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High Court of Australia Transcripts |
Office of the Registry
Brisbane No B29 of 1996
B e t w e e n -
THE AUSTRALIAN HERITAGE COMMISSION
Appellant
and
MOUNT ISA MINES LIMITED
Respondent
DAWSON J
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON MONDAY, 10 FEBRUARY 1997, AT 11.25 AM
Copyright in the High Court of Australia
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR J.A. LOGAN, for the appellant. (instructed by the Australian Government Solicitor)
MR P.A. KEANE, QC: May it please the Court, I appear with MR P.D.T. APPLEGARTH for the respondent. (instructed by Allen Allen & Hemsley)
DAWSON J: Yes, Mr Walker.
MR WALKER: Your Honours, this appeal is from one of the answers given to a number of questions which were set aside for preliminary determination in proceedings which included challenges under the Administrative Decisions (Judicial Review) Act. The particular question, as your Honours will have seen from the materials in the appeal book and the written submissions, is that contained as letter (e) on page 12 of the appeal book and it poses the choice in terms which in hindsight may suggest a false dichotomy.
That choice is whether the entry by the Commission on the register to which I shall come under the Australian Heritage Commission Act is statutory conduct which is empowered when the Commission considers something should be so entered or recorded or whether it is only available when the place in question is, as the question puts it, one which objectively answers the description in section 4 of the Act. The question whether it is a true dichotomy which is useful for the legal controversy in question to pose on the one hand the Commission considering something to be the case and, on the other hand, it being objectively the case may be questionable. In reality that is in practical effect that question comes down to this: is a court permitted in accordance with legal principle to consider afresh without any restriction, apart from those imposed by the rules of evidence and the onus of proof and the requisite standard of proof, the question whether a place is included in the national estate.
That in essence is the issue that divides the parties on the one issue which is before the Court in this appeal. Your Honours, it is essentially, as our written submissions have tried to make clear, a matter of statutory interpretation. That is, did Parliament intend that a court could be seized of the inquiry which, as we put it, is a multifarious and difficult one redolent of subjective judgment and opinion in section 4, or whether by reason of the particular wording of section 4, section 7 and section 23 in combination and in the context of the Act, as my learned friends will put it, this is one of those cases which falls on the other side of the line. The court gives no more respect to the Commission's determination of the so-called essential preliminary except by recognition of the fact that what the Commission says must be some evidence and perhaps especially persuasive evidence to be weighed in the balance for the standard of proof simply on the balance of probabilities as a finding afresh by the court.
DAWSON J: Is it a jurisdictional fact situation, a Parisienne Basket Shoes situation, or a situation analogous to that situation?
MR WALKER: We would say it is the latter, that is, the issues in this case raise the question whether this is analogous to a jurisdictional fact in the accepted sense of that. The practical effect I have talked about certainly has the same outcome in terms of the scope of judicial review of the initial decision as does a classic jurisdictional fact argument. For practical purposes, there is probably no difference between how I put it as a matter of statutory interpretation and a slightly differently phrased inquiry is inclusion in the national estate a jurisdictional fact.
DAWSON J: In other words, the power of the Commission is dependent upon their being something within the national heritage, but it is given to the Commission to determine whether that fact exists or not.
MR WALKER: Yes.
DAWSON J: Yes.
MR WALKER: I am sorry, your Honour, I hope I did not cut you off.
DAWSON J: No, no.
MR WALKER: That is an appropriate way of raising the question. I have tried in my introductory comments to point out that this is an issue which can be raised in different ways. The areas of discourse are really all the same, however, the language is important because, in our submission, if it is stated at its most fundamental, namely, gathering the intention of the legislation, what Parliament intended to be the division of function between the Courts and the decision maker named in the statute then, in our submission, it is easier to avoid what everybody, even the most ardent proponents of a jurisdictional fact doctrine, concedes will be difficult invidious choices.
KIRBY J: But is that not to lead us down the mythology of parliamentary intention as distinct from parliamentary purpose revealed objectively in the language that it expresses.
MR WALKER: I will try not to perpetrate any myths, your Honour, but there are some I am bound by, and one of them is that none of us will examine the diligence with which parliamentarians turn their minds to consequences intended or not.
KIRBY J: That is why it is a good reason to avoid talking about intention I think, but the peril in the argument that you advance, and you will no doubt develop this, is that it would reduce, if it is correct, the power of the Court's supervision over facts, and, therefore, of the rule of law which is a very important principle that we should be safeguarding.
MR WALKER: If that be a peril, your Honour, I hope to persuade the Court that it is not one posed by what we argue for, that is, there is no reduction truly of useful rule of law, judicial review, by the principles for which we contend and the outcome for which we contend. That is the first thing. The second thing is that the rule of law cannot be seen as a matter which emphasises only the paramountcy within its limited role of the judiciary. It also includes the paramountcy of Parliament within its spheres of paramountcy and one of the difficulties of this present issue is that the same slogan, "parliamentary sovereignty", can be used to justify different outcomes, utterly opposite outcomes.
An aspect of parliamentary sovereignty upon which we rely is that the legislation says in terms what body is to do what in relation to inclusion in the register and we say in relation to everything inherent in that conduct, a matter to which I will come.
McHUGH J: The difficulty I have about the whole approach in the courts below is this reference to jurisdictional fact. I really have some difficulty grasping what that has got to do with it at the moment. Why is not the issue an issue under section 6 of the AD(JR) Act, and one of the issue, for example, is that whether in making the decision there has been an error of law by a body who has made the decision and that error of law is that, as a matter of law, it erroneously is going to include on the register a geographical entity which does not comply with section 4.
MR WALKER: Subject only to a very slight qualification the answer to your Honour's question is, there is no reason at all why that is not an entirely adequate way of dealing with it. That is our contention. The outcome for which we stand here is, the AD(JR) Act provides an ample, flexible response serving rule of law ideals, if that is a necessary commendation of it, for keeping this decision maker on the rails, that is acting lawfully - which is not to be confused with acting in a way with which a court will agree on the merits.
GUMMOW J: There is a passage in Sir Harry Gibbs' judgment in Buck v Bavone, which Mr Justice Beaumont gave a glancing - or the majority judgment in the Federal Court gave a glancing reference to. Do you accept that passage as laying out the legal parameters.
MR WALKER: I am wondering which passage it was.
GUMMOW J: It is in [1976] HCA 24; 135 CLR 110 at 118 to 119.
MR WALKER: Your Honour, that is one of the decisions that I have not brought to Court though I think it is one of the passages on - - -
GUMMOW J: It is recently - - -
MR WALKER: The decision is cited in my friend's submissions, I think, and - - -
GUMMOW J: I mention it because it is recently repeated in the joint judgment in this Court in Wu in 185 CLR 275.
MR WALKER: Yes, that is right.
GUMMOW J: It is my impression that what you are saying means that you are happy to fall within that passage.
MR WALKER: That passage touches on considerations all of which find reflection in our written submissions, all of which we rely upon for our statutory interpretation point, that is as a matter of substance in this Act the nature of the function, and in particular the nature of the decision - - -
GUMMOW J: If I can just interrupt you for a minute. And it would include what Justice McHugh was referring to.
MR WALKER: Yes, it does.
GUMMOW J: You accept that.
MR WALKER: It does, indeed. Now, depending at the stage at which one has reached in a process it will be section 6 or section 5 of the AD(JR) Act. That difference will not matter in the particular circumstances of this case.
The only qualification I wanted to express in answer to your Honour Justice McHugh's question was this: the precise nature of the issue, which has not matured in this case, will determine the way in which that error of law, to use one of your Honour's examples, can be sought to be demonstrated in the AD(JR) court. We should not be taken as conceding that that is an error of law which can be sought to be demonstrated by someone simply shouldering a burden of proof on the balance of probabilities that a fact was other than explicitly or implicitly found by the Commission. We should not be taken as conceding that. There may be certain circumstances in which, under different regimes, and with special facts, that might be so. As I say, the issue has not ripened in this case because there has not been the process attacked under section 5, which is one which would enable one to know how the Commission has actually proceeded.
We generally do accept, subject only to that qualification, that section 6 and section 5 will provide, not only under the error of law rubric, but under all the others and, in particular, we draw attention to the Wednesbury provision which, in our submission, provides, if not a complete answer, a considerable measure of comfort to your Honour Justice Kirby. The offensiveness in rule of law, and if one likes also democratic sense, of a designated statutory decision maker stepping outside the limits of that which, obviously to be described from the statute giving it power, is very greatly controlled by insuring that it cannot do so by conclusions which are such that no reasonable decision maker could have reached them.
That, in our submission, is a borrowing from the common law which in statutory terms reflects that there comes a time where the autonomy of the decision maker, otherwise we say to be gathered from the statute making it the decision maker and not the court, not inventing a new cause of action but requiring an administrative decision to be made.
KIRBY J: I thought I read this morning in another context that Wednesbury unreasonableness has been removed from the AD(JR) Act in relation to migration decisions. But it does apply, does it, in respect of this sort of class of decision?
MR WALKER: Yes.
KIRBY J: Which is the subsection of the AD(JR) Act?
MR WALKER: Paragraph 5(1)(e) is the gate. That is the heading of review:
that the making of the decision was an improper exercise of power -
and the particular rubric in subsection (2) which relates to Wednesbury is paragraph 5(2)(g) which is the particular, as it were, of the improper exercise of power. Can I just, for completeness, add that exactly the same pattern is observed relevantly in section 6 for continuing conduct.
McHUGH J: Mr Walker, I have a difficulty which I think you already flagged, but it seems to me that the question asked really does not identify the problem or the issue in this particular case.
MR WALKER: I could, I suppose, observe that I was not around when the question was settled, but that would be unworthy, and so I will ask your Honours to ignore that. In hindsight, yes, the question is framed in terms which may not give full recognition to all the difficulties, however, the parties, with great respect, have debated the matter in such a way both at trial and in the Full Court, that the true issue which is sought to be raised by that question is one which does come down to the controversy between us as to the role of a court reviewing the Commission's decision, or the Commission's conduct.
McHUGH J: I do not think that is the approach. At the moment, I just do not think that is the approach. I might need some convincing that the question as framed asked the relevant question. As I understand it - correct me if I am wrong - the Commission said, "We had all this material, scientific and otherwise, and we made a judgment on that." It seems to me that one then applies the terms of the AD (JR) Act and see whether they make an error of law or whether there was any improper exercise of power. I do not know that this question has got anything to do with it, to be perfectly frank. I do not think it is a dichotomy as the question appears to assume is the issue.
MR WALKER: It may well be, as I say, a false one entirely. I do not wish to react in any adversary way to what your Honour has said because we do say, of course, this is a case which is apt in every way for judicial review under the AD (JR) Act. It is not only a limiting provision, they are also provisions which expand common law grounds of appeal, so it is not as if this is some attack on what might otherwise be called entrenched customs of relations between the court and the executive, far from it.
