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Federal Court of Australia |
Last Updated: 16 April 1999
GURUBANA GUNGGANDJI PEOPLE OF YARRABAH v GREAT BARRIER REEF MARINE PARK AUTHORITY [1999] FCA 437
Native Title Act 1993 (Cth) ss 24HA, 252, 8, 84A, 214
Native Title (Notices) Determination 1998 (Cth) ss 4-8
Great Barrier Reef Marine Park Act 1975 (Cth)
Acts Interpretation Act 1901 (Cth) s 46A
Abbott v Shire of Heidelberg (1926) VLR 199 not followed
Ramos v Minister for Immigration and Multicultural Affairs (1998) FCA 1514 referred to
Australian Broadcasting Tribunal v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1 considered; disapproved
Williams v Chief Inspector of Factories (1924) VLR 321 cited
Lockwood v The Commonwealth [1954] HCA 31; (1954) 90 CLR 177 cited
Brown v West [1990] HCA 7; (1990) 169 CLR 195 cited
Newcrest Mining (WA) Limited v BHP Minerals Limited &The Commonwealth [1997] HCA 38; (1997) 190 CLR 513 cited
Mercantile Mutual Life Insurance Co Limited v Australian Securities Commission (1993) 40 FCR 409 referred to
Amalgamated Television Services v Australian Broadcasting Tribunal [1989] FCA 191; (1989) 88 ALR 287 cited
Commissioner of Taxation (Cth) v Australian & New Zealand Banking Group Limited (1979) 143 CLR 499 cited
The Commonwealth v Huon Transport Pty Ltd [1945] HCA 5; (1945) 70 CLR 293 cited
Downey v Pryor, Woodward & Hunt [1960] HCA 49; (1960) 103 CLR 353 cited
STEWART HARRIS & ESTON SINCLAIR (ON BEHALF OF THEMSELVES AND THE GURUBANA GUNGGANDJI PEOPLE OF YARRABAH IN THE STATE OF QUEENSLAND) v GREAT BARRIER REEF MARINE PARK AUTHORITY
Q 23 of 1999
KIEFEL J
BRISBANE
14 APRIL 1999
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| QUEENSLAND DISTRICT REGISTRY | Q 23 OF 1999 |
|
BETWEEN: | STEWART HARRIS & ESTON SINCLAIR (ON BEHALF OF THEMSELVES AND THE GURUBANA GUNGGANDJI PEOPLE OF YARRABAH IN THE STATE OF QUEENSLAND)
Applicants |
|
AND: | GREAT BARRIER REEF MARINE PARK AUTHORITY
Respondent |
|
JUDGE: | KIEFEL J |
| DATE OF ORDER: | 14 APRIL 1999 |
| WHERE MADE: | BRISBANE |
THE COURT DECLARES THAT:
1. The Native Title (Notices) Determination 1998 is not invalid by reason that it refers only to Section 252 Native Title Act 1993 on the page signed by the Minister.
2. The Determination is not invalid insofar as it purports to make provision for notification for the purposes of Section 24HA(7)(a).
THE COURT FURTHER ORDERS THAT:
3. The question of the Authority's costs be reserved until final determination in the proceedings.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| QUEENSLAND DISTRICT REGISTRY | Q 23 OF 1999 |
|
BETWEEN: | STEWART HARRIS & ESTON SINCLAIR (ON BEHALF OF THEMSELVES AND THE GURUBANA GUNGGANDJI PEOPLE OF YARRABAH IN THE STATE OF QUEENSLAND)
Applicants |
|
AND: | GREAT BARRIER REEF MARINE PARK AUTHORITY
Respondent |
JUDGE:
KIEFEL J DATE: 14 APRIL 1999 PLACE: BRISBANE
1 The Applicants are registered native title claimants under the Native Title Act 1993 ("the Act"). Their claim concerns waters in and around the Great Barrier Reef in respect of which the respondent Authority has statutory powers and duties under the Great Barrier Reef Marine Park Act 1975, which include the grant of permits to use or enter zones within the Park. Section 24HA of the Act provides that registered native title claimants, and certain specified bodies, are to be given notice of the prospective grant of leases, licences, permits or authorities under legislation relating to the management and regulation of water, aquatic resources or airspace, so that they might have the opportunity of commenting upon them. The provision for notification is contained within subsection (7) which provides:
"Notification2 On 29 August 1998, the Special Minister of State published a document containing provisions for notification which bore reference to that subsection. The document also prescribed the mode of notification for the purposes of other sections in the Act. The provisions concerned notification to persons or groups, such as registered native title claimants, and also to the public. The contents page of the document bears the heading "Native Title (Notices) Determination 1998", under which that appear the words "Made under the Native Title Act 1993". The front page, which bears the Minister's signature, contains the following statement appearing under the heading:
(7) Before an act covered by subsection (2) is done, the person proposing to do the act must:
(a) notify, in the way determined in writing by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters that will be affected by the act, or acts of that class, that the act, or acts of that class, are to be done; and
(b) give them an opportunity to comment on the act or class of acts."
