Reported Decision : 128 LGERA 419 58 NSWLR 631 New South Wales Court of Appeal CITATION : VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s127 of the Threatened Species Conservation Act 1995) [2003] NSWCA 297 HEARING DATE(S) : 7 March 2003; 10 March 2003 JUDGMENT DATE : 17 October 2003 JUDGMENT OF : Spigelman CJ at 1; Beazley JA at 61; Hodgson JA at 214 DECISION : Appeal dismissed with costs. CATCHWORDS : ENVIRONMENTAL LAW - endangered ecological community - listing process in Threatened Species Conservation Act - validity of final determination to list community - distinction between initiating mechanisms - assemblage of species - particular area ADMINISTRATIVE LAW - validity of determinations of Scientific Committee - requirement to advertise reasons for determinations - where published reasons restated statutory formula - sufficiency of reasons - certainty of findings in final determination - non-compliance with statutory provision for nominations - availability of alternative power to support listing - whether different consequences of statute under alternative powers - reasonable apprehension of bias PRACTICE AND PROCEDURE - application to reopen case - discretion to allow reopening - where inconsistent tactical decisions and legal claims by both parties - where new evidence on critical matter in proceedings Acts Interpretation Act 1901 (Cth) s 25D Broadcasting and Television Act 1942 (Cth) Broadcasting Services Act 1992 (Cth) s 160 Environmental Planning and Assessment Act 1979 s 100A LEGISLATION CITED : Foreign Acquisitions and Takeovers Act 1975 (Cth) s 18 National Parks and Wildlife Act 1974 ss 118A, 181 National Parks and Wildlife Conservation Act 1975 (Cth) Remuneration Tribunal Act 1973 (Cth) s 7 Threatened Species Conservation Act 1995 ss 3, 4, 6, 12, 17, 18, 19, 20, 21, 22, 23, 24, 25, 127, 128, 133, 134 Abbott v Shire of Heidelberg [1926] VLR 199 Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1989) 88 ALR 287 Australian Broadcasting Tribunal & Actors Equity of Australia Ltd v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1 Australian Television Services Pty Ltd v Marsden [2002] NSWCA 419 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 Brown v Petranker (1991) 22 NSWLR 717 Brown v West (1990) 169 CLR 195 Canwest Global Communications Corporation v Treasurer of the Commonwealth of Australia (1997) 147 ALR 509 Dalton v Deputy Federal Commissioner of Taxation (1986) 160 CLR 246 Dixon v Esperance Bay Turf Club (Inc) [2002] WASC 110 Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33 Harris v Great Barrier Reef Marine Park Authority (1999) 162 ALR 651 Harts Australia Limited v Commissioner of Australian Federal Police (2002) 117 FCR 358 House v The King (1936) 55 CLR 499 CASES CITED : Iveagh (Earl) v Minister of Housing and Local Government [1964] 1 QB 395 Johns v Australian Securities Commission (1993) 178 CLR 408 Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 Lockwood v The Commonwealth (1953) 90 CLR 177 Mercantile Mutual Life Insurance v Australian Securities Commission (1992) 40 FCR 409 MIMA v Bhardwaj (2002) 209 CLR 597 Minister for Immigration v Yusuf (2001) 75 ALJR 1105 Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 Moore v The Attorney General (Irish Free State) [1935] AC 484 Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 Racecourse Co-operative Sugar Association Ltd v Attorney-General (Qld) (1979) 142 CLR 460 Ramos v Minister for Immigration & Multicultural Affairs (1998) 53 ALD 64 Tasker v Fullwood [1978] 1 NSWLR 20 Urban Transport Authority of New South Wales v Nweiser (1991) 28 NSWLR 471 PARTIES : Appellant: VAW (Kurri Kurri) Pty Ltd Respondent: Scientific Committee (Established under s127 of the Threatened Species Conservation Act 1995) FILE NUMBER(S) : CA 40555/02 COUNSEL : Appellant: S Rares SC / M Leeming Respondent: B Walker SC / B Preston SC / S Pritchard SOLICITORS : Appellant: Blake Dawson Waldron Respondent: Vivienne Karen Ingram (NSW National Parks & Wildlife Service) LOWER COURT Land & Environment Court JURISDICTION : LOWER COURT 40110/2001 FILE NUMBER(S) : LOWER COURT Cowdroy J JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40555/02 LEC 40110/01 SPIGELMAN CJ BEAZLEY JA HODGSON JA Friday 17 October 2003 VAW (KURRI KURRI) PTY LTD v SCIENTIFIC COMMITTEE (Established under s127 of the Threatened Species Conservation Act 1995) FACTS The Scientific Committee (the Respondent), established pursuant to the Threatened Species Conservation Act 1995, has as one of its functions the determination of ecological communities to be listed as endangered in Sch 1 of that Act. Mr Max Elliott nominated an ecological community described as "Kurri Kurri Open Forest" for such listing by the Respondent. The Respondent made a preliminary and then a final determination to list an area described as the Kurri Sand Swamp Woodland as an endangered ecological community. The Appellant objected to the listing and sought a declaration in the Land and Environment Court that the Respondent had made an invalid determination. The trial judge found that the determination was valid and dismissed the Appellant's application. HELD A. (per Beazley JA, Spigelman CJ agreeing, Hodgson JA dissenting) The nature and extent of reasons required to be given by the Respondent in advertisements of its preliminary and final determinations is dependent upon the terms, and the nature and purpose of the provisions of the Threatened Species Conservation Act 1995 requiring that advertisements be published and reasons for the determinations be stated in the advertisements. This is a different requirement from the provision that there be reasons for the making of the determinations. A restatement of the statutory formula governing eligibility for listing does not satisfy the requirement to give reasons in either s22(2)(c) or s24(c). Nevertheless, the breach of this requirement by the Respondent did not invalidate its determinations. [2], [99], [102], [105], [114], [116] Dalton v Deputy Federal Commissioner of Taxation (1986) 160 CLR 246 referred to; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 distinguished. B. (per Hodgson JA, Spigelman CJ agreeing) The Respondent's resolution that it make a final determination subject to advice from counsel indicating that further action was required did constitute a final determination, although it was subject to a condition defeasant. The condition defeasant did not operate. [3], [226] (per Beazley JA) The Respondent's resolution was a conditional, self-executing one. The Committee was legally entitled to make such a resolution. [124] C. (per Beazley JA, Spigelman CJ and Hodgson JA agreeing) The trial judge erred in refusing the Respondent leave to reopen its case. The evidence was in respect of a critical issue in the proceedings and its reception would have created no prejudice to the Appellant's case. [3], [148]-[150], [227] Urban Transport Authority of New South Wales v Nweiser (1991) 28 NSWLR 471 applied. House v The King (1936) 55 CLR 499; Brown v Petranker (1991) 22 NSWLR 717, referred to. D. (per Beazley JA, Spigelman CJ and Hodgson JA agreeing) The Respondent's final determination in respect of the Kurri Sand Swamp Woodland was sufficiently certain. The ecological community identified by the Respondent also satisfied the definition of such a community in s4(1) of the Act. [4], [185], [194], [214], [234], [235] (per Spigelman CJ) The consequences of the exercise of the Respondent's listing power for those who may become subject to the associated offences found in the National Parks and Wildlife Act 1974 mean that the Respondent's final determinations must satisfy a requirement of reasonable certainty. The final determination's terms must enable a citizen to decide whether a specific location falls within it. The Kurri Sand Swamp Woodland final determination satisfied this test. [6]-[9] Genkem Pty Ltd v Environmental Protection Authority (1994) 35 NSWLR 33 cited. E. (per Spigelman CJ, Beazley and Hodgson JJA agreeing) Nothing in the scope or purpose of the Threatened Species Conservation Act rendered invalid an act of the Respondent purporting to be done under its statutory power to deal with nominations for listings but which was in fact supportable under a separate statutory power to commence or continue the listing process on its own initiative. The Respondent therefore had power to make determinations in respect of a community different from the one which was initially nominated. [54], [55], [58], [172], [214], [229] Lockwood v The Commonwealth (1953) 90 CLR 177; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied. Brown v West (1990) 169 CLR 195; Johns v Australian Securities Commission (1993) 178 CLR 408; Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513; Mercantile Mutual Life Insurance v Australian Securities Commission (1992) 40 FCR 409; Canwest Global Communications Corporation v Treasurer of the Commonwealth of Australia (1997) 147 ALR 509; Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 considered. Australian Broadcasting Tribunal & Actors Equity of Australia Ltd v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1 not followed. F. (per Beazley JA, Spigelman CJ and Hodgson JA agreeing) The trial judge was correct to dismiss the application that he disqualify himself. There were no grounds for a reasonable apprehension of bias. [10], [212], [214], [239] ORDER Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40555/02 LEC 40110/01 SPIGELMAN CJ BEAZLEY JA HODGSON JA Friday 17 October 2003 VAW (KURRI KURRI) PTY LTD v SCIENTIFIC COMMITTEE (Established under s127 of the Threatened Species Conservation Act 1995) Judgment 1 SPIGELMAN CJ: I have read the judgment of Beazley JA in draft. I gratefully adopt her Honour's outline of the facts, issues and statutory provisions. I have also read the reasons of Hodgson JA in draft. 2 I agree with Beazley JA on the reasons issue. 3 I agree with Hodgson JA on the conditional resolution issue. In any event, I agree with Beazley JA and Hodgson JA that the trial judge erred in failing to grant leave to reopen for the reasons their Honours give. Furthermore, leave should have been granted to adduce evidence which could have prevented the proceedings being disposed of on an entirely false and unmeritorious basis. The exigencies of the adversary system do not require the courts to entirely disengage from reality. 4 On the uncertainty issue and the definition issue, I agree with Beazley JA and with the further observations of Hodgson JA. I add the following comments. 5 The Threatened Species Conservation Act 1995 ("the Act") confers power on the Scientific Committee to determine whether an ecological community should be listed in Schedule 1 pursuant to s17, as set out by Beazley JA. Section 25 of the Act provides for the amendment of that Schedule on publication of a final determination. The powers reposed in the Scientific Committee with respect to listing are wide. The scope, purpose and subject matter of the legislative scheme is concerned with matters – often defined in general terms – in which questions of degree and judgment are necessarily involved. In order to carry into effect the legislative objects of the Threatened Species Conservation Act, the wording of final determinations must be sufficiently flexible as to enable the protection of communities through periods of seasonal and climactic variation. 6 It is the consequences of the exercise of the Scientific Committee's listing power for those who may become subject to the associated offences found in other legislation, namely the National Parks and Wildlife Act 1974, as set out by Hodgson JA, that render it necessary to imply a requirement of reasonable certainty. People should know when they are, or are likely to be, at hazard of committing an offence. 7 The terminology directly relevant to the present case is the definition of an ecological community as "an assemblage of species in a particular area". The use of the word "assemblage" does not suggest that either the nomination of species or identification of an area requires a high degree of specificity: c/f Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33 at 44. To satisfy the requirement of certainty to an appropriate standard, the terms of the Scientific Committee's final determination must enable a citizen to decide whether a specific location falls within it. This does not necessitate the enumeration of the minimum number of species that must be found together to constitute the community, nor the provision of maps indicating where the community may be found. 8 In my opinion, the Kurri Sand Swamp Woodland ("KSSW") final determination satisfies the requirement of reasonable certainty of expression. As to the "particular area" to which it applies, the community must be found on certain specified soils in the Sydney Basin Bioregion. It was noted that the community had been known to occur in the Kurri-Kurri – Cessnock area in the Cessnock local government area, but may occur elsewhere in that general area, but not in the specific local government area. The restriction to the Kurri-Kurri - Cessnock area is, in my opinion, sufficient. The assemblage of species listed must be found within this area and on the type of soils identified, in order to constitute the KSSW. As to the specificity of the assemblage, I would adopt the reasons of Beazley JA and add the following. Two rare and defining canopy species were described as "generally" present in the KSSW, and typical species were listed for all strata below the canopy – the shrubby, the lower and the ground. This is reasonably capable of ascertainment in a particular case. 9 The intricacy of all ecological communities means that some indeterminateness is bound to arise from the form of expression used to describe them. However, in my opinion, on the facts of the present appeal, this is not such as to invalidate the final determination in this case. 10 I agree with Beazley JA on the Procedural Issue and the Disqualification Issue. 11 I wish to state my own reasons on the Nomination Issue. The Nomination Issue 12 The Appellant contends that the Respondent had no power to make either the Preliminary Determination or the Final Determination, on the basis that each identified an ecological community other than that nominated pursuant to s18(2)(b) of the Act. It contends that each of the Determinations was materially different to the nomination originally made by Mr Max Elliot QC, as elaborated by Mr Elliot in subsequent communications with the Scientific Committee. 13 The relevant statutory provisions appear in the judgment of Beazley JA. Section 18 identifies three mechanisms by which the process of making a determination under Div 3 of Pt 2 of the Act can be initiated, namely: · By the Scientific Committee itself; · By request from the Minister; · By nomination of any person. 14 The significance of the Committee making a Determination upon its own initiative must be seen in the light of s17(2), which obliges the Committee to keep the lists in the respective Schedules of the Act under review. 