise extracted from land;
"public works" includes the purposes of the Administration and the public of Norfolk Island for the provision of road making, road repairs, building works and repairs, sewage disposal works and other purposes that require the availability and use of crushed rock and aggregates.
4.
(1) Subject to this section, the executive member may upon application, give approval for a person to wash, sort, crush, or otherwise treat extractive material --
(a) at the place where such extractive material is then situated; or
(b) at some other place, being a place that is not situated in a Residential, Business, Mixed Use, Light Industry, or Conservation Zone.
(2) The executive member must not give an approval under subsection (1) unless the Legislative Assembly has approved his or her so doing.
(3) An approval given under this section may only be given if --
(a) the executive member and the Legislative Assembly are of the opinion that it is in the public interest that such approval should be given;
(b) the approval is given for work to be done over a period not exceeding a total of 7 working days;
(c) the approval expires upon completion of 7 working days or 60 days after the grant of approval whichever first occurs;
(d) work is prohibited before the hours of 7:30 am and after 5:00 pm on any day;
(e) when more than one person has sought approval under subsection (1), each applicant is treated as equally as is reasonably possible in the circumstances, or as may be agreed between the applicants and the executive member, to the intent that no one of them is given greater preference than any other.
(4) An approval given under this section permits the loading and carriage of extractive material from one place to an approved place in order to treat the extractive material at the approved place and may include approval to load and take treated material from the approved place to another place.
(5) The executive member may impose such further or other conditions upon an approval given under subsection (1) as he or she, or the Legislative Assembly, considers appropriate or necessary in the public interest.
(6) In subsection (3) --
(a) "working day" consists of any two half working days between 7:30 am and noon or between noon and 5:00 pm; and
(b) "work" includes the movement or start-up of machinery required preparatory to performance of the work for which approval is given under subsection (1) whether or not any such work is in fact done.
(7) If the Legislative Assembly has resolved to approve a proposal by the executive member to grant an approval under subsection (1) and that resolution is made before this Act receives assent that resolution is as effective as if it had been given thereafter.
5. The executive member cannot give an approval under section 4 in respect of a particular place if the effect of that approval, taken together with any other approval in respect of the same place, whether expired or not, would be that work could be done at the place for more than 7 working days in any period of 21 consecutive days including the last day upon which work was done at that place under another approval.
6.
(1) If an approval is granted under section 4, no person may object thereto or make any claim against the Administration on any basis or for any reason whatever.
(2) No person has any right to make any claim against the Administration in respect of any work done pursuant to a Permit granted in accordance with the Quarrying and Related Public Works Act 2004 whether or not that permit was validly granted or the Act was validly passed by the Assembly.
7. A person who fails to observe the terms of a condition imposed in respect of an approval granted under section 4 commits an offence.
Penalty: 1000 penalty units.’
8. This Act expires on 30 June 2005.’
47 The issue of the validity of the Emergency Act came before Kiefel J in the Supreme Court of Norfolk Island. The plaintiffs included the five present respondents and two others. They sought declarations of invalidity of the Emergency Act. In a judgment given on 10 May 2005, Kiefel J dismissed the application (Check v The Administration of Norfolk Island [2005] NFSC 1).
48 In her reasons, Kiefel J noted that the Legislative Assembly had passed the Bill for the Emergency Act on 12 January 2005, and that the Administrator’s assent was given on 13 January 2005 and notified in the Norfolk Island Government Gazette of the same day. On 14 January 2005, two approvals were given under the Emergency Act. One related to Portion 49b2 and expired on 17 March 2005. The approvals given on 14 January 2005 authorised the grantee:
‘...to remove from a place of stockpile (the site) such rock and stone as may be directed by the person named in the schedule (the supervisor) and then at the place referred to in the schedule (the works area), crush and sort (the work), such rock and stone as may be directed by the supervisor and taking material produced there by and load, and unload, the same and move it from one place to another and to deliver the same to such places the supervisor may approve or such person or persons who, by agreement with the grantee, may take delivery thereof at the works area.’
The ‘works area’ refers to the land proximate to the Plaintiffs’ portion 49b(2). The ‘work’ is described as ‘wash, sort, crush or otherwise treat extractive material’.
