Baker v Department of Natural Resources & Mines
[2018] QCAT 375
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- Appeal Determined (QCA)
- Baker v Department of Natural Resources & Mines[2018] QCAT 375
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Baker v Department of Natural Resources & Mines[2018] QCAT 375
Baker v Department of Natural Resources & Mines[2018] QCAT 375
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Baker v Department of Natural Resources & Mines [2018] QCAT 375 |
PARTIES: | MICHAEL VINCENT BAKER (applicant) v DEPARTMENT OF NATURAL RESOURCES & MINES (respondent) |
APPLICATION NO/S: | GAR155-17 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 23 November 2018 |
HEARING DATE: | 25 January 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Justice Daubney, President |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicant had been convicted of a vegetation clearing offence – where the applicant was consequently issued with a restoration notice and new Property Map of Assessable Vegetation (PMAV) by an authorised delegate of the Chief Executive of the Department of Natural Resources and Mines pursuant to the Vegetation Management Act (VMA) – where applicant applied for internal review of that decision and was unsuccessful – where applicant applied to the Tribunal for external review of that decision – where interim application filed to address jurisdictional matters – where the applicant contends the Tribunal does not have jurisdiction on the basis that s 54B of the VMA required the Respondent to ‘reasonably believe’ a person has committed a vegetation clearing offence which does not extend to actual knowledge of a criminal conviction – where the applicant contends the Tribunal does not have jurisdiction on the basis that the Respondent’s decision to issue a new PMAV was defective as it should have been made under only one subsection of s 20B of the VMA Vegetation Management Act 1999 (Qld), s 20B, 20D, s 54B, s 60, s 63A, s 63B Commissioner of Police v Flanagan [2018] QCA 109 Electricity Trust of South Australia v Krone (Australia) (1994) 51 FCR 520 at 547; 123 ALR 202 Technique Pty Ltd & Ors (1994) 123 ALR 202 Federal Commissioner of Taxation v Industrial Equity Ltd & Anor (2000) 171 ALR 1 George v Rockett [1990] 170 CLR 104 Minister for Immigration and Ethnic Affairs v Baker (1997) 153 ALR 463 Prior v Mole (2017) 91 ALJR 441 |
APPEARANCES & REPRESENTATION: |
|
Applicant: | G R Allan, instructed by Marland Law |
Respondent: | P A Hastie QC, with G B Dann, instructed by Department of Natural Resources & Mines |
REASONS FOR DECISION
- [1]The principal proceeding before the Tribunal is an application by the applicant for external review, under s 63B of the Vegetation Management Act 1999 (Qld) (“VMA”), of certain decisions made by delegates of the Chief Executive (“the Chief Executive”) of the Department of Natural Resources & Mines (“the Department”).
- [2]By the present application, the applicant seeks to have several jurisdictional questions determined as preliminary issues. As will appear, determination of these issues involves statutory interpretation and no relevant factual dispute. There was no objection to these questions being determined in this way for the purpose of clarifying the application and the availability of relief in the principal proceeding.
Background
- [3]In August 2010, a Property Map of Assessable Vegetation (“PMAV”)[1] was made by the Department in respect of a property at Eidsvold, described as Lot 5 on Plan WK207, known as “Chess Park” (“the Property”).
- [4]In March 2011, the lease of the Property was transferred to the applicant. The Property was then converted to freehold tenure, and on 15 July 2011 the applicant became the registered proprietor of the estate in fee simple of the Property.
- [5]In November 2016, following prosecution for contravention of certain provisions of the Sustainable Planning Act 2009 (Qld), the applicant was convicted of numerous offences. Specifically, he was convicted of having carried out assessable development, namely the clearing of 332.7 hectares of remnant vegetation on the Property, without having an effective development permit for that development.
- [6]It was not in issue that the applicant was thereby convicted of a “vegetation clearing offence”, as that term is defined in the Schedule to the VMA.