15 Sections 19, 20 and 21 outline certain procedural steps and powers relating to the consideration of an ecological community after a nomination has been made. Sections 22 and 23 relate, respectively, to the making of a Preliminary Determination and a Final Determination and refer to each of the three mechanisms of initiation compendiously as giving rise to "a proposal" which the Committee must consider and decide whether or not to support (s22) or whether or not to accept (s23). Such separate reference as there is in ss22 and 23 to "a matter initiated by means of a nomination" uses language of considerable generality by identifying the matter as "a case involving a nomination" (s22(2)(a), s23(2) and s24(a)). 16 The primary contention of the Appellant is that the ecological community identified in a nomination determines the power capable of being exercised by the Committee. If the Committee wishes to initiate its own proposal, by way of alternative or supplement to the proposal contained in a nomination, then it must do so distinctly. The Determinations upon which the Committee eventually resolved, the Appellant submits, were materially different from anything contained in the nomination by Mr Elliot as elaborated in further communications. The Committee erred in law, the Appellant submits, by dealing with a proposal which had not in fact been made under any of the initiating mechanisms provided for in s18. 17 The Respondent submits that the three different mechanisms in s18 of the Act for initiating consideration by the Committee of a proposal to add a species, population or ecological community to the Schedules of the Act, are alternatives and are not mutually exclusive. The Respondent sought to uphold the Determinations, if there be any material distinction between the nomination and the Preliminary or Final Determination of the Committee, on the basis that the ability to make a Determination on its own initiative was always available to the Committee as an alternative source of power under s18(1) of the Act. It did not matter if the nomination route in s18(2)(b) proved in some way defective. 18 In its written submissions, the Appellant relied upon the observations of Bowen CJ in Australian Broadcasting Tribunal & Actors Equity of Australia Ltd v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1 at 10 where his Honour said: "… where an administrative body which states it is exercising a particular power in laying down a general rule lacks power on the stated ground, but could have laid down the rule validly under another head of power, it would generally be wrong for a court to uphold the rule as if it had been made under the unstated head of power, particularly where the consequences for the citizen of each exercise of power are different." 19 The Appellant asserts that the process of amending the Schedules to the Act is equivalent to the kind of rule of general application to which Bowen CJ referred. By reason of the effect of a Determination being to incorporate the subject matter in a list contained in a schedule to an Act, the Appellant sought to characterise the Determination as "legislative". 20 The reasoning of Bowen CJ in the Saatchi & Saatchi case, and the reasoning to similar effect of Fox J in that case, has been treated with considerable reserve in subsequent authorities. (See Mercantile Mutual Life Insurance v Australian Securities Commission (1992) 40 FCR 409 esp at 412, 424-425 and 435-437; Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1989) 88 ALR 287 at 303-304; Canwest Global Communications Corporation v Treasurer of the Commonwealth of Australia (1997) 147 ALR 509 at 530-531; Harris v Great Barrier Reef Marine Park Authority (1999) 162 ALR 651 at [8]-[18].) In my opinion, the reasoning of Bowen CJ in the passage on which the Appellant relies is stated too widely and should not be followed. 21 The reasoning of Bowen CJ and Fox J in the Saatchi & Saatchi case stands in marked contrast to a number of other statements of a contrary principle. 22 In Lockwood v The Commonwealth (1953) 90 CLR 177 at 184, to which Bowen CJ referred without explaining its inapplicability, Fullagar J said: "It is, I think, a settled principle that an act purporting to be done under one statutory power may be supported under another statutory power …" 23 To similar effect is the statement in a five judge joint judgment of the High Court in Brown v West (1990) 169 CLR 195 at 203, delivered after Saatchi & Saatchi: "However, the validity of the Tribunal's determinations is unaffected by mistaking the source of the power to make them." Their Honours relied as authority for this proposition on Moore v The Attorney General (Irish Free State) [1935] AC 484 at 498 and R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 at 487. 24 Brennan J relied on the same authorities in Johns v Australian Securities Commission (1993) 178 CLR 408 at 426 for the following proposition: "When a power is exercised, a mistake in the source of the power works no invalidity. Validity depends simply on whether a relevant power existed." McHugh J came to a similar conclusion at 469 adapting a proposition from an analogous context: "The question is not one of intention but of power, from whatever source derived." 25 In Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 618, Gummow J stated the proposition in the following way: "… the validity of an administrative act is not necessarily impugned by there having been a mistake as to the source of the power stated by the decision-maker as that upon which reliance was placed." 26 In Abbott v Shire of Heidelberg [1926] VLR 199 at 201, Cullen J reached the same conclusion as the Court reached in Saatchi & Saatchi. However, the authority of this judgment has been doubted (Ramos v Minister for Immigration & Multicultural Affairs (1998) 53 ALD 64). 27 Consideration of this issue in the authorities often proceeds in terms of a statement of "general principle", of the general character described by Fullagar J in Lockwood as a "settled principle", with an acknowledgement that this "general principle" has limits or exceptions. (See e.g. Saatchi & Saatchi at 22; Mercantile Mutual Life Insurance at 412; Harts Australia Limited v Commissioner of Australian Federal Police (2002) 117 FCR 358 at [161]; Dixon v Esperance Bay Turf Club (Inc) [2002] WASC 110 at [155]-[158].) 28 In the present case the Appellant accepted such a general principle. However, it submitted that the principle relied upon by the Respondent did not apply to a "general rule" or a "rule of general application" or a decision of a character which can be characterised as "legislative", relying on the references by Bowen CJ in Saatchi & Saatchi to a "general rule". 29 In my opinion it is not always helpful to state the issues that arise in such a context in terms of a "general principle" subject to "limits" or "exceptions". The issue is always one of statutory interpretation and is dependent on the particular statutory regime under consideration. 30 This approach is consistent with the proposition advanced by Gummow J in Newcrest Mining to the effect that a mistake as to the source of power does not "necessarily" impugn the validity of an administrative act. 31 His Honour's focus on the particular statutory regime was manifest in Mercantile Mutual Life Insurance at 437, where his Honour said: "In my view, the truth of the matter can only be found by analysis of the particular statute or other written law said to authorise or empower the making of the decision in question. Having regard to any specification of manner and form and, on a more general level, to the subject matter, scope and purpose of the law, is it a requirement that the decision-maker specify in writing the source of the authority relied upon? Is such a requirement made directory or mandatory by the law in question? That distinction, as now understood, is discussed in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24; TVW Enterprises Ltd v Duffy (No 3) (1985) 8 FCR 93 at 102, 113-114; Broadbridge v Stammers [1987] 16 FCR 296 at 300 and Formosa v Secretary, Department of Social Security (1988) 81 ALR 687 at 691-693. If there be no such requirement, or if the requirement be directory in character, it must be very difficult to sustain a case that the propriety of the decision in question is to be judged by that head of power expressly relied upon (if any) to the exclusion of any other enabling authority. Here, none of the heads of power suggested to support the authorisation specify any particular form, nor, indeed, that it be embodied in any written instrument. Nor does reliance upon one rather than another head of power lead to any difference in the consequences for third parties, such as the present applicants. The position was rather different with the legislation considered in Saatchi & Saatchi (supra)." 32 What is needed in each case is a careful analysis of the statutory head of power in fact relied upon and the alternative head of power open to be relied upon, to determine the effect of a failure to refer to or rely upon the head of power not relied on. The particular circumstances of Mercantile Mutual Life Insurance raised an issue that could be characterised, as Gummow J did, in terms of whether the decision-maker was required to state the source of authority. In different contexts analogous issues arise, but not necessarily in that way. 33 Gummow J's reliance on the analysis in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24 and subsequent authorities, has been confirmed by the joint judgment of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93]. To adapt the test for validity propounded in that judgment at [93] (in lieu of the distinction between mandatory and directory provisions) to the issue of statutory interpretation which arises in the circumstances presently under consideration: The test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in reliance on an inappropriate statutory power, but which could be supported by another statutory power, should be invalid. 34 There will be occasions when the alternative head of power cannot properly be seen to be available to the decision-maker who invoked an impermissible head of power. 35 The reasoning of the Court in Abbott v Shire of Heidelberg is in a very narrow compass. The issue in that case was whether or not a council's decision with respect to the physical removal of a home, which purported to be made pursuant to a power to regulate the erection of dwellings, could, in the alternative, be supported by the distinct power to regulate traffic. The actual result in that case is probably right because the facts, matters and circumstances required to be taken into account in the exercise of the power to regulate traffic would differ considerably from the facts, matters and circumstances required to be taken into account in the exercise of a power to regulate the erection of buildings. 36 To similar effect is the reasoning of Gummow J in Newcrest Mining. In that case proclamation of an extension to the Kakadu National Park under the National Parks and Wildlife Conservation Act 1975 (Cth) had the effect that the Commonwealth acquired certain land and minerals to a depth of 1,000 metres. Pursuant to Mining Regulations, under which a grant of certain goldmining leases had been made, there was a proviso in the lease that the Crown could "resume possession of any portion of the surface of the land … for any other public purpose whatsoever". Gummow J said at 618: "… what was done by the Proclamations differed markedly from that which was allowed by the proviso in the prescribed forms." His Honour concluded (at 619) that in a situation where what was done was "markedly" different, the "settled principle" referred to by Fullagar J in Lockwood v The Commonwealth could have no application. Again the difference in the relevant heads of power was of critical significance. 37 In Saatchi & Saatchi itself the statutory scheme was of critical significance to the conclusion to which the Court came. The Court was concerned with the Broadcasting and Television Act 1942 (Cth) in the form it was at the time. The Australian Broadcasting Tribunal had two distinct functions under the Act; first, to determine standards for the broadcasting of programmes, including advertisements and, secondly, to determine the conditions upon which advertisements could be broadcast. The Act expressly provided that a failure to comply with standards constituted a breach with specific consequences under the statute. In the case of a breach of condition, however, there was no such express provision, although breach of condition could be of significance, for example, when a license came up for renewal. 38 It was in a context where there was such a distinction that Bowen CJ said at 9: "A licensee is entitled to know what source of power the Tribunal is relying on. Where a statutory authority has purported to exercise one of its powers but has in fact acted outside that power, it would only be in exceptional circumstances that the Act could be upheld as a valid exercise of another head of power." This is why his Honour concluded the passage at 10, relied upon by the Appellant, as quoted above, with the clause: "… particularly where the consequences for the citizen of each exercise of power are different . " 39 In Saatchi & Saatchi, Fox J drew a similar distinction between the power to lay down a "standard" and the power to impose a "condition" and came to the same conclusion as Bowen CJ: it was not open to the Tribunal to proceed on the basis that its relevant notice related to "conditions". A person subject to the documents would have understood their content in the particular statutory context relating to standards (see at 16-17). 40 Wilcox J dissented on the characterisation of the Tribunal's decision. He concluded that, although it was expressed in terms of being a "standard", it was in substance a "condition". Had he been of a different view, his Honour indicated that the case would have fallen within an "exception" to the "settled principle" identified by Fullagar J in Lockwood v The Commonwealth, which exception Wilcox J expressed in the following way at 23: "… I am of the view that another exception ought to be the case where a decision to uphold the validity of the action by reference to the alternative ground may conceivably visit on persons affected by the action consequences different from those which would have applied had the original power been upheld. People who have conducted their affairs upon the basis that a particular power, with particular consequences, has been invoked by a statutory authority should not be confronted with a finding that the action of the statutory authority was valid for a different reason, involving different consequences." 41 The reasoning of Wilcox J in Saatchi & Saatchi, but for a different view his Honour took of the facts, would have led to the same result as Bowen CJ and Fox J. However, the way his Honour expressed his reasons is consistent with other authority and should be preferred to that of Bowen CJ and Fox J. His Honour identified the statutory scheme as the determinative factor, i.e. the difference in the consequences of the alternative sources of power. 