49 In her reasons, Kiefel J referred to the 2004 Act and the decision of the trial judge. Her Honour then referred to the recitals and content of the Emergency Act.
50 Her Honour set out in full the Explanatory Memorandum to the Bill for the Emergency Act. In that Memorandum it was stated that the Bill was introduced to replace the 2004 Act. It was a Bill that would allow the crushing of rock required for public works and purposes that were in the public interest. Once granted, the permit could allow material to be moved from one place to another and may include such other conditions as the Executive member agrees or the Assembly requires.
51 Kiefel J then turned to the provisions of the NI Act, which have previously been set out.
52 There were seven claims before Kiefel J. The first was that the Emergency Act was ultra vires the powers granted under Sch 2 of the NI Act and therefore the approval granted was invalid. Her Honour said as to the issue:
‘[26] The relevant test of the validity of a law made under a head of power is the sufficiency of the connexion between the head of power and the subject matter of the law: Leask v Commonwealth of Australia [1996] HCA 29; (1996) 70 ALJR 995 at 1107 per Dawson J. It is necessary to determine the character of the law, having regard to its terms and its practical and its legal operation: Cunliffe v Commonwealth [1994] HCA 44; (1994) 182 CLR 272 at 319 (‘Cunliffe’); Re Maritime Union of Australia; Ex Parte CSL Pacific Shipping Inc [2003] HCA 43; (2003) 214 CLR 397 at 413 [35] (‘CSL Pacific Shipping’). If a connexion exists between the law and the relevant head of power, the law will be ‘with respect to’ the head of power unless the connexion is so insubstantial, tenuous or distant that it cannot sensibly be so described: CSL Pacific Shipping at [35], referring to Melbourne Corporation v The Commonwealth [1947] HCA 26; (1947) 74 CLR 31. With regard to the Commonwealth Constitution, a broad reading is given to the powers enumerated, for the reason that powers are expressed in general propositions wide enough to be capable of flexible application to changing circumstances: Australian National Airways Pty Ltd & Guinea Airways Ltd v The Commonwealth [1945] HCA 41; (1945) 71 CLR 29 at 81 and see Bank of New South Wales v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at 334 (‘Bank Nationalisation Case’). I respectfully agree with [the primary judge] that the same approach should be taken with respect to the matters listed in Schedule 2.’
53 Her Honour was of the view that the Emergency Act could not be said to be sufficiently connected to quarrying, being of the same view as the trial judge in relation to the 2004 Act. However, she did not share the trial judge’s view as to the applicability of the head of power ‘public works’. Her Honour said:
‘Regrettably, I am unable to share his Honour’s view that the Act, in providing for treated extractive materials, is not connected to public works and certain other heads of power.
...................................................
It does not however seem to me to be necessary that the law in question actually provide for particular public works or public works in general for there to be a connexion with that subject matter. The power, or subject matter of public works in Schedule 2, includes that which is necessary for the reasonable fulfilment of the power: Burton v Honan [1952] HCA 30; (1952) 86 CLR 169 at 177. In connexion with such a power the connexion may be more clearly revealed by looking to the purpose of the law: [Cunliffe v Commonwealth [1994] HCA 44; (1994) 182 CLR 272] at 319, referring to the [Bank of new South Wales v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1] at 354. O’Sullivan v Noarlunga Meat Limited [1954] HCA 29; (1954) 92 CLR 565 furnishes an example of what a head of power may encompass. There the regulations in question sought to control conditions in slaughter-houses insofar as they concerned meat for export. The Commonwealth did not have specific power with respect to such premises. It was however held that its power with respect to trade and commerce included a power to make provision for the condition of meat to be exported. The power would encompass all matters which may affect the export trade (at 598). Applying that approach to the present case, the subject matters of public works and roads, and footpaths and bridges would include the provision of material for that purpose. There is therefore a sufficient connexion with subject matter in Schedule 2 and the Emergency Act is not invalid for lack of it.’
54 Kiefel J considered a further contention for which leave was not given to add as a ground before her. It was to the effect that the Emergency Act was like town planning legislation. It was said that as the Planning Act 2002 (NI) was reserved for the assent of the Governor-General therefore, logically, this should have been done in the case of the Emergency Act. That contention was pressed on this appeal.