Your Honour, it was a real issue for the simple reason that, according to my learned friend's contentions, when it comes to challenging which I will call, I hope, neutrally "the conclusion of the Commission", that this was a place included in the national estate, that all they need do is persuade a court, presumably using material marshalled under the rules of evidence and confined to that which the parties are permitted to marshal, on the balance of probabilities, perhaps with an eye to special admonition to respect what the Commission did, but still, just on the balance of probabilities, so that the single judge's conclusions, which may then be reinforced when it come to appellate scrutiny by Abalos or similar inhibition of the appellate review, so that that individual judge's conclusions will stand in place for all practical purposes of the Commission's decision.
Now, there are two things to be said about that. First, that is not the process of dispute under the AD (JR) Act. That is not the way in which the dispute is framed or fought. Second, it places primacy on the judge's conclusion, the judge's opinion, to use a provocative term - judgment, perhaps, is less provocative - whereas, under the AD (JR) Act the judge's opinion or judgment simply standing against the Commission's opinion or judgment is an irrelevancy. So, there is a real dispute. It is not as if this matter is rendered moot by what might now be seen the excessive simplicity of the question.
GUMMOW J: Paragraph (e) has two branches to it, in a way. In so far as it says "whether only a particular place which objectively answers the description can be so recorded", as I understand it, you say, "No, that's not right." Then as to the other half of it - which is a false dichotomy perhaps - "which the respondent considers should be recorded", you say, "Yes, but subject to the application of what was said in Buck v Bavone as to the nature of the consideration.
MR WALKER: Yes. I could gloss that last comment by saying, subject to the fact that it is reviewable under the AD(JR) Act.
GUMMOW J: Yes.
MR WALKER: The difficulty with the way the question is framed is that the first leg of course paraphrases almost exactly the statute. So in one sense nobody can say it is not correct, because that is what Parliament says. They are bound to list anything that they consider should be listed.
GUMMOW J: This litigation illustrates yet again the folly of stating questions for separate decision without clearly thinking about what has been done. But we are stuck with it, perhaps.
MR WALKER: Yes.
McHUGH J: Are we to really proceed in this case on the basis that the question is really the last part of the question? Is that how the cases has been conducted?
MR WALKER: It is being conducted - and my friend will no doubt correct or qualify this as necessary when he gets up - but it has been conducted on the basis that whatever objective means, it stands for the proposition I have put long-windedly, that is, it is a fact which is found in accordance with the judges' judgment on material marshalled under the rules of evidence by the parties, decided on the balance of probabilities, in which the opinion of the decision maker, at most, is a mere piece of evidence.
That is standing in contrast to - and we would eschew words like subjective - but in any event that is standing in contrast to the Buck v Bavone or AD(JR) role of the Court, which is to give full recognition to the fact that the judge may strongly dissent from the view of the Commission but, not being able to isolate extraneous matters taken into account, or essential matters not taken into account, or bad faith, or an error of law, or Wednesbury unreasonableness, et cetera, et cetera, dismisses a challenge on the basis that it was - to use old language - an error within jurisdiction.
So those were the two contentions which informed the debate, so far as I recall it at first instance, the debate so far as I know of it in the Full Court, and it pervades the judgments in each of those courts. In our submission, that is a real issue. If the question was light on as a vehicle for the issue, the issue is still appropriately before the Court and the question at least to serve the function perhaps only with the word "objective" of raising the difference between us.
Your Honours, could I progress to the statutory interpretation and the way in which the parties, in our submission, really differ? I do not wish to canvass what is already in the written submissions on both sides. The issue is relatively clearly joined so far as waiting is given, in our submission. Essentially the difference between us is that my learned friend's argument places section 7 at the heart of the exercise and, in particular, paragraph (c), I will come to it. By contrast, in our submission, when one is reviewing conduct of a statutory decision maker, it is as well, indeed we say it is better, to start with the provision that describes, empowers, or perhaps, obliges that conduct, and that is section 23. So, the difference of approach between us is that we pivot matters of section 23 and, in reality, my learned friends try to make paragraph 7(c) do a lot of work. At the heart of everything, of course, is section 4 to which I will return.
May I start, because it is the way I argue it, with section 23. It is found in Part IV, which is head of the register, and section 22 speaks more or less blandly in terms of what might be called a book keeping function. Indeed, subsections (5) and (6) are almost literally the way in which the book is to be kept. Section 22(1), (2), (3) and (4) means that the words of subsection (1) which appear on their own to require the register to be exhaustive of those things which are included in the national estate, are cut down and utterly abolished in that meaning. Cases shall not be entered except pursuant to section 23 or section 25(2). The corollary is they shall not be removed except by particular provisions either.
We are relevantly then forced to section 23 which is the route in question in this case. It starts in subsection (1) with the express of an obligation and it uses language which is the language of cogitation by the Commission of a legislative intention that it is the Commission's state of mind or state of satisfaction, opinion or judgment which governs the application of that obligation. The obligation is to enter a place in the register where the Commission considers that it should be recorded as part of the national estate.
KIRBY J: Do you concede that the national estate pre-exists this consideration and determination?
MR WALKER: Conceptually, yes. Conceptually, something that is not in the register, we accept, needs, at the appropriate level, to be identified - that is the statutory language - as part of the national estate in order for it to be eligible for entry on the register.
KIRBY J: All the Commission is doing then is identifying that which pre-exists, and why is that not susceptible to a judge reviewing such a decision?
MR WALKER: Your Honour, the normative state of being something which should be entered can also be said to pre-exist the mental satisfaction of the Commission that it is so. That does not mean that it is a matter committed to full merits review by a court. Indeed, that appears to be common ground in this Court, that the fact, the characteristic of a place that one can make the normative statement about it, "It should be recorded" will exist, it will be by dint of characteristics which precede the utterance, the formation of the judgment that it has those characteristics. Yet, naturally enough, the respondent accepts that what they call "the second stage", that is the decision whether something should be entered, the word "considers" does the traditional work and that is protected from full-on merits judicial review by a long line of uncontroversial jurisprudence.
McHUGH J: Can I come back to my worry? It seems to me the question as framed is loaded against you in a sense. If you just ask that question, the answer would seem to be, yes, it must be objective. The moment you say that it seems as though you are setting up a framework in which each side just calls evidence and you determine the matter.
MR WALKER: That is right.
McHUGH J: But under the AD(JR) Act that is not necessarily how the issue was to be defined.
MR WALKER: No, "dispute" is not defined or fought or decided in that fashion. It could not be so when one considers the way in which paragraph 5(1)(h) is glossed by section 5(3) in the AD(JR) Act. As your Honour says, it could not be that it is simply to be fought in the way any ordinary common law civil issue is fought.
McHUGH J: It is not to say that your opponents could not lead evidence but it would be in the context of what you had done rather than an open-ended decision upon - - -
MR WALKER: It is an inquiry into process, not result, except in so far as the result fits in that relatively rare category that it says something about process.
McHUGH J: Yes. I have told both counsel what my problem is and it is a real problem.
MR WALKER: I cannot do anything about the form of the question, your Honour. We either have a controversy the Court can settle or not. In our submission, we plainly do (a), because the question does raise it somehow or other and (b), because the parties have fought an issue - - -
McHUGH J: This may be a matter for Mr Keane, but the way my mind is working is I would say this appeal should be allowed on the basis that this just does not raise the relevant issue.
MR WALKER: I have nothing to say against your Honour taking that view.
GUMMOW J: But you do support the answer given by Chief Justice Black, do you not, in the last couple of paragraphs of his reasons?
MR WALKER: Yes.
GUMMOW J: When he answered question (e) in a particular fashion. In a way, he rewrote question (e) and then answered it.
MR WALKER: Can I move briefly through those parts of section 23 which I need for the argument, about 23, 7 and 4. Can I draw your Honour's attention to to that because of section - - -
DAWSON J: Could I just ask you this, Mr Walker. The function of the Commission is to keep a register.
MR WALKER: That is one of them, yes.
DAWSON J: It considers what places will be put on the register and decides whether to put them there or not?
MR WALKER: Partly it considers, partly it executes the will of the Minister.
DAWSON J: Yes. If it places or lists a place on the register does that carry the consequence that it is part of the national estate, that it is included in the national estate?
MR WALKER: Yes, but that is a misleading answer if I do not go on to qualify it. It is a consequence of that listing in the sense that it is then on the register of the national estate.
DAWSON J: And it is included in the national estate.
MR WALKER: It is included in it and it has been adjudged such.
DAWSON J: So what does it matter whether otherwise it would or would not have been in the national estate?
MR WALKER: None at all, which is why when Justice Kirby asked me, "Does inclusion in the national estate precede the decision that it should be entered on the register?" I said, "Conceptually, yes." It was a concept without any practical effect apart from the present controversy about the limits of judicial review.
DAWSON J: Because all differences of opinion go once it is included in the register. It thereby becomes part of the national estate.
MR WALKER: Yes. That is, after all, why we have a register process in 22. This is no unimportant book. It is a very important book because it tells the world about places to which later consequences - real consequences can be attached in terms of practical use.
DAWSON J: So that if someone says, "I don't think that was part of the national" - having a look at section 4 - "I don't really think that bit you've put in the register was part of the national estate," and the reply is, "Well, you can think what you like but by reason of it being in the register, it now is."
MR WALKER: Page 17 there it is and if you do not like that then agitate the Commission or lobby the Minister for the statutory processes for removal to be activated. Statutory processes which go through the same consultation and deliberation about many merits matters and all of which are judgmental as the initial entry required in the first place.
DAWSON J: If that is right then that is the end of everything.
MR WALKER: Yes.
DAWSON J: Yes.
MR WALKER: Your Honours, section 24A affects matters in section 23. Section 24A applies to objections to a decision to enter as well as to a decision to remove from the register and it is a requirement that:
the Commission give upmost consideration to the significance -
an important word -
as part of the national estate, of the place to which the decision relates.
Now, I just have to ask your Honours to note that the word "significance" is important because it appears that we have significance of significance, or the significance of an important - when one reads 24A with section 4 to which I will come shortly. For present purposes, that is picked up in sub-paragraph (23)(2)(a)(v) from the very outset of the process, the result of which is challenged by means used by my learned friends in this case. It has been clear that at the heart of the exercise, and in a paramount way, that is upmost consideration, everyone, all those to be consulted, the objectors and anyone else who wants to be heard, everyone has been focussing on, as we would put it, keeping as the central concern the significance of the place as part of the national estate.