42 Black CJ also highlighted the centrality of the statutory regime, again in the language of a "general principle" subject to exceptions, in Mercantile Mutual Life Insurance at 412: "There must of course be limits to the general principle that an act purporting to be done under one statutory power may be supported under another statutory power. The suggested other source of power may, for example, be seen to be unavailable because its exercise depends upon the fulfilment of some condition precedent peculiar to it and that event has not yet occurred: see Saatchi (supra) at 23 per Wilcox J and R v Bevan ; Ex parte Elias and Gordon (1942) 66 CLR 452 at 587 per Williams J. There may also be cases in which the matters to which a decision-maker would be bound to have regard in exercising the other source of power differ materially from the matters relevant to the exercise of the assumed source of power with the result that the other source of power cannot be relied upon to support the decision. Similarly, matters may be taken into account in the purported exercise of a power that would invalidate the attempted exercise of a power derived from another source because, in the context of the other source, they were irrelevant matters. Moreover, for reasons of this nature, where the effect of the exercise of the power upon third parties may differ according to the source of the power, the exercise of the power may not be supportable as a valid exercise of power derived from another source. No difficulties of this sort were present in Brown v West (supra), where the court pointed out (at 203-204), that whether the Remuneration Tribunal's power was to be found in one subsection or in another, the power was to 'determine' a postage allowance and that was the power the Tribunal exercised, and were it was conceded that the power was exercised validly." 43 In the Mercantile Mutual Life Insurance case the Australian Securities Commission mistook the source of its power. However, that was of no significance. As Black CJ said at 412-413: "[The ASC] was under no statutory obligation to specify the source of the power under which it was acting and no consequence attached to the specification of a source of power that did not in fact exist. The circumstances relevant to the proper exercise of the power were exactly the same whether the source of the power was s 597(1) of the Corporations Law, as it supposed, or whether the source was s 11(4) of the ASC Act operating in combination with s 597. The function for which s 11(4) provided the necessary power was the precise function to which the instrument of authorisation, which referred to both powers and functions, was directed and for purposes concerning the validity of the exercise of the power it was quite immaterial whether the source was s 597(1) or whether it was s 11(4) of the ASC Act in combination with s 597(2)." 44 Brown v West concerned s7 of the Remuneration Tribunal Act 1973 (Cth). The Tribunal had authority under subs (1) to "inquire into, and determine, the allowances … to be paid … to members of the Parliament …". Alternatively, where the Tribunal was conducting an inquiry under one of several subsections of s7, it had power by s7(4)(b) to inquire into a matter specified in a notice in writing given by the Minister. As the joint judgment of the five judge bench of the High Court said at 203-204: "In response to a request by the Minister for Industrial Relations, expressly to be made pursuant to s 7(4)(b), to inquire into and determine or report on matters including 'Postage', the Tribunal purported to make its determinations under s 7(4)(a) and (b). If the postage allowance as determined is truly 'an allowance' … – the power to determine the postage allowance flowed not from sub-s (4)(b) but from sub-s (1). However, the validity of the Tribunal's determinations is unaffected by mistaking the source of the power to make them … Whether the power be found in sub-s (1) or in sub-s (4)(b) the power is 'to determine' a postage allowance and that is the power which the Tribunal exercised and, by concession, exercised validly." 45 Again it can be seen that the provisions of the statute were decisive. There was no material difference of any character between the power to determine an allowance by the Tribunal on its own initiative, as distinct from its power to determine an allowance on the reference by the Minister. In the circumstances of that particular statute one power was applicable and the other was not, although the decision was purported to be made under the latter. The only material difference between these facts and the present case is that the two sources for initiation of the procedures under the Act presently under consideration were both available. 46 The scheme of the legislation also proved decisive when a similar issue arose in Canwest Global Communications. Section 18(4)(a) of the Foreign Acquisitions and Takeovers Act 1975 (Cth) set out two circumstances in which the Treasurer could make an order directing persons to dispose of shares, where the acquisition of those shares was found by the Treasurer to be contrary to the national interest. The first such situation was when a company came under the control of a foreign person for the first time. The second, was a situation in which a company, already controlled by foreign persons, came under the control of different foreign persons. Hill J rejected the submission that the alternative source of power was available (at 530-531). The Treasurer had failed to take into account the effect of the change in foreign ownership, by approaching the determination of the national interest as if the relevant company had fallen under the control of a foreign person for the first time. 47 In Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 the Minister purported to give approval for the development of a mine pursuant to State Environmental Planning Policy No 45 – Permissibility of Mining. One of the issues that arose in the proceedings was whether, on the basis that that consent was not valid, the Minister could have granted the consent pursuant to s100A of the Environmental Planning and Assessment Act 1979. The concepts were different, in the sense that pursuant to the State Environmental Planning Policy the issue was whether the mine was a "permitted development". The issue under s100A arose in the context of making decisions about a "prohibited development". 48 Cole JA, with whom Handley and Sheller JJA agreed, said at 87: "There was no distinction required by the procedures for advertising or objecting to a development application, or advertising or conducting an inquiry …, dependant upon whether a development was permissible or prohibited. The procedures were the same, and Rosemount did not allege that there was any deficiency in the procedural steps taken in relation to the development and the holding of the inquiry …" and "The environmental aspects of the development are in truth the same whether the development be permissible or prohibited." 49 At 88-89 Cole JA went on to consider a submission to the effect that the considerations to which the Minister was obliged to have regard under the Act differed from those required to be taken into account under the State Environmental Planning Policy. At 89 his Honour rejected this submission, concluding that the matters to be considered under the two alternative bases were the same. He concluded, accordingly, that s100A was a valid and available alternative source of power to sustain the consent. 50 The absence of any pertinent distinction in the content of and procedural requirements for an alternative source of power, not in fact relied upon, was also emphasised in the judgment of Williams J in R v Bevan; Ex parte Elias and Gordon at 487. In that case a Rear Admiral who had authority to convene a court martial under both the British statute, with respect to naval personnel placed under the authority of the Royal Navy, and also with respect to Australian ships under Australian authority, purported to act under the latter, when he should have acted under the former. Williams J said at 487: "Even if he did err as to the source of an authority which he undoubtedly possessed his mistake in no way affected the personnel of the court or its proceedings, so that all the conditions on which the right of the court-martial to exercise jurisdiction depended were in fact fulfilled. His mistake under such circumstances would be in a non-essential matter which would not amount to want of jurisdiction." 51 Although Saatchi & Saatchi may well be supportable on the basis of a material distinction between the alternative sources of power, the reasoning relied upon by the Appellant in this case, is not, in my opinion, consistent with these other authorities. 52 In the extract from the judgment of Bowen CJ at 10 of Saatchi & Saatchi, which I have quoted above, his Honour expressed the proposition that a decision-maker was able to rely on an alternative head of power to be "generally" wrong and that that was so "particularly where the consequences for the citizen of each exercise of power are different". In Saatchi & Saatchi the consequences of the exercise of a power to determine a "standard" differed from the consequences of the exercise of a power to impose a "condition". As noted above, Wilcox J emphasised this difference. 53 Lockhart J in Mercantile Mutual Life Insurance at 424-425 distinguished Saatchi & Saatchi on the basis that the court was there concerned with "rules of general application". However, a review of the authorities suggests that this is not, of itself, a material differentiating factor. Black CJ and Gummow J focused their observations distinguishing Saatchi & Saatchi on the absence of any difference in the consequences from the exercise of the alternative heads of power under consideration in Mercantile Mutual Life Insurance. 54 This kind of difference is always a material consideration to be assessed by a court in determining whether or not conduct can be upheld as valid, even though the decision-maker was purporting to act under a head of power which did not authorise the action. Saatchi & Saatchi should be understood as giving determinative weight, in the circumstances of that case, to the different consequences of the statute under the alternative head of power. Whether such weight should be given to such a difference in other contexts must depend on consideration of the statutory regime as a whole. 55 In the present case no aspect of the procedure or of substance differed in any material respect depending on whether the matter was commenced upon the initiative of the Committee or upon nomination by a third party. Notices were required, and in the event given, to the nominating party, but the process of public inquiry, the conduct of investigations by the Committee, the scope of relevant considerations, the substance of the tests to be applied and the consequences of the listing did not differ in any respect depending on the source of the initial trigger mechanism. There were additional procedural requirements in the case of a nomination, which the Committee observed. There were no requirements relevant to self-initiated proposals which were not observed. 56 To use the terminology of the cases quoted above, the initiating mechanism: · "in no way affected … the proceedings … so that all the conditions on which the right of the (Scientific Committee) to exercise jurisdiction depended were in fact fulfilled". (R v Bevan; Ex parte Elias and Gordon) · "the power is to determine (a proposal for inclusion) and that is the power which the (Committee) exercised." (Brown v West) · " … no consequence attached to the specification of a source of power that did not in fact exist. The circumstances relevant to the proper exercise of the power were exactly the same whether the source of power was (s18(1) or s18(2)(b)) … it was quite immaterial whether the source was (s18(1) or s18(2)(b))." (Mercantile Mutual Life Insurance per Black CJ) · "Nor does reliance upon one rather than another head of power lead to any difference in the consequences for third parties." (Mercantile Mutual Life Insurance per Gummow J) · "There was no distinction required by the procedures … dependant upon whether (the proposal was initiated under s18(1) or s18(2)(b))." And "The environmental aspects of the (proposal) are in truth the same whether the proposal was (initiated under s18(1) or s18(2)(b))." (Rosemount Estates) 57 On the other hand, it could not be said that: · "the scope of relevant considerations differed" (Abbott v Shire of Heidelberg) · "what was done … differed markedly" (Newcrest Mining) · "the consequences … of each exercise of power are different" (Saatchi & Saatchi) 58 There is no aspect of the scope and purpose of the statute, or of its content, which suggests that an act done in reliance on a process initiated by nomination, if not supported under such process but which could be supported by a process commenced or continued on the initiative of the Committee, should be invalid (Project Blue Sky). 59 In my opinion, the Appellant should fail on the "Nomination Issue". 60 I agree with the order proposed by Beazley JA. 61 BEAZLEY JA: This is an appeal from a decision of Cowdroy J in the Land and Environment Court in which his Honour dismissed the appellant's application seeking a declaration that the respondent (the Scientific Committee) had made an invalid determination pursuant to s.23 of the Threatened Species Conservation Act 1995 (the Act). The Act 62 The Act has as its objects the conservation of biological diversity, the prevention of the extinction of threatened species, populations and ecological communities and the protection of the critical habitat of threatened species. The specific objects are set out in s.3. 63 The Scientific Committee is established as a body corporate under s. 127 of the Act. 64 One of the functions of the Scientific Committee is "to determine which ecological communities are to be listed under [the Act] as endangered and to advise the Director-General [of National Parks and Wildlife] on the identification of their critical habitat": s.128(2)(c). 65 Part 2 of the Act deals, inter alia, with the listing of threatened species, populations and ecological communities. Division 1 of Pt 2 provides for lists of endangered species, populations and ecological communities to be contained in Schedule 1 to the Act: s.6. Division 2 provides for eligibility for listing in the Schedule. In particular, s. 12 provides: "An ecological community is eligible to be listed as an endangered ecological community if, in the opinion of the Scientific Committee: (a) It is likely to become extinct in nature in New South Wales unless the circumstances and factors threatening its survival or evolutionary development cease to operate, or (b) it might already be extinct." 66 An 'ecological community' is defined in s.4 to mean: "an assemblage of species occupying a particular area." "Species" is defined to include: "any defined sub-species and taxon below a sub-species and any recognisable variant of a sub-species or taxon." Neither "area" nor "particular area" is defined. A "region" is defined and I will return to that. 67 Division 3 provides the procedure for listing. Relevantly, ss. 17 and 18 provide: 17. Scientific Committee responsible for lists (1) The Scientific Committee is responsible for determining whether any species, population, ecological community or threatening process should be inserted in or omitted from Schedule 1, 2 or 3 or whether any matter in those Schedules should be amended. (2) Accordingly, the Scientific Committee must keep the lists in those Schedules under review and must, at least bi-annually, determine whether any changes to the lists are necessary. 