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Queensland Heritage Council v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane[2000] QCA 378

Reported at [2001] 2 Qd R 504

Queensland Heritage Council v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane[2000] QCA 378

Reported at [2001] 2 Qd R 504

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Queensland Heritage Council v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane [2000] QCA 378

PARTIES:

QUEENSLAND HERITAGE COUNCIL

(plaintiff/appellant)

v

THE CORPORATION OF THE TRUSTEES OF THE ROMAN CATHOLIC ARCHDIOCESE OF BRISBANE

(defendant/respondent)

FILE NO/S:

Appeal No 11528 of 1999

SC No 10413 of 1996

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 September 2000

DELIVERED AT:

Brisbane 

HEARING DATE:

21 July 2000

JUDGES:

de Jersey CJ, McPherson JA, Williams J.

Separate reasons for judgment of each member of the Court, each concurring as to the order made.

ORDER:

Appeal dismissed with costs

CATCHWORDS:

ENVIRONMENTAL LAW – HERITAGE CONSERVATION

CONSTITUTIONAL LAW – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – INCONSISTENCY OF LAWS – IN GENERAL

CONSTITUTIONAL LAW – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – GENERAL MATTERS – RELATIONSHIP BETWEEN COMMONWEALTH AND STATES GENERALLY – EFFECT OF STATE LAWS ON THE COMMONWEALTH AND ITS INSTRUMENTALITIES – where the owners of property wished to demolish the building on site – whether the Heritage Act 1992 (Qld) applied to prevent the demolition - whether the State Act was inconsistent with the Australian and Overseas Telecommunications Corporation Act 1991 (Cth).

STATUTES – ACTS OF PARLIAMENT - INTERPRETATION – INTERPRETATION ACTS AND CLAUSES – PARTICULAR ACTS AND ORDINANCES – QUEENSLAND – the meaning of s 33(2) of the Heritage Act 1992 (Qld) with respect to buildings used for religious purposes

CHURCHES AND RELIGIOUS ASSOCIATIONS – CHURCH PROPERTY AND TRUSTS – GENERALLY – the meaning of “liturgical purposes”

Australian and Overseas Telecommunications Corporation Act 1991 (Cth), s 11, s 26, s 33 

Australian Telecommunications Corporation Act 1989 (Cth), s 96(1)

Commonwealth of Australia Constitution Act 1900 (Cth), s 51(v), s 51(xxxix), s 52, s 109

Commonwealth Places (Application of Laws) Act 1970 (Cth), s 3, s 4(1)

Heritage Buildings Protection Act 1990 (Qld), s 2, s 3, s 5, s 11

Heritage Buildings Protection Amendment Act 1992 (Qld)

Judiciary Act 1903 (Cth), s 78B

Lands Acquisition Act 1906 (Cth)

Post and Telegraph Act 1901 (Cth)

Postal and Telecommunications Commission’s (Transitional Provisions) Act 1975 (Cth), s 29 (1)(b)

Queensland Heritage Act 1992 (Qld), s 4, s 20, s 23, s 24, s 28, s 29, s 30, s 33(1), s 33(2), s 39, s 40, s 41, s 56, s 57, s 58, Schedule cl 1, cl 2

Telecommunications Act 1975 (Cth), s 21(3)

Telecommunications Act 1989 (Cth)

Telstra Corporation Act 1991 (Cth)

Attorney-General (NSW) v Stocks and Holdings (Constructors) Pty Ltd (1970) 124 CLR 262, applied

Australian National Airlines Proprietary Limited v Commonwealth (1945) 71 CLR 29, considered

Brisbane City Council v Group Projects Proprietary Limited (1979) 145 CLR 143, applied

Butler v Attorney-General (Victoria) (1961) 106 CLR 268, mentioned

Cooper v Wandsworth District Board of Works (1863) 14 CBNS 180; 143 ER 414, mentioned

Delta Properties Pty Ltd v Brisbane City Council (1955) 95 CLR 11, mentioned

Wenn v Attorney-General (Victoria) (1948) 77 CLR 44, considered

COUNSEL:

D R Gore QC, with R Traves for the appellant

W Sofronoff QC, with M E Rackemann for the respondent

SOLICITORS:

Crown Solicitor for the appellant

Thynne & Macartney for the respondent

  1. de JERSEY CJ:  I have had the advantage of reading the respective reasons for judgment of McPherson JA and Williams J.  I agree that, for the reasons given by their Honours, which relate to what I will call the constitutional point, the appeal should be dismissed with costs to be assessed.  I propose to deal shortly with a set of further submissions canvassed in the appeal, needing resolution only should the appellant have succeeded on the constitutional point.
  1. McPherson JA refers to s 33(2) of the Heritage Act 1992, which provides that the Queensland Heritage Council’s approval of development “in relation to a church or the precincts of a church” is not required if certain notification is given.  The text of the subsection follows:

“(2)Approval of development is not required under this division in relation to a church or the precincts of a church if –

  1. written notice of the proposed development is lodged with the council at least 30 days before the development starts; and
  1. the notice is accompanied by a certificate by an official of the church, authorised by the church to give the certificate, that the development is genuinely required for liturgical purposes.”
  1. As McPherson JA records, notice of the proposed demolition of the building was lodged in accordance with the requirements of paragraph (a), accompanied by the certificate required by (b).
  1. The learned trial judge found, however, that properly construed, the exception under subs (2) did not apply to this demolition. He held that in referring to development “in relation to a church”, the subsection contemplated only development within the physical limits of the church building as such. He likewise regarded the “precincts” of the cathedral in this case, as limited to the cathedral grounds, which did not include Hesketh House. Development “in relation to” those precincts should be confined, he considered, to development strictly within them. He therefore concluded that demolition of Hesketh House could not amount to “development … in relation to a church or the precincts of a church”. The learned judge rejected the appellant’s alternative challenge to the certificate, which was based on a contention that the development could not be regarded as “genuinely required for liturgical purposes”.
  1. Although one of the appellant’s grounds of appeal challenged the judge’s conclusion that the certificate was valid, the issue became a live issue only because of the respondent’s notice of contention filed in the appeal, by which the respondent challenged the correctness of the judge’s conclusion as to the proper construction of the words “development in relation to a church or the precincts of a church”. The respondent contended that the proposed demolition was both “in relation to a church” and “in relation to the precincts of a church”, and that Hesketh House fell within those precincts. This contention enlivened the appellant’s separate challenge to the genuineness of the certificate. It is convenient to deal first with the question of construction.
  1. The respondent’s position was that demolition of Hesketh House is genuinely required in order to enhance capacity to use the grounds surrounding the cathedral for liturgical purposes, while at the same time plainly enhancing the visual appeal of the cathedral. The learned judge took the view that Hesketh House was not within the precincts of the cathedral, but instead “formed part of the boundary enclosing those precincts”. It is unnecessary for the purposes of this judgment to seek to delineate the precise extent of the precincts of the cathedral: for present purposes the accuracy of His Honour’s approach in that regard may be assumed. The issue is whether the demolition of Hesketh House was nevertheless “in relation to the precincts” of the cathedral.
  1. The learned judge took a narrow view of the words “in relation to” in this context, concluding that the development must occur on, or within, the precincts. He drew that largely from s 33(1), which provides:

“33.(1)A person must not carry out development in relation to a registered place unless the development is approved by the council in accordance with this Act.

Maximum penalty – 17 000 penalty units.”

His Honour was substantially influenced by the reference to a “registered place”, defined in s 4 as “a defined or readily identifiable area of land”.  That precise physical limitation of area, coupled with the penal nature of the provision, persuaded him to give the words “in relation to” a limited, narrow construction, then to be carried over into subs (2).

