43) CATCHWORDS BOUNTIES - Book bounty - Ineligibility for bounty of "a directory, guide or timetable . . . relating, in whole or in substantial part, to Australia or a place or places in Australia" - Whether the National Trust Register and Map Supplement constitute such a "directorv" or "guide" - Relevance of objects of respondent - Relevance of stated purpose of publications - Appeal from Administrative Appeals Tribunal - Appropriate order for Court. Bounty (Books) Act 1969 s.3A Administrative Appeals Tribunal Act s.44 THE MINISTER FOR INDUSTRY AND COMMERCE V NATIONAL TRUST OF AUSTRALIA (NSW) G.194 OF 1984 WILCOX J 14 DECEMBER 1984 SYDNEY IN THE FEDERAL COURT OF AUSTRALTA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION No. G.194 of 1984 BETWEEN : THE MINISTER FOR INDUSTRY AND COMMERCE Applicant AND: NATIONAL TRUST OF AUSTRALTA (NSW) Respondent ORDERS CORAM WILCOX J DATE 14 DECEMBER 1984 PLACE SYDNEY THE COURT ORDERS THAT 1. The appeal be dismissed. 2. The applicant pay to the respondent its costs of the appeal. 3. Direct that the exhibits be returned if no appeal 1s filed within twenty-one (21) days of this date. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G.194 of 1984 GENERAL DIVISTON BETWEEN : THE MINISTER FOR INDUSTRY AND COMMERCE Applicant AND: NATIONAL TRUST OF AUSTRALIA (NSW) Respondent REASONS FOR JUDGMENT CORAM WILCOX J DATE 14 DECEMBER 1984 PLACE SYDNEY The Bountv (Books) Act 1969 provides for the payment by the Commonwealth of bounties upon the production of Australian books. In order to qualify for a bounty a book must be fully produced in Australia and at premises registered by the Minister for the purposes of the Act. The book must not be a book of a type specifically excluded under s.3A or s.8 of the Act. During 1982 the respondent, an organisation constituted as a body corporate by s.3 of The National Trust of Australia (New South Wales) Act (NSW) 1960, published two books: the National Trust Register (as at 1 January 1982) - 2000 copies - and the National Trust Reqister (as at 1 January 1982) Map Supplement - 1000 copies. Both books were fully produced at 2. premises registered under the Bounty (Books) Act. Applications were made to the Minister for payment of bounties but those applications were unsuccessful. The Minister decided that the books were ineligible for bounties because of the terms of s.3A(1)(c) of the Act. That provision reads: "3A(1) Bounty is not payable in respect of - (c) a book that is a directory, quide or timetable or similar publication relating, in whole or in substantial part, to Australia or a place or places aun Australia;" The National Trust appealed to the Administrative Appeals Tribunal against the Minister's decisions. The Tribunal, by majority, upheld the appeal, set aside the Minister's decisions and, in substitution for those decisions, decided to approve the payment of book bounty in respect of each of the two books. Pursuant to s.44 of the Administrative Appeals Tribunal Act the Minister now appeals to this Court, contending that the Tribunal erred in law in its decision. The subject National Trust Register may be described as the fourth edition of this publication; previous similar Registers having been published in the vears 1967, 1973 and 1978. The content of the editions has varied not only in relation to the properties listed but also in respect of the grading system adopted; the Trust has reduced its categories from an original four grades of classification to two qrades and, in the subject Register, to a single grade. The purpose of listing - which has 3. remained constant throughout - was described in the Foreword to the 1982 Register 1n these terms: "Having assumed increased responsibility for the protection of the community's environmental heritage in recent vears, all three levels of government in New South Wales require a constant flow of information from the community to help establish conservation priorities. Which particular places (be they landscapes, townscapes, buildings or sites) should be retained for the community's education and lasting enjoyment? Public opinion is an important factor to be taken unto account. Quite apart from government agencies, others in the community have an interest in the environmental heritage. Important amona these are the owners of private property who may or may not be aware of the significance of places directly in their control. Also interested, however, are vast numbers of people, from teachers to tourists, who seek to explore the community's natural environment and the man-made evidence of the community's past endeavours, As a community organisation dedicated to the conservation of Australia's heritage, The National Trust of Australia (NSW) has heen working for many years on the task of identifying and documenting significant places in this State. The task of inspecting, researching and assessing places for classification in the Trust Register 18 carried out in a voluntary capacity by the Trust's Landscape Conservation, Urban Conservation, Historic Buildings, Industrial Archaeology and Cemeteries Committees, with the assistance of research staff. Recommendations from these committees are considered by the Trust Council which makes the final decisions on what places will be classified. The inclusion of a place in the Register does not have any legal effect, but it is widely recognised as an authoritative statement on the significance of the place." The Foreword explained that all places included on the list in the Reqister "are considered by the Trust to have aesthetic, scientific or social significance or other special value for future generations, as well as for the present community". Upon the following page, in the Introduction, this explanation is expanded: "Purpose of classification The National Trust Register identifies places and items which. in the Trust's opinion, form part of the National Estate. The purpose of the Register is to alert responsible authorities, property owners and the public so that those concerned may adopt measures to preserve the special qualities which prompted the classification. The Trust Council, when it approves a Committee recommendation for a new classification, adopts a written report which describes the special qualities of the classified place or item. These reports, once adopted by the Council, are available for public inspection." The Reqister contains a list of classified areas and properties. Areas are qenerally described by reference to streets. Many properties are identified by reference to