55 The second to seventh claims were unsuccessful and are of no concern to this appeal.
GROUNDS AND CONTENTION
56 The appellant contends that the trial judge was in error in three respects. The first is that he approached the provisions of s 21(2) of the NI Act as if they were the list of matters in relation to which the Legislative Assembly could make law. The second is that he wrongly confined himself to consideration of ‘quarrying’ and ‘public works’ in Sch 2 of the NI Act. Third, that he failed to consider, in connection with the exercise of the Deputy Administrator’s discretions, other provisions including s 7(1)(d) of the NI Act.
57 In a notice of contention, the respondents object to the appeal on the ground that the Emergency Act was clearly intended to replace the 2004 Act. Additionally, they contend that the 2004 Act is legislation which had an immediate effect on planning approvals and laws valid and effective in Norfolk Island so that it was required to be reserved by the Administrator for the Governor-General’s pleasure in accordance with s 21(2)(b) of the NI Act.
58 The notice also contends that his Honour refrained from dealing with grounds in the originating application before him and should have dealt with those grounds, but this was not pursued at the hearing of the appeal.
ARGUMENTS ON THIS APPEAL
59 In this Court, the appellant submitted that:
(i) The primary judge really examined the 2004 Act to establish if it was within the powers of the Assembly rather than to establish if the Deputy Administrator could properly have exercised his discretion to form the opinion that he could give assent;
(ii) Properly understood, the 2004 Act was a law allowing functions in relation to:
(a) quarrying (Item 19), (b) matters in respect of which duties, powers, functions or authorities are expressly imposed or conferred on executive members by or under laws in force in the Territory, ... (Item 42), (c) public works (Item 44), (d) inquiries and administrative reviews (Item 65), (e) civil legal proceedings by and against the Administration of the Territory (Item 70), (f) industry (including ... building, manufacturing) (Item 81), or (g) mining and minerals (Item 82).
(iii) The Court should have found that the opinion of the Deputy Administrator was not open to review, absent evidence that the opinion was arbitrary, capricious or mala fide.
(iv) The Court should have found that the Administrator is not, under the NI Act, required to determine as a matter of law if the Assembly has passed a law with respect to an Item or Items in the Schedule, but rather to form an executive opinion in carrying out an administrative function in relation to a political and procedural matter. This was manifest in the existence of a procedure whereby the Governor-General can, within six months, disallow a law to which the Administrator has given assent (s 23).
(v) Taken alone or in conjunction, each of the errors of fact and law described was sufficient to show that the findings of the primary judge were in error and that it should have found:
(a) that the legislation was submitted to the Deputy Administrator as a proposed law, (b) that the proposed law within the powers of the Assembly to make laws for the peace order and good government of the Territory (s 19(1)), (c) that the Deputy Administrator properly exercised his discretion to form, and could have properly so formed, the opinion that the proposed law made provision only for or in relation to matters specified in Sch 2 or Sch 3 or both (s 7(1)).
60 In his written and oral submission, senior counsel for the respondents submitted that the basic ‘character’ of the 2004 Act was that it was a planning law and, as such, it did not make provision only for or in relation to a matter specified in Sch 2 or Sch 3 or both of the NI Act and, as with previous planning legislation, its assent should have been reserved for the Governor-General.
61 He elaborated on this fundamental submission in the following way: The 2004 Act permits the use of land in a particular way – ‘for the purpose of carrying on a noxious industry’ – and exempts persons who are given approval to use it in that particular way from being prevented from doing so. Because no objection can be taken to any such approval and no claim can be made against the Administration on any basis or for any reason whatever (s 6 of the 2004 Act), it overrides and replaces the Planning Act 2002 (NI). The real ‘character’ of the 2004 Act, in terms of what it makes provision for, is planning.
62 He further submitted that the 2004 Act is not a law to ‘regulate’ an industry which is noxious, hazardous, offensive and dangerous. The 2004 Act did not purport to control the rock crushing industry; it merely gave permission for it to take place. It did not provide for conditions for the carrying out of the work.