18. Who may initiate action for listing (1) The Scientific Committee may make a determination for the purposes of this Division on its own initiative. (2) The Scientific Committee may also make a determination: (a) following a request by the Minister, or (b) on a nomination, made in accordance with this Division, of any other person. 68 Section 19 provides that a nomination under s.18(2)(b) may be made by "any person". A nomination must be "in writing addressed to the Chairperson of the Scientific Committee". There is no express power to amend a nomination. 69 The National Parks and Wildlife Act 1974 creates offences, inter alia, for the harming or picking of any threatened species, populations or ecological communities contained in the Schedule to the Act: see Pt 8A of the National Parks and Wildlife Act. 70 The Scientific Committee is required by s.21 "to consider each nomination as soon as practicable after it is made". It may seek additional information before considering the nomination: ss.20, 21(1). If it rejects a nomination, it must notify the Minister, the Director-General and the person who made the nomination and give reasons for the rejection: s.21(4). 71 After considering a nomination the Scientific Committee must make "a preliminary determination as to whether the proposal should be supported or not supported": s.22(1). 72 Section 22(2) then provides for notification to the person who made the nomination, Minister and Director-General. Section 22(2) also provides for publication of notice of the preliminary determination. Sub-sections 22(3) and (4) prescribe the content of the notice. 73 As the scope and operation of s.22 is in issue in the proceedings it is appropriate to refer more fully to its provisions: 22. Scientific Committee's preliminary determination (1) The Scientific Committee, after considering a proposal raised on its own initiative or in response to a request from the Minister or a nomination by another person, must make a preliminary determination as to whether the proposal should be supported or not supported. (2) As soon as possible after making a preliminary determination, the Scientific Committee must: (a) in a case involving a nomination, notify the person who made the nomination, the Minister and the Director-General, and (b) in a case of a proposal raised on its own initiative or in response to a request from the Minister, notify the Minister and the Director-General, and (c) publish notice of its preliminary determination and the reasons for it in a newspaper circulating generally throughout the State and, if the determination is likely to affect a particular area or areas (other than the State as a whole), in a newspaper circulating generally in that area or areas, and (d) publish notice of the making of the preliminary determination in the Gazette. (3) The notice must: (a) state that the preliminary determination has been prepared, and (b) specify the address of the place at which copies of the determination may be inspected, and (c) invite persons to make written submissions to the Director-General about the determination, and (d) specify the address of the place to which submissions about the determination may be forwarded and the date by which submissions must be made. (4) The notice must specify the date by which and the address of the place to which any person may forward written submissions to the Scientific Committee about a preliminary determination. …" 74 Under sub-s. 22(5) the Scientific Committee must consider all written submissions received by or on the date specified in the notice which must not be "more than 150 days after the date on which the notice was first published under [the] section". 75 Section 23 then makes provision for the "Scientific Committee to make a final determination": "(1) The Scientific Committee must either accept or reject a proposal for inclusion, or amendment, of matter in or omission of matter from Schedule 1, 2 or 3, and must give reasons for the determination. (2) In a case involving a nomination, the Scientific Committee must make a determination under this section within 6 months after: (a) the making of the nomination, or (b) if additional information has been requested by the Scientific Committee, after that information has been provided or the period specified for its provision has expired." 76 The Scientific Committee must notify its final determination to the nominator: s.24(a) and the Minister and the Director-General: s.24(1)(b); and publish notice of its determination and the reasons for it in a newspaper which circulates in that State and a newspaper circulating generally in the area affected by the nomination: s.24(c). Notice of the making of the determination must also be published in the Gazette: s.24(d). Facts 77 This case relevantly concerns a nomination made under s.19(1) by Mr. Max Elliott of an ecological community described in the nomination as "Kurri Kurri Open Forest". The more particular description was: "This community occurs on old sandy and lateritic soils around the townships of Heddon Greta, Kurri Kurri, Weston and Cessnock. The dominant tree species are Eucalyptus parramattensis sub. Sp. Decadens and Angophora bakeri. The understorey contains a diverse flora of heath plants, many epacrids, pea bushes, grevillea sp., banksia sp. And cycads." 78 The nomination was dated 20 March 2000 and its receipt was acknowledged by the Scientific Committee on 30 March 2000. It was placed on the agenda for the Scientific Committee's 45th meeting to be held on 18th April 2000. At that meeting the Committee "agreed to defer the matter until advice from the nominator is received". The Committee also requested that "advice be sought from Travis Peake on other communities for consideration for listing". 79 At its 47th meeting on 20th June 2000, the Scientific Committee noted receipt of "the recoloured map". It appears this came from Mr. Elliott. 80 On 28th June 2000 Mr. Elliott provided further information in respect of the nomination. The various experts who were consulted also provided advice. 81 On 18th July 2000 the Scientific Committee determined to prepare a "draft preliminary determination". During the course of its considerations the Committee identified the nomination as the Kurri Sand Swamp Woodland to accord with mapping and classification work carried out by the National Parks and Wildlife Service. After further consideration over a number of meetings and a consideration of the draft, the Scientific Committee resolved on 14th November 2000 to "make a preliminary determination to support the proposal to list the Kurri Sand Swamp Woodland as an endangered ecological community on Pt 3 of Schedule 1 of the Act" (sic). 82 The Preliminary Determination was made and notice thereof published in the Gazette on 8th December 2000. 83 Notices of the Preliminary Determination were published in the Newcastle Herald on 8th December 2000 and in the Cessnock Advertiser on 13th December 2000. 84 The appellant objected to the proposed listing. The objection was considered at the Scientific Committee's 54th meeting held on 30 January 2001 when the Committee passed the following resolution: "… that the Committee make a final determination to list the Kurri Sand Swamp Woodland in the Sydney Basin Bioregion as an endangered ecological community on Part 3 of Schedule 1 of the Act subject to any matters raised by NPWS Legal Services or Central CPPD requiring further consideration by the Committee." 85 On 9th February 2001 the Chairperson of the Scientific Committee invited the appellant to provide any additional submissions by 16th February 2001. 86 On 16 February 2001 the appellant, through its solicitors, made a further detailed submission. 87 On 12th April 2001 the Scientific Committee considered the nomination, including reviewing the information it had received in respect of "the community". The Minutes of the meeting record: "The Committee noted the advice to consider whether any further information on the community exists. The Committee noted Mr. Robertson indicated in his submissions that he had undertaken inspections of some sites but had not advised the location of the sites. The Committee provided an opportunity for Mr. Robertson, through Blake Dawson Waldron to provide any further relevant information to the Committee. The Committee agreed to seek advice from Brian Preston SC on whether a further more explicit request for information is required. C Dickman moved that, subject to the advice from Brian Preston SC indicating that further action was required by the Committee, the Committee make a Final Determination to list the Kurri Sand Swamp Woodland as an endangered ecological community on Part 3 of Schedule 1 of the Act. Seconded: P Adams. The Committee unanimously agreed to list the Community." 88 The reference to Mr. Robertson in the first paragraph above was a reference to Dr. Robertson, the appellant's expert who was the author of the appellant's submissions to the Committee. The reference to Mr. Preston SC was a reference to a specialist senior counsel in land and environment law. 89 On 31st May 2001 the Committee advised Mr. Elliott that a final determination had been made "to list the Kurri Sand Swamp Woodlands in the Sydney Basin Bioregion as an ENDANGERED ECOLOGICAL COMMUNITY on Pt 3 of Schedule 1 of the Act". A copy of the Final Determination was attached. I will refer to the terms of the Final Determination so far as is necessary later in these reasons. Notices were published in the newspapers and the Notice of Determination was gazetted on 1st June 2001. Issues on Appeal The appellant raised seven issues on the appeal. Each will be considered in turn. The 'Reasons' Issue: Ground 1 90 The appellant contends that the Committee effectively gave no reasons in either of its published advertisements of the Preliminary Determination and the Final Determination. It said that the advertisements did not comply with the requirements of s.22(2)(c) or s.24(c) respectively as they failed to explain why the Committee formed its opinion and supported the proposal. 91 The newspaper advertisement published in respect of the Preliminary Determination was in these terms: " NSW SCIENTIFIC COMMITTEE Notice of Preliminary Determination The Scientific Committee established by the Threatened Species Conservation Act has made Preliminary Determinations to list the following in the relevant Schedules of the Act. Endangered Ecological Community (Part 3 of Schedule 1): Kurri Sand Swamp Woodland in the Sydney Basin Bioregion Mount Gibraltar Forest in the Sydney Basin Bioregion. The Committee is of the opinion that these Ecological Communities are likely to become extinct in nature in NSW unless the circumstances and factors threatened their survival or evolutionary development cease to operate. Copies of these determinations may be inspected at the National Parks Centre 102 George Street, The Rocks, Sydney and all NPWS Area Offices/Visitors Centres during business hours. Any person may make a written submission, which should be forwarded to: Director-General, National Parks & Wildlife Service, PO Box 1967, HURSTVILLE NSW 2220 Attention: Executive Officer Scientific Committee Submissions must be received by 25th January, 2001 Associate Professor Paul Adam Deputy Chairperson Scientific Committee 92 The advertisement of the Final Determination was in the same terms, save for the notification relating to the right to lodge submissions. 93 The trial judge held that these advertisements complied with the requirements of s.22 and s.24 respectively. He said: "The nature and extent of the reasons required to be provided in respect of each occasion will differ according to the circumstances. In respect of a preliminary determination the notice must provide the address at which the determination may be inspected (s 22(3)(b)). There is no requirement to publish in detail the reasons relied upon by the Committee for the making of a preliminary determination and of a final determination. All that is required for the purposes of the notice is that reasons be notified sufficient to justify the Committee's decision . In these circumstances the reasons provided by the Committee as published constitutes ' reasons' for the purposes of the statutory notices." 94 The appellant submitted that the terms of the advertisements amounted to no more that a statement that the Committee had formed the opinion that the nomination satisfied the statutory eligibility for listing under s.12(a). As such it was said not to amount to a statement of reasons as required by the Act. It was, on the submission, "no more than a statement of the ultimate facts on matters required by the legislature to be found": Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 at 687 per Aickin J. 95 The appellant submitted that s.22(2)(c) and s.24(c) required much more than that. This was apparent, it was said, when regard was had to a provision such as s.25D of the Acts Interpretation Act 1901 (Cth), which, it was contended, was in similar terms. 96 Section 25D provides: "Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression 'reasons', 'grounds' or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based." 97 In Dalton v Deputy Federal Commissioner of Taxation (1986) 160 CLR 246 the High Court said at 250; "The purpose of s.25D appears to be to enable a person affected by a decision for which reasons must be given to be supplied with findings and a reference to the evidence or other material on which they were based so that he may shape the course of his future conduct accordingly. That purpose will not be effectuated when the information is to be given to him only after he has chosen and embarked upon a particular course." 98 Section 25D is not a comparable provision to ss.22(2)(c) and 24(c). As its terms indicate, it is directed to a quite different purpose than are the advertisement provisions of the Act. Section 25D is directed to enabling a party affected by a decision that falls within its terms, to know not only the conclusion, but the findings of fact and the evidence upon which those findings were based. In the ordinary course that will be so as to enable that person to decide whether to challenge the decision. 99 More significantly however, s.25D does not relate to reasons in an advertisement. It is directed to the more formal provision of reasons such as in a determination, or statement of reasons, or in an advice to a party affected by a decision. That is not the purpose of ss. 22(2)(c) and 24(c). Section 22(2)(c) is directed at informing the public of a proposal in respect of which the Committee has formed a preliminary opinion as to listing under the Act. The requirement to inform the public is relevant for a number of reasons. A person might have an interest in objecting to the nomination, or in supporting it for different or additional reasons. Or a person might seek to add to or vary the species in the communities or the area to be made subject of the determination. Neither the Committee's findings of material facts nor the evidence upon which those facts were found is relevant to those purposes. In any event, to include such information in the advertisement would be unworkable. 100 For the same reason Iveagh (Earl) v Minister of Housing and Local Government [1964] 1 QB 395 which was relied upon by the appellant does not assist it. That case involved an appeal to the High Court against a Minister's decision under local planning laws. The requirement for reasons there, was, as Denning MR said at 410, to "enable the parties and the courts to see what matters [the Minister] has taken into consideration and what view he has reached on the points of fact and law which arise." 