In our submission, to adopt the old language of jurisdictional fact taxonomy, to call that collateral is, in our submission, to do it a gross injustice. It is a central issue for the process not only involving the Commission but those members of the public involving themselves with it and it is a central part, obviously, because of the obligation in 24A. Some weight has been given by the majority in the Full Court to language elsewhere than in section 4 and section 7, elsewhere they say there is language explicitly of opinion or state of satisfaction which presumably by some process of expressio unius or other textual contrast means in their reasoning that section 4, and section 7 if it matters, are bereft of any such notion and, therefore, objective in the sense used by the draftsman of the question, meaning up for full merits review in the ordinary way in a court.
In our submission, that is to give far too much weight to what appears in print as a opposed to the substance of the text. Your Honours have already seen the words of decision making or state of satisfaction in 23(1) "considers". Your Honours will see that the word "opinion" appears in 23(2)(A). The deemed default position is that one has an opinion, and that is obviously the same as what one has under 23(1) as well. The same then is repeated as part of the pattern in section 24 for removal. In section 23(3) one sees that the outcome of a successful objection, that is where the provisional or prima facie view in subsection (1) is overcome by objection or otherwise, or perhaps just mature consideration, the statute describes what is happening as the Commission becoming of an opinion. In our submission, there is absolutely no difference between that and subsection (1); they are all matters of opinion and judgment. So far I have kept within section 23. One - - -
KIRBY J: The problem I feel coming about is you have to test your proposition by other analogies. If, for example, the statute said, "If the Minister considers that a person who is not a citizen should be placed on a list for deportation on the ground that his conduct is anti-social", now - - -
MR WALKER: If citizenship, your Honour, depended upon fine judgments of the extent to which one's acquaintance would regard one as identified with Australia, for example, a very different consequence may follow from what in fact is the case, namely, citizenship depends upon rather more plainly determined facts.
KIRBY J: I know it does, but what I am saying is, we have to test your proposition and the role of courts in upholding the rule of law by using the formula that is used here in a different context and saying, "Do we want to simply wash our hands in the courts of review of those so-called jurisdictional facts or are they not the subject of judicial scrutiny to see whether they are accurate of not?"
MR WALKER: There is no Pontius Pilate involved. It is not a conscious indifference to truth or a fear of making a decision on one side or the other of a contest that is involved in the court saying there are certain matter which of their nature, when one looks at the decision maker, and I stress the particular statute, have been committed to a particular decision maker because it would be contrary to the statutory intention - if one likes, the effect of the legislation - for that to be reviewable simply on the merits in a court. Of course there are cases where the opposite conclusion is reached.
KIRBY J: It is not really on the merits because the court would have to give deference to the specialist nature of the board, or in this case, the Commission, the fact that it is composed of people with specialist qualifications; the fact that it has an evaluative function, but at the end of the day the court reserves to itself the right to say that the basis upon which the body has acted is not established and that is simply rule of law.
MR WALKER: Or simply, the court disagrees. The court's duty would be to say if it disagrees, is to say, "And is decided in accordance with my opinion", not the Commission's opinion.
DAWSON J: But it is a question of which function it is; whether it is an administrative function or a judicial function.
MR WALKER: Yes.
DAWSON J: Of course, if it is an administrative function it has to be carried out in accordance with principles which govern administrative law and the court can supervise that, but otherwise it is for the administrator to decide. If the legislature wants to give it to a court and make it a judicial decision, that is another matter.
MR WALKER: In our submission, at the heart of the present controversy is this fact, or is this proposition for which we contend. The way in which administrative law principles have been worked out at common law and as they are reflected more or less in the AD(JR) Act, it is no weakness, it is no failure of the rule of law that the courts do not decide for themselves matters which are committed to administrators unless they be in a special category. We say, for reasons I have almost finished developing, these are not in a special category. This is a simple case of a statute saying, "This is the body which in the following way must carry out deliberations on certain issues". That brings me to a next point. Under section 23, one of the issues will, of course, be on any objection that you should not include it in the register - should not enter it in the register because it is not part of the national estate. Objectors are not confined to saying it is not sufficiently significant, or it is not sufficiently special, they of course can say, "It is not part of the national estate at all. You could not possibly come to that conclusion. You must be made. It is just a beach", or whatever.
In our submission, the fact that those are the matters which are poured over, debated over - not bound by the rules of evidence but by all the kinds of materials that your Honours will have seen, for example, at pages 17 to 25 of the appeal book - that is an indication, in our submission, that Parliament never intended that a court would then be seized of those matters, simply, ultimately, to agree or disagree with that provisional conclusion.
That is not to confess any failure in judicial supervision of the lawfulness of administrative conduct. It is simply to say that there is a limit, there must be a limit, and the cases make it explicit where the limit is between pure merits review and appropriate process review, and it is the latter, not the former, which is the hallmark of administrative law. That stands distinct, of course, from the law of appellate review of inferior courts, which is quite a different exercise. Could I draw to your Honours' attention simply that in section 25 your Honours have, for reasons that are not clear, have another of the words which indicate the usual judicial reticence, no merit review. In 25(2), (3), and (5) and (6) and (7), the familiar formula, "the Minister is satisfied" is used. We assume again it is common ground; but what my friends would call the second stage, that is clearly subject only to administrative law review, whether the Minister is satisfied of those matters.
Can I then come back to what they would call the first stage, a description which we submit is entirely tendentious, it assumes the conclusion to be debated. This is not, in our submission, truly a two- stage inquiry at all. It is inquiry about whether a place should be included in the register. Naturally enough, in order to be included in the register a number of things have to be considered and they are all explicitly set out in the Act, not just in section 23 but in the definitional sections as well: for example, "place"; for example, "National Estate", to which I will come. The fact that those things have to be considered by the Commission does not render its decision capable of being second guessed on the merits by a court. In our submission, it indicates that Parliament wants the Commission's view on that to govern and not the courts.
Could I take your Honours to section 7 first. It is paragraph (c) upon which my learned friends rely particularly. In our submission, it is a paragraph, it is a function which supports our argument both in its expression and in its substance. The first thing to observe is that section 7, unlike section 23, does not impose an obligation or grant a power.
GUMMOW J: It states a function. It is like a memorandum of association.
MR WALKER: It describes the functions which one then finds more particularly stipulated in the statute thereafter, relevantly section 23. For this particular function, which is to identify places included in the national estate and to prepare a register of those places in accordance with Part IV shows that section 7 cannot be the tail that wags the dog, the dog is Part IV, because there is no point in this statute in the identification of places but for their inclusion in the register. It is, as your Honour the presiding Judge made clear, the register which serves a purpose of announcing an outcome and that is the only outcome which had practical effect.
So that conceptually one can say - if one is dissecting a mental process that may happen instantaneously, you may say, "It is national estate, therefore, I can put it on the register." But that is no different from saying, "It has special significance, therefore, I should put it on the register." They are exactly the same quality of judgment.
So that section 7(c), "to identify.....and to prepare a register" should be seen as not two utterly separate functions. They are expressed in the one paragraph because they are part of the same exercise. One goes to Part IV to find out what that exercise is, and that is an exercise in the present case dominated by section 23 which is expressed in language which has always traditionally required judicial reticence of review and precluded merit review.
One moves then from section 7 which, as we submit, is a very poor pivot for my friend's argument, to the section which is really at the heart of the case, and that is section 4, because it is there that my friends make their stand and say, "You cannot find the word "considers", you cannot find the word "opinions", you cannot find the word "satisfied", or any cognate of those in that section. We win because it must be national estate and if it is national state it is defined by words that do not expressly recognise the role of judgment or opinion. End of the question. A court's - that is, a single judge's decision will govern". I do not want to elaborate any further than we have put in writing the considerations of inconvenience which flow from that, but they are an essential background to the textual argument I am about to put.
Your Honours, section 4 ought to be regarded as a definition which sets limits which are very difficult to see in practice. That is, the words "define", they set limits to the concept. But, when one practically considers the drawing of a line in such a way that you can say this falls there but that does not, the nature of the ideas contained in section 4 makes predicting where that line might fall extremely difficult. That, in itself, is no special problem. The law is used to not having to locate lines in the abstract, but simply to ask whether two objects fall on the same side or not.
However, in our submission, it is very difficult here even to invent hypothetical examples where one could say of two beaches in Australia, that one is and one is not part of the national estate; or even of two humble suburban bungalows, that one is not and one is. What the Calthorpe House was, presumably, in Canberra, is no longer debatable, part of the national estate, but once upon a time it would have been highly debatable. Section 4 does not provide the kind of line which would be the kind of indicator of rendering that, on the merits, fully justiciable. It is for those reasons that, in our submission, section 4, far from being a textual obstacle to us, when one just reads the words and applies their ordinary meanings, it is a strong support for the argument that we pivot around section 23.
The first expression, of course, in subsection (1) is the general one. That is, it is the general expression of the words because subsection (1A) does not limit the generality of subsection (1). Places in the national estate, if they are:
a component of the natural or the cultural environment of Australia -
Pausing there - that includes, with great respect, everything in Australia except probably human beings. Sorry, everything is a place - every place in Australia would be a component of the natural environment or of the cultural environment. Then there is, at least, syntactically, an attempt to narrow that.
GUMMOW J: Or "place" is itself defined.
MR WALKER: Yes, "place" is defined in such a way as to leave out biota, but the words that follow, namely, "that have aesthetic", et cetera, may appear in syntax to narrow the class, but, in reality, they do not:
they have aesthetic, historic, scientific or social significance -
and "significance" hangs at the moment -
or other special value -
If there is a difference between "significance" or "other special value" it is not immediately obvious but that is collocation that can only broaden rather than narrow whatever "significance" means - "importance". The significance is to be judged for future generations, and it is really us there speaking for posterity, I suppose, as well "as for the present community". So, that, again, broadens not narrows. It is not just what one knows of the present community, but also of future generations. One pauses there. The present community does not get well represented in a traditional common law trial of a civil fact of a kind for which my learned friends contend. They do, however, get well represented by the section 23 process that is contained in this statute.
Subsection (1A) which does not limit the generality of subsection (1) inserts things which are, therefore, according to the textual structure of the Act, not as general as subsection (1). Well, if they are not as general as subsection (1), subsection (1) is very, very general indeed, because subsection (1A) has the following. It:
is to be taken to be a place included in the national estate if it has significance or other special value for future generals as well as for the present community because of any of the following:
That means any one or any combination.
KIRBY J: Now, do those words "included in the national estate" mean included in this notional national estate or included in the register of the national estate?
MR WALKER: No, no, it is included in the former, a concept which, as I say, may be psychologically realistic if you could dissect decision making by steps. We would ask your Honours to dismiss that as being artificial. It is a pure concept which has no practical meaning at all.
KIRBY J: This is in order to give a legitimacy and a goal to the action of the Commission?