  1. But to read the proscription under subs (1) as confined to development on or in a registered place appears impermissibly to ignore the inclusion of the phrase “in relation to”, words generally regarded as of broad import. Section 40, dealing with restrictions on the use of registered places under heritage agreements, provides an interesting contrast, in referring for example to “work that may be carried out in a registered place” (subs (2)(c)).  I see no justification for denying the words “in relation to” in this context their normal expansive meaning.
  1. The close connection between the purpose of the proposed demolition of Hesketh House and the intended use of the cathedral and its grounds immediately adjacent, coupled with the physical contiguity of the building with those cathedral grounds, lead inescapably, in my respectful view, to the conclusion that this proposed demolition relates to, or is “in relation to” those grounds or precincts.
  1. There is no legitimate justification for reading this exception narrowly, against the respondent church’s interests. Subsection (2) was plainly intended to place churches into a quite special category warranting protection, not, as with other heritage properties, primarily by force of legislation, but, in the case of churches, primarily (and “merely” if that be the right word) upon the relevant church’s honestly expressing, through its appropriate officer, its reasonable liturgical requirements.
  1. The learned judge’s acceptance of the certification that the demolition was required, and required genuinely, for liturgical purposes, was correct. It did not matter that the demolition would also concurrently secure the aesthetic enhancement of the cathedral. That did not, as put by the learned judge “throw into doubt the genuineness of the requirement” for liturgical purposes.
  1. Were it necessary, I would accordingly uphold the respondent’s contention that the proposed development is “in relation to the precincts of a church”, within the meaning of s 33(2) of the Heritage Act 1992, and reject the appellant’s challenge to the learned judge’s acceptance of the validity of the certificate, under s 33(2)(b), that the development is “genuinely required for liturgical purposes”.
  1. McPHERSON JA:  St Stephens Cathedral in Elizabeth Street stands on land granted by Governor Fitzroy in 1849 before the separation of Queensland from New South Wales. Other allotments have since been added to the precinct, and the whole of the land is now vested in The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane, to which I will refer as the Church. It is the respondent to this appeal. In 1850, a building which  has come to be known as Old St Stephen's Church was, with the assistance of a government contribution of some £300, erected and opened to public worship. It was considered "a great ornament to the town": W. Ross Johnston, Brisbane. The First 30 Years, (1988) at 172. It was consecrated by Archbishop Polding, and became a cathedral in 1859; but, becoming inadequate for its purpose, the foundation stone of the present St Stephen's Cathedral was laid by Archbishop Quinn on 26 December 1863.  It took some 11 years to complete, and is described in the heritage listing as "the symbolic focus of Catholicism in Brisbane and the site of the Bishop's seat since 1864". Old St Stephen's Church, or Pugin's Chapel as it is also called after its architect,  remains on the land, where it enjoys the reputation of being the oldest surviving church building in Queensland. There are other buildings on the land, some of which have played a considerable part in the history of Brisbane and of the State.
  1. On the north eastern side of the Church land, very close to the boundary and the Cathedral, is a multi-storey red brick building known as Hesketh House. It is a four‑storey structure with a basement, which crowds the Cathedral on that side, so that, in the words of Archbishop Bathersby in giving evidence at the trial of this action, the Cathedral "breathes only with one lung on the southern side". With a view to improving the Cathedral and the site, the Church has for some time past been redeveloping the Cathedral precinct, and for that purpose retained a leading architect, Mr Robin Gibson, of Robin Gibson & Partners, to advise it. In 1994, the Church acquired Hesketh House, and Mr Gibson prepared a plan for utilising the space occupied by that building, which he considers will correct the "spatial imbalance" that has been caused by the imposition of buildings erected on the north eastern aspect since the Cathedral was completed in 1874.
  1. Hesketh House was constructed for the Commercial Travellers Association in two stages in 1914-1915 and 1927-1928. The second stage followed a design prepared by Mr J.W. Prior, a Brisbane architect. It is said to be "his finest known work". During the second world war, the building was occupied by the Postmaster General's Department, which acquired it from the Commercial Travellers Association which by then had suffered a decline in membership owing to changes in retailing sales practices. It was renamed Hesketh House in honour of the first PMG Chief Electrical Engineer, who had played a leading role in the early development of telephone and telegraphic services in Queensland. Until June 1990, it was used as a training school for Telecom technicians. At the time the Church acquired  it in 1994, the land on which Hesketh House stood was owned by Australian and Overseas Telecommunications Corporation (AOTC), which, as a company incorporated under a Commonwealth Act of that name passed in 1991 (the Australian and Overseas Telecommunications Corporation Act 1991, or AOTC Act, later renamed the Telstra Corporation Act 1991) had been invested with ownership of the building. By s 11 of the AOTC Act, all property and rights of Telecom and OTC, which included the Hesketh House land, were vested in AOTC "on the succession date", which was 1 February 1992. Transfer of the land from AOTC to the Church was registered by the Registrar of Titles on 8 November 1994.
  1. Meanwhile, on 15 June 1990 the Heritage Buildings Protection Act 1990 (Qld) had been assented to (the Heritage Act 1990).  By s 2(1) it was given retrospective operation so as to be taken to have commenced on 11 March 1990: see s 2(2).  Section 11 of that Act made it an offence punishable by a substantial fine for anyone to demolish, develop or subdivide any heritage building. By s 3, "demolish" was defined to mean, amongst other things, pull down or remove wholly or in part; and "develop" was defined to mean an extensive array of activities including refurbishing and renovating, as well as painting and plastering. The expression "heritage building" was defined in s 5 to mean "things listed in the Schedule", and to include any part of a building and fence or other appurtenance to a building. The Schedule comprised a long list of "things", which included various buildings in Brisbane and elsewhere in the State. Among them were St Stephens Cathedral, as well as Old St Stephens Church, and various other buildings within the Cathedral precinct. The Schedule in Part C also included Hesketh House.
  1. The Heritage Act 1990 was temporary legislation originally intended to expire on 10 March 1992.  A new statute, the Queensland Heritage Act 1992 (the Heritage Act 1992), came into force on 21 August 1992. It included a Schedule containing transitional provisions, of which cl 2 is, so far as material, as follows:

"2.(1)All buildings listed in the Schedule of the former Act are, on the commencement of this Act, to be taken to be places provisionally entered in the heritage register."

The "former Act" referred to in cl 2(1) is the Heritage Act 1990. In cl 2(2) of the Schedule to the Heritage Act 1992 there is a provision for the lodging within 60 days of an objection to entry on the heritage register. Clause 2(3) then provides that, if no such objection is made within that period, the place is to be entered on the register on a permanent basis. Once a place is so entered, s 33(1) of the Heritage Act 1992 prohibits a person from carrying out "development" in relation to it unless it is approved by the Council in accordance with that Act. The Council is, by s 4 of the Act, the Queensland Heritage Council, and "development" is defined to mean:

"(a)subdivision; or

(b)change of the use; or

(c)demolition of a building; or

(d)erection, construction or relocation of a building; or

(e)work (including painting or plastering) that substantially alters the appearance of a building; or

(f)renovation alteration or addition to a building; or

(g)excavation, disturbance or change to landscape or natural features of land that substantially alters the appearance of a place …".