101 A rejection of this part of the appellant's argument does not however resolve the matter in issue. Whilst I agree with the appellant's submission that the "reasons" stated in the advertisement are merely a restatement of the statutory formula in s.12(a), the question is whether that is sufficient. The Committee submits that it is, given that s.22(2)(c) appears in a statutory context where the extent of the reasons required is not specified, whereas the other matters which must be stated are listed exhaustively in s.22(3). The Committee submitted that given that context, and the provisions of s.12, all that was required was a statement of which of the two opinions it had formed under s.12. It expressed its submission in these terms: "In relation to ecological communities, the Scientific Committee must form either of the two opinions in s.12 in order that the ecological community is eligible to be listed as an endangered ecological community. This indicates a statutory intention that the requirement to public reasons in a newspaper will be satisfied by the Scientific Committee stating that it has made a preliminary determination to list a species, population, ecological community or threatening process in Schedule 1, 2 or 3 for the reason that the Committee has formed the requisite opinion under the relevant section . (emphasis added) 102 With respect, I do not agree with this approach either. In my opinion, the nature and extent of reasons required by s.22(2)(c) falls to be determined having regard to the terms of the section and the purpose underlying the requirement for giving reasons. I have already explained what that reason is. It is one thing to state that a determination has been made for the reasons that the Committee has "formed the requisite opinions under the relevant section". It is another thing to state the reasons for determining that a particular statutory provision has been invoked or applies. In my opinion, s.22(2)(c) calls for the latter. It follows that a mere statement of the statutory eligibility for listing does not satisfy the requirement to give reasons in s.22(2)(c). The reasons do not have to be extensive, but they do have to inform a person reading the advertisement why the determination has been made. 103 Section 24(c) is in the same terms as s.22(2)(c). Its purpose, however, is not precisely the same as that which underlies s.22(2)(c) as there is no right to object to the Final Determination nor any right to make submissions. Submissions at that time would be superfluous. However, the advertisement still has the purpose of informing the public. One significant reason why the public need to be informed is because of the penal provisions which operate under the National Parks and Wildlife Act. The appellant also contends that the purpose for stating the reasons for the Final Determination under s.24(c) extends to providing sufficient reasons to enable a person to decide whether to bring proceedings to challenge the lawfulness of decision of the Committee. It submits, therefore, that the content of the reasons must be detailed in the sense required, for example, under s.25D of the Acts Interpretation Act 1901 (Cth), to which I have just referred. 104 I do not agree. If a person wishes to challenge the decision, resort would be needed to the full text of the Final Determination. The content of the reasons in the advertisement are not required to be co-extensive with the reasons for the Determination itself, nor, as a matter of practicality, could they be. To fulfil the purposes to which s.24(c) is directed, all that is necessary is the provision of sufficient information to enable a person to identify the species and why the Committee considered it should be listed. The reasons do not have to be extensive. But they do have to reveal the basis upon which the Committee finally determined that a listing should be made. 105 However, as was the case with the reasons in the advertisement of the Preliminary Determination, the advertisement stated no more than the statutory eligibility for the listing. That does not constitute reasons "for the decision". 106 Accordingly, I consider that the Committee failed to comply with the requirements of s.22(2)(c) and s.24(c). The next question is what flows from that failure. The appellant contends that a failure to comply with s.22(2)(c) results in the invalidity of any subsequent Final Determination. It submitted that: "Because the ability of the public to make submissions in part, at the very least depended, by force of s.22, on the publication in newspapers of reasons for the making of the Preliminary Determination, a failure to comply with s.22(2)(c) must have been intended by the legislature to result in the invalidity of any subsequent final determination." 107 It followed, on the appellant's submission that it was not available to the Committee, as a matter of power, to proceed to making the Final Determination. 108 In Project Blue Sky Inc & Ors. v. Australian Broadcasting Authority (1998) 194 CLR 355, their Honours in the majority judgment stated at 388-389: "An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition." 109 Their Honour's observed that traditionally, in determining when a failure to comply with a statutory provision would lead to invalidity, the courts had developed a distinction between mandatory and directory requirements. 110 Their Honours, having next explained why the mandatory/directory distinction was an inappropriate determinant of validity or invalidity, said at 390: "A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid … In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute': Tasker v. Fullwood [1978] 1 NSWLR 20 at 24". 111 Although accepting that the mandatory/directory dichotomy is no longer an acceptable approach, the appellant submitted that the characterisation of certain types of requirements as one or the other continued to provide useful analogies as to whether a failure to comply with a statutory provision led to invalidity. Thus, in Halsbury's Laws of England (4th Ed. Vol 1 para. 25) it is said: "Among requirements likely to be held to be mandatory are provisions as to … obligations to consult, to give notice so as to enable representations to be made, to conduct an inquiry, to consider objections, to give reasons for a decision and to give proper notice of rights of appeal." 112 In Pearce and Geddes on Statutory Interpretation in Australia (5th Ed 2001 para. 11.24) the authors state: " Provisions that are intended to allow persons to make representations relevant to a decision such as through consultations, inquiries or appeals will usually be interpreted as obligatory. So notice requirements and the giving of reasons will be strictly enforced." 113 The requirements of s.22(2)(c) and s.24(c) would, on these statements, lead to invalidity. 114 These statements however do not apply directly here. The scheme of Part 2 Div. 3 is not like the provisions of, for example, a planning law where an application or proposed development must be advertised before the decision making process is engaged. Here, the decision making process is engaged before public participation is invited. It is difficult, in those circumstances, to see that an advertisement which failed to comply with s.22(2)(c) would lead to invalidity. 115 In Project Blue Sky, in dealing with s.160 of the Broadcasting Services Act 1992, their Honours' stated at 391: "Section 160 proceeds on the hypothesis that the ABA has power to perform certain functions and directs that it 'is to perform' those functions 'in a manner consistent with' the four matters set out in the section. … The fact that s.160 regulates the exercise of functions already conferred on the ABA rather than imposes essential preliminaries to the exercise of its functions strongly indicates that it was not a purpose of the Act that a breach of s.160 was intended to invalidate any act done in breach of that section." 116 A similar situation applies here. The advertising provisions of s.22(2)(c), s.24(1)(a) and 24(1)(c) are not preliminary requirements to the making of the respective Determinations. They are subsequent notification provisions to provide information to the public for purposes discernable from the nature and scope of the Act and the particular Division of which the sections form part. In my opinion therefore, a failure to comply with either section does not lead to invalidity. I should add that much of the appellant's argument on this issue referred to the statutory requirement to give reasons and the failure of the Committee to do so as amounting to jurisdictional error. However, s.22(2)(c) and s.24(1)(c) are directed to reasons being part of an advertisement. That is quite different from the prescriptive requirement to give reasons for the decision. That is not the issue here. 117 Accordingly, in my opinion, Ground 1 of the Notice of Appeal fails. The Conditional Resolution: Ground 2 of the appeal 118 The appellant next challenges the validity of the Final Determination alleging that the Scientific Committee at no time made such a Determination, but rather only made a Conditional Determination. This issue raises both factual and legal considerations. 119 The Scientific Committee's last consideration of the Nomination occurred on 24 April 2001. The Minutes of that consideration are set out at para. 27 above. On 31 May 2001, the Deputy Chairperson of the Committee advised Blake Dawson Waldron that their letter and the annexed report of Dr. Robertson had been considered. On 1 June 2001, the Notice of the Final Determination was published in the Gazette. There was no evidence tendered in the proceedings that Mr. Preston SC was asked to give or gave the advice as noted in the Minutes and Cowdroy J held at J.63 that there was "no evidence that Mr. Preston so advised". 120 The Scientific Committee had attempted to lead such evidence, but only after it had closed its case. His Honour refused leave to reopen. Earlier, in an interlocutory application heard by Bignold J, see [2001] NSWLEC 182 the Committee had successfully resisted an application by the appellant to have access to Mr. Preston's legal advice on the basis that it had not waived client legal privilege. 121 Cowdroy J held, that the resolution of 24 April 2001 was "conditional". The appellant submits that a 'conditional' resolution is not authorised under the Act. I will return to that issue later. His Honour then held that the "condition was specific and self-executing, being dependent only upon Mr. Preston's advice that further action might be required". Having found there was no evidence of such advice, his Honour continued at 63: "There was no uncertainty in the resolution concerning the substance of the Final Determination. Accordingly the resolution to make the Final Determination was an exercise of the statutory power which was ' certain ' and accords [with] the ' principle of finality ' as considered by Spigelman CJ in Winn v. Director-General of National Parks and Wildlife & Ors [2001] NSWCA 17." 122 The appellant submitted that his Honour's conclusion, which inferentially must have involved a finding that Mr. Preston advised that further action was not required, was inconsistent with his Honour's refusal to permit the Scientific Committee to re-open its case to tender the legal advice (Red 33-35). The thrust of the submission was that his Honour erred therefore in finding the condition had been fulfilled. In effect the appellant says there was no evidence upon which his Honour could make the finding. 123 I agree that his Honour's refusal to permit the Committee to re-open and his finding that the Final Determination had been properly made do not sit comfortably together. However, this complaint does not advance the appellant's case. The real questions raised by this issue are, can the Committee make a conditional but self-executing determination and if so whether that self-executing event must be proved to have occurred. 124 In my opinion, there is no reason in principle why a body corporate cannot make a conditional resolution. I would expect that such resolutions are common occurrences in corporate life. In support of its submission the appellant seeks refuge in the Act, stating there is no power that authorises a conditional resolution. However, in my opinion, that does not mean that such a resolution cannot be passed. The Committee is a body corporate and can do that which a body corporate can do, save only to the extent that its functions, operations and procedure are governed and/or proscribed by the Act. There is nothing in the Act, however, which affects the Committee's ability to make a conditional resolution. In that circumstance I am of the opinion that it was lawfully entitled to do so. I am also of the opinion that the Committee could make a resolution in which the condition to which it was subject was self-executing. Whilst the Committee did not cite any authority to support its actions, it seems to me that if a court can make self-executing orders there is no reason, in principle, why a body corporate cannot make a self-executing resolution. 125 In relation to the next question, that is whether it is necessary to prove that the self-executing event occurred, the appellant raised another issue, namely whether the "24 April resolution contained a mechanism which enabled the Final Determination to be gazetted once Mr Preston SC gave whatever was the advice required to satisfy the condition." [Orange 19 para 56.] As I understand this point it was that there was no evidence that the Committee or a delegate of the Committee had examined the advice to ensure that the condition had been fulfilled. In relation to that question it was further submitted that it was necessary for the Committee to engage in a consideration of the advice given by Mr. Preston in accordance either with s.133 or s.134 of the Act. Section s.133 and s.134 fall within Pt 8 of the Act, of which species the procedures of the Committee. 126 Section 133 prescribes the procedure for meetings of the Committee. Sub-s.(4) provides: "A decision supported by a majority of the votes cast at a meeting of the Scientific Committee at which a quorum is present is the decision of the Scientific Committee." 127 A quorum for a meeting is 6 members: (sub-s. 2). A decision of a majority of a quorum is a decision of the Committee. 128 Section 134(1) provides for the transaction of business outside a formal meeting by the circulation of papers among all the members. The sub-section then provides that: "… a resolution in writing approved in writing by a majority of those members is taken to be a decision of the Scientific Committee." 129 Any resolution approved under this subsection is to be recorded in the Minutes: sub-s.(4). Meetings may also be transacted by "telephone, close circuit television or other means": Sub-s.(2). 