MR WALKER: Yes. This has practical effect for the Commission. It says, "In forming your judgment, that is in your considerations, your opinions", and if it speaking to the Minister, "becoming satisfied or not, you must proceed, direct yourself in accordance with these perceived qualities of a place and not otherwise." So that, in judicial review case, if these were ignored, a systematically one by one negative and yet there was a decision to put something on a register, it would be the plainest error of law one could imagine, and, no doubt, would be capable of being attacked in any one of three or four ways.
McHUGH J: Except the way the respondent puts its case, I gather, is that it says it is not a question of error of law and it is not a question of 5(1)(f). It is really a question of 5(1)(c), that the Commission had no jurisdiction to enter this entry because section 22(2) says that they shall not do something otherwise in accordance with section 23 or 25, and although they consider whether or not a place should be put in the register, their consideration is dependent upon their jurisdiction to find a place and this is the place.
T15:JJ
MR WALKER: There is no argument about place in this case; it is only about inclusion in the national estate. No, 22, 23 and 25 nowhere explicitly say what my friends want them to say. They nowhere explicitly say, "And it must be objectively part of the national estate before you can validly even consider, let alone come to a conclusion".
McHUGH J: If you translate "jurisdiction" as meaning "power", their argument is that the Commission has no power to consider entering a place in the register unless it is a place. Their jurisdiction depends upon there being a place, and then they can consider whether or not - - -
MR WALKER: Your Honour, I hesitate to interrupt but they are not talking about place at all; they are talking about inclusion in the national estate. Place is not in dispute in this case in this argument. Inclusion of undoubted place in the national estate - that is what is controversy. But I apprehend the point your Honour is raising from a consideration is this, that the argument against us says that section 23, which is the one in question here, presupposes that something is part of the national estate because otherwise how could you possibly think it should be included in the register of the national estate? In one sense that is a trivial truism; of course that is right. Parliament has commanded the AHC and the Minister to proceed on the basis that the only places that can be registered are places that are in the national estate. That only leads to the real question which is why we are here. Who has the last word on whether something is in the national estate? We say relevantly it is the Minister or the Commission so long as they acted lawfully.
McHUGH J: I know the way you put it, but it is the question that confuses me about this.
MR WALKER: Yes, your Honour. That is why I started by crying "stinking fish" about it. I cannot do anything about that question, your Honour, with great respect.
KIRBY J: You answered Justice Gummow by saying that you support the answer given by Chief Justice Black which is on 139, as I understand it, and that just says:
An entry may be made.....pursuant to s 23 of the Act.....of any place that the AHC determines, according to law, is part of the national estate - - -
MR WALKER: That law is administrative in law.
KIRBY J: But that begs the question, does it not? "According to law"; is that not the issue?
MR WALKER: The time-honoured phrase that captures the administrative law - - -
KIRBY J: I realise that but may that not incorporate the problem by saying "according to law" means if it is truly, really and actually - - -
MR WALKER: If it did, then I wish to withdraw everything I have said to Justice Gummow on that point and to say that Chief Justice Black was wrong, but I do not accept the condition of that.
KIRBY J: You might give some thought to how the question should be answered because I think "according to law" incorporates the problem.
MR WALKER: Every time a judicial review - and that is an administrative law judicial review - judgment concludes in favour of the applicant and one of the orders is for remitter, an order is pronounced that the decision maker proceed according to law.
KIRBY J: I know. I have formulated a few of those orders myself in my time.
MR WALKER: It is unthinkable, your Honour, that superior courts have been formulating orders without the phrase having a sufficiently fixed meaning to make that respectable. It has a sufficiently fixed meaning. It means: according to the legal principles which govern administrative action which have as their concomitant the principles of judicial reticence in review of it.
KIRBY J: I just think the answer begs the question, so I am getting unhappy about the question now, along with Justice McHugh.
MR WALKER: And one of the answers, yes. All I would propose, with great respect, as a change - I will not say "improvement" - to Chief Justice Black's formulation would be that in place of the phrase "according to law" to substitute some less elegant phrase like "subject only to the requirements of administrative law".
KIRBY J: I think it is undesirable you should answer this whilst you are going. You can perhaps give a bit of thought to that before the day is out.
MR WALKER: May it please your Honour.
GAUDRON J: When you say "subject to the requirements of administrative law", I take it you are not confining yourself to the AD(JR) Act?
MR WALKER: No.
GAUDRON J: You are leaving open the possibility that there is prerogative review for a non-constitutional matter? You are taking the view that the AD(JR) Act is not an exhaustive statement of the grounds of review of non-constitutional decisions.
MR WALKER: It is probably not necessary for me to make a choice, your Honour, but I would and I do and leave it open.
GAUDRON J: I think that might be a big question.
MR WALKER: Yes. It does not really arise in this case though, with respect.
GAUDRON J: The only issues are AD(JR) Act issues, are they not, in this case?
MR WALKER: That is the only viable alternative that has been debated. If I may say so - I hope your Honour Justice Kirby will not take this amiss - one of the problems of moving away from time- honoured phrases like "according to law" is that, as soon as I begin to gloss them, then I leave something out that perhaps should not be left out or I include something which need not be included so specifically.
GAUDRON J: Or may not be proper for inclusion?
MR WALKER: Quite. In fact the phrase is a tautology in one sense. The AD(JR) Act applies to this decision.
DAWSON J: We do not need to waste time with this. Obviously the answer to the question will be read in the context of the judgment and it will, one hopes, be clear what "according to law" meant.
MR WALKER: Yes, and that is why the orders are framed like that and why we would seek the answer in that phrase.
GAUDRON J: May I be certain before you proceed though that there are only AD(JR) Act issues in this case, that there are no others.
MR WALKER: Yes.
GAUDRON J: Thank you.
MR WALKER: I am sorry, it is such a long time in this case that the way in which the whole issue has been framed has been before the courts, your Honour. Yes, it is AD(JR). Of course, as your Honours will have seen I think from Justice Drummond's reasons, there is this notion of a general superior court jurisdiction, subject to whatever section 9 of the AD(JR) Act would do, which floats as well, but I do not need to concern myself with that. For our purposes it is full merits review and AD(JR) which is the whole controversy.
Your Honours, section 4(1A) then structurally purporting to give some particulars goes into the following matters which are, in our submission, astonishingly general and very difficult to descry their limit. The first is:
importance in the course, or pattern, of Australia's natural or cultural history -
Your Honours appreciate that as soon as the word "pattern" comes in, then otherwise unremarkable events which of course are part of mosaics or patterns can be included which otherwise might not be "importance in the course". In (b), whether something is "uncommon, rare or endangered" when one does not have the crutch of statutory definitions of those expressions and one does not - - -
DAWSON J: Your point of view is that all of these things are of such a kind as to indicate that they are more appropriate for administrative than judicial decisions.
MR WALKER: Yes. Then when one comes to section 24A, the point I had flagged earlier, the command is to give utmost consideration to the significance of it as part of the national estate. That means, relevantly, for example, to its significance as something with importance in demonstrating, for example, the principal characteristics of a class of Australia's natural places. So that the significance of the importance, the importance of the importance, is at the heart of, and is commanded by Parliament to be, in our submission, one of the essential parts of the ultimate decision by the Commission.
For those reasons, in our submission, it cannot be said to be, without begging the question, an essential preliminary, to use the langauge of Justice Dixon, from Parisienne Basket Shoes Pty Ltd v White that is picked up by my learned friends. And with whatever variant one introduces to call something a "preliminary" is simply to assert that it comes first, to assert that it is a jurisdictional fact rather than to show that for some reason it ought to be, apart from everything else which is determined by the decision maker with relative immunity.
In our submission, it is that apartness which cannot be demonstrated on this statute because 24A links back to 4, 7 can be seen to be descriptive rather than to be a driving provision, all the focus then comes back to section 23, and the heart of what goes on in section 23 is judgmental and the question as to whether it has got the importance that would make it national estate is wrapped up integral to the notion of the significance which defines it as part of the national estate, whereby identification as part of the national estate, in our submission, is part and parcel of the thing which is committed to the consideration of the Commission.
Your Honours, I do not want to say anything further about the inconvenience argument which is already fully contained in our written submissions. Can I make one thing clear. According to our learned friends' written submission our arguments amount to a contention that there can be decisions under this Act which could not be subject to any judicial review even if they were manifestly wrong. Your Honours will have gathered from what I have said this morning that that is not our position at all. If they are manifestly wrong, one way or the other, they will undoubtedly fall under one of the available heads of AD(JR) review. Unless my friends are going to contend for a special meaning to be given to the expression "manifestly wrong" which somehow goes beyond the familiar heads of administrative law review - - -
KIRBY J: So you do not knock out judicial review and you will have that peril notwithstanding.
MR WALKER: Yes, quite. We are not arguing for any narrowing of the full application of the AD(JR) Act to this decision. None at all. We accept that we are subject to those strictures. That is a scrutiny which, in our submission, is entirely salutary and not calculated to leave us as some delinquent free of rule of law control. Quite the contrary. May it please your Honours.
DAWSON J: Mr Keane.
MR KEANE: Thank you, your Honours. Your Honour Justice Gummow mentioned the passage from Buck v Bavone. That passage is concerned with statutes under which a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. In this case, or under this statute, I should say, it is our submission that a place is part of the national estate whether or not it is listed - - -
DAWSON J: That is not contested.
MR KEANE: - - - and whether or not the Commission determines that it should be.
DAWSON J: What is said against you is that once a place is listed, whether or not someone else might consider it not to be part of the national estate, it then is included in the national estate.
MR KEANE: Your Honour, we submit that that is incorrect.
DAWSON J: Yes; that is where the point of contention lies.
MR KEANE: Yes; and it is our submission that a place does not - it is not like, for example, registered title, where one has, when one has registered a title, however infirm, the route of one's title, the statute in speaking of having a register of places included in the national estate, in our respectful submission, is to be understood as providing for a register of places that exist as part of the national estate whether or not they are listed, and which are listed for a particular purpose. The purpose for which a place is listed is to attract the protective provision of Part V and Part VA. Part V relates to the imposition of a particular level of stringency in the administration of Commonwealth legislative programmes, and Part VA relates to the provision of grants. It is that which is the effect, or those two features, which are the effect of listing a place.
KIRBY J: It is true that the statute does not use the language similar to Buck v Bavone of "is of the opinion" or "is satisfied", but the words are still evaluative and, in a sense, personal to the Commission. It "considers", "should be". There is not much difference, is there, between that and "is of the opinion"? You say there is a world of difference?
MR KEANE: No, "considers" and "should be", we accept are Buck v Bavone-type prescriptions but, they are concerned with whether a place that is part of the national estate should be listed. They are not about whether the Commission determines that a place is part of the national estate. They are about whether it should be listed. In that regard, what the Commission is considering is, giving up most consideration of the significance of the place as part of the national estate, whether it requires the protection of Part V and Part VA.