- [7]Following that conviction, on 23 February 2017, Mr Stumer, an authorised delegate of the Chief Executive:
- (a)issued the applicant with a Restoration Notice pursuant to s 54B of the VMA, and
- (b)issued, under s 20B of the VMA, a new PMAV in respect of the Property, to replace the PMAV which had been issued in August 2010.
- (a)
- [8]The applicant sought internal review of each of those decisions, pursuant to Part IV Division 1 of the VMA. That internal review was conducted by Mr Horrocks, as delegate of the Chief Executive. In May 2017, Mr Horrocks issued his review decisions, by which he:
- (a)confirmed the decision made under s 20B to make the replacement PMAV in respect of the Property, and
- (b)amended Mr Stumer’s decision to issue a Restoration Notice by amending the requirements of the Restoration Notice and issuing an amended Restoration Notice.
- (a)
- [9]The applicant then applied to this Tribunal for review of Mr Horrocks’ review decisions and that is the principal proceeding before the Tribunal. The applicant also applied for a stay of both review decisions. In the course of filing written submissions in respect of the stay application, however, the applicant identified what he described as jurisdictional matters which needed to be decided as preliminary issues because they are “preliminary questions of law that affect or may affect the future exercise of the Tribunal’s review jurisdiction”.[2] Those questions were articulated in the applicant’s solicitor’s supporting affidavit as follows:
- (a)Whether the original decision purportedly made by Mr Paul Stumer on 23 February 2017 to issue Restoration Notice 2017/000798 under s 54B(1) of the Vegetation Management Act 1999 (VMA) was beyond power and is unlawful and invalid as section 54B(1) of the Vegetation Management Act 1999 does not apply in circumstances where, based on the fact that are not in dispute, the areas identified in the Restoration Notice:-
- (i)have been unlawfully cleared (as that expression is defined in the Schedule to the VMA); or
- (ii)have been cleared of native vegetation and, in relation to the clearing, a person has been found guilty by a Court.
- (b)Whether the Review decision that was purportedly made on 16 May 2017 by Mr Paul Horrocks under section 63A(1)(b)(ii) and section 54B(1) of the VMA to issue Amended Restoration Notice 2017/001535 was beyond power and is unlawful and invalid because section 54B(1) of the VMA does not apply in circumstances where, based on the facts that are not in dispute, the areas identified in the Amended Restoration Notice:
- (i)have been unlawfully cleared (as that expression is defined in the Schedule to the VMA); or
- (ii)have been cleared of native vegetation and, in relation to the clearing, a person has been found guilty by a Court.
- (c)If the answer to question ‘(2)(b)’ above is ‘Yes,’ whether in the exercise of its review jurisdiction under sections 19 and 20 of the QCAT Act, the Tribunal:-
- (i)does not have power under section 20(2) of the QCAT Act to hear and review the reviewable decision to issue the Amended Restoration Notice 2017/001535 by way of a fresh hearing on the merits (‘merits review’); and
- (ii)if the Tribunal decides that it does not have power to undertake a merits review, whether it does have power to set aside the review decision and substitute its own decision under s 24(1)(b) of the QCAT Act.
- (d)Whether, in respect of the Internal Review Decision purportedly made on 16 May 2017 by Mr Horrocks to confirm the original decision to issue the new PMAV 2017/000796 (made on 23 February 2017) relying on s 20B(1)(d) and s 20B(1)(e)(i) and s 20B(1)(g) of the VMA (Internal Review PMAV Decision) was unlawful but not invalid in circumstances where, on the facts not in dispute, the areas in the new PMAV had been ‘unlawfully cleared’ (as that expression is defined in the Schedule to the VMA).
- (e)In the alternative, whether the internal Review PMAV Decision was unlawful and invalid, to the extent that Mr Horrocks purported to rely on s 20B(1)(e) and s 20B(1)(g) in addition to s 20B(1)(d) in circumstances where, on the facts not in dispute, the areas in the new PMAV had been ‘unlawfully cleared’ (as that expression is defined in the Schedule to the VMA).
