t . x * - ~ JUDGMENT No. 6E3/. 2 CATCHWORDS Lemonthyme and Southern Forests (Commission of Inguiry) Act 1987 - Meaning of "qualifying area" - Natural justice in context of inquiry into a number of inter-related questions - Duties and powers of Commission. Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987, ss.3, 4, 8 FORESTRY COMMISSION ~V~ MICHAEL MANIFOLD HELSHAM & ORS. TAS G.13 of 1987 Burchett J. Hobart 26 November 1987 ~7 DEC 1987 , FEDRRAL GOURT OF "sy AUSTRALIA yoN PRINCIPAL " REGISTRY Vine een en te we re ee none als SPEED EIT ee na enerecere = IN THE FRDERAT, COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY GENERAL DIVISION No. G.13 of 1987 BETWEEN: AND: FORESTRY COMMISSION Applicant MICHAEL MANIFOLD HELSHAM, ROBERT HENRY WALLACE, PETER PHILLIP HITCHCOCK First Respondents COMMONWEALTH OF AUSTRALIA Second Respondent THE AUSTRALIAN CONSERVATION FOUNDATION, WILDERNESS SOCIETY INC. & TASMANIAN CONSERVATION TRUST INC. Third Respondents MINUTE OF ORDER OF THE COURT Burchett J. 26 November 1987 Hobart Judge Making Order: Date of Order: Where Made: THE COURT ORDERS THAT: (1) The application be dismissed. (2) The applicant pay the costs Commonwealth of Australia. NOTE: of the Federal Court Rules. of the respondent' the Settlement and entry of orders is dealt with in Order 36 IN THE FEDERAL COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY No. G.13 of 1987 GENERAL DIVISION BETWEEN: FORESTRY COMMISSION Applicant AND: MICHAEL MANIFOLD HELSHAM, ROBERT HENRY WALLACE, PETER PHILLIP HITCHCOCK First Respondents COMMONWEALTH OF AUSTRALIA Second Respondent AND: THE AUSTRALIAN CONSERVATION FOUNDATION, WILDERNESS SOCIETY INC. & TASMANIAN CONSERVATION TRUST INC. Third Respondents REASONS FOR JUDGMENT BURCHETT J. This is an application which was brought by the applicant to seek relief under s.39B of the Judiciary Act 1903 against the first respondents, who are the members of the commission of Inquiry into the Lemonthyme and Southern Forests ar Wr ee re iter ee ee oo eee % 2. appointed under the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 ("the Act"). On the application of the Commonwealth of Australia, and by consent, the Commonwealth was joined as a respondent, and has supported the decisions of the Commission which were the subject of the application. The members of the Commission have submitted to such order as the Court might make. The third respondents are incorporated bodies which have been appearing before the Commission and which sought and were granted leave to intervene and be joined as respondents to support the Commission's decisions. The Act is described in its sub-title as "an Act to provide for the establishment of the Commission of Inquiry into the Lemonthyme and Southern Forests, and for related purposes". Its object is set out in s.4: "4. The object of this Act 1s to provide for measures that will enable effect to be given, in relation to the Lemonthyme area and the Southern' Forests area, to Australia's obligations under the Convention, in particular the obligations to: (a) identify and delineate the natural heritage and cultural heritage; and (b) take appropriate measures to protect and conserve that heritage." (The Convention referred to in this section 1s the Convention for the protection of the World Cultural and Natural Heritage that has been adopted by the General Conference of the United Nations Educational, Screntific and Cultural Organization, the English text of which is set out in the schedule to the Worid Heritage Properties Conservation Act 1983. The "natural heritage" and oT Per peepee cae oor ¥ > oe ee Y eereene pee Oe 3. "cultural heritage" mentioned in the Act are the natural heritage and cultural heritage referred to in the Convention.) The Act, after providing for the establishment of the Commission of Inquiry, prescribes certain functions for it in s.8: "(1) The Commission shall, in accordance with this section, inquire into and report on the following matters: (a) whether there are any qualifying areas; (b) where there are qualifying areas: (1) whether there are, within areas of Tasmania that are outside the qualifying areas and are not national estate areas, forestry resources capable of exploitation in a way that would cause no detriment to the Tasmanian 5 forestry industry and that would - be an environmentally and i economically prudent and feasible alternative to the exploitation of any forestry resources in the qualifying areas; (ii) where there are not - whether there are, within areas of Tasmania (including national estate areas other than nominated world heritage areas) that are outside the qualifying areas, forestry resources capable of exploitation in a way that would cause no detriment to the Tasmanian forestry industry and that would be an environmentally and economically prudent and feasible alternative to the exploitation of any forestry resources in the qualifying areas; and orn ome oe ¥ a05 eran (iii) where there are not - which of the means of exploiting the forestry resources of Tasmania (including the qualifying areas but not including any nominated world heritage areas) without peer ares gee ta me ee ty, (d) (e) (4) 4. causing any detriment to the Tasmanian forestry industry will cause least damage to the qualifying