(Emphasis is added).
"I, Nick Minchin, Special Minister of State, acting for the Prime Minister, make this determination under section 252 of the Native Title Act 1993."3 In these reasons "the Determination" refers to the document containing the collective determinations; and "a determination" refers to the decision with respect to particular notice provisions.
4 Section 252 of the Act is concerned with the method by which the public might be notified and also provides that the Minister might determine it. It is not concerned with notification to registered native title claimants or other persons or groups whose interests might be affected by future acts. It provides:
252 Notify the public in the determined way5 The Commonwealth, intervening in this application pursuant to s 84A of the Act, accepts that s 252 does not contain the relevant power for the Minister to make a determination for notices under s 24HA(7). Section 252 is the proper source of power for the making of a determination with respect to public notifications required by various sections of the Act. Sections 4 to 7 inclusive of the Determination, which contain these provisions, make up the larger part of the Determination. Non-public notifications, such as those in question to registered native title claimants, are dealt with by s 8 of the Determination, which is in these terms:
Definition
(1) The expression notify the public in the determined way means give notice in the way determined by the Commonwealth Minister for the purposes of the provision in which the expression is used.
Examples of ways that may be determined
(2) Without limiting the ways that the Commonwealth Minister may determine, he or she may determine that the notice may be given:
(a) in newspapers (including newspapers catering mainly or exclusively for the interests of Aboriginal peoples or Torres Strait Islanders); or
(b) by radio broadcasts or television transmissions."
"8. Notice of acts6 The applicants' point, in short compass, is that whilst s 24HA(7) is a source of power to make a determination such as that contained in paragraph (e) of s 8(1) of the Determination it was not in fact utilised. In their submission the determination in question must be taken to have been made, as the front page declares, "under Section 252". It follows that it is invalid, since that section does not authorise the determination of the way in which notice is to be given for the purpose of s 24HA(7).
(1) Notice under each of the following provisions of the Act must be given by post:
(a) paragraph 23HA(a) (notification);
(b) paragraph 24GB(9)(c) (acts permitting primary production on non-exclusive agricultural and pastoral leases;
(c) paragraph 24GD(6)(a) (acts permitting off-farm activities that are directly connected to primary production activities);
(d) subparagraph 24GE(1)(f)(i) (granting rights to third parties etc on non-exclusive agricultural or pastoral leases);
(e) paragraph 24HA(7)(a) (management or regulation of water and airspace);
(f) paragraph 24ID(3)(a) (effect of Subdivision applying to an act);
(g) paragraph 24JB(6)(a) (treatment of acts covered by section 24JA);
(h) paragraph 24JB(7)(a) (treatment of acts covered by section 24JA);
(i) subsection 24KA(8) (facilities for service to the public);
(j) subsection 24MD(7) (treatment of acts that pass the freehold test);
(k) subsection 24NA(9) (acts affecting offshore places)
(2) However, notice may be given by a different means if the person to be notified agrees.
(3) A notice under a provision mentioned in paragraph (1)(a), (b), (c), (d), (e), (f), (g) or (h) must include:
(a) a clear description of the area that may be affected by the act or class of acts; and
(b) a description of the general nature of the act or class of acts; and
(c) a statement that the person to be notified must be given an opportunity to comment on the act or class of acts within a period specified in the notice; and
(d) the name and postal address of the person to whom comment must be given."
(The emphasis is added).