  1. Hesketh House was entered permanently on the heritage register on 21 October 1992. While it remains there, it is not possible for the Church to use the space occupied by that building to carry out the proposal envisaged in Mr Gibson's plan. Development, meaning demolition, is, as we have seen, prohibited by s 33(1) of the 1992 Act unless it is approved by the Heritage Council in accordance with that Act.  However, s 33(2) provides that such approval is not required in relation to a church and its precincts if: (a) written notice is lodged with the Council, and (b) the notice is accompanied by a certificate from a church official that the development is "genuinely required for liturgical purposes". On 21 November 1996 Rev Dr Elich gave notice under s 33(2)(a) of demolition of the building Hesketh House and of development of the land as indicated in the plans prepared by Robin Gibson & Partners. Rev Dr Elich is the Director of the Liturgical Commission of the Roman Catholic Diocese of Brisbane, and, together with the notice under s 33(2)(a), he also gave a certificate in terms of s 33(2)(b) that the land occupied by Hesketh House was "genuinely required for liturgical purposes in relation to St Stephen's Cathedral .. or the precinct thereof.".
  1. In due course, the Heritage Council considered the notice and certificate. For reasons stated in a letter dated 26 November 1996 to Dr Elich, the notice and certificate were rejected by the Council. This was followed by another letter dated 6 December 1996 from the Acting Crown Solicitor on behalf of the Heritage Council inviting Dr Elich to say whether he accepted the Council's rejection of the notice and certificate. Correspondence followed from solicitors for the Church, and on or after 6 December 1996 a writ was issued and served on behalf of the plaintiff Heritage Council claiming declarations and an injunction against the Church. Broadly stated, the relief claimed was that the notice and certificate were not effective for the purposes of s 33(2) of the 1992 Act, and that demolition by the Church of Hesketh House would contravene the Heritage Act 1992. Trial of the action took place before Derrington J, who on 26 November 1999 gave judgment dismissing the action with costs. This is the Council's appeal against his Honour's decision to that effect.
  1. Shortly before the trial was due to take place, the attention of the Church or its legal advisers was drawn to s 33 of the Commonwealth AOTC Act. It is part of Division 3 of Part 7 of that Act. Division 3, which is headed Application of State and Territory Laws, and is as follows:

"Laws relating to buildings, structures and facilities

  1. A law of a State or Territory that relates to:

(a)the standards applicable to:

(i)the design; or

(ii)the manner of the construction;

of a building, structure or facility; or

(b)the approval of the construction of a building, structure or facility; or

(c)the occupancy, or use, of a building, structure or facility; or

(d)the alteration or demolition of a building, structure or facility;

does not apply to a building structure or facility that is the property of AOTC if:

(e)the building, structure or facility was occupied or in use; or

(f)the construction, alteration or demolition of the building, structure or facility had commenced;

before the succession date."

There is no dispute that on and after 1 February 1992, which is "the succession date" under s 33, and at all times after that date until its transfer to the Church on 8 November 1994, Hesketh House was the property of the AOTC. Nor is there any doubt that before that date it was "occupied or in use" within the meaning of s 33(e) of the AOTC Act. On the face of it, therefore, a law of a State that "relates to" any of the matters specified in paragraphs (a) to (d) of s 33 of the AOTC Act did "not apply" to that building.

  1. In response to this interpretation of s 33, Mr Gore QC on behalf of the Heritage Council advanced a number of different submissions in support of the appeal. The first was to treat the words in para (f) as in effect embodying a dominant provision. The immunity from State law conferred by s 33(a), (b) and (d) was said to operate at all only if construction, alteration or demolition of the building had commenced before the succession date of 1 February 1992. Otherwise, Mr Gore QC submits, the result of the provision in s 33(e) would be to confer an immunity from State law that would operate for an indefinite future time simply because the building had been occupied or in use at some time before 1 February 1992. To make sense of s 33, it is, it is submitted, necessary to read s 33(e) as being related exclusively to the parallel provision in s 33(c), which in terms is also concerned with occupancy or use of a building, leaving the provision in s 33(f) to cater for the remaining paragraphs (a), (b), and (d) of the section.  They are all concerned with matters of design, manner of construction, or its approval, and the alteration or demolition of the building, which are of the same general nature and so are, it is said, naturally related to s 33(f).
  1. To my mind, however, this process of deconstruction and reconstruction of the provisions of s 33 is not something that is authorised by any known canon of statutory interpretation, and is really the result of attempting to read the word "or" at the end of s 33(e) as if it said "and". Such an interpretation or substitution is sometimes permissible if the context either compels or clearly indicates an intention to that effect; but there is nothing to suggest it was intended here. If viewed in isolation from the constitutional context which gave rise to it, there would I think be much to be said for the impression that the person drafting the section probably started with the proposition that State laws should not apply if the building was occupied or in use before the succession date of 1 February 1992. Having done so, the possibility then occurred to him or her that a building that was undergoing construction, alteration or demolition before that date might conceivably not be "occupied or in use" during the progress of that work; and so s 33(f) was added in order to cover or cater for that possibility.  When it is borne in mind that a principal object of s 11 of the AOTC Act was to transfer a building from one corporation to another on a particular date, it is perhaps not at all surprising that the Commonwealth Parliament might have intended that that process and its consequences should be immune from State laws that might otherwise impede occupation and use of the building and land for such purposes as the AOTC might think fit. In any case, what saves s 33 from the kind of absurdity predicated by Mr Gore is that the section applies only to a building that is "the property of AOTC". Once that state of affairs ceases, the provisions of State law are capable of applying to it.
  1. Mr Gore QC then invited us to consider the impact of s 33 of the AOTC Act in the context of s 109 of the Constitution. Section 109 provides that, when a law of State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. It is, he submitted, settled that s 109 invalidates State legislation only to the extent that it is inconsistent with a Commonwealth statute, leaving the remainder of the State legislation to continue its operation in other respects.  To determine whether or not the State legislation is to have such a continuing operation despite partial invalidation under s 109, it is necessary to focus on the State legislation in order to see if there are independent provisions not affected by s 109 that are capable of having a continuing and effective operation.  See Wenn v Attorney-General (Victoria) (1948) 77 CLR 84, 122; and Australian National Airways Proprietary Limited v Commonwealth (1945) 71 CLR 29, 92-93. For the purpose of this inquiry, it was,  Mr Gore QC submitted, necessary to examine the State legislation rather than the Commonwealth Act which has the invalidating operation. 
  1. What, however, was being considered by Sir Owen Dixon in the passages from his reasons in the cases referred to was in fact the last step in an inquiry of this kind. It is whether, assuming that an overriding constitutional provision has an invalidating effect on State legislation, there may nevertheless be surviving provisions of that legislation that are capable of having an independent existence and operation. Whether there are any such provisions depends on the intention of the legislature to be gathered from the nature and effect of the provisions that survive. However, before that stage is reached, the first question is to determine the extent to which the subject legislation is invalidated. In doing so, it would in a case like this be necessary to assess the impact on the relevant State legislation of the Commonwealth enactment, which in this instance is s 33 of the AOTC Act.
  1. Section 33 of the AOTC Act incorporates its own statement for determining the extent to which State law is capable (or incapable) of applying to Hesketh House. What it says is that a law of the State that relates to the matters specified in s 33(a) to (d) does not apply to a building that is the property of the AOTC if it was occupied or in use, or under construction, alteration or demolition before the succession date 1 February 1992. To work out whether or not the provisions of the State Heritage Acts of 1990 and 1992 are a law of the State "that relates to" matters specified in those paras of s 33 of the AOTC Act, it is necessary to examine those provisions only for the purpose of deciding whether or not they answer that description; that is, whether they are State laws that relate to the matters specified or any of them.  Once that question is answered in the affirmative, s 109 of the Constitution operates to override those provisions of the Heritage Acts. The final step is to decide whether, if anything is then left of the Heritage Acts, it is capable of standing on its own.
  1. In saying this, I am assuming the constitutional validity of s 33 of the AOTC Act. It was presumably enacted by Parliament in the exercise of the legislative power conferred by Constitution s 51(v) (posts and telegraphs) taken with s 51(xxxix) (the incidental power). Its validity was not challenged in the proceedings before us.  Notices pursuant to s 78B of the Judiciary Act 1903 (Cth) were given to the Attorneys-General, but none of them has elected to intervene.  The notices were in a form that suggested that the reason why the heritage listing or registration might be "void" was because s 33 of the AOTC Act "obviously … operates as a consequence of section 109 of the Constitution".  In my opinion, however, the impact of s 109 is not the only constitutional issue that arises in these proceedings. Section 52 of the Constitution also falls to be considered.  For that reason, the Court directed that further notices raising that matter should be given to the Attorneys. Again, however, no one has chosen to intervene. The Court is therefore in a position to proceed to determine the issues in this appeal.
  1. Section 52 confers on the Commonwealth Parliament "exclusive power to make laws … with respect to:
  1. (i)
    … all places acquired by the Commonwealth for public purposes."