- (f)any further questions that potentially affect the exercise of the Tribunal’s review jurisdiction by reason of ‘(a) – (e)’ above that the Tribunal decides should also be determined.
- (a)
- [10]The arguments advanced by the applicant on the present application were summarised in the applicant’s consolidated written submissions (omitting footnotes and references):
- In summary, for the reasons set out in these submissions:-
a. it was not open to the original decision maker to give a restoration notice under s 54B(2) of the VMA because the power to give a restoration notice under that sub-section is not available to be exercised or is not enlivened where the precondition to the exercise of that discretionary power as prescribed in section 54B(1) of the VMA is not satisfied in circumstances where a person (as in the case of the applicant here) has been already convicted of a vegetation clearing offence; and
b. in turn, it was not open to the Respondent to issue the amended restoration notice because that decision also involved a purported exercise of power where the Respondent wrongly assumed:
- section 54B(1) applied that is, section 54B was properly enlivened in circumstances where the applicant had been convicted of a vegetation clearing offence; and
- accordingly, the amended restoration notice could be given under section 54B(2) of the VMA.
c. Accordingly, for the purposes of a review by the Tribunal of a review decision purportedly made to amend an original decision under s 54B(1) of the VMA, as it is the ‘reasonable belief’ of the Tribunal that is relevant and not that of the Review Decision maker or the original decision maker, there is no power available to the Tribunal to decide for itself under s 54B(1) that is, to form a ‘reasonable belief’ or otherwise that the amended restoration notice was lawfully issued and thus it is precluded from ‘hear[ing] and decid[ing] the review decision by way of fresh hearing on the merits.’ In turn, it is precluded from confirming or amending the decision under section 24(1)(a) of the QCAT Act.
d. It follows that in the exercise of its review jurisdiction, the jurisdiction of the Tribunal is limited to making a decision that by reason of the Respondent’s legal error in construing s 54B(1) of the VMA and resultant purported exercise of power to give the amended restoration notice under section 54B(2), that the review decision is set aside and declaring under section 60(1)(b) of the QCAT Act that the review decision and the original decision was unlawful and invalid as there was no power available to the original decision maker to give the restoration notice under section 54B(2) and in turn, the Respondent to issue the amended restoration notice.;
e. As to the limits on the Tribunal’s review jurisdiction to undertake a merits review in respect of the review decision to issue a new PMAV, by reason of the invalidity of the review decision to issue the restoration notice under section 54B(2) and the fact that the power given under section 20B(1)(g) to make a new PMAV based on a reasonable belief that a vegetation clearing offence has been committed is not enlivened where the area has been unlawfully cleared (s 20B(1)(d)) and that section 20B(1) expressly provides that any decision ‘make a PMAV’ be limited to only one of the factual circumstances provided for in each of subsection 20B(1)(a), (b), (c), (e)(i), (e)(ii), (f), (g)(i), (g)(ii), g(iii), (h) or (h)(i), the exercise of the Tribunal’s review jurisdiction is limited to deciding whether the internal review decision to issue the PMAV was lawful because the areas had been unlawfully cleared.
- [11]As became clear in argument, however, the applicant’s contentions turned on two points of statutory interpretation.
The s 54B argument
- [12]Section 54B of the VMA provides:
54B Restoration notice
- (1)This section applies if an official reasonably believes –
- (a)a person has committed a vegetation clearing offence, whether before or after the commencement of this section; and
- (b)the matter is capable of being rectified.
- (2)The official may give the person a notice (a restoration notice) requiring the person to rectify the matter.
- (3)The restoration notice must state –
- (a)that the official believes the person has committed a vegetation clearing offence; and
- (b)the vegetation clearing offence the official believes has been committed; and
- (c)briefly, how it is believed the offence has been committed; and
- (d)the matter the official believes is reasonably capable of being rectified; and
- (e)the reasonable steps the person must take to rectify the matter; and
- (f)the stated reasonable period in which the person must take the steps.
- (4)The restoration notice must be accompanied by or include an information notice about the decision to give the notice.