130 There was no evidence that the Committee had considered Mr. Preston's advice either formally or at a meeting in accordance with s.134, nor that it had appointed a delegate to do so. It was further submitted that the Committee could not, in any event, delegate the task of determining whether Mr. Preston's advice affected the Determination. See Racecourse Co-operative Sugar Association Ltd. v Attorney-General (Qld.) (1979) 142 CLR 460 where Gibbs J said at 481: "When a discretionary power is conferred by statute upon the Executive Government, or indeed upon any public authority, the power can only be validly exercised by the authority upon whom it was conferred. Its exercise cannot be delegate to someone else, unless the statute, upon its proper construction, permits such delegation." 131 The submission in relation to delegation is not to the point as the Committee never contended that it had delegated its functions. 132 The appellant also submitted that there was no presumption of regularity which could be availed of in the circumstances. In support of this submission the appellant referred to MIMA v Bhardwaj (2002) 209 CLR 597 where Hayne J said at para. 151. "In general, judicial orders of superior courts of record are valid until they are set aside on appeal, even if they are made in excess of jurisdiction. By contrast, administrative acts and decisions are subject to challenge in proceedings where the validity of that act or decision is merely an incident in deciding other issues. If there is no challenge to the validity of an administrative act or decision, whether directly by proceedings for judicial review or collaterally in some other proceeding in which its validity is raised incidentally, the act or decision may be presumed to be valid. But again, that is a presumption which operates, chiefly, in circumstances where there is no challenge to the legal effect of what has been done. Where there is a challenge, the presumption may serve only to identify and emphasise the need for proof of some invalidating feature before a conclusion of invalidity may be reached. It is not a presumption which may be understood as affording all administrative acts and decisions validity and binding effect until they are set aside." 133 The Scientific Committee submitted that his Honour was correct in concluding that its decision of 24 April 2001 was a valid exercise of its statutory function which, apart from the provision of advice by Mr. Preston was otherwise final and certain. As to Mr. Preston's advice, the Committee point out that there was evidence before the trial judge that there had been a meeting at Mr. Preston's Chambers on 18th May attended by members of the Scientific Committee. It submitted it was open to his Honour to infer from the holding of that conference and the subsequent gazettal of the Final Determination that Mr. Preston had not given advice that further information was required (Orange 50). Consequently, there was evidence from which it could be inferred that the condition to which the resolution was subject, had been fulfilled. 134 This last submission is complicated by Bignold J's determination on the interlocutory application in which he held that it was "not reasonably open to infer the content (even partial) of that legal advice". The appellant submitted therefore that no inference could be drawn. The appellant relied on the statement of the High Court in Bass v Permanent Trustee Co. Ltd. (1999) 198 CLR 334 at 360 that: "Where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues." 135 The Scientific Committee submitted that Bignold J's determination on the interlocutory application was irrelevant to and did not foreclose the drawing of an inference by Cowdroy J. 136 The issue in the interlocutory proceedings before Bignold J was whether the Committee had waived client legal privilege, not what the content of the advice was. In those circumstances, there was no issue estoppel as alleged.. His Honour's comment was made in response to the apellant's argument that privilege had been waived because it was possible to infer the content of the advice. Bignold J disagreed with that as a basis for the appellant's argument. That is different from making a finding which created an issue estoppel between the parties. 137 Further, by a Notice of Contention the Scientific Committee seeks to challenge the trial judge's refusal to allow it to re-open its case and tender a note of Mr. Preston's advice. 138 It is convenient to turn to that issue now. In doing so it is necessary to refer to some further facts. Those facts were put before this Court by the Scientific Committee by way of written submissions, but were not in dispute and in any event are apparent from the transcript of the proceedings in the court below. 139 On 4 April, in its final submissions before the trial judge, the Scientific Committee submitted that it was open to his Honour to draw an inference as to the content of the advice, as his Honour subsequently did. In the course of that submission the appellant called for the advice and all documents recording it, again arguing that the Scientific Committee had waived privilege, this time because it had argued that the trial judge could draw the inference. The following day the trial judge was informed that the Committee had formally waived privilege and a file note and letter requesting the advice had been provided to the appellant. 140 The Scientific Committee had then sought leave to re-open its case to tender those two documents. Mr. Preston SC appearing for the Scientific Committee withdrew as counsel in the event he might become a witness in the proceedings. The appellant successfully opposed the application for leave to re-open. 141 The Scientific Committee contends the trial judge erred in refusing leave to re-open. 142 The decision whether to grant leave to re-open is a discretionary one: see Urban Transport Authority of New South Wales v. Nweiser (1991) 28 NSWLR 471. In that case Clarke JA discussed the principles governing the exercise of the discretion. He said at 478: "The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not to call the witness in the party's case was a deliberate one. Of course that does not mean that that is not a very relevant consideration. It is. Where, for instance, a decision was based on tactical grounds it may be difficult to resist the conclusion that the interests of justice were better served by the rejection of the application. But even in that circumstance there may be cases in which it is felt that the client whose application it is should not have to suffer for his or her counsel's deliberate decision. Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts the case is more appropriately considered as one in which the application has resulted from an error by counsel". 143 Earlier his Honour had noted at 476: "For instance, if the evidence which it is sought to call upon the re-opened case, while relevant, could not possibly affect the outcome of the trial or is peripheral to the main issues then a trial judge may well be justified in declining leave to re-open. It may be otherwise if the evidence is crucial and would, if believed, lead to a different result. In a circumstance such as that, the interests of justice would seem to require the grant of leave to re-open where the earlier failure to call the evidence had resulted from some type of mistake. " 144 Clarke JA in the earlier decision of Brown v Petranker (1991) 22 NSWLR 717 stated at 728 that the overriding principle in determining whether to grant leave to reopen was "whether the interests of justice require that leave be granted or refused." 145 Before this Court can intervene and overturn the trial judge's determination on this issue, it is necessary that some error in the exercise of the discretion in accordance with the principle in House v The King (1936) 55 CLR 499 be established: see Nweiser at 474; Australian Television Services Pty. Limited v. Marsden [2002] NSWCA 419. 146 The Scientific Committee submitted that the interests of justice in this case were best served by leave being granted and that the trial judge erred in refusing leave. It says that at the stage when it made its application to re-open, the appellant had access to the evidence sought to be tendered and all witnesses were available for cross-examination. The Scientific Committee further points out that the evidence was within a narrow compass and no prejudice was demonstrated at the time the application was made, although the appellant claimed prejudice on the basis that it would have structured its case differently. 147 Before this Court, senior counsel for the appellant did not submit that it was affected by any prejudice or that it would have conducted its case differently except that he said he would have wanted to cross-examine Mr. Gibbins the Principal Legal Officer, Policy and Law for the New South Wales National Parks and Wildlife service "as to how the thing went from Mr. Preston's chambers to get to the Gazette". It is difficult to see how that could possibly be relevant to the question of the validity of the Determination. The notification of the making of the Final Determination in the Gazette is a matter of statutory prescription. But it does not require a formal resolution of the Scientific Committee to effect it. It involves a purely clerical act consequent upon the Scientific Committee making a Final Determination. 148 Both parties to the proceedings took tactical decisions and made legal claims relating to Mr. Preston's advice that were sometimes inconsistent and generally were not easy to fathom. As this Court said in Nweiser, a tactically based decision by a party not to call certain evidence, is a relevant adverse consideration in determining whether the party should be permitted to reopen the proceedings to call that evidence. But the fact that a decision not to adduce evidence was tactical is not necessarily fatal. 149 In this case, the trial judge was being asked to infer that Mr. Preston SC had given certain advice. Alternatively, he was being asked to presume that the Final Determination was regularly made. The evidence that the Committee was seeking leave to adduce was thus in respect of a critical issue in the proceedings. It went directly to the question of validity of the Final Determination. I consider that, in circumstances where his Honour was being invited to draw an inference to the same effect as the evidence would have demonstrated, or to allow a presumption to operate, and where there was in fact no prejudice to the appellant's case, his Honour erred in refusing leave to reopen. 150 This Court has been requested to itself receive the evidence and consider it. I am of the opinion that we ought to do so. As I have already indicated, it only established that in respect of which his Honour drew an inference. Having found that the advice ought to be received into evidence it is unnecessary to determine whether, absent that proof, it was available to the Scientific Committee to rely upon the presumption of regularity. Accordingly, I do not consider that this ground has been made out. The Procedural Issue: Ground 3 151 For reasons that will become apparent, it is convenient to consider this issue after I deal with the next three grounds of appeal. The Nomination Issue; Uncertainty and Definition Issues 152 Grounds 4, 5 and 6 in the Notice of Appeal raise related and partially overlapping issues. The appellant characterises these grounds as the Nomination Issue, (ground 4), the Uncertainty Issue (ground 5) and the Definition issue (ground 6). The Nomination Issue: Ground 4 153 The appellant contended that neither of the Determinations accorded with the Nomination and therefore the Committee had no power to make either the Preliminary or Final Determinations in the terms they did. 154 The appellant contends that the Committee's task, upon receiving a Nomination, was to determine what ecological community was the subject of the Nomination; to determine whether that community was eligible for listing as an endangered ecological community in accordance with s.12; make a Preliminary Determination under s. 22(1); consider all submissions received under s.22(5) and then make its Final Determination under s.23(2) in respect of the Nomination. 155 The appellant acknowledged that the Committee, should it not accept the Nomination, could initiate its own proposal under s.18(1). However it submitted that in this case it did not do so and in purporting to act upon the Nomination it departed from the statutory scheme in that both the Preliminary and Final Determination related both to a quite different area and a different assemblage of species than that contained in the Nomination and bore a different name. 156 In the Nomination Mr. Elliott identified the community by reference to 16 species. He specified as the dominant tree species Eucalyptus parramattensis sub. sp. Decadens and Angophora bakeri. He identified the understorey as containing "diverse flora of heath plants, many epacrids, pea bushes, grevillea, sp., banksia sp. and cycads". A map was attached identifying the restricted distribution of the community (Blue 6). The area identified in which the community was said to occur was "on old sandy and lateritic soils around the townships of Heddon Greta, Kurri Kurri, Weston and Cessnock" (Blue 3). In a letter dated 28 June 2000 Mr. Elliott provided a further more detailed description of species and sub-species and their locations (Blue 21 ff). In MU35, 23 species were identified. 157 In the Preliminary Determination the Committee stated that the Kurri Sand Swamp Woodland was characterised by 46 nominated species, adding that the total species flora and fauna list for the community is considerably larger than those listed. Those same 46 species (and none other) were then specified in the Final Determination and the same notation as made to the Preliminary Determination to the effect that the total species list was larger was also made. The area in which the woodland occurred was identified as the Sydney Basin Bioregion. It is apparent from maps tendered in the case that the area specified in both the Preliminary and the Final Determination is more extensive than that nominated by Mr. Elliott, either in his original nomination or in subsequent correspondence. 158 The trial judge held at 42: "The Committee is not confined by s. 22 of the Threatened Species Act to making a preliminary determination in identical terms to that contained in the nomination. …The Threatened Species Act does not restrict the Committee to a consideration of the nomination solely by reference to the name selected by the nominator, nor to the precise content of the nomination. If the subject matter contained in the nomination is identifiable by reference to species, populations or ecological communities, the Committee is entitled to recognise it accordingly. The Committee is comprised of persons having expertise in such areas of study (s.129(3)) and it is empowered to utilise its own expertise and to receive advice from third parties (s.128(3))." 159 His Honour held that the "additional communities contained in the Preliminary Determination are subspecies of the species identified by the nominator (J43). His Honour further held that the Committee's powers of investigation would be rendered otiose if it was not able to broaden the species to be made subject of a Determination beyond those specified in the Nomination. His Honour noted that the additional flora included in the Determination were taxonomically related to those specified in the Nomination (J43). 160 His Honour found, alternatively that the Committee could have made a Determination in respect of species beyond those contained in the Nomination, under s. 18(1) [see para. 5]. 