The circumstances in which Hesketh House was acquired by the Commonwealth appear in some detail from the material at the trial, including the plaintiff Council's heritage entry and the certificates of title in respect of the land on which the building stands. The Post Master General's Department (the PMG) began occupying offices in Hesketh House in the early 1940s, when communications were being expanded rapidly to serve the war effort. By 1944, all but the basement floor was occupied by the PMG's Engineering Branch.  The land on which the building stood was registered in the name of the Commonwealth on or before 16 February 1949 following its acquisition for the purposes of the Commonwealth in 1943 pursuant to the Lands Acquisition Act 1906 (Cth).

  1. There can be no doubt that by 1949, if not before, Hesketh House was, within the meaning of s 52(i) of the Constitution, a place "acquired by the Commonwealth for public purposes". That being so, the legislative power of the Commonwealth Parliament with respect to it became and was exclusive under s 52(i). The immediate consequence of that state of affairs was that State Parliament was incapable of enacting any laws with respect to Hesketh House. See Attorney‑General (NSW) v Stocks and Holdings (Constructors) Pty Ltd (1970) 124 CLR 262, 267, 271, 290-291. According to Walsh J (with whom Barwick CJ agreed on this point : 124 CLR 262, 267), that would have been so even if the State legislation had been framed so as to apply only when the building ceased to be a Commonwealth place. See 124 CLR 262, 286-287; and also 124 CLR 262, 271 (McTiernan J); and at 279 (Windeyer J). Hence, while Hesketh House remained a Commonwealth place, the State could not validly make laws that would apply to it either presently or immediately, or contingently or prospectively in the future. Nor, one would suppose, could the Commonwealth invest the State with the power of making laws with respect to such a place.  It is the Constitution that confers on the Commonwealth the exclusive power of making laws with respect to places falling under s 52(i), and not even the Commonwealth Parliament can override the Constitution. On the other hand, having the power to legislate under s 52(i), it was open to the Commonwealth Parliament to enact a law providing that a State law should apply to a Commonwealth place; and, by the Commonwealth Places (Application of Laws) Act 1970 (the Places Act 1970), that is what the Commonwealth Parliament proceeded to do.
  1. Section 4(1) of the Places Act 1970 provides that:

"4(1).The provisions of the laws of a State as in force at a time (whether before or after the commencement of this Act) apply .. in accordance with their tenor at that time in and in relation to each place in that State that is or was a Commonwealth place at that time."

"Commonwealth place" is defined in s 3 of the Act to mean a place with respect to which the Commonwealth Parliament has, by virtue of s 52 of the Constitution, exclusive power to make laws. That included Hesketh House after it was acquired by the PMG Department in 1943. The Places Act 1970  appears to have come into force on, or not later than, 11 February 1970. Section 4(1) refers to "the provisions of the laws of a State as in force at a time", and then adds "(whether before or after the commencement of this Act)". It has not been suggested that it was contrary to s 52(i) for the Commonwealth Parliament to provide for the application of State laws that were to be enacted, and so come into force, only after 11 February 1970. It follows that when the State enacted the Heritage Act 1990, its provisions applied to Hesketh House from the date of the assent to that Act on 15 June 1990, or, if s 2(2) of the Act is given effect, from 11 March 1990. The result was that Hesketh House became a "heritage building" within the meaning of s 3 of that Act.  It did so because it was a "thing listed in the Schedule" to that Act.