- (5)The person must comply with the restoration notice unless the person has a reasonable excuse.
Maximum penalty – 1665 penalty units.
- (6)In this section –
step includes any action or other measure the official believes is necessary to rectify the matter.
Examples –
- giving a proposed restoration plan under section 55AB(1) or making a request under section 55AB(3)
- setting objectives and timeframes for restoring the vegetation
- giving the chief executive a progress report about whether the steps taken within a particular period to rectify the matter have satisfied a stated objective
- [13]As noted above, it was not in issue that the applicant had committed a “vegetation clearing offence”. Nor was it in issue that both Mr Stumer and Mr Horrocks knew that the applicant had been convicted of having committed a vegetation clearing offence at the time they made their respective decisions.
- [14]The applicant, however, pointed to the introductory words of s 54B(1) which, relevantly, call for the person making the decision to reasonably believe that the applicant had committed a vegetation clearing offence, and argued that the requirement to hold a reasonable belief in the offence having been committed did not extend to include actual knowledge of a criminal conviction for having committed the offence.[3]
- [15]The phrase “reasonably believes” is defined in the Schedule to the VMA to mean “believes on grounds that are reasonable in the circumstances”.
- [16]The applicant’s argument was, in effect, that “reasonable belief” was a jurisdictional fact which founded the power to make a decision under s 54B, that in the absence of that necessary “reasonable belief” there was no decision which could have been the subject of internal review, and that consequently there is no decision which can be the subject of external review by this Tribunal.
- [17]These arguments cannot be accepted for several reasons.
- [18]First, the applicant’s argument proceeded in reliance on cases such as George v Rockett[4] and Prior v Mole[5], which explained the difference between having reasonable grounds for suspicion of a fact and reasonable grounds for belief in a fact. As Philippides JA recently explained in Commissioner of Police v Flanagan[6]:
… there is a different intellectual threshold to be met depending on whether a reasonable suspicion or a reasonable belief is required as a condition precedent for the exercise of a power. Suspicion and belief are both concerned with a state of mind as to the existence of things, reached without actual proof.
- [19]The applicant sought to draw a distinction between suspicion and belief, on the one hand, and actual knowledge, on the other, and argued that if Parliament had intended that an official could issue a restoration notice under s 54B after a conviction for a criminal offence, it could have expressly provided for that in the legislation, and the fact that Parliament did not so legislate “compels the conclusion that the section is not enlivened where, as in the present case, there have been criminal proceedings and a conviction for a vegetation clearing offence”.[7]
- [20]The applicant’s argument is, however, epistemologically flawed. There is no issue, and the applicant’s own argument proceeded on the basis, that the decision makers had actual knowledge of the applicant having been convicted of having committed a vegetation clearing offence. What the applicant’s argument misses is that knowledge of the fact of the conviction is, in itself, apt to induce the subject belief that the person committed a vegetation clearing offence. Moreover, the fact of the conviction in itself provides a reasonable ground for the holding of the belief that the applicant committed a vegetation clearing offence.
- [21]Secondly, on the face of the uncontested and uncontroversial evidence before me, it cannot be accepted for the purposes of the sort of summary determination which the applicant now seeks, that either decision maker proceeded under s 54B only on the basis of having a reasonable belief derived from nothing more than the fact of the conviction. In that regard:
- (a)Mr Stumer’s statement of reasons for making the decision under s 54B included the following:
- (a)
Facts and reasons for belief
Below are the details of the vegetation clearing offences that I believe you have committed:
- a)You have carried out, or did direct the carrying out of, the clearing of native vegetation on the property (‘the conduct’) between 7 May 2011 and 13 March 2014; and
- b)The conduct constituted assessable development under the Sustainable Planning Act 2009 (‘the SPA’), described as ‘Operational work that is the clearing of native vegetation on freehold land’, and
- c)You did not have an effective development permit for the development; and
- d)The development was not compliant with any of the exemptions in the SPA or the Sustainable Planning Regulation 2009 (‘the SPR’) and was not development that was carried out in compliance with any of the applicable self-assessable vegetation clearing codes under the Vegetation Management Act 1999 (‘the VMA’).