street name and number; some, particularly in the country, are not. An ° example, mentioned before the Tribunal, is the list of properties fronting the Great Western Highway at Bowerfels. This includes, without further information: "Cooerwull and out buildings", "former National School", "former Emu Store", "the Royal Hotel", "Somerset House", and "Sweet Briar". Photographs of some areas and properties are contained in the book but there is no descriptive material or comment relating to the vast majority of them. The book contains maps of the regions and local government areas comprised within the State and a diagrammatic map of the City of Sydney but none of these maps show the location of listed areas or properties. In order to find those areas or properties one would need e1lther existing knowledge of the relevant locality or information from some other sources, oral or documentary. The second book, the Register Map Supplement, as its name suggests, was intended to complement the Register. It contains maps of various Urban and Landscape Conservation Areas - as distinct from individual properties - included in the Register. The maps vary in style and content. Some are sufficiently detailed to allow a person, who has found a particular area in the first place, readily to find his or her way around it. Others would require a visitor to use additional information. The purpose of the maps is, however, constant: to identify the relevant area more precisely than would be possible by a purely verbal description. As with the Register itself, some areas are illustrated by photographs but most lack descriptive material other than such as is furnished by the map itself. - Counsel for the Minister contends that the majority of the Tribunal, Miss C E Backhouse (Senior Member) and Mr I Prowse (Member), erred in law in two respects: they took into account extraneous matters, namely the objects of the National Trust and the purpose intended to be served by the publications, and they erroneously failed to hold that each of the publications was, within the meaning of s.3A(l)(c), a "directory" or a "quide". The objects of the National Trust are set out in s.4 of 1€s constituting Act. They include: "(a) to acquire, control, maintain, protect and preserve for the benefit of the public generally lands, buildings. works, structures and articles, of beauty or of national, historical, antiquarian, scientific, artistic, architectural or cultural interest {including aboriginal relics, aboriginal rock carvings and aboriginal rock paintings and archaeological sites); (b) (c) to encourage and promote, by any means whatsoever, public appreciation, knowledge and enjoyment of, respect for, and interest in, any lands, buildings, works, structures or articles, referred to in paragraph (a);" The majority of the Tribunal found that the purpose of the publications was that stated in the Introduction to the Register, which I have already quoted, namely "to alert responsible authorities, properly owners and the public so that those concerned may adopt measures to preserve the special qualities which prompted the classification of the places and items by the National Trust". They expressed their conclusion in this way: "We have concluded that, taking into account the objects of the National Trust and the purpose of the Register and Map Supplement, these two publications are not a directory, guide, a timetable or similar publication of the kind envisaged by Section 3A (1) (c). In coming to this conclusion, we have been mindful that the Register and Map Supplement do not, and are not intended to direct or quide a person to someone or some place. Such addresses as are given are sometimes insufficient to establish the precise locality of a building or place without further enquiry of the National Trust Office. Furthermore, we have noted the warning in the Register that many of the buildings and other places included therein are privately owned and that their inclusion must not be interpreted as allowing any right of access to the public. Such a warning note would not, we believe, fit in with what is ordinarily accepted as a quide or directory." No distinction was drawn, either before the Tribunal or in this Court, between the two publications. It was accepted by both parties that the bounty was payable in respect of both books or neither of them. Furthermore, the only argued basis of ineligibility was that upon which the original refusal was based: that each of the books was a "directory" or a "guide". That was the ultimate question for the Tribunal. It was a question the determination of which could not, in my view, be assisted by a consideration of the objects of the National Trust. Those objects may have provided the motivation for the publication - a commercial organisation may not have been interested in publishing such documents - but the relevant question is whether the documents meet the statutory description. If the content of the documents remains constant, a variation in the identify, or the objects, of the publisher cannot affect the answer to that question. If the passage from their reasons which I have quoted 1s properly to be interpreted as indicating that the majority had regard to the objects of the respondent as a factor in their categorization of the documents, as distinct from providing the factual background to the publication of the books, the majority, in my respectful view, fell into error. However, for reasons which I will mention, it is not necessary to determine whether that passage should be so construed. In relation to the purpose of publication I see no error in the approach taken by the majority. The classification of books into categories such as "guide,", "directory", and "timetable" is a classification in terms of iantended function. It is not necessary to determine whether extrinsic evidence of intention is relevant; clearly the book itself may be considered in determining the function which 1t was desiqned to serve. In some cases, such as a telephone directory or railway timetable, the intended function will be so obvious that explication is unnecessary. In less familiar cases, the publisher might find it useful to explain to readers why the document has been published and how it might usefully be used. Although a tribunal of fact, considering purpose, is not bound by such an explanation, in the sense that it may conclude that the claimed purpose is contradicted by the substance of the document, it must be entitled to take such an explanation into account. The