161 His Honour noted that none of the experts had suggested that the community identified in the Preliminary Determination did not accord with that identified in the Nomination. 162 The appellant seeks to make good its submission that the Determinations were in respect of both a different assemblage of species and a different area (Appeal Sub. 79) by reference to a list of Agreed Facts submitted to his Honour in the course of the hearing, together with two maps attached to those Agreed Facts. 163 The Agreed Facts were: "1. The plan annexed marked 'Exhibit DR-A' is a reasonable transposition of the areas referred to in the key, being areas shown on the maps identified, subject to whatever limitation are inherent in those other maps. 2. The areas on the annexed plan 'Exhibit DR-A' near Cessnock, shown as black and green, nominated by Mr Elliott were classified by the NPWS 2000 Vegetation Survey shown in plan marked PD-1 predominately as MU 17 (Lower Hunter Spotted Gum – Ironbark Forest) and MU 19 (Hunter Lowland Redgum Forest), although there is a small portion of MU 35 (KSSW) in the vicinity. 3. The soils themselves (although not the soil landscapes) on which KSSW occurs are not currently mapped. 4. Tertiary sand deposits that blanket Permian sediments are not shown on any available geological maps of the Kurri Kurri area." The first of the attached maps, referred to as DR-A in the Agreed Facts showed by hatching and coloration both the area nominated by Mr. Elliott, including as arguably extended in his letter of 28 June 2000, and the area the subject of the Final Determination. There is no doubt that an examination of the map reveals that the area in the Final Determination is more extensive than that in the nomination or in MU 35 although the area remains correctly as the Sydney Basin Bioregion. 164 The Committee's primary response to the Appellant's contention is a factual one. By reference to a document entitled "Aide Memoire to Selected Evidence" (Orange 71), which was a document agreed between the parties and placed before the trial judge, the Committee submitted: "(a) of the 46 species identified in the Preliminary and Final Determinations, some 28 (or circa 60%) were proposed by the Nominator in the Original Nomination or in additional information provided by him to the Committee on 28 June 2000; and (b) each of the other 18 further species listed in the Determinations, and not proposed by the Nominator, was identified by one of the Committee's two expert consultants, Mr. Payne or Mr. Lembit, or in Map Unit 35 – Kurri Sand Swamp Woodland ('MU 35 – KSSW') of the NPWS 2000 Report." 165 The reference to MU 35 KSSW of the NPWS 2000 Report is a reference to a map of an area (defined as Map Unit 35) recently surveyed by the National Parks and Wildlife Service. In an additional aide memoire provided to the trial judge, being an agreed "Overview of Evidence … in Relation to the Species Assemblage" Annotations to the Aide Memoire", (Orange 74) Senior Counsel for the Scientific Committee provided a detailed history of the manner in which the Committee had gone about the process of determining what flora constituted the community and where the community was located. 166 The Aide Memoire specified how the community was identified in the Nomination and in subsequent correspondence from Mr. Elliott, and by each of the experts consulted by the Committee. It explained how the terminology of "Kurri Kurri Open Forest" used in the Nomination evolved so that the community became identified as the "Kurri Sand Swamp Woodland" and how that terminology was accepted by all, including the Nominator, as being more accurate. The Aide Memoire further explained how the list of flora was expanded during the course of these consultations beyond the list specifically identified in the Nomination. 167 More importantly the information contained in the Aide Memoire explained how the expanded list of species were related. This is important as his Honour held that the additional species listed in the Determination were taxonomically related [J.43]. The appellant's submission failed to address this finding other than by saying there was no evidence to support it. The appellant's submissions also failed to address the detailed material in the Aide Memoire. In my opinion, its failure to do so is telling. The investigations undertaken by the Committee in order to determine whether there should be a listing is a complex scientific task. It would be surprising if a determination could be challenged by a mere comparison of lists of species. The Committee's submissions, including reference to the Aide Memoire and its Annexures, make this apparent. In the end result the appellant's failure to address this issue on an evidentiary basis is fatal to its challenge to his Honour's factual determination. 168 However, that deals only with the issue insofar as it relates to the identification of the ecological community. The appellant also contends that the Determination related to a different area than that specified in the Nomination. 169 Again the Scientific Committee's initial response to this was at a factual level. Senior Counsel for the Committee pointed out that in the Nomination and further letter of 28 June 2000, Mr. Elliott acknowledged that the area that he specified was not necessarily precise and referred to the Vegetation, Survey, Classification and Mapping Project which was then being undertaken by the National Parks and Wildlife Services' CA Unit. Mr. Elliott said: "This vegetation mapping should verify the vegetation type and clarify the other areas which need accuracy. 170 The appellant raised a number of other issues about the trial judge's finding. One is a factual issue – namely that there was no evidence that the experts had expressed any view as to whether the Preliminary Determination corresponded to the Nomination. The Scientific Committee responds to this criticism by pointing out (Orange 59) that the experts were given the Determination and did not contend that it was different from the Nomination in respect of which their advice had been sought. 171 There is nothing in that particular issue. The real issue, is whether the Committee was permitted to make a Preliminary or Final Determination in respect of any community or area other than that nominated, and if the answer to that is "no" whether it in fact did so. 172 The appellant contends that the Committee cannot do so other than by following the formal procedure of rejecting the Nomination and then initiating its own proposal under s.18(1) or by permitting the original Nominator to make a further Nomination, after having given its reasons for rejecting the original Nomination [Orange 28 at 88/89], there being no power in the legislation to vary a Nomination. The Chief Justice, in his judgment, considers that the appellant fails on the Nomination issue. I agree with his Honour's reasons. 173 The appellant further contends that the Committee by 'redefining' the Nomination without giving reasons, made an error of law. It relies upon the statement of McHugh, Gummow and Hayne JJ in Minister for Immigration v Yusuf (2001) 75 ALJR 1105 at 1109: "… relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute." 174 This principle, however, is not relevant to the question involved here, namely whether a decision may be valid where there is an alternate source of power. Nor is there anything else, either as a matter of principle or in the terms of the Act that would invalidate the Determinations because the Committee did not make it clear under which procedure it was proceeding. Nor is there any point in substance in the Committee's failing to do so. The only difference in the Committee proceeding on a nomination as compared to making a determination on its own initiative is that in the former case the nominator may be asked to provide further information and must be given notice of the determination. Further, the language of ss 22(2)(a) and 24(1)(a) makes it clear that there is no point in this aspect of the appellant's complaint. Those sections refer to a "case involving a nomination." They do not refer to "the case of a nomination". 175 It follows, in my opinion, that a failure by the Committee to follow the processes in the way submitted by the appellant, does not lead to invalidity of the Determination. The Uncertainty Issue: Ground 5 176 The appellant next submits that neither the Preliminary nor Final Determination sufficiently define the ecological community either by the assemblage of species or by reference to a particular area. 177 It is sufficient to consider this issue by reference to the Final Determination. 178 The Final Determination was in these terms: "The Scientific Committee, established by the Threatened Species Conservation Act, has made a Final Determination to list the Kurri Sand Swap Woodland in the Sydney Basin Bioregion as an ENDANGERED ECOLOGICAL COMMUNITY on Part 3 of Schedule 1 of the Act. The listing of Endangered Ecological Communities is provided for by Part 2 of the Act. The Scientific Committee has found that: 1. Kurri Sand Swamp Woodland is the name given to the ecological community that occurs on soils developed over poorly-drained Tertiary sand deposits that blanket Permian sediments around Kurri Kurri. All sites are within the Sydney Basin Bioregion. 2. Kurri Sand Swamp Woodland generally ranges from low open-woodland to low woodland and open scrub. [There was then a reference to species within the tree canopy, the shrubby stratum and ground layers.] 3. Kurri Sand Swamp Woodland is a low open-woodland to low woodland and open scrub characterised by the assemblage of species listed below. While some of the species listed below may be widespread and may occur elsewhere, it is the following distinct assemblage that is recognised as the Kurri Sand Swamp Woodland ecological community. … many species present in only one or two sites or in very small quantity. In any particular site not all of the assemblage listed may be present. At any one time, seeds of some species may only be present in the soil seed bank … [The 46 species are then listed] 4. Kurri Sand Swamp Woodland is or has been known to occur in the Kurri Kurri-Cessnock area in the lower Hunter Valley, in the local government area of Cessnock, but may occur elsewhere. 5. Kurri Sand Swamp Woodland includes vegetation described in NSW National Parks and Wildlife Service – (2000) 6. Disturbed remnants are considered to form part of the community … 7. Kurri Sand Swamp Woodland has been fragmented and is subject to weed invasion and ongoing disturbances. … 8. The only known occurrence of Kurri Sand Swamp Woodland reported from conversation areas is in the Lower Hunter National Park. 9. Plant species of conservation significance occurring in Kurri Sand Swamp Woodland are Eucalyptus parramattensis subsp. Decadens and Grevillea parviflora subsp. Parviflora, both listed as Vulnerable under Schedule 2. 10. In view of the small size of existing remnants, and the threat of further clearing, disturbance and degradation, the Scientific Committee is of the opinion that Kurri Sand Swamp Woodland in the Sydney Basin Bioregion is likely to become extinct in nature unless factors threatening its survival or evolutionary development cease to operate and that listing as an endangered ecological community is warranted." 179 The appellant complains that none of the findings in the Determination were expressed with sufficient certainty to enable a person easily to determine whether the community is present. It makes 8 specific complaints. They were: "1 finding 1 stated that the community was said to be present around Kurri Kurri on soils developed over poorly-drained Tertiary sand deposits. However, the evidence was that no such soils have been mapped around Kurri Kurri; and that such Tertiary sand deposits were not shown on any available geological map of the area; 2 finding 2 provided a description with a high degree of generality. But, in any event, on a fair reading it appeared from finding 3 (see below) that it was intended that finding 3 be the principal definitional description of species composition; 3 finding 3 asserted that there is a "distinct" assemblage of species which is recognised at KSSW. However, what was provided is a list of 46 plant species, qualified by statements that: (a) not all of those species need be present; (b) some species may only be present in seed banks; (c) the total species list for the community is "considerably larger" than the 46 listed, although what they might be is nowhere indicated; (d) the community includes vertebrates and invertebrates (not one of which is listed or described); 4 finding 4 suffered from the same flaw as finding 1, because of the soil conditions around Kurri Kurri. It went on to state, uninformatively, that the community "may occur elsewhere" ; 5 finding 5 stated that the community included vegetation described in the NPWS 2000 survey. That survey contained a community of the same name (KSSW) in MU 35 but which is substantively, in area and species, different from that contained in the Determination. Of course, no reasons were given as to why the Committee disagreed with the identification of the 3 different Communities, MU 17, MU 19 and MU 35 in NPWS 2000 in the particular area where the Committee said its version of KSSW was; 6 findings 6 and 7 expanded the scope of that which was being defined to include disturbed remnants (that is, areas which do not include all or most of the species listed) and areas subject to weed invasion (that is, areas which include significant populations of species not in the community); 7 findings 8 and 9 stated, in a cursory way, two matters which were relevant to whether the community was likely to become extinct; 8 finding 10 was a statement of opinion in terms of s.12(a) of the TSC Act." 180 At trial the Committee had answered each of these criticisms in detail: see the Aide-Memoire, the Annotations to the Aide Memoire and Written Submissions at first instance. Each of those documents have been relied on in this Court and are annexures to the Committee's written submissions on the appeal. In my opinion, each of the criticisms made by the appellant is fully met by the Committee in these documents as well as its submissions on the appeal and I do not consider it necessary to set out the argument in full. It is sufficient, in my view, to refer only to the following responses. First, in relation to the findings in Nos. 2,3, and 5 of the Determinations, the Committee points out that: "The community was found by the Scientific Committee to be characterised by the assemblage of species listed in paragraph 2 of the Preliminary Determination. … The assemblage of species is larger than the species referred to in the description of MU 35 – KSSW although it includes all those species, …" those species being "diagnostic" only, that is they "[drive] the distinction between one map unit and another". 181 Secondly, in relation to the area, the Committee refutes the appellant's complaint, stating that there was detailed evidence before the trial judge in relation to the mapping of the community. As it said: "In effect, the Appellant asks this Court to favour its own construction of these 2 [mapping exhibits] to the detailed, comprehensive and scientifically-based work, including examination of the Nomination, undertaken by Mr. Conroy of the NPWS. (Drawing on the NPWS 2000 Vegetation Survey, Classification and Mapping Project Report), and the two experts, Mr. Payne and Mr. Lembit." I agree with these observations. 