Evidence relied upon to form belief
The evidence relied upon to form my belief is:
- e)Evidence obtained by the department during the investigation of vegetation clearing at the property (CIRaM 01085-2012) between 6 May 2011 and 13 March 2014; and
- f)The findings of Her Honour Magistrate Hall at the Brisbane Magistrates Court on 24 November 2016 in [2016] QMC in relation to each of 39 contraventions of s.578 of the SPA for unlawfully clearing native vegetation at the property contained in Complaint Numbers MAG00257654/13(3) and MAG 00136164/14(7). True copies of each of the Complaints, the maps A, A1 to A3 (excluding, B, B1 to B3 (contained within exhibit 17) which show each of the 39 charged areas and the Magistrate’s findings are attached to this notice. It is noted that charges 32 and 33 (which relate to the successful Forestry Act 1959 prosecution against you) on maps A and A3 are excluded from this notice.
- (b)The reasons accompanying the Amended Restoration Notice issued by Mr Horrocks included the following:
Facts and reasons for belief
Below are the details of the vegetation clearing offences that I believe you have committed:
- a)You have carried out, or did direct the carrying out of, the clearing of native vegetation on the property (‘the conduct’) between 7 May 2011 and 3 August 2013; and
- b)The conduct constituted assessable development under the Sustainable Planning Act 2009 (‘the SPA’), described as ‘Operational work that is the clearing of native vegetation on freehold land’; and
- c)You did not have an effective development permit for the development; and
- d)The development was not compliant with any of the exemptions in the SPA or the Sustainable Planning Regulation 2009 (‘the SPR’) and was not development that was carried out in compliance with any of the applicable self-assessable vegetation clearing codes under the Vegetation Management Act 1999 (‘the VMA’).
Evidence relied upon to form belief
The evidence relied upon to form my belief is:
- Evidence from investigation into clearing on The Property (CIRaM case 01085-2012) and DNRM’s Court Brief of Evidence (CIRaM cases 1085-2012 and 00082-2013 including:
- Remote sensing assessments, 22 September 2013 and 19 March 2014, prepared by Bruce Goulevitch, Principal Scientist, Department of Science, Information Technology, Innovation and the Arts
- Current and historic title documents and deed of grant for Lot 5 on Plan WK207
- Field inspection reports and witness statements associated with the investigation
- Stop work notice (01085-2012) dated 2 December 2013
- Smith vs Baker (2016) QMC, MAG-00257654/13(3), Magistrate E.A. Hall, 24 November 2016 and associated expert reports:
- Bushfire Management Assessment – The Property, expert report dated 5 September 2015 and supplementary report dated 4 February 2016 to the court, Cuong Tran
- Vegetation clearing impact assessment and restoration recommendations, Mr H.A. Dillewaard, 8 December 2016
- (c)In the formal statement of reasons for Mr Horrocks’ decision on the internal review, he said:
REASONS FOR REVIEW DECISION
Commission of a vegetation clearing offence after the commencement of this section
- The reasons I hold a reasonable belief that Mr Baker committed a vegetation clearing offence, that is, Mr Baker carried out assessable development without an effective development permit for the development, are as follows:
Information obtained by DNRM
- (a)Mr Baker was the owner of The Property at the time the vegetation was cleared at The Property between 7 May 2011 and 3 August 2013.
- (b)Exemptions to maintain existing infrastructure were provided for and removed from the restoration area.
- (c)The clearing was in excess of that permitted under an exemption.
- (d)Satellite imagery analysis confirmed the extent of the clearing and that the clearing occurred between 7 May 2011 and 3 August 2013.
- (e)The vegetation was mapped as remnant vegetation at the time of the clearing and constituted operational works within the meaning of section 10(1)(f) of SPA.