  1. So matters remained until the AOTC Act was passed and came into force, and the succession date under s 33 arrived on 1 February 1992. There had in the meantime been various statutory changes of name and constitution on the part of the owner of Hesketh House. In 1984 it had passed from the PMG to the Australian Telecommunications Commission, and then in 1988 to a Corporation of the same name, which in 1989 had been renamed Telecom.  It was not suggested that any of these events affected the status of Hesketh House as a Commonwealth place. That state of affairs changed, however, when the AOTC Act was passed and took effect. Section 26(a) of that Act provided that AOTC was to be taken for the purposes of the laws of the Commonwealth and of a State not to have been incorporated or established for a public purpose of the Commonwealth. As such, it effectively removed Hesketh House from the purview of the exclusive legislative power conferred by s 52(i) of the Constitution, and returned it (although not exclusively) to the legislative power of the State of Queensland. The exclusive power of the Commonwealth Parliament under s 52(i) endured only for as long as Hesketh House remained a Commonwealth place, and ceased when Hesketh House lost its character as such. See A-G (NSW) v Stock & Holdings (Constructors) Pty Ltd (1970) 124 CLR 262, 266, 269, 277, 282, 285.
  1. A simultaneous consequence of s 26(a) of the AOTC Act was, as it seems to me, that the application to Hesketh House of the Heritage Act 1990 also came to an end on the succession date 1 February 1992. Before that date the legislative foundation for the application of the Heritage Act 1990 had been s 4(1) of the Places Act 1970. Once s 4(1) ceased to apply to Hesketh House on 1 February 1992, the constitutional justification for applying the Heritage Act 1990 to Hesketh House disappeared, taking that Act with it. The point is, I consider, covered by the ratio in A‑G (NSW) v Stocks & Holdings. At the time of that decision, the Places Act 1970 was not in force; but the reasoning of their Honours nevertheless extends to the circumstances of the present case. As Barwick CJ said, "any law of the Commonwealth made pursuant to s 52(i) with respect to that place will cease to operate when the Commonwealth's ownership or possession ends" (124 CLR 262, 266). The Places Act 1970 was enacted pursuant to s 52(i). The Commonwealth's ownership and possession of Hesketh House ended on the succession date 1 February 1992 when, by virtue of s 11(a) of the AOTC Act, all property and rights of Telecom vested in AOTC. It was and is a company incorporated under the Corporations Law of the Capital Territory, and not a public authority or an instrumentality or agency of the Crown: see s 26(b) of the AOTC Act.
  1. What is more important for present purposes, terminating the application of the State Heritage Act 1990 as a surrogate law of the Commonwealth under s 4(1) of the Places Act 1970 on 1 February 1992 did not have the effect of reviving the Heritage Act 1990 as a law of the State applicable of its own force to Hesketh House. That is a conclusion that seems to me to follow from the decision in the High Court in A-G (NSW) v Stocks and Holdings (1970) 124 CLR 262. There the primary question concerned land, acquired by the Commonwealth in 1929 for defence purposes as a rifle range, which was located in an area subject to a planning scheme imposed on the area in 1951 by an Ordinance introduced by State legislation. The purported application to the rifle range land of the planning scheme was later suspended and replaced by an interim development order shortly before the rifle range land was transferred to the local council and so ceased to be a Commonwealth place. A majority of their Honours (Barwick CJ, McTiernan, Windeyer and Walsh JJ) held that, as State legislation, the planning scheme was originally inapplicable to the rifle range land in its character as a Commonwealth place; and that, when the land lost that character, the scheme was not automatically revived so as to apply to it.  The change of ownership, Walsh J said (124 CLR 262, 288), "did not have the effect that thereafter the Ordinance applied to the land". To make it do so, some further legislative action needed to be taken after the land ceased to be a Commonwealth place. In that case, there had been none.
  1. The reasoning of their Honours prevails here. The Heritage Act 1990 did not resume its force and application to Hesketh House once it ceased to be a Commonwealth place and the Places Act 1970 no longer applied to it. There are, however, two differences between A-G (NSW) v Stocks & Holdings and the appeal now before us. One is that, in this instance, State Parliament did in fact take further legislative action after Hesketh House ceased to be a "place" on 1 February 1992. It enacted the Heritage Act 1992, which came into force on 21 August 1992. In the meantime, the duration of the Heritage Act 1990, which had originally been due to expire on 10 March 1992, had been extended to the day before the substantive provisions of the Heritage Act 1992 were due to come into force. The extension was effected by the Heritage Buildings Protection Amendment Act 1992, which was assented to on 10 March 1992. Inasmuch as the Heritage Act 1990 had by then ceased to apply to Hesketh House on 1 February 1992, this extension of the duration of that Act can have had no effect on that building. If before that Amendment Act was passed and assented to on 10 March 1992, the Heritage Act 1990 did not apply to Hesketh House, extending its duration did not alter that state of affairs. There was therefore a period between the succession date, which was 1 February 1992, and the inception of the Heritage Act 1992 on 21 August 1992, throughout which there was no State heritage legislation in force that applied to Hesketh House.
  1. To determine whether this had any effect on the heritage status of Hesketh House, it is necessary now to turn to the provisions of the Heritage Act 1992. Section 20 creates a heritage register on which registered places and heritage agreements relating to them are to be recorded: s 20(2)(a). A place may be entered on the heritage register if it is of cultural heritage significance and satisfies the criteria specified in s 23. Such an entry may be effected in one of two ways. Under s 24 the Heritage Council may provisionally enter the place on the register; on doing so, the Council is required to give immediate notice of that intention to the owner of the place: s 24(4)(a). If no objection is made within 30 days, the place may be entered on the register: see ss 24(2) and 24(4). Within 14 days after receipt of an objection, or such longer time as the Minister may allow, an assessor must be selected to consider the objections: s 28. His or her function is to report to the Council on the objection, after which the Council is, within 30 days, required to consider whether to proceed with the proposal to enter on the register: see s 29(4). Only if it decides to do so, may the place be entered on the register on a permanent basis: s 30(1).
  1. These provisions of the Heritage Act 1992 are evidently designed for places that were not previously affected by the Heritage Act 1990. For those that were, a different regime was created. It is set up by the Schedule, which is entitled Transitional Provisions, to the Heritage Act 1992. As has already been pointed out, cl 2(1) of that Schedule provides that "all buildings listed in the schedule of the former Act are, on the commencement of this Act, to be taken to be places provisionally entered in the heritage register". Clause 2(i) of the Schedule then confers on the owner of such a place a right, exercisable within 60 days, to object to its entry on the heritage register.  If such an objection was in fact made, the Minister was required by cl 2(3) to refer it to an assessor within six months, in which event the objection was to be dealt with in accordance with the Act, which is no doubt a reference to ss 28 to 30 of the Act. By cl 2(4), the Minister is vested with a power to extend or reduce the period of six months referred to in cl 2(3). An appeal may then be taken to the Planning and Environment Court: s 30(7).
  1. "The former Act" referred to in the Schedule to the Heritage Act 1992 is, it has already been said, the Heritage Act 1990.  See cl 1 of that Schedule. Given that that Act had on 1 February 1992 ceased to apply to Hesketh House, and that the substantive provisions of the Heritage Act (including the Schedule) did not come into force until 21 August 1992, it seems to me to be doubtful, to say the least, whether Hesketh House could, within the meaning of cl 2(1) of the Schedule to the Heritage Act 1992, be said to be "a building listed in the schedule of the former Act". The former Act having ceased to apply to Hesketh House on 1 February 1992 when, by virtue of s 26(a), it ceased to be a Commonwealth "place" to which s 4(1) of the Places Act 1970 extended, it was then no longer listed. For the Heritage Council, however, Mr Gore QC submitted that Hesketh House was listed at least in the sense of being identified as being on the list incorporated in the schedule of the former Act; and that, considered in that way, cl 2(1) of the Schedule to the Heritage Act 1992 was capable of operating on it according to its terms. Some oblique authority may perhaps be found to support this view in A-G (NSW) v Stock & Holdings (1970) 124 CLR 262, 280-281 (Windeyer J). Walsh J, with whom Barwick CJ agreed, said, at 287, that there would be no invalidity in State legislation "showing the land on the map to which the Act refers in order to make it easier to understand the map, or simply for the purpose of identifying land and stating facts as to its existing ownership and use". The map in question was the zoning map which, if given effect, stated the permitted uses to which the land might lawfully be put under the relevant planning ordinance under consideration in that matter.
  1. Assuming, contrary to the view I have formed, that cl 1 of the Schedule to the Heritage Act 1992 did no more than identify Hesketh House as a building "listed" in the former Act, it followed that the Heritage Act 1992, enacted in the exercise of State Parliament's resumed legislative power, applied to it. This is, however, to reckon without the provisions of s 33 of the AOTC Act, which came into force on 1 February 1992. The provisions of s 33 have been set out earlier in these reasons. Their effect, so far as relevant here, was and is to exclude the application to Hesketh House of any State law relating to (c) the occupancy or use of a building, or (d) the alteration or demolition of a building. In consequence, many of the provisions  of the Heritage Act 1992 were incapable of applying to Hesketh House when that Act commenced on 21 August 1992. Among them were the provisions of s 33 prohibiting "development" in relation to a registered place except with the written approval of the Heritage Council. The term "development" is very widely defined in s 4 to include subdivision, change of use, demolition, work (including painting and plastering) that substantially alters the appearance of a building, and renovation, alteration or addition to a building. In addition there is a series of provisions in Part 8 of the Act that justify what would otherwise be trespasses on a registered place. Section 56 enables an authorised person to enter and inspect a place and objects there, and to take photographs of it or them. Hindering or obstructing such activities is an offence visited by a monetary penalty: s 57.  In addition, the Minister may under s 58 make a stop order prohibiting work or activity that may destroy or reduce "the cultural heritage significance" of a place. Contravention of such an order is an offence against the Act, which carries a maximum penalty of 17,000 units, as well as the potential of being prohibited from development of a place for a period of up to 10 years.
  1. All of these provisions are State laws relating to the occupancy or use, or the alteration or demolition, of a building that were excluded from applying to Hesketh House by s 33 of the AOTC Act. Mr Gore stressed that other provisions of the Heritage Act 1992 remained and were capable of applying to Hesketh House to the extent that they did not preclude "development" in the sense defined. Entry on the heritage register was, he submitted, capable of taking effect and of having consequences independently of the statutory prohibition on "development" of a registered place. The only example capable of being identified, however, was the provision in s 39 of the Heritage Act 1992. Section 39(1) enables the Minister to enter into a heritage agreement with the owner of a heritage place. Such an agreement may under s 40(1) contain a provision to promote the conservation of that place or the public appreciation of it; and, because it was dependent on agreement with the owner, it was, so the submission proceeded, capable of surviving the overriding operation ascribed by s 109 of the Constitution to s 33 of the AOTC Act in its application to Hesketh House. It is, however, difficult to see what, if anything, the legislation adds that could not, without those provisions, be achieved by agreement alone. Section 40(2) contains a series of further provisions restrictive of the use of a place that is subject to such an agreement, and makes it available for public inspection, and so on. A heritage agreement is by ss 39(3) and 39(4) made binding on the owner from time to time and on the occupier; and the Register of Titles is required to enter notification on a file kept for that purpose: s 41(2). But all of these provisions are dependent in the first place on agreement with the owner.  It is not easy to imagine why the AOTC would choose to enter into such an agreement which would only serve to stultify its freedom of action; but, if it did, s 33 of the AOTC Act would, to the extent that such an agreement derived legislative force from the State Act, override or displace its provisions. They would be laws relating to matters that, by virtue of that section, would not apply to that building.
  1. If there were any doubt about these conclusions, it seems to me that it is resolved by the decision of the High Court in A-G (NSW) v Stocks & Holdings and in Brisbane City Council v Group Projects Proprietary Limited (1979) 145 CLR 143. The attitude of the majority toward the planning scheme in the first of those cases has already been referred to. In the Group Projects case the question was whether the Brisbane Town Plan continued to apply to land after it was resumed by the Crown, on which the town planning ordinance did not operate. It was held that it did not apply. Wilson J, with whom Gibbs CJ and Mason J agreed, rejected a submission that the zonings in the Town Plan were capable of applying to land within the area of the city if the restrictions it imposed had no effect. His Honour said (145 CLR 143, 170):