KIRBY J: So this controversy arose at a point earlier than the section 23 consideration, determination? Is that correct?
MR KEANE: As a matter of history, no. As a matter of logic, it could have. For example, our side could have sought a declaration when it was intimated that it was proposed to list the place, whether it was the original 500,000 hectares or the 300,000 hectares that was ultimately listed. A declaration could have been sought to the effect that the area identified by joining the dots on the map is not a part of the national estate. As a matter of history it has developed as a challenge under the AD (JR) Act, one ground of which is 5(1)(c). That is to say, there is no jurisdiction, and in our respectful submission, the controversy is a real one and to address the point that your Honour Justice McHugh was raising earlier, it is precisely the kind of controversy that Lord Atkin adverted to in his famous dissent in Liversidge v Anderson.
Reciting from Alice in Wonderland the question is, "Who is to be master?" and the question is whether the Commission has reposed in it the determination of whether a place is truly part of the national estate so that it can come to that view conclusively, subject to limited grounds of review for Wednesbury unreasonableness and so forth, or whether it is entitled to exercise its jurisdiction and, principally - solely, really - under sections 22 and 23 whether it may embark upon the inquiry as to whether it should list a place and so give it the protection of Part V and Part VA because it determines itself that a place is part of the national estate or whether it may lawfully only do so if the place objectively answers the description of the attributes contained in section 4.
Now, in our written submissions we drew the Court's attention to the language of Part IV which contained sections 22, 23, 24 and following, and we make the submission that Part IV does not provide for the listing of places identified by the AHC as part of the national estate. It provides for the listing of places that are part of the national estate which the AHC, giving up most consideration to its significance as part of the national estate, considers should be registered to attract the protection in Part V and Part VA. That is why we submit, with respect, that our learned friends were wrong to say that the determination of whether the place is or is not part of the national estate is the entirety of the function performed under Part IV. With respect, it is not. With respect, Part IV assumes that in truth the place is part of the national estate and then prescribes a decision-making process that depends upon that preliminary fact.
DAWSON J: That is not a necessary construction. One can construe the Act as imposing upon the Commission the function of keeping a register and when a place is included on the register it will become part of the national estate. It then becomes irrelevant whether it was or was not previously.
MR KEANE: Your Honour, on that question of construction can we just draw attention to a couple of features in support of our argument that listing is not determinative of what is in the national estate. The national estate is defined without reference to what is included in the register.
DAWSON J: Quite.
MR KEANE: Section 22 provides:
The Commission shall keep a register......in which will be listed places included in the national estate.
It does not, with respect, deem places included in the national estate - - -
DAWSON J: It is elliptical. Certainly it is elliptical but what follows from that is that if a place is listed it is included in the national estate.
MR KEANE: No, with respect. Nowhere is there any suggestion that a place once in the list is deemed to be part of the national estate.
DAWSON J: Section 22(1).
MR KEANE: No, your Honour, with respect. It does not deem those places to be - - -
DAWSON J: It does not deem but it says the:
listed places included in the national estate.
It then gives power to the body to put places on the list.
MR KEANE: Your Honour, in our respectful submission, the natural reading of those words is that the register shall be kept of places to be listed, places being places included in the national estate, not included in the national estate as a result of the process of listing.
DAWSON J: Certainly that is a reading but, when you then look at the rest of the Act and see that there are objections and provision for making a decision, taking into account a number of things, then the reading that you suggest is very difficult to sustain.
MR KEANE: In our respectful submission, your Honour, the balance of provisions in Part IV, in particular section 23 which expressly refers to action based upon a consideration by the Commission of whether things should or should not happen, does suggest a deliberate drafting where, when action is to depend upon the satisfaction or opinion of the Commission, the statute says so. Your Honour, I do not wish to repeat what we said before, but section 23 is not concerned with including in the national estate; it is concerned with entry into the register of that which already is.
DAWSON J: Yes, but the result of the construction which you suggest would be that it was never a concluded issue with respect to any place on the register that it was or was not part of the national estate. That is a peculiar construction to give to the legislation. Obviously inclusion on the register is meant to conclude something.
MR KEANE: It does, your Honour, and the effect that is given to it by the Act and the only effect that is given to it by the Act is that it qualifies for protection under Part V and Part VA. No other effect follows. There is no other legal consequence of listing.
McHUGH J: The difficulty I have with your argument, Mr Keane, is that it seems to me that your argument assumes that "place" in 23 is synonymous with "national estate". Its jurisdictional fact is that there has to be a place but - and "place is defined to mean a site, et cetera - if it considers that a place that is not in the register should be recorded as part of the national estate, it shall enter the place in the register. It is the place, the site.
MR KEANE: Your Honour, one cannot read 23 alone, one has to start with section 22. The performance of the function of entry in 23 follows the prescription in 22(1), which is it shall keep a register:
in which will be listed places included in the national estate.
If one takes our construction of "included in the national estate" the way we put it rather than the way the Presiding Judge has put it, that is to say that the "included in the national estate" is a consequence rather than describing what gets registered, in our respectful submission, the natural reading of the words, one sees that in 23 when it speaks of "place" it is talking about the sorts of places referred to in 22(1), that is to say places included in the national estate. That construction, in our respectful submission, is supported by section 7(1)(c) to which Chief Justice Black referred below, where the relevant function reposed in the Commission is to identify places included in the national estate and to prepare a register of those places in accordance with Part IV.
GUMMOW J: The definition of "national estate project", which is crucial, I think, for Part VA, rather draws the distinction, does it not? A project relating to the definition in section 3 of the national estate project - funding may be given for a project relating to the identification of a place - - -
MR KEANE: Included in the national estate.
GUMMOW J: Yes, or for conservation, improvement or presentation of a place entered in the register, and 23 is all about the register.
MR KEANE: Quite. And the definition of national estate suggests - - -
GUMMOW J: There is no dispute here that there is a place.
MR KEANE: As my learned friend said correctly, there is no dispute in the argument presently before the Court. Your Honours will see that historically, before Justice Drummond, there was a question about whether there was a place on the footing that the place was not an entity described as one would describe, for example, Uluru, rather it was a thing identified by metes and bounds which had no other form of recognition we would say. But the point about the reference that your Honour makes, in our respectful submission, does show that the notion of identification - and may I say, with respect, that we really do not hang our hats on section 7(1)(c). We rather thought that, as our learned friends put it later in their argument, it is important to them. But it shows that identification is something quite distinct from the determination of the status of a place as part of the national estate. It, indeed, is something subsequent to, logically and textually, to that which is the national estate. One can see that if one looks, for example, at section 22(3) where:
The Commission shall enter a place in the Register by causing to be entered in the Register a description of the place sufficient to identify it -
And when one looks as well at section 26(2), which is to the same effect, and then if one goes to section 31A, which is the provision which contemplates the grants of financial assistance, one sees that referring back to the definition of national estate projects which are defined by section 3 to mean a project relating to the identification of a place. Identification does seem to be something different from determination that a place is part of the national estate, and in the context it rather looks like identification means not determination but perhaps exposition or description; a description sufficient to identify it, a project about the identification of it. It looks as if it is concerned with describing it or exposing it.
KIRBY J: Does it have any real significance until it is put onto the register? Is it just a theoretical construct before then?
MR KEANE: Your Honour, in our respectful submission, it is something that because it is required to have this special significance, whether it is aesthetic, historical or so forth, nevertheless, special significance for the present community and future generations, it is something which does not depend on fine judgments of experts or enthusiasts, it is something which should leap out - should go without saying. Our learned friend said the present community is not well represented in traditional judicial processes. That would be a disappointing thing for the man on the Clapham omnibus to be told. In our respectful submission, one is talking about standards of community value which must be standards which are very apparent, readily obvious and really are things about which people tend to want to speak, and the Sir Edward Pellew Islands not really being on the lips of - - -
KIRBY J: But is that not a reason for leaving it to be determined by the Commission and not by a court which will be made up of a single judge who will not have either the expertise or, perhaps, the background to the entire community?
MR KEANE: Your Honour, that leads us to - - -
KIRBY J: When one is looking at what Parliament meant, is that not an indication that that is what Parliament intended - that it should be this multimembered Commission with expertise available to it to make these determinations which are evaluative, or in the words of Chief Justice Gibbs, involving matters of opinion, policy and taste.
MR KEANE: Firstly, one should not ask that question losing sight of the fact that this is not a Buck v Bavone situation where it is a question of their satisfaction, albeit a satisfaction to be reached according to law. It is a question where those terms are used about other decision-making processes of theirs but not about this, and there is indeed no decision making process given to the Commission to determine what is the national estate.
As to the issue of whether it is part of the national estate, and whether that is peculiarly amenable to determination by experts, there are a number of things we would wish to say. Your Honour, I am mindful of the time. May we say those things now?
DAWSON J: How long is the remainder of your argument going to take, Mr Keane?
MR KEANE: Your Honours, I think probably another 15 minutes.
DAWSON J: Is that all?
MR KEANE: Subject to your Honours, of course.
DAWSON J: Yes. We will sit on till 1 o'clock, Mr Keane.
MR KEANE: Thank you, your Honours. The first thing that we wish to say, addressing your Honour Justice Kirby's question, is that there are really two aspects to this evaluative process. The first is factual; the second is judgmental or evaluative, strictly so-called. As to the factual aspect, we submit that as a matter of jurisdiction under section 5(1)(c) we are entitled to attack the factual findings of the Commission. That is to say, if they have the science wrong in relation to distribution of species, or threatened or otherwise, if they have the science wrong about those things. In saying that we recognise we would have a high hurdle to overcome on the authorities. It would need to be demonstrated that they got the matters of fact manifestly wrong. We refer to Blakeley's Case [1950] HCA 40; (1950) 82 CLR 54 in the judgment of Justice Fullagar at pages 92 to 93. We will not take your Honours to it but the point is made there.
But there may be cases, your Honours, where the Commission simply gets the facts wrong. If we can give your Honours a rather mundane example by reference to the birthplace of Deakin, the Prime Minister. We know, for example, that there is some controversy as to where Alfred Deakin was born. From Professor Lenores' book there is some doubt about the location of his birth because at the time of his birth his parents moved and there was correspondence from him from two different addresses. If the Commission were to resolve that question of fact preferring one body of conflicting evidence over another, then we would not be able to demonstrate that that decision was manifestly wrong.
But if it were the case that the AHC resolved a conflict of evidence in that regard, ignoring the availability of compelling evidence or simply without having reference to compelling evidence such as entries in birth certificates and so forth, we would submit we can demonstrate that they have got the facts wrong. If they have got the facts wrong, it cannot be the case that they can list as part of the national estate a house in which Alfred Deakin never lived, in the erroneous belief that he once did. One is reminded of Lord Justice Farwell's reference to giving oneself jurisdiction by finding that Piccadilly Circus is located in the Ward of...... That is the kind of factual exercise - - -
KIRBY J: What is that decision, Lord Justice Farwell? Perhaps that could just be given to us.