WHETHER THE APPEAL IS FUTILE AS A CONSEQUENCE OF REPEAL
63 Turning first to the respondents’ objection, it is necessary to consider whether the Emergency Act had the effect of repealing the 2004 Act. If it did, then the resolution of the appeal would be an exercise in futility.
64 The starting point in principle is the often cited statement by Griffiths CJ in Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at 7:
‘...where the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication. ... The former must be taken to be repealed by implication. Another branch of the same proposition is this, that if the provisions are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are excepted or their operation is excluded with respect to cases failing within the provisions of the later Act.’
This statement has been cited with approval in Deputy Commissioner of Taxation v Moorebank Pty Ltd [1988] HCA 28; (1988) 165 CLR 56 at 63 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ; Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337 at [9], [13] and [14] per Brennan CJ and McHugh J; at [47] per Gaudron J; at [174] per Kirby J; Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004] HCA 59 at [100] per Kirby J. However, the general principle is tempered by the presumption that the Parliament does not intend to contradict itself and that the Acts should be read to operate together where possible. In Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268 at 275, Fullagar J said:
‘...it is a comparatively rare phenomenon, and it has been said again and again that such repeal will not be held to have been effected unless actual contrariety is clearly apparent. I would say it is a very rare thing for one statute in affirmative terms to be found to be impliedly repealed by another which is also in affirmative terms.’
Fullagar J’s statement has been cited with approval in South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 at 171; Shergold v Tanner [2002] HCA 19; (2002) 209 CLR 126 at [34]- [35]; Doessett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 202 ALR 428 at [14] per McHugh J; at [43] per Gummow, Hayne and Heydon JJ.
65 As has appeared earlier from the reference to the Explanatory Memorandum to the Emergency Act, it was intended by the Legislative Assembly of Norfolk Island to be an Act which replaced the 2004 Act. However, having in mind the caution of Fullagar J, there are two respects in which the Emergency Act was not on all fours with the 2004 Act. The first is with respect to the differences in the legislation. The second is as to the duration of the Emergency Act in comparison with the duration of the 2004 Act. It is apparent that the Emergency Act is an Act which was intended to be of short duration, namely, to 30 June 2005. The inference from that is that even if it could be taken as having overridden the 2004 Act during the period of its duration, it was not intended to effect a repeal permanently. Hence, on 1 July 2005, there would be no whole inconsistency and the 2004 Act would apply. In our opinion, the clear inference from the temporal limitation to the Emergency Act is that, if it created a total inconsistency with the 2004 Act, it did so only until 30 June 2005. There is no evidence before the Court of any intention by the Legislative Assembly to extend the date referred to in s 8 of the Emergency Act.
66 Consequently, we do not consider that there is futility in the Court resolving the appeal from the judgment of the trial judge. The 2004 Act which he had under consideration is in our view, an Act in force without any inconsistency from 1 July 2005. Inasmuch as a different opinion has been expressed on one aspect of the reasoning of the trial judge by Kiefel J, in relation to the Emergency Act, the resolution of the appeal will have the advantage of clarifying the law.
67 Therefore, we did not allow the objection of the respondents to the appeal proceeding nor do we consider there is any appropriate basis upon which to take this issue into account with respect to costs.
WHETHER THE PROVISIONS OF SCHEDULE 2 WERE WRONGLY APPLIED TO LIMIT THE POWERS OF LEGISLATIVE ASSEMBLY
68 As we have noted, the appellant contends that his Honour wrongly adopted the approach that the reference in s 21(2) to the Schedules, specifically Sch 2, had the consequence of listing matters in relation to which laws may be made by the Legislative Assembly.
69 It is clear that the powers of the Legislative Assembly are, consistently with s 19(1), plenary powers, subject to the NI Act. They are powers of a Territory subject to the provisions of the NI Act. Reading the NI Act as a whole, it is apparent that it is sought to preserve a balance between the powers of the Legislative Assembly and the powers of the Commonwealth of Australia. Hence the importance of the phrase in s 19(1), ‘subject to this Act’.