7 This application is brought in proceedings for review of the Authority's conduct or decisions made in connexion with the notification of a number of applications for permit. The grounds include challenges as to the sufficiency of the notice and to the validity of the Notification by reason that the Determination made by the Minister is invalid. Two preliminary questions, the terms of which are agreed, are now raised:
1. Is the Native Title (Notices) Determination 1998 invalid, or alternatively ineffective, insofar as it purports to apply to Section 24HA(7)(a) of the Native Title Act 1993?8 The applicants rely, principally, upon two decisions in support of their contention that a reference to the incorrect source of power will result in invalidity.
2. If "yes" to question number 1, does the invalidity, or alternatively ineffectiveness, of the determination have the consequence that the notifications referred to in the amended application for an order of review are also invalid, or alternatively ineffective, for the purposes of Section 24HA(7)(a) of the Native Title Act 1993?
9 In Abbott v Shire of Heidelberg (1926) VLR 199 Cussens J held invalid a by-law which purported to have been made under a particular provision of the local government legislation. In response to the contention that it might be supported as an exercise of power under another section, dealing with a different topic, his Honour said:
"... It is sufficient to say that this by-law does not purport to be made under that section, and, accordingly, cannot be so supported."10 The decision has attracted little attention, perhaps because of the brevity of the reasons for the conclusion stated. It does not appear to have been applied, and recently in Ramos v Minister for Immigration and Multicultural Affairs (1998) FCA 1514 (13 November 1998) Hely J cast doubt upon it.
11 In Australian Broadcasting Tribunal v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1, the Full Court was concerned with the validity of certain television program standards. The Tribunal had power to determine standards to be observed by licensees in broadcasting or televising programs, and sanctions were provided for failure to comply with them. Reference was necessary to what was meant by a "standard" within the meaning of the legislation in question, since that was what the requirements in question purported to be. Indeed, the case might perhaps have been decided upon this point. The Tribunal also sought to justify the requirements by reference to another function and power, concerning conditions under which advertisements might be broadcast or televised. A reference to a "standard" identified the particular power that was being examined. Bowen CJ, in holding the purported standards invalid, said (10):
"...On the other hand the citizen confronted with rules he is required to observe is entitled to know with some precision what binding authority the rules have and what the consequences of non-observance may be.12 The other member of the majority, Fox J, considered it important that the licensee would have understood the purported standards to be those to which its statutory obligations were addressed (17). More generally, his Honour observed that an administrative body might rely upon another provision as authority for its act, at least where it was plainly immaterial, but clearly did not consider it to be so in that case.
In my opinion, where an administrative body which states it is exercising a particular power in laying down a general rule lacks power on the stated ground, but could have laid down the rule validly under another head of power, it would generally be wrong for a court to uphold the rule as if it had been made under the unstated head of power, particularly where the consequences for the citizen of each exercise of power are different."
13 The principle for which Abbott and Saatchi must stand, consistent with the applicants' argument, is that once a power is nominated by the body as that under which it claims to act, it is bound by that nomination: see Pearce and Argument "Delegated Legislation in Australia" (2nd ed) [13.23]. The position is somewhat curious given, as those authors there point out, the Courts otherwise hold that if no power is referred to, the Court will search the Act in question to find an appropriate power (see Williams v Chief Inspector of Factories (1924) VLR 321 and Lockwood v The Commonwealth [1954] HCA 31; (1954) 90 CLR 177). That is to say, a failure to identify or make reference to a source might avoid invalidity. The applicants here do not challenge such an approach.
14 The general rule has been stated that the validity of an administrative act is not necessarily impugned by there having been a mistake as to the source of power stated by the decision-maker as that upon which reliance was placed: Brown v West [1990] HCA 7; (1990) 169 CLR 195, 203-4; Newcrest Mining (WA) Ltd v BHP Mineral Limited & The Commonwealth [1997] HCA 38; (1997) 190 CLR 513, 618; it being a settled principle that "an act purporting to be done under one statutory power may be supported under another statutory power" (Lockwood v The Commonwealth, 184).
15 In light of these authorities the questions which arise are whether Saatchi can be regarded as correctly decided; or whether it ought to be understood as recognising an exception to the general rule, as the statement of the rule itself contemplates.
16 On one view, Saatchi may be distinguished on its own facts. As Gummow J observed in Mercantile Mutual Life Insurance Co Limited v Australian Securities Commission (1993) 40 FCR 409, 436 their Honours' remarks need to be understood in the context of that case, which concerned the observance of licensees to the standards and significant sanctions provided for non-observance (see also Lockhart J, 425).