MR KEANE: We will give that to your Honours. It is in fact referred to in the famous article by Mr Gordon in 45 Law Quarterly Review which is where I read it most recently.
KIRBY J: If there are any other articles of that kind, then - - -
McHUGH J: He takes a very conservative view of these matters.
MR KEANE: Lord Justice Farwell?
McHUGH J: No, Mr Gordon.
KIRBY J: After Liversidge v Anderson.
MR KEANE: Not all the time, your Honour.
GUMMOW J: He is a famous polemicist.
KIRBY J: After Liversidge v Anderson perhaps we would all be a little cautious.
MR KEANE: Your Honour says that. With respect, if one were to find that this statute remitted the determination of the national estate to the AHC according to whether it was satisfied about it or not, that would be Liversidge v Anderson with bells on.
KIRBY J: I do not like that.
MR KEANE: Your Honour, coming to the second aspect of the process which we submit is involved in an attack on jurisdiction - - -
GUMMOW J: What is the significance of being recorded as a place? I can see under section 29 that can trigger a report by the Commissioner, the place being in the register. Section 30 - - -
MR KEANE: Subsection (1) - - -
GUMMOW J: - - - talks about adverse effects on places in the register.
MR KEANE: Subsection (2), "a place that is in the Register". Subsection (3), "a place that is in the Register".
GUMMOW J: Yes, that is right. Then one gets to Part VA, as you mentioned, and then one gets the definition of "national estate project", then one gets back to the definition of "national estate project", then paragraph B of that definition, though not A, is dealing with the register. Is there not a distinction between being in the national estate and being on the register? Is not 23 all about getting on the register?
MR KEANE: 23 is all about the register, yes, and not about prescribing the national estate.
GUMMOW J: No, but there are no separate procedures in relation to the identification of the national estate, is there?
MR KEANE: There is no procedure for it, your Honour. There is no decision-making process.
GUMMOW J: Is not the structure of the Act that you do not have to worry about that if you are on the register? That is why one wants to get on the register. One then has the advantages of these other sections without getting into these anterior debates.
MR KEANE: The only consequence of being on the register is, as we have said, that you get the protection in Part V and the prospect of grants under Part VA.
GUMMOW J: Yes. What else does the Act do?
MR KEANE: In our respectful submission, it has no other legal consequences.
DAWSON J: But the assumption is that once on the register a place is part of the national estate. If you look at section 31, it does not take any action that adversely affects as part of the national estate a place that is on the register.
MR KEANE: As part of the national estate a place that is in the register.
DAWSON J: Well, the assumption there is that if it is on the register it is part of the national estate.
MR KEANE: Quite, your Honour, but that is equally consistent with the notion that if it is not part of the national estate it should not be on the register because they have got no jurisdiction to put it there.
DAWSON J: No, but the point is that once it is on the - the effect of listing is to make it part of the national estate. Your submission is that you can go behind the register and suggest that it is not now part of the national estate at any time. Section 30, for instance, is inconsistent with that when it talks about a place that is in the register as part of the national estate.
MR KEANE: It speaks of effects as part of the national estate, a place that is in the register, but that is all it does, in our respectful submission. It certainly, with the greatest respect, does not operate to suggest that there has been a deeming that it is like a registered title.
DAWSON J: What you are suggesting is that a place which is objectively, as you would put it, not part of the national estate, if it is on the register is not properly on the register, so that the listing of the thing has no conclusive effect? Because you could always say when they applied for finance and so on, "Well, you shouldn't be on the register despite the fact that the Commission put you there because you are not objectively part of the national estate."
MR KEANE: Your Honour, that is no different from any challenge to a body of limited authority which purports to expand the area of its authority by an erroneous decision as to the scope of that authority.
DAWSON J: But it rather suggests that listing may be intended to have a different effect to resolve any such controversy of that kind.
MR KEANE: Well, in our respectful submission, not, because - - -
GUMMOW J: Until it is taken off under 24 and there is limited opportunity to take it off because it must be the Commission's own motion or as directed by the Minister.
MR KEANE: Or the Minister may do it under 25(5), if the Minister is satisfied a place should not be part of it. To come back to your Honour the presiding Judge's question, yes, we say, it could happen at any time but with respect that is not really surprising because it may well be the case that there are those whose activities a listing does affect, or will ultimately affect, may not know - I mean, one may not know that one wants to have a mine or a harbour site for a mine in an area that is listed until many years after the listing has occurred. That may be the only occasion on which to challenge because it is only then that the restrictions that the extra burdens of section 30 bite. Your Honours, we were going to come back to - - -
DAWSON J: It means that all the objection procedures and so on may be thwarted, because the idea of allowing for objections and then having a decision made is to get rid of all the controversy at that point, but you say it can be raised at any time.
MR KEANE: Your Honour, with respect, we say can get rid of all the controversy, but that is the controversy about the decision is whether or not it should be listed; whether or not it should be listed so as to then engage these other provisions.
DAWSON J: Whether or not it should be listed brings into account its importance as part of the national estate, and that would carry you back to the definition, so the very, very things which are agitated at the objection stage, you say can be agitated later on.
MR KEANE: Its importance is part of the national estate. Its significance is part of the national estate, which in terms reflects the assumption that it is.
DAWSON J: What it does mean that at the objection stage those considerations, that is, the same considerations as would go to deciding whether it was part of the national estate or not on the definition in section 4 are necessarily brought into play. You say that nothing can be determined at that stage because if it happens not to be part of the national estate, you can raise that at any time later notwithstanding the decision of the Commission.
MR KEANE: Quite, your Honour.
DAWSON J: Yes. It makes the objection procedure look a bit silly, does it not?
MR KEANE: No, not at all, with respect.
DAWSON J: It determines nothing.
MR KEANE: Yes it does. It determines whether it is on the list.
DAWSON J: Yes.
MR KEANE: And that is sufficient under the day.
DAWSON J: But it does not determine whether it is properly on the list at all, because you say you can come along at any stage and say that ought not to be on the list.
MR KEANE: It determines whether it is properly on the list, assuming that there is jurisdiction to put it there. So, all the controversies about whether it is a good idea to have it on the list, having regard to its significance as part of the national estate, and the desirability of giving it the protection of section 30 and so forth - all those questions are resolved; and that is the burden of what is actually remitted to the Commission.
DAWSON J: That might be a good time to stop.
AT 1.00 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.14 PM:
DAWSON J: Yes, Mr Keane.
MR KEANE: Your Honours, the reference to Lord Justice Farwell's judgment that we mentioned earlier is in Reg v Shoreditch Assessment Committee (1910) 2 KB 859 at page 880 and the article by Mr Gordon and a number of other articles are collected and discussed in Wade and Forsyth, Administrative Law 7Edition 300 to 301, and the articles, in particular, are collected at footnote 82.
KIRBY J: It is not like you, Mr Keane, not to have a few academic articles thrown into your submissions. They are always very welcome as far as I am concerned.
MR KEANE: Your Honours, if we can advert to two points made by our learned friends. Firstly, that a point was sought to be made that the issue or the point as to want of jurisdiction may be taken by way of objection under the section 23 process. Your Honours, in our respectful submission, that does not mean that the decision on jurisdiction can be conclusive. If it did, it would be so in any case where there is a challenge to jurisdiction where there is an objection procedure. There is no suggestion in the authorities that that is the case. The second point we would like to make in relation to our learned friends' submissions is a similar one. The point they make is that the Act makes no mention of the role of the Court. With respect, almost none of the cases on error of jurisdiction concerned statutes which made express provision for review by the Court.
KIRBY J: So far as it goes, do you accept that the principle to be applied is that stated by Justice Starke in the Architects' Registration Board?
MR KEANE: Yes ,we do, and we would say it is then a question of construction of the statutes, your Honour.
KIRBY J: Do you have any principles or guidelines that would allow a bright line to be drawn between those cases which - jurisdictional fact cases, to put it shortly, and those cases which are not? He refers to a couple of considerations and - - -
MR KEANE: Ultimately it is a question of statutory construction.
KIRBY J: Yes, but that states the problem, it does not solve it.
MR KEANE: Then your Honour says, are there cases that show the bright lines? Your Honour, it is difficult to give your Honour a really satisfactory response to that other than to say that it tend to be a question of construction.
KIRBY J: But that is what distinguishes a Liversidge v Anderson Case from a case, as it is suggested, like this where there is an evaluation to be performed.
MR KEANE: Your Honour, I suppose it is really about what is the evaluation to be performed? What is the subject matter of the evaluation? And is that evaluation one which depends upon the satisfaction of the inferior tribunal or not? In Liversidge v Anderson the majority of the House of Lords read in the words and Lord Atkin expressed his withering dissent.
Most recently in the House of Lords in Khera's Case, a case we have referred to in our submissions in 1984, the House of Lords recognised that - in a case where it was a question of deporting an illegal alien, I think, that question was a question which had to be decided correctly before the authorities might lawfully deport. The point we wish to make in this case is we would submit the bright line is drawn because where action is meant to depend upon satisfaction by the Commission, it is expressly said to be so.
Your Honours, the next matter we would wish to refer to we had begun to refer to earlier but, I think, we had distracted ourselves and gone off onto something else, but it is the evaluative aspect of the process, or the value judgment aspect of any challenge we would make to the decision which your Honour Justice Kirby raised with us, and what we had started to say was that the value aspect, or the value content of section 4, is not a matter of subtlety, it is not a matter of an idiosyncratic or indeed even, with respect, expert divination. It is about something which ought to be so obvious as to virtually go without saying.
KIRBY J: You say that, but if you look at section 4(1):
that have aesthetic, historic, scientific, social significance or other special value -
it would be hard to conceive of more vague and evaluative criteria. It is not as if this is Mr Deakin's property or whether a form has been filled in incorrectly. They are susceptible to being right or wrong but, my goodness, "aesthetic, historic, scientific, social significance", it is at large.
MR KEANE: "Or other special value". So when one speaks of the various aesthetic, historic, scientific or social significance, one is speaking of something which has special value to the Australian community as well as for future generations.
KIRBY J: "Australian community" is pretty vague too.
MR KEANE: It is, and in relation to that, one can say that for the reasons that are really collected by Justice Drummond, at first instance, at about pages 104 to 105 of the record, there is certainly no guarantee that any particular decision made by the Commission will be made by persons who possess personal expertise relevant to the evaluation of any of the matters at issue.
DAWSON J: What you say is that those matters are as susceptible of decision by a judge as they are by the Minister?