70 In our view, on a fair reading of his Honour’s reasons, his Honour did not approach the issues before him on a wrong basis. He commenced his reasons by drawing attention to the fact that the issue before him was the challenge to the validity of the 2004 Act. That validity, as his reasons traced, depended upon whether the Deputy Administrator had properly given his consent to the enactment of the Assembly; that is, whether he had properly applied the provisions of s 21 of the NI Act. It was in that sense that, at [26] for example, he said that as s 21(2) contemplates, the Schedule lists certain matters in relation to which laws may be made. That was a shorthand reference to the process which he had previously described in detail, not an error of understanding on his Honour’s part. As par [27] makes apparent, his Honour properly understood the appellant’s submissions to work back from the opinion formed by the Deputy Administrator to the issue of the validity of the 2004 Act.
WHETHER ERROR IN CHARACTERISATION OF THE 2004 ACT
‘QUARRYING’
71 The first contention of the appellant is that his Honour’s reasons over-emphasised and concentrated upon the meaning of ‘quarrying’ and ‘public works’ to the exclusion of other items in Schedule 2. However, his Honour had proceeded on the footing put to him by the appellant that only two items were relevant, namely Item 19 and Item 44.
72 The trial judge saw s 4(1) of the 2004 Act as being critical because it authorised the executive member to grant ‘approval for a person to sort, crush, or otherwise treat extractive material, or manufacture products therefrom’ at a particular place not within one of five specified zones. The place need not, however, be the place where the extractive material was quarried or a place adjacent thereto, but could be a place to which the materials had, with approval, been removed for such purposes.
73 In considering what, apart from the actual abstraction of rock and stone from earth, is covered by the term ‘quarrying’, in other words whether it covers incidental activities including crushing, sorting and other treatment, the trial judge recognised a distinction between incidental activities carried on at the quarry site, when it concluded such activities ‘can be fairly regarded as quarrying’, and activities carried on at another site, remote from the quarry itself. In the latter case, ‘treatment at such a site is a separate activity’.
74 In our opinion, for the reasons referred to below, it is not critical to the determination of this case to examine whether the distinction relied on below is a valid one. Undoubtedly, the place where such incidental activities are carried on is a factor in how they should be properly characterised. If they are carried on at the quarry site or on land adjacent thereto, the more likely it is they will be characterised as part and parcel of the quarrying operation. But other factors will be relevant, such as who carries them on – the person who extracts the stone from the earth or some other person – and whether they form part of a totally integrated process or are discrete operations with no temporal or mechanical continuity. In other words, the place where they are carried on will not necessarily be determinative. This is best illustrated by the decision of this Court in Commissioner of Taxation v Northwest Iron Co Ltd (1985) 9 FCR 463 where the Court held that the taxpayer’s iron ore mining operations encompassed the operations of a pellet plant some 85 kilometres from the mine site, and, in so doing, rejected the Commissioner’s argument (at 472) that operations must be conducted at the mine site to constitute mining operations (at 475 per Lockhart J). This is no more than an illustration that it is a question of fact in each case whether incidental activities carried on away from the site of extraction will bear the same character as the process of extraction itself – mining in that case, quarrying in this.
75 The material before the Supreme Court relevant to this characterisation process appears to have been, at best, extremely limited and we would not be prepared to reject the approach the Court adopted in this case; that is, the distinction between crushing, sorting and other treatment activities carried on at a place remote from the quarry site and treatment activities carried on at the quarry site. We therefore agree with the trial judge that the 2004 Act is not a law falling within s 21(2)(a) of the NI Act by reference to Item 19 of Sch 2 thereof.
‘PUBLIC WORKS’
76 In relation to Item 44 – ‘Public Works’ – the trial judge observed that no doubt the Legislative Assembly contemplated that some of the material to be treated pursuant to an authorisation under s 4(1) would be used on public roads within the Territory or for other public works. However, he concluded that such circumstances did not mean that the 2004 Act can be characterised as legislation in relation to public works. The legislation did not authorise the carrying out of, or provide funds for, any particular public works, or public works in general. It simply authorised an industrial process that might result in the production of material suitable for public works. We agree with these observations and the Court’s conclusion. The fact that an approval granted under s (4)(1) may only be given if the executive member and the Legislative Assembly are of the opinion that the work required to be done in accordance with such approval is required in the public interest (par (a)), is not, in our view, conterminous with a conclusion that the 2004 Act makes provision only for or in relation to ‘public works.’ In order for the 2004 Act to qualify in terms of Item 44 of Sch 2, it seems to us that any approval that may be granted under s 4(1) of the 2004 Act must be limited to that particular purpose. That is clearly not the case.