areas; where the first-mentioned forestry resources 1n subparagraph (b)(i) or (ii) are not capable of exploitation in the way referred to in that subparagraph, whether those forestry resources are capable of exploitation in ways that are environmentally and economically prudent and feasible alternatives to the exploitation of any forestry resources in the qualifying areas, and, if so, which of those ways will cause the least detriment to the Tasmanian forestry industry; where the first-mentioned forestry resources in subparagraph (b)(ii) are capable of exploitation in the way referred to in that subparagraph, whether that exploitation, in so far as it affects national estate areas, 1S, consistent with proper forestry management, able to be delayed, and, if so, the extent of that delay; where a means of exploiting the forestry resources of Tasmania that will cause least damage to any qualifying areas is identified under subparagraph (b)(11i), whether that exploitation, in so far as it affects either national estate areas or qualifying areas, or _ both, is, consistent with proper forestry management, able to be delayed, and, 1f so, the extent of that delay. The Commission shall report to the Minister the results of its inquiry before the end of the inquiry period. (5) (a) (b) The Commission shall: un the performance of its functions under this section, give priority to identifying any part or parts of the Lemonthyme area and the Southern Forests area that are definitely not qualifying areas; and as soon as practicable, report to the Minister the identification of any such part or parts, specifying the area concerned." sony ee ee eee ' et en rte reg oo ' > weep ye Tergr acces Be ne i re en ee a o4D L le 'albania td mye error a; wee eee ke e The expression "qualifying area" used in s.8 is defined in s.3: "'qualifying area' means so much of any area that is: (a) wholly or partly within the Lemonthyme area or the Southern Forests area; and (b) a world heritage area or an area that contributes to the integrity or values of: (i) a world heritage area that is wholly or partly within the Lemonthyme area or the Southern Forests area; or (ii) a nominated world heritage area; as is not a nominated world heritage area". It will be noted that this definition uses the expression "world heritage area", which is also defined to mean "an area that forms part of the cultural heritage or the natural heritage". The Act describes precisely in schedules the boundaries of the Lemonthyme area and the Southern Forests area. It also defines the expression "nominated world heritage area" to mean "any area of Tasmania that the Commonwealth has, under Article 11 of the Convention, submitted to the World Heritage Committee, whether before or after the commencement of this Act, as suitable for inclusion in the World Heritage List provided for in paragraph 2 of that Article". The point of the priority given by s.8(5) to the identification of any areas in the Lemonthyme and Southern Forests area which are "definitely not qualifying areas" is that ares ere tee —- een 6. the Act makes certain activities incidental to logging, except with the consent in writing of the Minister, unlawful during a period which is defined by reference to the period of one year allowed for the inquiry, but there is provision for exclusion of any area identified by the Commission under s.8(5). The protection, pending the completion of the inquiry, so conferred is discussed in Richardson v. Forestry Commission (1987) 73 A.L-R. 589 where Mason C.J. granted interlocutory injunctions pending the hearing of a High Court challenge to the validity of the legislation which has, I was told, since been argued but not decided. A fundamental question raised for decision is the meaning of the definition of "qualifying area". The applicant submits that the Act is concerned only with areas wholly within the Lemonthyme area or the Southern Forests area or, in the case of an area partly within the Lemonthyme area or Southern Forests area, with that part of such an area which 1s within the Lemonthyme area or Southern Forests area. In aid of this construction, the applicant refers to s.4, and says that the Act is concerned only with Australia's obligations under' the Convention "zn relation to the Lemonthyme area and the Southern Forests area". It is argued that if a qualifying area can be an area only part of which is within the Lemonthyme area or Southern Forests area, that part might be quite small while a far larger part might be altogether outside the areas referred to in s.4 and in the sub-title of the Act. ee 6 mert erp meet ne rere eee sae ete eet nee ryrcy ce nue some alae aa dita Seles eee bide tttard —T ml tee, Se oe oe ee -¢ 7. But it seems to me that the weight of the plain meaning of the language used in the definition of "qualifying area" is altogether too great for this argument to bear. Leaving aside so much of it as is excluded because it 1s a nominated world heritage area, a qualifying area is expressly stated to be an area which is "wholly or partly within the Lemonthyme area or the Southern Forests area", and is also a world heritage area or an area that contributes to the integrity or values of one or other of two kinds of world heritage areas mentioned in