MR KEANE: Quite, your Honour, and that is the point we wish to make about that and, I suppose, to add that it is not a matter of subtle judgment. It is not, to paraphrase Professor Fleming, "occult, arcane or oracular". Next, your Honours, if we can say by way of summary, what may be listed are places included in the national estate, and your Honour the Presiding Judge and I have had our differences over that, but that is our submission.
DAWSON J: I was merely attempting to elucidate what you were saying, Mr Keane.
MR KEANE: Yes, and, your Honour, in the course we have expressed views that may not be necessarily congruent, but that is our submission about that. But we wish to say, in response to what our learned friends have said, that we do not seek to review the merits of the decision whether or not to list, rather, we seek to challenge on the preliminary issue; that is, whether the Commission had the authority to list. That, in our respectful submission, is classically a question of jurisdiction - the kind of issue that is raised by section 5(1)(c) of the AD(JR) Act.
Coming back to the issue that your Honour Justice McHugh raised at the outset with our learned friends, in our submission the issue on which the parties are joined is a live one and it matters, and it is whether we - the respondent- may challenge the decision under section 5(1)(c) of the AD(JR) Act if the place does not meet the attributes set out in the acknowledged broad language of section 4.
GAUDRON J: Is it "if" or "on the ground that" it does not? It seems to me there are two different issues. If you could establish that it could never meet any of the criteria, then that is one thing. But you want to challenge it on the ground that it does not meet any of the criteria.
MR KEANE: On the ground that it does not.
GAUDRON J: Yes.
MR KEANE: Whereas, we see the other side's position - we understand the other side's position as being that that ground is not available because the appellant has jurisdiction over subject matter which does not have those attributes.
GAUDRON J: No, its ground is that it has jurisdiction if it considers that it has one or other of those attributes.
MR KEANE: That is right, your Honour. Quite so, with respect. We agree with that, and that brings us back to the point we made earlier that it is like - - -
GAUDRON J: Which is what this section says.
MR KEANE: No, it does not, with respect.
GAUDRON J: Yes, it does. Well, it says "if it considers".
MR KEANE: No, your Honour, that is if it considers it should list it; not if it considers it is part of the national estate.
GAUDRON J: To be recorded as part of the national estate. It does not say "if it considers it is part of the national estate," only if it should be recorded as part. There are two aspects to that.
MR KEANE: Quite.
McHUGH J: If section 23 stood alone, would you have any argument?
MR KEANE: No, we need to read it in the context of section 22 as well, and there is some instruction in - - -
McHUGH J: So, you have got to get it all out of 22(1), in particular out of the words "included in the national estate."
MR KEANE: No. I wanted to say as well, we also draw some support from section 7(c).
KIRBY J: You are making a pre-emptive strike. You are getting in before the "considers" and "should" and puts it on the register. You say that it just does not meet the criteria at the threshold.
MR KEANE: Quite, your Honour. And all the more so because when it is concerned with that issue, it does use that language.
McHUGH J: That raises another question in my mind about your application. The decision that you are challenging is the decision to notify the applicant that this area should be entered in the register. Have you not struck too early, even on the best approach to the problem from your point of view?
MR KEANE: No, your Honour, it is not the decision to notify; it is to review the decision made and notified. But the decision is the decision to list. There has been a decision to list.
McHUGH J: Just remind me: has the procedure in 23(2) been complied with?
MR KEANE: Yes, it has. There have been objections. Our objection, as it has been recognised below, has not been put before the Court. I am sorry, your Honour, I do not know if I have addressed your Honour's concern.
McHUGH J: Yes.
MR KEANE: Your Honours, as to the point we make that the place must meet the attributes, albeit broadly defined in section 4, we do rely upon the views expressed in the joint judgment of Justices Beaumont and Beazley at page 167 of the record where, in the passage from the judgment of this Court, it is recognised that:
the status of a property as part of -
what was there -
cultural heritage or natural heritage follows from its qualities rather than from their evaluation -
by a particular State function. We submit that that approach is correct. In our respectful submission, the answer to the question sought by our learned friend should be refused and the answer to the question given by the majority should be affirmed. Unless your Honours have something specific to raise with us, those are our submissions.
DAWSON J: Thank you, Mr Keane. Mr Walker.
MR WALKER: Your Honours, the preferred answer for which we contend is the answer according to Chief Justice Black's reasons and without any change of phrasing. The matter that your Honour Justice McHugh has just noted, at page 157, that course of events is set out as to what has happened. Your Honour Justice Kirby raised the question of bright lines I think in the context of Mr Justice Starke's reasons which my learned friend embraces. Of course, we embrace them, which is why they are cited in our written submissions. The Architects' Registration Board v Hutchinson Case is, in our submission, a very good example of the way in which a debate framed in terms of jurisdictional fact or in terms of essential preliminary or the like is a debate which is always in danger of being circular and simply being a matter of assertion.
Your Honours will recall that four Justices sat in Hutchinson. All four agreed on the outcome because of a point that had nothing to do with the present issue, but the split 2:2 on the question whether the matter committed to the board was a so-called jurisdictional fact or not - whether it was something which the courts could look at for themselves or not. The judgments appear to have been written, with great respect, in almost complete mystery - one from the other - as to what each was saying. If your Honours compare the Chief Justice - this is [1925] HCA 1; 35 CLR 404 commencing at page 406. Chief Justice Knox gives reasons which, towards the foot of page 407, or halfway down page 407 and following is on all fours with the approach of Chief Justice Gibbs in Buck v Bavone. Justice Isaacs gives the next decision and takes the exactly opposite view with, if I may say so, corresponding vehemence. Page 409 denouncing as an "inherent fallacy" and an assumption that which the Chief Justice had expounded with such confidence two pages before. Justice Isaacs uses the word "collateral", which is one of the concepts and descriptions which I have submitted to your Honours with great respect is not as useful, perhaps, now, as it once was, particularly now that administrative law has developed as it has, and there is a statute, the AD(JR) statute. It is a useful way, however, that Justice Isaacs emphasises the practical consequences of the dispute so evenly balanced between the Court then. At the middle of page 409 he describes the result, being the result for which my learned friend contends, as being:
the real decision, if necessary, rests with a Court entrusted with it.
A phrase which, in our submission, is startling inept to describe what Parliament intended in terms of inclusion in the national estate and the Australian Heritage Commission.
McHUGH J: Would you dispute standing - leave aside standing alone - the word "place" in section 23 is the jurisdictional fact?
MR KEANE: For reasons I have already put, "jurisdictional fact" may be a mere convenient label so long as it does not inconveniently carry in a lot of baggage which we would seek to reject, your Honour. But, if your Honour is putting that something must be a place ultimately according to the determination on the mere balance of probabilities of a court in order for there to be power under section 23 or under section 25 for a Minister to direct, then, in my submission, you may have to break up different parts of - - -
GUMMOW J: There may be several conditions of jurisdiction.
MR KEANE: Quite; "place" may, in fact, compose more than one, but for present purposes it is difficult to see any practical difference between an ordinary administrative law review of what a place is, which will include errors of law, of course, and argument about a fact to be decided on the balance of probabilities.
Your Honours will appreciate that about the only fact that might ever be jurisdictional in that sense of the word would be whether the place was in Australia or within he geographical orbit of Australia described in the statute. It is hard to imagine, when one looks at the definition of "place" how else there could be a factual dispute which would be jurisdictional in the sense used in the old cases, but one can easily imagine how there might be an error of law.
McHUGH J: Well, one view of 23 is that the power is the power to enter and the jurisdictional fact is the composite expression, "considers that a place that is not in the register should be recorded as part of the national estate".
MR WALKER: In one sense that is always right. Any statutory provision that says where a Minister is satisfied of state of affairs X the Minister may or shall - the Minister's satisfaction is, if one likes, a jurisdictional fact composite or otherwise. It is normally proved by assertion or averment. That does not, of course, advance the debate as to the extent of factual dispute and this is a case that is focussing on factual dispute. We have no difficulty with an analysis of all of these provisions in this statute and other similar statutes. It says, for example, that where a power is posited on a state of mind the state of mind must actually exist. That is as much a jurisdictional fact as anything but it is usually a trivial point to note because no one is concerned to dispute the proposition and it is very rarely factually disputed either.
In this case - I do not want to repeat what I have said in-chief, but the point I wish to get out of Hutchinson's Case is that the notion of splitting things into a staged decision-making process is one which needs to be applied with great care. The court in Hutchinson split, as I say, right down the middle. Justices Rich and Starke disagreed with each other as well and my friend and I come before you 70-odd years later to suggest that what Mr Justice Starke said at page 412 is a classical statement of the principle. Well, so it is, in our submission. It is a classical statement of the principle of statutory interpretation where this Court split equally and it is difficult to tell from the face of the reasons how the bright line was seen as it was so clearly by all four of them. In our submission, apart from the matters to which we have already referred there is, above all other things, the nature of the subject matter and that is why the section 4 argument we have put is so important.
DAWSON J: When you say "the nature of the subject matter", are you saying then, as I understand it, that is appropriate for an administrative decision rather than a judicial decision.
MR WALKER: Yes.
DAWSON J: Do you say something more than that? Justice Dixon seemed to suggest that convenience was a factor to be taken into account in situations like this.
MR WALKER: Yes, we certainly say that. We have put it, I think, at considerable length in our written submission and we say that none of these interpretation arguments are done in a vacuum. No statute is ever interpreted without taking account of how it is applied in the real world and you cannot take account of how it is applied in the real world without taking account of the convenience or inconvenience of its application.
DAWSON J: Mr Keane denies that there is any inconvenience. He says that it is perfectly all right to have this situation where you can attack the listing of a place at any time.
MR WALKER: A dispute with my learned friend is always painful, your Honour, but I am bound to say that the prospect of a trial with the merits being at large on these issues being short or being a case where the outcome is obvious is one which is, with great respect, surprising. My friend would be there contending that this area does not answer, cannot arguably answer, because that is what he is trying to avoid - he is going to say it just simply does not answer on the balance of probabilities any one of the descriptions in section 4.
DAWSON J: Why would that be so inconvenient? I mean, you are going to go into a lot of these matters before the review board anyway, are you not?
MR WALKER: Because it would be gone into before a court and, in our submission, it has nothing to do with the nature - - -
DAWSON J: Would it not be subject to judicial review? It would just introduce another question into that.
MR WALKER: No, it is a - juicial review, without going into a merit review, your Honour, is an entirely different - - -
DAWSON J: But it would be a question of law, would it not?
MR WALKER: It is a question of law and entirely different factual appreciations apply. As soon as the Wednesbury limitation on disagreemnet on the merits is introduced there is, for example, no place for extended cross-examination, or except in the most unusual cases.
McHUGH J: But why is there any surprise about the Court reviewing it in any event? I mean, the effect of this is to, so to speak, freeze land.
MR WALKER: It does not freeze land at all, your Honour.
McHUGH J: It does in a pratical sense.