explanation is part of the document to be classified. In the present case, the findings as to purpose made by the majority are derived entirely from the documents themselves; so that there is no question, in relation to purpose, of the majority having taken into account an extraneous consideration. Section 44(4) of the Administrative Appeals Tribunal Act requires this Court, in determining an appeal under the section, to "make such order as it thinks appropriate by reason of its decision". Counsel agreed that if the majority of the Tribunal had erred in taking into account an extraneous matter but, putting that matter aside, the Tribunal was nonetheless bound as a matter of law to uphold the appeal to it, no qood purpose would be served in remitting the matter to the Tribunal; the present appeal should simply be dismissed. The question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law: see per Mason J in Hope v Bathurst City Council (1980) 144 CLR 1 at p 7 and cases cited therein. In the present case the relevant facts are the contents of the two subject publications. Those facts are not susceptible of dispute. The ultimate question for the Tribunal was a question of law: 10. whether those publications, having regard to their contents, fall within the statutory description as a "directory" or a "guide". If that question be answered affirmatively, the present appeal should be allowed and an order made that the appeal to the Tribunal be dismissed; if negatively, the present appeal should be dismissed. Neither "directory" nor "guide" is defined in the Act. Counsel referred to dictionary definitions. The Oxford English Dictionary defines "directory" to include: "1. Something that serves to direct; esp. a book of rules or directions ... 3. A book containing one or more alphabetical lists of the inhabitants of any locality, or of classes of them, with their addresses and occupations". The Macquarie Dictionarv definition is substantially the same. The noun "quide", according to the Oxford English Dictionary, includes: "l. One who leads or shows the way, esp. toa traveller in a strange country .. . 3. One who directs another 1n his ways or conduct . . 4. In the titles of books: a. A book of elementary instruction or information b. A guide book." il. Once again the Macquarie definition is similar but that dictionary adds a definition of "guidebook" - "a book of directions and information for travellers, tourists, etc". Counsel for the appellant points out that one of the declared purposes of the subject publications was to influence attitudes to the conservation of listed properties; in other words to affect the "ways or conduct" of relevant authorities and individuals. That purpose, he says, brings the books within the dictionary definitions of both 'directory' and ''quide'. As an exercise in the literal application of the dictionary definition this is so; on the same argument the words would include a book on child care or home building. But the argument takes the words eut of their context. Relevantly, the "directorv" or "quide" must relate, in whole or in substantial part, to Australia or a place or places in Australia. The "directory" or "guide" must relate toa particular geographical area. It is not enough that it assumes a particular geographic context; for example, that the home building hand book contains information about techniques appropriate to, and materials available in, Australia. Perhaps more significantly, the paragraph refers, after "directory", "guide" and "timetable", to a "similar publication". It assumes the existence of a genus of which "directory", "guide" and "timetable", as used in the paragraph, are each species. The word "timetable" is not apt to include a tract on qood conduct; 12. its meaning is limited to a document constituting a list of events which are expected to occur, or - less usually - which have happened. A timetable relating to a geographic area would typically be a document which facllitates access to or within that area; for example an airline timetable. The document facilitates access by providing information of a temporal nature, just as a "directory" or "guide" typically facilitates access to or within the area by providing information of a geographic nature. It seems to me that the only concept common to the three categories, and which therefore provides the qenus, is the facilitation of access within Australia. The various metropolitan street directories and highwav quides, each designed to assist the traveller on his way, provide ready examples of the documents intended to be included in the paraaraph. The subject publications do not have the characteristic of facilitating access. The Register expressly refers to the private ownership of some of the listed properties. There is no suggestion that those properties, or indeed any properties - though listed - are accessible. The publications would, in most cases, enable the traveller to know when he or she is within a conservation area or outside a listed property, but they will not get him or her to the property or area in the first place. Considered as a means of assisting a traveller to find a place of interest, the documents are quite inadequate. Considered in the terms of the proclaimed purpose, to provide a list of places and items which the Trust considers to form part of the National 13. Estate and to warrant protection, the documents are entirely adequate. In my view the Register is what its title suggests: a mere list or catalogue of selected places. It is not, within the meaning of para (c), either a "directory" or a "quide". The dissenting member of the Tribunal. Mr G D Grant, held both documents to be quides, because both "present, ina concise and consistent fashion, basic factual information upon a specified subject matter". I point out that the same miqht be said of "Who's Who in Australia", Wisden Cricketers Almanac or the Oxford English Dictionary to make the point that this approach is far too wide. In particular it leaves out of account the requirement of a geographic nexus. In my opinion, on the application of the undisputed facts to the terms of the statute, the proper conclusion was that reached by the majority of the Tribunal: that the books fall outside the terms of s.3A(1)(c). They are not thereby rendered ineligible for bounty. The appeal should be dismissed. I certify that this and the twelve (2) preceding pages are a true copy of the Reasons for Judgement herein of his Honour Mr Justice Wilcox. Associate Kowwd THQhayye , Date i4| /2] ery