77 We agree with the conclusion of the Supreme Court that the 2004 Act does not make provision ‘only for or in relation to’ Public Works and therefore does not fall within s 21(2)(a) of the NI Act by reference to Item 44 of Sch 2 thereof. It is implicit in this agreement that we do not agree with the conclusion of Kiefel J in Check, on this particular issue at [30], although her Honour was there dealing with different legislation, namely the Emergency Act.
‘INDUSTRY’
78 Whatever the explanation as to why the trial judge confined his opinion to Items 19 and 44, it is open to the Court on appeal to consider whether, in addition to the items of ‘quarrying’ and ‘public works’, Sch 2 provided any items attracted by the proper characterisation of the 2004 Act and therefore provided a permissible foundation for the opinion of the Deputy Administrator acting pursuant to s 21(2)(a), rather than s 21(2)(b). As Kitto J put it in Herald and Weekly Times Ltd v Commonwealth [1966] HCA 78; (1966) 115 CLR 418 at 436, cited in Wake v Northern Territory of Australia [1996] NTSC 161; (1996) 109 NTR 1 at 8, it is necessary for the Court to consider ‘what, then, is the law really doing ...?’.
79 Two items in Sch 2 additional to those developed in the submissions before the trial judge are relied upon in the contentions of the appellant. The first is Item 81 ‘Industry (including forestry and timber, pastoral, agricultural, building and manufacturing)’ and the second is Item 82 (‘Mining and Minerals ... within all the land of the Territory above the low-water mark’). We do not consider Item 82 can assist.
80 As has earlier been said, the central provision of the 2004 Act is s 4(1). Essentially, that enables the executive member to grant approval for a person to sort, crush or otherwise treat extracted material or manufacture products therefrom. ‘Extracted material’ is material quarried or extracted as part of an ‘extractive industry’. In our view, these provisions support the characterisation of the 2004 Act as legislation making provision relating to a matter specified in Sch 2, namely, ‘Industry’. It is an Act concerning extractive industry. It is therefore the case that the opinion of the Deputy Administrator is capable of being sustained by Item 81 if the provisions of s 21(2) are otherwise satisfied.
81 Senior counsel for the respondents submitted that the 2004 Act is not a law to ‘regulate’ an industry because it did not purport to control it; it merely gave permission for it to take place but did not provide for conditions for the carrying out of the work.
82 In our opinion, this submission cannot be sustained in the face of s 4 of the 2004 Act. Section 4(3) itself lays down a number of mandatory conditions which attach to an approval granted under the section, and s 4(5) makes it clear that the executive member may impose such further or other conditions upon an approval so granted as the executive member, or the Legislative Assembly, consider appropriate or necessary in the public interest. Section 7 of the 2004 Act further provides that a person who fails to observe the terms of a condition imposed in respect of an approval granted under s 4 commits an offence. In our opinion, the 2004 Act clearly ‘regulates’ the quarrying or other extraction of sand, clay, gravel, turf, soil, rock, stone or similar material from land including the sorting, crushing or other treatment of, or the manufacture of products from such materials, whether on the land from which such materials are quarried or extracted, or on adjacent land, or on land to which the materials have, with approval, been removed for such purposes as part of an extractive industry.
‘ONLY FOR OR IN RELATION TO’
83 This directs attention to the precise terms of s 21(2)(a). It is not sufficient that the proposed law makes provision concerning an Item in Sch 2. What is required is that the proposed law:
‘... makes provision only for or in relation to matters specified in Schedule 2 ...’
The question then arises how this phrase is to be interpreted. It is capable of being read in two ways. The first would allow the word ‘only’ to qualify both the word ‘for’ and phrase ‘in relation to’. The second would read the word ‘only’ as qualifying only the word ‘for’ and allow the phrase ‘in relation to’ to stand alone.