"the truth is that neither the Act nor the Plan gives any legal effect to the fact of zoning save in terms of the restraints upon user that are imposed by reference to that zoning .. the mere zoning of such land is without any legal effect. To speak of Crown land being zoned under a Plan which has the force of law yet in respect of which no legal consequences arise is to speak of an abstraction, a meaningless fiction."

A similar conclusion must in my opinion be reached here. Denied legal effect by s 33 of the AOTC Act, the prohibition on "development" imposed by s 33 of the Heritage Act 1992 and the provisions of Part 8 of that Act were deprived of all significance. Nothing of consequence remained. What little survived of the Heritage Act 1992 was so different in substance and effect from what had been contemplated that it was incapable of operation as the Act which had been envisaged. Whatever it was, it could not validly apply to Hesketh House for as long as it remained, in terms of s 33 of the AOTC Act, the property of the AOTC.

  1. That state of affairs came to an end when Hesketh House was transferred to the Church in November 1994, and s 33 of the AOTC Act ceased to apply to it. The exclusion of State laws answering the description specified in s 33 thereupon ceased to apply. With s 33 out of the way, the provisions of the Heritage Act 1992 which, until then had merely been in suspension, were revived and applied in full force to Hesketh House. See Butler v Attorney-General (Victoria) (1961) 106 CLR 268. The problem is, however, that it is not possible now to put the clock back to the time when the provisions of the Heritage Act 1992, including the Schedule, came into force on 21 August 1992. The effect of cl 2(1) of the Schedule was that all buildings listed  in the Schedule of the Heritage Act 1990 were automatically entered on the heritage register. The entry under cl 2(1) was provisional only; but, unless under cl 2(2) the owner objected to the entry within 60 days after the commencement of that Act on 21 August 1992, that place was, pursuant to cl 2(3), entered permanently on the heritage register. Under cl 2(4), the Minister has power to extend the period of six months within which to refer such an objection to an assessor; but no power is given in the Schedule by which to extend the right to object. If, then, the provisions of the Heritage Act 1992, or the Schedule, did not apply to Hesketh House on 21 August 1992, it can make no difference that, on or after transfer to the Church in November 1994, those provisions once again commenced to apply to it.  By then, the provisions of the Schedule were spent. It was no longer possible for the Church, or anyone else who might have owned Hesketh House, to object to its entry on the heritage register. The period of 60 days limited by cl 2(2) had long since expired. With it went the other rights of reference to an assessor and appeal to the Planning and Environment Court conferred by the Act itself.
  1. Of course, if the Church chose to buy a building which had, by force of cl 2(1) of the Schedule, been entered on the heritage register without objection from the then existing owner, it may be said to be stuck with that result. But that is to miss both the point and essential purpose of the Schedule to the Heritage Act 1992. Its purpose was to confer on owners of heritage buildings an opportunity to object to the entry of their buildings on the heritage register. The former Act (the Heritage Act 1990) had afforded no such opportunity to the owners of buildings listed under that Act. If listed in the schedule of that Act, they were heritage-listed by force of that statute without regard for the requirements of natural justice of the kind to which effect was given in Cooper v Wandsworth District Board of Works (1863) 14 CBNS 180; 143 ER 414, and Delta Properties Pty Ltd v Brisbane City Council (1955) 95 CLR 11. An Act of State Parliament is, of course, competent to produce such a result without giving an owner an opportunity of being heard; that is, without extending natural justice to him or her. The Heritage Act 1992 was, however, from the first designed to be an interim measure lasting only until 10 March 1992 or, as later extended, 20 August 1992, after which the Heritage Act 1992 was intended to replace it. In the Schedule to the Heritage Act 1992, owners of buildings previously listed by the former Act were for the first time given, even if for only a limited duration, the right of objection that is now conferred by s 26 of the Heritage Act 1992 on owners of other buildings or places that might thereafter be registered under those provisions.
  1. The provisions of the Schedule to the Heritage Act 1992 creating a procedure for objection to heritage registration of a building occupy such a central place in the scheme of that Act that, if they did not apply to Hesketh House on 21 August 1992, I am persuaded that the provisions of the Schedule for provisional entry on the heritage register did not apply to that building at all. It is, after all, the only identifiable reason why buildings listed under the former Act should have been dealt with by that Schedule in the way they were. Otherwise they could and would simply have been entered on the heritage register without affording to the owner any opportunity for objection to the registration, or, alternatively, dealt with under s 26. In my opinion, the procedure contemplated in the Schedule was so fundamental to the operation of that element of the Heritage Act 1992 that, if for some reason it did not apply to a particular building, the provisions of that Act did not apply to it at all. The procedure for provisional entry, objection, reference to an assessor under the Act and appeal to the court were conditions precedent to the process of permanently entering an already listed building on the heritage register.
  1. The result in my opinion is that the provisions of the Heritage Act 1992 never applied to Hesketh House when those provisions otherwise came into force on 21 August 1992. They did not do so for one or more of three reasons. The first was that at that date Hesketh House was no longer "listed" in the schedule to the former Heritage Act 1990, with the consequence that the Schedule to the Heritage Act 1992 did not operate on it.  The second is that the effect of s 33 of the AOTC Act was such as to deprive the operative provisions of the Heritage Act 1992 of their  substantial force and effect. The third was that, by the time s 33 of the AOTC Act ceased to apply to Hesketh House upon its transfer to the Church in 1994, the procedure envisaged by the Schedule to the Heritage Act 1992 had long since ceased to be available. Bereft by the operation of s 33 of the AOTC Act of the opportunity to object to entry on the heritage register, the statutory procedure under that Schedule was in 1994 no longer capable of functioning according to its tenor. Because it was an essential element in the process of entering Hesketh House on the heritage register, its absence prevented the application of the Schedule to that building.
  1. The remaining question is whether the notice given by Rev Dr Elich certifying that the development (involving demolition of Hesketh House) is genuinely required for liturgical purposes "in relation to a church or the precincts of a church" within the meaning of s 33(2) of the Heritage Act 1992.  No challenge is now made to the efficacy of Dr Elich's certificate in so far as it concerns liturgical purposes.  The question is, however, whether those purposes are properly capable of being characterised as in relation to a church or to the precincts of a church.
  1. According to its dictionary meaning, a precinct is the area enclosed by the walls or other boundaries of a particular place or building, or by an imaginary line drawn around it. It has a particular association in use or meaning with the ground immediately surrounding a religious house or place of worship. In the case of St Stephen's Cathedral, there was at one time a wall on the Elizabeth Street side, which has since been removed to provide an open space on one side of the Cathedral. It, together with what little space there is on the Hesketh House side, can fairly be described as the Cathedral precinct.
  1. Dr Elich, in describing the liturgical uses for which the Hesketh House land is required, refers in his affidavit to occasions on which the liturgical books of the Roman Catholic Church require the liturgy to begin outside the church building itself. They include the blessing and procession of Palms on Passion Sunday and the Easter fire at the Holy Saturday Easter Vigil. On such occasions, up to 800 people congregate at a place outside the Cathedral from which to see and participate in the liturgy. The liturgy is sometimes also celebrated on a large scale because of the status of the Cathedral in the Roman Catholic life of Brisbane and of Queensland.  For these occasion, a large area is needed at the Cathedral site.  For processions of clergy and others a larger area is needed than is available in the present precinct. There can, I think, be little doubt that the area of Hesketh House is required for these and other purposes that are explained in the affidavit.
  1. That area is not, as matters stand, part of the Cathedral or church "precinct" at present. It appears to me, however, that "in relation to" the Cathedral or its precincts the proposed development is genuinely required for liturgical purposes in terms of s 33(2)(b) of the Heritage Act 1992. I agree with what the Chief Justice has said on this subject in his reasons for judgment. It follows in my opinion that the proposed "development" of Hesketh House envisaged by Dr Elich and the Church is one for which approval is, within the meaning of s 33(2) of the Act, not required.
  1. The appeal should be dismissed with costs.
  1. WILLIAMS J:  I have had the opportunity of reading the draft reasons prepared by both de Jersey CJ and McPherson JA and I agree generally with what each has said and in the conclusion reached that the appeal should be dismissed.  However, given the significance of the litigation, I wish to add some observations of my own.  I will not repeat facts which are fully set out in the other judgments.
  1. After Hesketh House (as it is now known) was occupied by the Postmaster- General’s Department during the Second World War in connection with the provision and development of telephone and telegraphic services, the building was acquired in 1949. At that point in time the Postmaster-General’s Department was a Department of the Commonwealth pursuant to the provisions of the Post and Telegraph Act 1901 as amended.  The Department had no separate corporate status and the Commonwealth became the registered proprietor of the land.  From then until 1970 Queensland State law would not have applied to that building; until 1970 by virtue of the operation of s 52(i) of the Constitution the Commonwealth Parliament had exclusive power to make laws with respect to that land and building because it was a place “acquired by the Commonwealth for public purposes”.
  1. That changed in 1970 on the enactment by the Commonwealth Parliament of the Commonwealth Places (Application of Laws) Act 1970 (the Places Act).  Section 4 of that Act made certain laws of the State of Queensland applicable to a “Commonwealth place”.  It was not suggested during argument that the outcome of this litigation is affected by any State law which may have been made applicable to Hesketh House between 1970 and 1991 by the passing of the Places Act.
  1. The Postmaster-General’s Department was abolished and relevantly replaced by the Australian Telecommunications Commission pursuant to the provisions of the Telecommunications Act 1975 and the Postal and Telecommunications Commission's (Transitional Provisions) Act 1975.  Section 29(1)(b) of the latter Act provided that on or as soon as practicable after the commencing day “the Minister shall transfer or cause to be transferred to the Australian Telecommunications Commission such of the assets owned by Australia and held or used in connexion with, or arising from, the undertakings of the Postmaster-General’s Department as are, in the opinion of the Minister, appropriate to be used by that Commission in connexion with the performance of its functions”.  The clear inference is that the land on which Hesketh House stands was then transferred pursuant to that provision to the Australian Telecommunications Commission.  By operation of s 21(3) of the former Act that Commission was “not subject to any requirement, obligation, liability, penalty or disability under a law of a State or Territory to which Australia is not subject”. I would interpret that provision as meaning that, if a State law would apply to the property in question if Australia was the owner, then the State law applied to the property though it was owned by the Australian Telecommunications Commission.  In broad terms that would mean that any State law which would apply to Commonwealth property by operation of the Places Act would apply to property owned by the Australian Telecommunications Commission.
  1. Those 1975 statutes were then replaced by the Telecommunications Act 1989 and the Australian Telecommunications Corporation Act 1989.  The latter Act constituted the Corporation known as Telecom.  The only statutory provision relevant for present purposes is s 96(1) of the latter Act which provided that “Telecom is not subject to any requirement, obligation, liability, penalty or disability under a law of a State or Territory to which the Commonwealth is not subject.”.  Again I interpret that provision as meaning that if the Places Act would make a State law applicable if the property was owned by the Commonwealth, then that State law would apply to property owned by Telecom.
  1. That was the position up to the enactment of the Australian and Overseas Telecommunications Corporation Act 1991 (the AOTC Act).  That was assented to on 26 June 1991 and the “succession date” for purposes of the Act was the day it commenced to operate by Proclamation, namely 1 February 1992.  Section 11 thereof provided:

“On the succession day:

  1. all property and rights of Telecom and OTC, wherever located, vest in AOTC; and
  1. all liabilities of Telecom and OTC, wherever located, become liabilities of AOTC; and
  1. AOTC becomes the successor in law of Telecom and OTC.”
  1. This litigation has been fought on the basis that ownership of Hesketh House passed from Telecom to AOTC pursuant to that vesting provision.
  1. Of importance for present purposes is s 26 of the AOTC Act which is in these terms:

“AOTC is taken for the purposes of the laws of the Commonwealth, of a State or of a Territory:

  1. not to have been incorporated or established for a public purpose or for a purpose of the Commonwealth; and
  1. not to be a public authority or an instrumentality or agency of the Crown; and
  1. not to be entitled to any immunity or privilege of the Commonwealth;

except so far as provision is made by this Act or any other law of the Commonwealth or by a law of a State or of a Territory, as the case may be.”

  1. It is immediately obvious that s 26 altered the position with respect to property owned by the bodies constituted pursuant to the statutes of 1975 and 1989.
  1. Another section of the AOTC Act which is at the heart of the present dispute is s 33; it is in these terms:

“A law of a State or Territory that relates to: 

  1. the standards applicable to:
  1. the design; or
  1. the manner of the construction;

of a building, structure or facility; or

  1. the approval of the construction of a building, structure or facility; or
  1. the occupancy, or use, of a building, structure or facility; or
  1. the alteration or demolition of a building, structure or facility;

does not apply to a building, structure or facility that is the property of AOTC if:

  1. the building, structure or facility was occupied or in use; or
  1. the construction, alteration or demolition of the building, structure or facility had commenced;

before the succession date.”