sub-paragraphs (i) and (ii). That language seems to me to be clear. Even if there were any difficulty, it would be resolved by the terms of s.14 of the Act, which gives a member of the Commission and certain other persons rights to enter and inspect: "(a) the Lemonthyme area and the Southern Forests area; (b) any nominated world heritage area; and (c) any other part of Tasmania that the member or other person considers may be part of a qualifying area or contain forestry resources." This provision clearly contemplates that part of a qualifying area may be outside of the Lemonthyme area and the Southern Forests area. I was also informed without objection, from the bar table, that no part of the Lemonthyme area or the Southern Forests area is a nominated world heritage area. Unless, therefore, the draftsman of the definition of "qualifying area" was providing against the possibility of a nomination during the myer co reg sores aren ne tery oe Oory SD rn pe reac ie nee 8. period of the inquiry, his exclusion from a qualifying area of any part being a nominated world heritage area must imply that the boundaries of a qualifying area might extend outside the Lemonthyme area and Southern Forests area. So far as the applicant's reliance on s.4 is concerned, it is to be noted that the section does not read "in the Lemonthyme area and the Southern Forests area", but "in relation to" those areas (emphasis added). The expression "in relation to" is well recognized as an expression capable of denoting an indirect connection: The Queen v. Murphy (1985) 158 C.L.R. 596 at 611; Narain v. Parnell (1986) 64 A.L.R. 561 at 572. In this instance, it is used in the context of the Convention, which is concerned with areas defined by considerations quite different from identification according to the artificial boundaries which may be drawn on a map. To take the case of the natural heritage, the Convention defines it as: "natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from_ the aesthetic or scientific point of view; geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation; natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty." Should there be such an area, for example, in the Lemonthyme area, it may well extend across a boundary which limits that area. Age POD ERs eee at fj we ony we renege er Pyne an rte pees cos eee cae om mee ee If there remain any doubt about these conclusions, resort may be had to the Explanatory Memorandum and the second reading speech of the Minister in charge of the bill which became the Act. It is true that the Explanatory Memorandum states the first matter to be examined and reported on in the following terms: "whether two areas, or parts thereof, in Tasmania known as the Lemonthyme and Southern Forests form part of the 'cultural heritage' or 'natural heritage' (as defined in Articles 1 and 2 of the World Heritage Convention), or whether they contribute to the value or integrity of Tasmanian world heritage areas;". But in his second reading speech (Senate Hansard for 23 March 1987 pp.1154-5), Senator Tate said: "The Commission of Inquiry will be asked to report on the extent to which the Lemonthyme and Southern Forests areas are, or include, qualifying areas. The identification of such qualifying areas has not been wholly confined to the areas defined in the schedules for the reason that the boundaries of those areas may inadvertently omit small areas of world heritage." This confirms, if confirmation were needed, the construction of the Act which I have adopted. The applicant also submitted that "the Commission can and is obliged to identify what if any qualifying areas exist before it can proceed to make any inquiry under s.8(1) (b), (c), (d) or (e)." Reliance was placed on the fact that, by the terms of s.8, the questions posed in the paragraphs following paragraph "= see 10. (a) will only arise "where there are qualifying areas". It was submitted that implicit in the section is a sequential inquiry which must first determine whether there are qualifying areas, and only then the questions which arise where there are qualifying areas. It was further submitted that natural justice requires an identification of qualifying areas so that parties will not be putting forward cases and making submissions in the dark in respect of the questions raised by paragraphs (b), (c), (d} and (e). The second aspect of this submission derives support from what was said by Mason J. (as he then was) in Kioa v. West (1985) 159 C.L.R. 550 at 587, where he referred to "the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it." See also In Re Pergamon Press Ltd [1971] 1 Ch. 388 at 399-400; Mahon v. Air New Zealand Ltd [1984] 1 A.C. 808 at 821; and National Companies and Securities Commission v. the News Corporation Limited (1984) 156 C.L.R. 296 at 315-316 and 324. In Mahon's case at the page cited Lord Diplock made it clear that a person who will be adversely affected by a finding "should not be left in the dark as to the risk of the finding being made." It is a peculiar feature of the inquiry in question in the present case that a finding establishing the extent of any qualifying areas may materially affect the nature of the issues a party may wish to raise, or whether he may wish to raise any