84 The expression ‘in relation to’ has been read as a wide expression conveying some connection or relation between two matters. In Airservices Australia v Canadian Airlines International Ltd [1999] HCA 62; (1999) 167 ALR 392, McHugh J at [242] said:
‘In O’Grady v Northern Queensland Co Ltd (1990)169 CLR 356 at 374, Toohey and Gaudron JJ held that the phrase "in relation to" is an expression of "broad import", although its precise ambit is confined by the context in which it appears. In the same case, I said:
"The propositional phrase "in relation to" is indefinite. But, subject to any contrary indication derived form its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters."’
85 There is a question concerning the effect of the word ‘only’ in s 21(2)(a). There are no authorities of which the Court has been apprised or we have been able to locate on s 21(2)(a) of the NI Act itself. There are, however, decisions concerning the identical words in s 7(2)(a) of the Northern Territory (Self-Government) Act 1978 (Cth). That is a provision providing for assent to proposed law in respect of the Northern Territory and likewise relates to whether the Administrator shall declare the law as one which he may assent or withhold his assent in relation to, or which he is required by that section to reserve for the Governor-General’s pleasure. There are two authorities on the words in that context. In Wake, Martin CJ, Angel and Mildren JJ were called upon to consider the validity of the Administrator’s assent to the rights of the Terminally Ill Act 1995 (NT). In doing so, their Honours were required to consider an argument that that Act was not a proposed law making provision only for or in relation to a matter specified under s 35 of the Northern Territory (Self-Government) Act so that the Administrator could not have assented to it pursuant to s 7(2)(a) of that Act. Their Honours found that the substance of the Terminally Ill Act related to three matters described in the Regulation authorised by s 35, as matters in relation to which Ministers of the Territory had executive authority.
86 In Pritchard v Racecage Pty Ltd (1997) 72 FCR 203, Branson J was of the opinion that if the Bill for the Motor Accidents (Compensation) Act 1979 (NT) was a proposed law making provision in relation to a matter specified in the Regulations for the purpose of the assent provisions in the Northern Territory (Self-Government) Act 1978, and if it was law intended to restrict the operation in that Territory of the Trade Practices Act 1974 (Cth), it would be difficult to conclude that it made provision only in relation to the specified matter. That is, her Honour proceeded on the basis, obiter, that the qualification of ‘only’ was applicable to both limbs of the phrase.
87 We agree that the words should be so understood. If it were the case that the word ‘only’ applied solely to the word ‘for’ uncertainty could arise in the application of the second limb as to the extent to which a proposed law was ‘in relation to’ matters specified in Sch 2. The contrary view was not argued on this appeal. Nor in our view need it be considered because the 2004 Act is an Act which can safely be said to be ‘only for or in relation to’ matters specified in Sch 2, namely, Item 81.
88 When s 21(2)(a) of the NI Act speaks of ‘a proposed law which, in the opinion of the Administrator, makes provision only for or in relation to’ a particular matter or matters, it is referring to the subject matter of its provisions; with what those provisions are concerned or dealing with, not their impact, if any, on the subject matter of other legislation. If a proposed law makes provision for one subject matter falling within an Item of Sch 2 and also makes provision for another matter which does not fall within an Item of Sch 2 or Sch 3, it will not be a proposed law which makes provision only for or in relation to matters specified in Sch 2 or Sch 3. In a totally different context, one is reminded of the provisions of s 55, par 1, of the Constitution which, in terms safeguards against the device of ‘tacking’ whereby the House of Representatives could tack on to a bill dealing with the imposition of taxation added provisions which did not deal with the imposition of taxation. If such a bill were, nevertheless, sent up by the Lower House as an alleged bill dealing with the imposition of taxation with the Speaker’s certificate of identity, the Senate could not amend the added provisions because of the restriction in s 53, par 2. Section 55 par 1, prevents this subterfuge: see Cadbury-Fry Pascal Pty Ltd v Federal Commissioner of Taxation [1944] HCA 31; (1944) 70 CLR 362 at 372 - 373 per Latham CJ.