- (f)With respect to remaining relevant exemptions under Schedule 24 of SPR, at the time of the clearing a landholder could clear for purposes such as:
a. Establishing necessary firebreaks to protect infrastructure other than a fence, road or vehicular track if the maximum width of the firebreak is 1.5 times the height of the tallest vegetation adjacent to the infrastructure or 20 metres, whichever is the greater.
b. Establishing necessary fire management line if the maximum width of the clearing is 10 metres.
c. By fire under the Fire Services Act 1990 to reduce hazardous fuel load.
d. Necessary to remove or reduce the imminent risk that vegetation poses of serous personal injury or damage to infrastructure.
- (g)The Clearing Area was greater in extent that (sic) that permitted by the exemptions.
- (h)Clearing could also have occurred for a native forest practice where DNRM must be notified of the activity and the clearing was undertaken in accordance with the Native Forest Practice Code
- (i)DNRM did not receive any notifications from Mr Baker, or on his behalf, to carry out clearing work under the Native Forest Practice Code or area management plan between 7 May 2011 and 3 August 2013.
- (j)As the clearing did not meet an exemption under schedule 24 of SPR it is considered assessable development.
- (k)Assessable development that involves operational works (the clearing of native vegetation) requires a development approval under SPA.
- (l)No appropriate development permit was issued for The Property or to Mr Baker to carry out this work.
Conviction of vegetation clearing offences
- (a)On 24 November 2016 Mr Baker was convicted of a vegetation clearing offence, namely contravening section 578(1) of the SPA, by Her Honour magistrate Hall in the Brisbane Magistrates Court. The conviction is currently on appeal under section 222 of the Justices Act 1886.
- (b)Her Honour found that:
- (i)Mr Baker was the owner of The Property at the time of the offence and continues to be the owner of the land.
- (ii)The offence occurred on The Property between 6 May 2011 and 13 March 2014 (charges 2 and 4);
- (iii)The clearing was not in accordance with any exemption;
- (iv)The clearing was considered assessable development under the SPA; and
- (v)The clearing was done without a development permit.
- [22]Each of Mr Stumer’s and Mr Horrocks’ decisions prima facie identified matters in addition to the fact of the applicant’s conviction which gave rise to the reasonable belief which each said he held. The applicant’s present argument, however, is founded on an assumption that each decision maker proceeded under s 54B with nothing more than actual knowledge of the conviction. On the face of the documents, that assumption cannot be maintained.
The s 20B argument
- [23]Section 20B of the VMA provides:
20B When chief executive may make PMAV
- (1)The chief executive may make a PMAV for an area if –
- (a)the area becomes a declared area; or
- (b)the area becomes an offset area; or
- (c)the area becomes an exchange area; or
- (d)the area has been unlawfully cleared; or
- (e)the area is subject to –
- (i)a restoration notice; or
- (ii)an enforcement notice under the Planning Act containing conditions about restoration of vegetation; or
- (f)the area has been cleared of native vegetation and in relation to the clearing a person has been found guilty by a court, whether or not a conviction has been recorded, of a clearing offence; or
- (g)the chief executive reasonably believes –
- (i)a person has committed a vegetation clearing offence in relation to the area, whether before or after the commencement of this section, or a vegetation clearing offence is being committed in relation to the area; or
- (ii)the area was cleared of vegetation in contravention of a tree clearing provision under the Land Act 1994 as in force before the commencement of the Vegetation Management and Other Legislation Amendment Act 2004, section 3; or
- (iii)prohibited development under the repealed Moratorium Act, part 5 was carried out in relation to the area; or
- (h)the area is a Land Act tenure that is to be converted under the Land Act 1994 to another form of tenure; or
- (i)the chief executive reasonably believes there is an error in the part of the regulated vegetation management map for the area.
- (2)The chief executive must give each owner of land to be included in the PMAV an information notice about the decision to make the PMAV.”