  1. Up to the succession date, 1 February 1992, Hesketh House was owned, occupied and used by Telecom and as and from that date by AOTC in the course of carrying out the functions delegated to those bodies by the Commonwealth statutes. The requirement of s 33(e) of the AOTC Act was therefore satisfied.
  1. In my view s 33 of the AOTC Act was a valid exercise of Commonwealth power; it was, in my view, clearly a valid exercise of power pursuant to ss 51(v) and (xxxix) of the Constitution.  On the coming into force of the AOTC Act the Places Act no longer applied to Hesketh House, at least to the extent that s 33 of the former Act applied.
  1. As has already been noted the evidence was not specific as to the changes in ownership of Hesketh House, but the litigation was conducted on the basis that it was property which vested in the AOTC pursuant to s 11 of the AOTC Act, and therefore s 33 of that Act applied to it.  They are, in my view, the critical facts for present purposes.
  1. The Places Act is an Act of general operation, and the Commonwealth Parliament had the power to limit the scope of its operation by passing specific legislation having that consequence.  Section 33 of the AOTC Act is a specific provision protecting property of the AOTC from the operation of certain State laws.
  1. The Queensland Heritage Act 1992 was assented to on 27 March 1992 and was proclaimed to commence on 21 August 1992.  It follows that Hesketh House was subject to the provisions of the AOTC Act at the time the Queensland Heritage Act came into force.
  1. The Queensland Parliament had passed the Heritage Buildings Protection Act 1990 as an interim measure designed to preserve heritage buildings; s 4 provided that unless sooner repealed the Act would expire on 10 March 1992.  A “heritage building” for purposes of that Act was a building described in the Schedule to the Act.  Hesketh House is to be found listed in the Schedule Part C.  Interestingly all the buildings in Part C appear to be buildings either owned by the Commonwealth or by an instrumentality constituted by a Commonwealth Act.  That 1990 Act was then superseded by the Queensland Heritage Act 1992.  Clause 2 of the Schedule to the 1992 Act provided that all buildings listed in the Schedule to the 1990 Act “are, on the commencement of this Act, to be taken to be places provisionally entered in the heritage register”. If the owner of any such place did not make an objection within 60 days after the commencement of the 1992 Act, the place was deemed to be entered on the heritage register on a permanent basis.  It is only if that statutory provision operated to place Hesketh House on the heritage register that s 33 of the 1992 Queensland Act would apply to it.
  1. Given that s 33 of the AOTC Act applied to Hesketh House over the operative period referred for cl 2 of the Schedule to the Queensland Heritage Act 1992 I am of the view that s 33 of the AOTC Act had the effect of preventing the Queensland Act from operating to place Hesketh House on the heritage register.
  1. There was, during the operative period, an inconsistency between s 33 of the AOTC Act and the basic provisions of the Queensland Act.  The Commonwealth Act specifically applied to Hesketh House, and to the extent of the inconsistency, by operation of s 109 of the Constitution, it prevailed.  The Queensland Act must, in my view, be construed as a State Act relating to the alteration or demolition of a building; therefore it is caught by s 33 of the Commonwealth Act.
  1. That remained the position until Hesketh House was acquired by the respondent Church in 1994. In my view that circumstance alone (that is, transfer of ownership from AOTC) does not have the consequence that Hesketh House is placed on the heritage register for purposes of the Queensland Heritage Act.  As noted above cl 2 of the Schedule to the Queensland Act refers to the place being registered permanently if no objection is made within 60 days of the Act commencing.  That provision did not apply to AOTC, the then owner, for the reasons stated above.  The Schedule cannot apply to the new owner, the respondent Church; it became the owner more than 60 days after the Act commenced.  On the change of ownership possibly steps could have been taken pursuant to s 24 of the Queensland Heritage Act to have Hesketh House placed on the register, but the respondent Church, as the owner, would then have had the right to object, and the matter could have gone on appeal pursuant to s 30.
  1. The only other issue is whether or not in some way the Queensland Heritage Act operated so that Hesketh House was contingently or in some inchoate way on the heritage register so that on ownership passing from AOTC the contingency was removed. In my view as a matter of statutory construction of cl 2 of the Schedule to the Queensland Heritage Act such an argument is untenable.
  1. But in any event I agree with McPherson JA that the situation is analogous to that considered by the High Court in Attorney-General for New South Wales v Stocks and Holdings (Constructors) Pty Ltd (1970 ) 124 CLR 262 and that, in accordance with the analysis by McPherson JA of the reasoning of the High Court, it could not be said that the Queensland Heritage Act 1992 operated to place Hesketh House on the heritage register or to make Hesketh House subject to its operation merely upon the respondent Church acquiring ownership in 1994.
  1. I also agree with the Chief Justice that in the particular circumstances of this case approval for the development proposal by the respondent was not required because s 33(2) of the Queensland Heritage Act 1992 applied.  Though I recognise the force of the reasoning of the learned trial judge, I agree with the Chief Justice that the provision in question should be construed broadly.  It would have been easy for the Legislature to say that approval is not required for development “on” the precincts of a Church; but it did not do so.  Rather the Legislature adopted the expression “in relation to a church or the precincts of a church”.  That must mean something more than development on the actual precincts of the Church.  The Chief Justice in his reasons refers to the wording used in s 40(2)(c) where a limited operation was intended.
  1. Whilst the proposed development is not development “on the precinct” it is clearly development “relating to the precinct” of the Church. I am therefore satisfied that the proposed development is within s 33(2) of the Queensland Heritage Act 1992.
  1. I agree with the orders proposed.
Close

Editorial Notes

  • Published Case Name:

    Queensland Heritage Council v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane

  • Shortened Case Name:

    Queensland Heritage Council v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane

  • Reported Citation:

    [2001] 2 Qd R 504

  • MNC:

    [2000] QCA 378

  • Court:

    QCA

  • Judge(s):

    de Jersey CJ, McPherson JA, Williams J

  • Date:

    15 Sep 2000

Litigation History

EventCitation or FileDateNotes
Primary JudgmentNA--
Appeal Determined (QCA)[2001] 2 Qd R 50415 Sep 2000-

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Attorney-General (N.S.W.) v Stocks and Holdings (Constructors) Pty Ltd (1970 ) 124 CLR 262
10 citations
Jump To
Cite 1 - (1970 ) 124 CLR 262
Cite 2 - (1970 ) 124 CLR 262
Cite 3 - (1970 ) 124 CLR 262
Cite 4 - (1970 ) 124 CLR 262
Cite 5 - (1970 ) 124 CLR 262
Cite 6 - (1970 ) 124 CLR 262
Cite 7 - (1970 ) 124 CLR 262
Cite 8 - (1970 ) 124 CLR 262
Cite 9 - (1970 ) 124 CLR 262
Cite 10 - (1970 ) 124 CLR 262
Australian National Airways Proprietary Limited v Commonwealth (1945) 71 CLR 29
2 citations
Jump To
Cite 1 - (1945) 71 CLR 29
Cite 2 - (1945) 71 CLR 29
Brisbane City Council v Group Projects Proprietary Limited (1979) 145 CLR 143
3 citations
Jump To
Cite 1 - (1979) 145 CLR 143
Cite 2 - (1979) 145 CLR 143
Cite 3 - (1979) 145 CLR 143
Butler v Attorney-General (Vic) (1961) 106 CLR 268
2 citations
Jump To
Cite 1 - (1961) 106 CLR 268
Cite 2 - (1961) 106 CLR 268
Cooper v Wandsworth Board of Works (1863) 14 C.B. (N.S.) 180
2 citations
Jump To
Cite 1 - (1863) 14 C.B. (N.S.) 180
Cite 2 - (1863) 14 C.B. (N.S.) 180
Cooper v Wandsworth District Board of Works (1863) 143 ER 414
2 citations
Jump To
Cite 1 - (1863) 143 ER 414
Cite 2 - (1863) 143 ER 414
Delta Properties Proprietary Limited v Brisbane City Council (1955) 95 CLR 11
2 citations
Jump To
Cite 1 - (1955) 95 CLR 11
Cite 2 - (1955) 95 CLR 11
Muntz v Smail (1970) 24 CLR 262
1 citation
Jump To
Cite 1 - (1970) 24 CLR 262
Wenn v Attorney-General ( Victoria ) (1948) 77 CLR 44
1 citation
Jump To
Cite 1 - (1948) 77 CLR 44
Wenn v Attorney-General (Vic.) (1948) 77 CLR 84
1 citation
Jump To
Cite 1 - (1948) 77 CLR 84

Cases Citing

Case NameFull CitationFrequency
Nimmo v Department of Natural Resources and Mines [2003] QLC 601 citation
Re Petroulias[2005] 1 Qd R 643; [2004] QCA 2614 citations
Townsville Port Authority v Registrar of Titles[2005] 1 Qd R 84; [2004] QCA 2947 citations
1

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