89 Because s 21(2) of the NI Act requires the Administrator to reserve for the Governor-General’s pleasure any proposed law which makes provision otherwise than only for or in relation to matters specified in Sch 2 or Sch 3 or both, the use of the word ‘only’ may readily be seen as serving the same purpose as it serves in s 55, par 1, of the Australian Constitution; that is, it prevents the Legislative Assembly of Norfolk Island tacking on to proposed laws which make provision for or in relation to matters specified in Sch 2 or Sch 3, matters which are not specified in Sch 2 or Sch 3 and so avoid the requirement to reserve such a proposed law for the Governor-General’s pleasure.
PLANNING LEGISLATION
90 Against the view we have reached so far, the respondents contend that the 2004 Act should be characterised as planning legislation so that reference should have been made to the Governor-General pursuant to s 21(2)(b). It is necessary to consider this in the context of the planning laws of Norfolk Island.
91 The Planning Act 2002 (NI) provides for a Norfolk Island Plan and for associated controls on the use and development of land in Norfolk Island. Section 7 provides that there shall be a Norfolk Island Plan and that the Plan will promote the objects of the Planning Act by indicating planning objectives, and development and environmental standards for Norfolk Island generally and for land use zones. The Plan is required by s 7(3) to specify uses and developments which are permitted as of right, which are permissible with consent and which are prohibited. Part V of the Planning Act establishes a development approval process.
92 The Norfolk Island Plan was approved by the Legislative Assembly of Norfolk Island on 25 February 2004. It was published in the Norfolk Island Gazette on 27 February 2004. The Plan provides for a zoning scheme. It divides Norfolk Island into zones, one of which is ‘light industry’ and one of which is ‘industrial’. Each of these zones along with other zones prescribed are the subject of further definition in the Plan. In the industrial zone, the use or development which is permissible with consent includes ‘industry-noxious, hazardous, or offensive’.
93 In support of its contentions concerning the appropriate characterisation of the 2004 Act, the respondents submit that it is patent that the provisions of that Act cut across the provisions of the Norfolk Island Plan as authorised by the Planning Act. This, it was said, is germane to characterising it because, in the absence of the 2004 Act, it is apparent that a provision of the Plan would remain applicable.
94 While we accept that the enactment of the 2004 Act may have had planning consequences, we do not consider that, examining it as a whole, it properly attracts the characterisation of planning legislation. Indeed, its character is antithetical to any concept of plan and is focussed squarely on the industry of extraction. What it is ‘really doing’ is making provision in respect of an extractive industry.
CONCLUSION
95 Therefore we are of the view that the 2004 Act makes provision only for or in relation to the extractive industry as defined therein and that this is a matter specified in Sch 2, namely, in Item 81 of that schedule. As such, in our opinion, the Deputy Administrator had the power to assent to the 2004 Act in accordance with the advice of the Executive Council (s 21(5) of the NI Act).
96 It follows that we do not agree with the conclusion of the trial judge that it was not open to the Deputy Administrator to conclude that the proposed law fell within Sch 2 of the NI Act. It follows the Deputy Administrator therefore had power to assent to the 2004 Act. Accordingly, we would allow the appeal because we consider that the assent was valid so that it cannot be said the 2004 Act was null and void.
97 In view of the conclusion which we have reached on the issue of the characterisation of the 2004 Act, it is not necessary for us to examine the issue whether in any event the opinion of the Deputy Administrator was sustainable by reliance on s 7(1)(d). On the face of it, we doubt this general provision would have such an effect but it is unnecessary to cast a final opinion on the issue at this time.
98 For the above reasons, we consider that the appeal should be allowed with costs, the orders made by his Honour set aside and an order substituted that the originating application be dismissed, with costs.
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I certify that the preceding eighty (80) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justices Nicholson and
Edmonds.
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Associate:
Dated: 30 August 2005
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Counsel for the Appellant:
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P MacSporran
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Solicitor for the Appellant:
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Phillip Densham White
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Counsel for the Respondents:
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A Cook QC
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Solicitor for the Respondents:
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WG McNally & Co
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Date of Hearing:
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16 May 2005
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Date of Judgment:
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30 August 2005
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2005/179.html