woeey se eee hier) ll. issues, under paragraphs (b), (c), (d) and (e). However, the very complexity of the possible issues in this inquiry underlines the well known proposition that the application of the rules of natural justice may vary from case to case (see per Gibbs C.J. in the News Corporation case, supra, at 316), and the impossibility of laying down precise rules in advance. Section 10(7) of the Act states: "Subject to this Act, the procedure at a hearing before the Commission shall be such as the Commission directs." In any case, in In Re Pergamon Press Ltd, Lord Denning M.R. at 400 said of a proposition that inspectors inquiring into a company must follow a particular procedure: "But I think this also is going too far. This sort of thing should be tIleft to the discretion of the inspectors. They must be masters of their own procedure. They should be subject to no rules save this: they must be fair." It seems to me that the same applies to the Commission. The presiding member of the Commission, in a passage which the applicant criticises, has indicated the manner in which the Commission proposes to cope with the problem now under discussion. That passage, as I understand it, commences with the proposition that "a definitive decision" cannot be made except by a report pursuant to the duties placed upon the Commission by the Act. The Act refers first to a very special type of interim report, for which provision is made by s.8(5). (It seems to me, having regard to the terms of ss.8 and 20, the nature of the wees spt en oe ee map aie ae seca 12. questions with which an interim report is to deal, and the function which an interim report serves, that there may be more than one interim report, depending on the views the Commission is able to form and when it is able to form them.) The other report required of the Commission is that which is required by the terms of s.8(1) and s.8(4). That report is defined in s.8 as a "final report", and is referred to in s.20 as the only other kind of report apart from an interim report. It does not seem to me that the Act contemplates more than one final report. The procedure then outlined by the presiding member will involve the parties receiving an indication of the areas under consideration by the Commission as possibly the subject of findings that they are qualifying areas, so as to enable the parties to turn their attention thereafter in the inquiry to those areas and the issues which findings in relation to them would raise. In my opinion, there is no basis for any suggestion that the proposed procedure outlined by the presiding member would involve any unfairness to any party. On the contrary, it sets out practical steps in pursuance of the requirements of the law as stated in the cases to which reference has been made. The procedure proposed does not suggest that the Commission regards itself as unable to make interlocutory rulings or formulate preliminary conclusions. The Commonwealth submitted it must have these powers in order to accord the parties natural justice, and I think that is true. Its exercise of them, however, is a matter falling within the procedures it must determine for itself, in order to carry out its functions in a 13. faic and effective manner. WhaL cannot be said is that it is bound to proceed only sequentially through the paragraphs of s.8(1). To take that view would be to deny it the power s.10(7) confers to determine its own procedure. The draftsman of the Act applied his mind to the question whether there must be a sequence of decision-making by the Commission, and provided only that one Matter must be dealt with first, the matter specified in s.8(5). Otherwise s.8(4) requires simply a report, the final report, before the end of the inquiry period. In carrying out its inquiry, it is true, the Commission may be investigating matters which its later decisions may make superfluous, but that is not uncommon in hearings of all kinds. A court, for instance, dealing with a claim for damages may hear much evidence on issues which an ultimate verdict for the defendant may render irrelevant, and not uncommonly a court may hear evidence depending on a series of alternative views, for example as to the nature of injuries suffered, before reaching a decision as to which of those views should prevail. For these reasons, I dismiss the application. It was conceded by the applicant that, in that event, it would have to pay the costs of the Commonwealth, and I so order. In all the circumstances, and bearing in mind that there is no suggestion the Commonwealth ever proposed to do other than resist the application, I make no order in respect of the costs of the interveners. I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. 2, ex Giles Associate Dated: 26 November, 1987. eq ooo —-s crue moe rams, 14. Counsel for the Applicant: Solicitors for the Applicant: Counsel for the lst & 2nd Respondents: Solicitors for the Ist & 2nd Respondents: Counsel for the 3rd Respondents: Solicitors for the 3rd Respondents: Date of hearing: Mr. W. Bale, QC with Mr. D. Hemming Director of Public Prosecutions Mr. D. Graham, QC with Mr. c. Gunst Australian Government Solicitor Mr. J. Basten Henry Brookman 25 November 1987 Cl eat ie es pelea enetoatar ome eee 8 er Ho