- [24]In the Information Notice which Mr Stumer gave in February 2017 with the replacement PMAV over the Property, he identified that:
- (a)the area had been unlawfully cleared, and invoked s 20B(1)(d);
- (b)the area was subject to a restoration notice, and invoked s 20B(1)(e)(i); and
- (c)a person had committed a vegetation clearing offence in relation to the area, and invoked s 20B(1)(g)(i).[8]
- (a)
- [25]In the reasons for his review decision, Mr Horrocks referred to and relied on the same matters and invoked the same subsections of s 20B(1).
- [26]The applicant’s present argument was that the power to issue a PMAV under s 20B(1):
… is clearly confined to making a PMAV under only one of the subsections in s 20B. That is plain from the use of the disjunctive ‘or’ following each of the subsections. Section 20B(1) does not say, by way of example, that ‘… the chief executive may make a PMAV for an area if the area is an area falling within one or more of the following areas.’[9]
- [27]The applicant contended that the defective decision to issue the new PMAV under s 20B(1)(d), (e) and (g) would not invalidate the original decision (and hence the review decision) if the decision could be supported under another statutory power, and said that the decision makers were entitled, in this case, to rely only on s 20B(1)(d), which in turn have enabled the issuing of a replacement PMAV under s 20D(3)(a) of the VMA.
- [28]The applicant acknowledged that, even on his argument, the Tribunal was not completely deprived of the power to exercise its review jurisdiction by a hearing on the merits to produce the correct and preferable decision, but argued that it was not open to the decision maker to rely on what the applicant argued was an invalidly issued Restoration Notice and, for similar reasons, could not rely on s 20B(1)(g)(i). I observe in passing that I have effectively rejected both of these arguments above.
- [29]
It follows that the extent of the Tribunal’s review jurisdiction is similarly confined and it is not open to the Tribunal to ‘stand in the shoes’ of the review decision maker to the extent that the internal review decision to issue the new PMAV was based on both s 20B(1)(e)(i) and s 20B(1)(g)(i) of the VMA.
- [30]The applicant’s argument is premised on the assertion that the word “or” after each of the subsections in s 20B(1) is to be read as strictly disjunctive.
- [31]
[19] Ordinarily the word ‘or’ where used in a statute will be disjunctive. But whether this is the case will depend upon the context in which the word appears, context including for this purpose the legislative intention. Examples of cases where the word ‘or’ was held not to be disjunctive include Unity APA Ltd v Humes Ltd (No 2) [1987] VR 474 at 481 and Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194-5; 153 ALR 463. As the latter case indicates, the work ‘or’ may, in an appropriate context mean ‘or as well’. In a case such as the present, if the context requires it the word ‘or’ could signify ‘and/or’. The issue is whether when a statute refers to A or B the statute is referring to, on the one hand, A or B or both or merely A or B but not both on the other.
- [32]In Minister for Immigration and Ethnic Affairs v Baker[13], the Full Federal Court had occasion to consider s 501(2)(a) of the Migration Act 1958 (Cth), which empowered the relevant Minister to refuse, inter alia, to grant a visa to a person if the Minister, having regard to (i) the person’s past criminal conduct or (ii) the person’s general conduct, was satisfied that the person was not of good character. The trial judge held that the question under this legislation of whether a person was not of good character was “anchored on one of the matters mentioned” in (i) and (ii).