MR WALKER: Not at all, your Honour. It requires Commonwealth agencies to be deliberate and up front and consultative about what they are doing. That far from freezes it, that almost certainly improves decisions as to what to do with it.
KIRBY J: The respondent does not want it; he does not want it at all.
McHUGH J: And does not see it in the same light as you do, obviously, Mr Walker.
MR WALKER: Does not see it in the same light as - - -
DAWSON J: I just had in mind that - - -
MR WALKER: It probably gives it to the Commonwealth.
DAWSON J: - - -it would be possible to say that for the Court on review that the significance of the land as part of the national estate was not kept upmost, would it not? You will be going into these things anyway.
MR WALKER: It would be difficult to see someone who was resisting listing, your Honour, complaining that significance had not been given utmost consideration.
DAWSON J: Yes, that is true.
MR WALKER: It is possible to construct an argument. You could start by saying the significance was minimal and its minimal nature was not given upmost consideration. To say that something is not given utmost consideration, to say that something is Wednesbury unreasonable, to point out that extraneous matters have been taken into account, the last is very hard to imagine in this case, bearing in mind the ambit of matters conjured up by section 4. It is always forensically very different from inviting a judge simply to form a different view and, I stress, on different material.
There is the world of difference in a review which is confined to that which was before the decision maker or which, properly understood, should have been before the decision maker had the decision maker done what the decision maker was required to do and a de novo inquiry on the merits before a court. There is different material that may be newer, it may be broader. Then there is another huge difference. The forensic inquiry is one where the rules of evidence govern. For obvious reasons of convenience and quality of decision making they do not govern in a section 23 inquiry. Another difference is that the forensic contest, being an exercise of judicial power, will have parties and a matter and the extent to which interveners or the like can be heard is greatly to be contested and almost certainly not a matter of right. Under section 23 people are heard as a matter or right with contributions inartistically or elegantly expressed, all to be taken into account.
So, in our submission, there is an enormous practical and legal difference between the inquiry that my learned friend seeks to assure your Honours will be a relatively bland exercise, and the inquiry under section 23. The relatively bland exercise will be major litigation about matters of science, as my learned friend says; no doubt about the future, because that is what the considerations include, and no doubt about matters of political and industrial import because there is finally a balancing exercise in terms of what the significance is.
In our submission, all of those add up to such a world of difference between the two that your Honours ought not to be persuaded that the seriousness of the difference between our positions disappears in practice. The seriousness, in our submission, becomes more acute in practice.
McHUGH J: What do you say about the words in 22(1) "included in the national estate"? Why do not those words mean, "the list of places that are included in the national estate"?
MR WALKER: Section 22 is a strength for us, not the contrary. The obligation, as I said in-chief, if one had stopped at subsection (1), it would appear to say, "Everything included in the national estate must be in the Register". Whether it is predictive or obligatory, it does not matter. The language is, "in which will be listed places included in the national estate".
What one knows, however, from section 22(2) and section 23 that, in terms, that is the very statutory language, says that that will only happen if the Commission considers it should happen. So that the language that a register shall be kept, "in which will be listed places included in the national estate", means, not by implication, not by mere interpretation, but by simply reading the words in as they are required to be read, that they will be listed if the Commission thinks they should be.
DAWSON J: Does that mean you read "in which will be listed places" to be included in the national estate? You cannot do that, can you?
MR WALKER: No. I do not wish to read words in. In our submission, the phrase, "places included in the national estate", can be seen by the reading I have just referred to, to be a phrase which means, "those places which the Commission considers should be listed".
McHUGH J: Why does not the word "place" in section 23(1) carry with it the adjectival description in 22(1) so that you the read the section, "where the Commission considers that a place" included in the national estate "that is not in the register should be recorded as part of the national estate"?
MR WALKER: There are two possibilities; oversight, in which case the difference makes no difference, or an awareness of the integral central role of an assessment of the significance of a place against the qualities referred to in section 4 as being the heart of the exercise in section 23 and, therefore, this not being a place to assume things before the inquiry has been had. That is a major point we wish to make about section 23 and section 4.
How can one seriously say, except in this entirely conceptual sense that we say does not matter in the real world, that before you have had your inquiry under section 23 you can be satisfied of section 4 matters? That is the kind of inquiry starting at the subsection (1) consideration and then moving to the broader consultation which will enable and then refine a decision that something is included in the national estate.
McHUGH J: Yes, but the structure of the section is that 22 begins with a hypothesis that places included in the national estate can be objectively defined and then subsection (2) says, "Well, you don't enter every one of those places. You only enter those in accordance with section 23." Then section 23 says, "Well, you only enter those places that the Commission thinks should be entered in the register". As a matter of statutory construction why is not 23 being directed at those places included in the national estate?
MR WALKER: It is, but your Honour's analysis is piecemeal and, with respect, fails to give proper weight to the fact that, like 7 and like 4, 22 subserves the meaning of the real executive provision which is 23(1). That is at the heart of it because the expression that "the Commission shall keep a register" is one which is defined or one which is then stipulated in subsections (2) and following to be done in a certain way and in no other way. So the register is something which emerges from a process at which section 23 is at the heart. That process is one which results in the listing of places included in the national estate. It is a process which results from the Commission considering that a place, just a place, should be entered. As I say, 22 subserves 23, not the other way round. The verbal equivalence is that places included in the national estate which are listed in the register are places which the Commission has considered should be entered.
McHUGH J: I know, but that seems to be a very strained reading of 22(1) to say it means places that in the opinion of the Commission are included in the national estate.
MR WALKER: Your Honour, I did not use the word "opinion" once then.
McHUGH J: I know you did not, but that is what it comes to, as opposed to places that are included in the national estate.
MR WALKER: Your Honour, how one comes to be included except in this utterly abstract conceptual sense has never been answered by anyone. There is no practical effect, no statutory enactment, which says that being included in the national estate a treasure unappreciated by anybody in Australia at the moment, someone in the future will discover it, and we know the significance for future generations makes it part of the national estate. Nobody knows about it now. It is buried somewhere. Now, in our respectful submission, to say that those places, having any practical or legislative effect simply because they can be said in the abstract to answer that description, does not answer the practical question of how the courts can and cannot supervise the Commission in cases like the present.
GUMMOW J: They can be the object of activity under 31A, can they not?
MR WALKER: Not if they are unknown, your Honour.
GUMMOW J: Well, to identify them it is a national estate project.
MR WALKER: As a national estate project - - -
GUMMOW J: I know Part VA was put in in 1991. It was not in the Act as originally cast.
MR WALKER: One of the problems is that the definition of "national estate project" has a literally absurd consequence that if you spend money which you think you have got lawfully under Part VA and then you find that it is actually not to be identified as part of the national estate, does that mean that the money has been misappropriated? Surely not. So one dismisses that literal absurdity. Put together the definition of "national estate project" and section 31A and one has a process by which money can be spent in order to find out whether they are part of the national estate.
The process of finding out whether they are part of the national estate is not in the abstract or concept, it is an effect upon mines - the AHCs mines - for the only purpose stipulated by this statute to be served by identification; a point that my friend, with respect, did not deal with. The only purpose of identification is in order to consider whether it should be subject to the protection bestowed by section 30. That is the only practical purpose. In our submission, that is why the function in paragraph 7(c) is wrapped up as it is. They are not disjunctive, they are two things which are part of the same exercise. Identification on its own serves no purpose.
McHUGH J: The second reading speech of the Minister is against you, is it not?
MR WALKER: No.
McHUGH J: I am referring to that part of it which says that, in broad terms, the aims of the Bill are these and, among other things, "to establish and maintain a register of the things that make up the national estate."
MR WALKER: Well, your Honour is speaking as if the mental act involved in saying this is part of the national - - -
McHUGH J: Well, "to establish and maintain a register of the things that make up the national estate." So, the Minister is looking at it objectively.
KIRBY J: That was inevitable when the Bill was in Parliament. Nothing had been done to get it registered, collected, identified; but it hypothesised the existence of a national estate.
MR WALKER: I ask your Honours to contemplate this expression "national estate." This is not some objective, plain term; it is a term loaded with political significance. It is called "estate" to make us all feel rich for the possession and enjoyment and protection of these things, and to make us concerned about them. It is called "national" because it is meant to imbue us with appropriate feelings.
McHUGH J: But the Parliament thought it was out there, space, time
MR WALKER: No, your Honour, "national estate" does not exist but for this Act.
McHUGH J: But Parliament did, and so did the - - -
MR WALKER: And this Act said the AHC would say what gets on the register, which is what tells the world what is on the national estate. Because, if it is not on the register, how would one know - how could you say to a Commonwealth authority - of course, you cannot, so the registration is everything. Your Honour Justice McHugh, with great respect, commits the fallacy of suggesting that something exists as an idea, presumably from the beginning of time - though why that would be true of the national estate in Australia one cannot say - and only waits to be discovered by someone whose mind has it finally impinged on it sufficiently to say, "Yes, that is true, it is part of the national estate."
McHUGH J: It does not say that the Commission has to got to enter every piece in the national estate; it says that it has got to enter what it considers should be entered in the national estate.
MR WALKER: It is an idea. It is a mental construct. There is a brain or brains that have it, and they are in the AHC and, in our submission, the Minister is simply saying just that. They are part of - they make up the national estate because they will be identified by people selected with appropriate qualifications and representativeness and resources, all of which distinguish them from courts.
McHUGH J: Could I just get your answer on this one question, before you sit down? What is your answer to 7(c):
to identify places included in the national estate and to prepare a register of those places -
MR WALKER: Your Honour leans on the word "included". I am not quite - - -
McHUGH J: Yes:
to identify places included in the national estate and to prepare a register of those places -
Now, does that not tell against you?
MR WALKER: No, that is one function, not two functions. That is why it is expressed in one paragraph, because identification and listing them is all part of one process.
McHUGH J: It is a hendiadys.
McHUGH J: It is a hendiadys, is it?
MR WALKER: Yes and no. For those which are listed, it is an hendiadys, yes. For those which are not listed - and, theoretically, that must be so. You must come up with some which have sufficient significance, you think, to meeting section 4, but not sufficient significance - I am trying to think what the word your Honour used was -to sterilise their use, to disappoint the -
McHUGH J: "Freeze".
MR WALKER: Freeze the landowners' aspirations because of section 30.
McHUGH J: It can cause problems. The Commonwealth Superannuation Fund may not be able to lend money for minerals.
MR WALKER: It affords protection, your Honour. It requires deliberate thought. There is no freezing in the Act at all. There is a freezing of the executive action. In fact, the Commonwealth is not here to complain about that at all, they will not be heard to complain about that. May it please your Honours.
DAWSON J: Thank you, Mr Walker. The Court will consider its decision.
AT 2.54 PM THE MATTER WAS ADJOURNED
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