17 However, the general statements of opinion expressed by each of Bowen CJ and Fox J concerning a misstatement of the source of power have been doubted: by Gummow J in Mercantile Mutual (436-7) and by Sheppard J in Amalgamated Television Services v Australian Broadcasting Tribunal [1989] FCA 191; (1989) 88 ALR 287, 302. Wilcox J dissented in Saatchi (22-23). Gummow J, in Mercantile Mutual (436-7), pointed out that their Honours appeared to derive a basis for their views expressed from a requirement that there be a statement of power in administrative law in the United States, but such a requirement does not arise under relevant statute law providing for judicial review in Australia. That leaves the question whether the particular statute, providing the source of power in question, requires the decision-maker to specify the source of the authority relied upon. That question will be approached having regard to the principles relating to statutory construction: Gummow J, 437.
18 If a statute could be seen to require the identification of the source of the power being examined, there is the possibility of invalidity in the event of a wrong reference, depending upon whether the requirement was cast in obligatory terms. That there be such a statement is, to an extent, implicit in the applicant's case here. One would think such requirements would be rare. Even cases which hold that notices are required to express the limitations which a statutory provision places upon a power, require the content of the notice to address the statutory criteria but not to identify the actual source of authority (Commissioner of Taxation (Cth) v Australian & New Zealand Banking Group Limited (1979) 143 CLR 499, 537-8; 525).
19 The Determination here was an instrument subject to disallowance by Parliament: s 214 of the Act, as was the document under consideration in Brown v West. In connexion with the question just discussed, it is necessary to further observe that s 46A Acts Interpretation Act 1901 (Cth) provides that such instruments are subject to particular requirements. It does not, however, require that there be a statement relating to authorisation or identification of power. Its main concern is with respect to the substance of the document.
20 The nature of the document is relied upon by the applicants to advance the submission that Parliament might be misled by the limited statement appearing on the front of the Determination as to the source of power. The prospect that the recipients of notices might be misled might be thought to underlie the reasoning of Fox J in Saatchi to an extent. For present purposes, I put to one side questions as to how the issue of any misleading effect could be raised in a given proceeding and what remedy might be available with respect to it. There is in this case, in my view, a short answer to it. At a factual level, the prospect that Parliament or any person could have been misled into believing that the Determination dealt only with public notices for the purposes of s 252 of the Act cannot be countenanced. It would require one to assume that the whole document was not to be read. Section 8 of it clearly states the provisions in respect of which a procedure is being prescribed. There could be no doubt upon reading it that the Minister was addressing the matter for determination under s 24HA(7)(a). To an extent, the first question posed for decision acknowledges this.
21 It was also submitted that a stricter view, as to what was required to be provided by the terms of the Determination, should be taken because the interests of registered native title claimants were likely to be affected. The consequences referred to are, however, properly to be seen as connected with the grant of permits, the subject of the notifications. There are no effects upon the interests of the recipients of the notices which arise from the statement as to the source of power in the Determination.
22 In my view the Determination is not invalid by reason that it refers only to s 252 of the Act on the front page nor insofar as it purports to make provision for notification for the purpose of s 24HA(7)(a). It seems to me that declarations in these terms would address the issues received more precisely than an affirmative answer to the first question posed.
23 It is unnecessary for me to answer the second question but I add these comments. It could not however be considered likely to have been intended that if there were no valid Determination made, persons such as the applicants would receive no notification at all. The latter view would be to read the requirements as to notice being those as determined by the Minister, if made, but if they were not, to require notice according to what the law would reasonably require, having regard to the purpose of the section: see The Commonwealth v Huon Transport Pty Ltd [1945] HCA 5; (1945) 70 CLR 293, 316-7; Downey v Pryor, Woodward & Hunt [1960] HCA 49; (1960) 103 CLR 353, 362-3.
|
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable
Justice Kiefel. |
Associate:
Dated: 14 April 1999
|
Counsel for the Applicants: | Mr G Hiley QC with him Mr G Koppenol |
| Solicitor for the Applicants: | Paul Richards & Associates |
| Counsel for the Respondent: | Mr G Gibson QC with him Mr P Flanagan |
| Solicitor for the Respondent: | Australian Government Solicitor |
| Counsel for the Commonwealth: | Mr R Orr |
| Solicitor for the Commonwealth | Australian Government Solicitor |
| Date of Hearing: | 29 March 1999 |
| Date of Judgment: | 14 April 1999 |
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