- [33]On appeal, the Full Federal Court held that the word “or”, in the particular context, should not be read as strictly disjunctive. The Court said[14]:
An obligation, in a statute, to have regard to specified matters when making an administrative decision may have the effect of requiring the administrator ‘to take [the specified matters] into account and to give weight to them as a fundamental element in making his determination’, but not to make it by reference to them exclusively: R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329; 25 ALR 497; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 623. If each of the types of conduct mentioned in s 501 was thus regarded by the legislature as of fundamental importance, but at the same time as not excluding other considerations, it is impossible to imagine that either was regarded as excluding the other. Both were fundamental. It follows that the word ‘or’ should not be read as strictly disjunctive, but as a kind of hybrid of disjunctive and conjunctive, equivalent to ‘or, or as well’, conveying the meaning that the decision may be reached having regard to either or both of the kinds of conduct referred to. A very similar meaning was given to the word ‘and’ in Beneficial Finance Corp v Commissioner of Australian Federal Police (1991) 31 FCR 523 at 530-1; 103 ALR 167 in the judgment of Burchett J with whom Sheppard J agreed, although Pincus J (at FCR 526) expressed a different view on this point. Authorities were cited (at FCR 530) to justify the alteration of ‘and’ or ‘or’, where the context requires, to correct what may fairly be described as ‘nothing more than a faultiness of expression’. Particularly relevant to the present case is also the decision in RF Brown and Co Ltd v T and J Harrison (1927) 43 TLR 394, affirmed under the same name by the Court of Appeal, (1927) 43 TLR 633. On the appeal in that case, Atkin LJ said (at 639):
I disagree with the learned judge in his view that the word “or’ can never have a conjunctive sense. I think it quite commonly and grammatically can have a conjunctive sense. It is generally disjunctive, but it may be plain from the collocation of the words that it is meant in a conjunctive sense, and certainly where the use of the word as a disjunctive leads to repugnance or absurdity it is quite right within the ordinary principles of construction adopted by the court to give the word a conjunctive use.
See too Unity APA Ltd v Humes Ltd (No 2) [1987] VR 474 at 481-2; Ormerod v Blaslow (1989) 52 SASR 263 at 269 et seq; Electricity Trust of South Australia v Krone (Australia) Technique Pty Ltd (1994) 51 FCR 520 at 547; 123 ALR 202.”
- [34]In my view, each of the subclauses of s 20B(1) of the VMA is intended to identify a circumstance which enlivens the Chief Executive’s discretion to make a PMAV for an area. Reading s 20B as a whole, it is equally clear to me that the purpose of conferring the power to make a PMAV in the identified circumstances would be defeated if the word “or” after each of the subsections was read strictly disjunctively. It is obviously possible (as the circumstances of this case would, on their face, exemplify) for an area to be covered by more than one of the subsections, and there seems to me to be no good reason to compel the Chief Executive to be limited to selecting only one of those subsections as the source of his power. The subsections should be read as alternatives, but not as mutually exclusive alternatives.[15]
- [35]On that interpretation of s 20B, and having rejected above the applicant’s arguments about the Chief Executive (or his delegates) not having a reasonable belief that the applicant had committed a vegetation clearing offence, I reject the applicant’s ultimate argument that “the exercise of the Tribunal’s review jurisdiction is limited to deciding whether the internal review decision to issue the PMAV was lawful because the areas had been unlawfully cleared”.
Conclusion
- [36]For these reasons, I would answer the preliminary questions identified at paragraph [9] above as follows:
- (a)No.
- (b)No.
- (c)Not necessary to answer.
- (d)No.
- (e)No.
- (f)Not necessary to answer.
- (a)
- [37]The parties were agreed that the name of the respondent needed to be corrected. Accordingly, the Tribunal’s decisions are as follows:
- The name of the respondent is amended to “Chief Executive, Department of Natural Resources and Mines”;
- The application for miscellaneous matters filed 12 October 2017 is otherwise dismissed.
Footnotes
[1] As defined in s 20AK of the VMA.
[2] Affidavit of T H Allan filed 12 October 2017.
[3] Applicant’s consolidated outline of submissions, para 37.
[4] [1990] 170 CLR 104.
[5] (2017) 91 ALJR 441.
[6] [2018] QCA 109 at [45].
[7] Applicant’s consolidated written submissions, para 43.
[8] Misidentified in the Information Notice as s 20B(g)(i).
[9] Applicant’s consolidated submissions, para 19; emphasis and underlining as in the original submissions.
[10] Applicant’s consolidated submissions, para 33.
[11] (2000) 171 ALR 1.
[12] At [19].
[13] (1997) 153 ALR 463.
[14] At 469-470.
[15] See Electricity Trust of South Australia v Krone (Australia) Technique Pty Ltd & Ors (1994) 123 ALR 202 at 208.