182 It is also worth observing that paras. 6-10, at least, of the Final Determination were reasons why the Committee had reached its determination, and not relevant to the question whether the identification of the 'community' was certain. 183 The next matter raised by the appellant was that the trial judge erred in holding that there was no requirement under the Act to identify the area where the community was located. The Committee submitted that this submission misunderstands his Honour's judgment, and that properly read his Honour was saying no more than that there was no requirement for a specific area to be mapped. 184 His Honour's finding, contained in para 86, was as follows: "It is also claimed that the Determinations are uncertain with respect to the location of KSSW. In making this submission the applicant overlooks that Pt 2 of the Threatened Species Act is directed to the listing of threatened species, populations and ecological communities. Such communities comprise both fauna and flora. To enable a listing under Pt 2 of the Threatened Species Act specific mapping of the location on which an assemblage of species occurs is not required. Pursuant to that Pt 3 of the Threatened Species Act relating to critical habitat of endangered species, populations and ecological communities, different considerations apply and specific areas must be identified, but no such requirement applies to Pt 2." 185 I agree with the Committee's submission that his Honour was distinguishing between the statutory regime under Pt 2 of the Act and that under Pt 3 that relates to critical habitats. Under Pt 3, mapping of the location of the critical habitat is a precondition to the declaration of the habitat. His Honour earlier in his judgment (para. 70) had observed that in both the Preliminary and Final Determination the Committee had formed its opinion in relation to the KSSW "in the Sydney Basin Bioregion". His Honour was not saying, when this paragraph is read as a whole, that a specific area need not be identified for the purpose of Pt 2. There was, therefore, no error as alleged. 186 The appellant's next challenge related to the uncertainty said to flow from his Honour's rejection of the submission that there had to be a minimum number of species present in order to constitute an ecological community: see J.85. That finding itself is not challenged. Rather, it is alleged that the Committee in its Determination, introduced 23 species additional to those specified in MU35. The effect, it was said, was to dilute the precision of MU 35, which only contained the original 23 species. This submission was explained further by reference to the fact that MU 35 also specified which species were diagnostically helpful, and showed the relevant area on a map so that the area of the community was readily identifiable. By contrast, not only did the Determination list 46 species, it was stated none of which "was necessary or sufficient". The submission recognised that in the Final Determination 2 canopy species were given a defining role but neither needed to be present. The consequence, it was argued, was that the Determinations were wider than MU 35 and thus described a "different community". 187 There are a number of answers to this submission. The first and one which answers it completely is that the appellant's submissions are predicated upon the requirement that the Determinations be co-extensive with the Nomination. For the reasons given by the Chief Justice that is not so. 188 The Scientific Committee submitted in any event, that the area where the community was located was properly identified (AT 31). First, the bioregion was identified – namely the Sydney Basin Bioregion. The locality is further defined within the body of the Final Determination in paragraph 4 in these terms: "Kurri Sand Swamp Woodland is or has been known to occur in the Kurri Kurri – Cessnock area in the lower Hunter Valley, in the local government area of Cessnock, but may occur elsewhere." 189 Senior Counsel for the Scientific Committee submitted that no more precise definition could be given as all bioregions in New South Wales had not been mapped (AT 31). 190 In my opinion, the appellant's challenge to the Determination on this issue should also be rejected. 191 The Committee contends that even if it could be said that there was some uncertainty in the Determination it would not thereby be invalidated. Subordinate legislation is only invalid where it cannot reasonably be given any meaning. 192 I have already concluded that the Final Determination was certain so that no question of invalidity due to uncertainty arises. The Definition Issue: 193 The appellant identified the issue raised by ground 6 of its appeal as being: "whether each of the community or communities said to be the subject of the Nomination, the Preliminary Determination and the Final Determination was an " ecological community " as defined in s.4(1) of the TSC Act (' the Definition Issue' );" 194 In its Written Submission in support of this issue the appellant complained that 44 of the 46 species included in the Determinations were "commonly found and provided no definitional role by which a person going onto land might know whether or not he or she would commit an offence by picking or harming flora on it. However, an ecological community is different in nature to a population or species. What is relevant in an ecological community is the particular assemblage of species. It is not relevant therefore that a proportion of the species said to form part of the assemblage are "commonly found and provide no definitional role". 195 The appellant also contended that its point on this issue was demonstrated by the fact that there was a dispute amongst the experts as to what constituted these "ecological community". It was said that what the Committee had defined as one ecological community had been identified in NPWS 2000 as three distinct ecological communities – i.e. the communities in MU17, MU19 and MU35. 196 Whilst it is correct to say that the species specified in both the Preliminary and Final Determination were more extensive than MU35, that was an opinion at which the Committee was entitled to arrive. The species listed in MU35 were diagnostic species. The Committee determined on the information available to it that there were "other species that characterised the assemblage" (Orange 82) 197 In my opinion this ground has not been made out. 198 It is important to recognise that the identification of an ecological community involves a different process than e.g. the identification of a species. As earlier explained, that is a complex, detailed scientific process and goes beyond a mere listing of species in an area. One approach to identifying an assemblage is to ascertain the diagnostic species. The Committee chose, however, to list species that were characteristic of the assemblage. There was no evidence to suggest that that methodology was wrong or inappropriate or impermissible. 199 In my opinion, this ground has not been made out. The Procedural Issue: Ground 3 200 It is convenient at this point to return to Ground 3. 201 The appellant submitted that after the 24 April resolution was passed, the Committee never met or considered the making of the final determination and had not appointed a delegate to receive, consider or act on Mr Preston's advice. 202 It was also submitted that there was no evidence that the condition to which the resolution of 24 April 2001 was subject had been satisfied. This issue is determined, in my opinion, by the conclusion in relation to the previous issue, namely that his Honour should have allowed the re-opening and that on the evidence advanced on the re-opening, the 'self-executing' condition was satisfied. 203 The appellant's argument has to be considered, therefore, on the alternative bases advanced. Those bases were: first that no one was authorised on behalf of the Committee, nor did the Act authorise the Committee, to amend Schedule 1 of the Act by a self executing resolution; secondly: that the committee failed to comply with the time requirements specified in s23(2); and thirdly that there was no resolution authorising publication of the Final Determination on 1 June 2001. 204 The last point can be disposed of quickly. Assuming that a resolution of the committee was required for a publication, publication that was not so authorised would not be invalid for the reasons already discussed in relation to the previous ground of appeal. 205 The appellant's argument was that as there had been no delegation to any person to Schedule 1 to be amended, nor was any further meeting of the Committee called after 24 April 2001, there was no-one who could have authority to publish the notice of the Final Determination in the Gazette. Because of this, and as there was no other evidence, the appellant contended it had proved that there was no Final Determination ever made. 206 There was never any issue raised by the Committee either at hearing or on the appeal, that there had been any delegation either of the power to make the Final Determination or to consider Mr. Preston's advice. The Committee's case had always been that it had made a Determination subject to postponement of its operations until Mr. Preston's advice had been received. I have already expressed the view that the Committee could make a conditional resolution and that the gazettal was an administrative act that did not require a resolution. Once this is accepted, this aspect of the appellant's procedural issue falls away. 207 The appellant raised another procedural irregularity, namely, a failure to comply with the time limit in s.23(2). That section provides that the Committee must make a final determination within 6 months of, relevantly, receipt of any additional information requested under s.20. The Final Determination was not made within that time. The appellant contends that that failure leads to invalidity. The Committee contends to the contrary. 208 The appellant contends that the time limit in s.23(2) was "intended to go to validity otherwise they should have no function at all in distinguishing between determinations on a nomination and other determinations". I am inclined to agree as a matter of principle. However, that does not resolve the issue in the appellant's favour for the very reason that in this case there is another source of power to support the validity of the Determination. That being so, the failure to comply with the time limit specified in s.23(2) does not invalidate this Determination. Disqualification Issue 209 The appellant finally contends that his Honour should have disqualified himself on the grounds of reasonable apprehension of bias. The appellant made an application that his Honour do so at the commencement of the hearing on 2 April 2002. The basis of the application was that 4 years previously, his Honour had imposed a penalty on the appellant (then known as Capral Aluminium Limited) following Capral's plea of guilty to 3 charges under the Environmental Offences and Penalties Act 1989 of breach of licence conditions. His Honour imposed fines totalling $100,000.00. In the course of his reasons his Honour was critical of the general manager of Capral, a Mr. Coombe. Mr. Coombe is now the chief executive officer of the appellant. 210 The appellant claimed before his Honour on the application to disqualify that these proceedings involved an administrative challenge to an amendment to an environmental law which affected the appellant's operating activities. It points out that the appellant's smelter is located in the area forming part of the Nomination and it was that smelter's licences that was the subject of the penalty proceedings. 211 These proceedings are however quite different as his Honour stated. Moreover, the appellant's conduct is not under review, nor is the credit, the attitude or the conduct of Mr. Coombe. The subject proceedings are concerned with a challenge to the validity of determinations made by the Committee. 212 His Honour concluded "that a reasonable observer would not conclude there was any basis for apprehension of bias" and thus dismissed the application (Red 31). I agree and this ground should also be refused. 213 The appeal should be dismissed with costs. 214 HODGSON JA: In my opinion, the appeal should be dismissed. I agree substantially with the reasons of Spigelman CJ on the nomination issue, and I agree substantially with the reasons of Beazley JA on all issues in the case, except for the "reasons" issue. I will deal first with the reasons issue, and then briefly advert to the other issues in the case. 215 At the relevant time, s.22(2)(c) of the Threatened Species Conservation Act 1995 (the Act) required the Scientific Committee to "publish notice of its preliminary determination and the reasons for it" in one or more newspapers. The words "and the reasons for it" were subsequently deleted by the 2002 amendment to the Act. Section 23(1) of the Act required the Scientific Committee to "give reasons for" its final determination; and s.24(c) required it to "publish notice of the determination and the reasons for it" in one or more newspapers. The words "and reasons for it" were deleted from s.24(c) also by the 2002 amendment. 216 The notice of the preliminary determination in this case, as published in local newspapers, was in the following terms: The Scientific Committee, established by the Threatened Species Conservation Act, has made a Preliminary Determination to support a proposal to list the Kurri Sand Swamp Woodland in the Sydney Basin Bioregion as an ENDANGERED ECOLOGICAL COMMUNITY on Part 3 of Schedule 1 of the Act. The Committee is of the opinion that this Ecological Community is likely to become extinct in nature in NSW unless the circumstances and factors threatening its survival or evolutionary development cease to operate. Copies of the Determination may be inspected at the National Parks Centre 102 George Street, The Rocks, Sydney and at all NPWS Area Offices/Visitors Centres during business hours. Any person may make a written submission, which should be forwarded to: Director-General National Parks & Wildlife Service P O Box 1967 Hurstville NSW 2220 Attention: Executive Officer, Scientific Committee Submissions must be received by 25th January 2001. 217 A notice published in the Sydney Morning Herald was to the same effect, except for changes due to this notice referring to another ecological community as well. 218 The notice of the final determination in this case was to similar effect, apart from identification of the determination as a final determination and omission of reference to submissions. 219 It was submitted by Mr. Rares SC for the appellant that these notices could not satisfy the requirement that notice of reasons be published, because they did no more than state the opinion which was in any event required by s.12 of the Act, which is in the following terms: An ecological community is eligible to be listed as an endangered ecological community if, in the opinion of the Scientific Committee: (a) it is likely to become extinct in nature in New South Wales unless the circumstances and factors threatening its survival cease to operate, or (b) it might already be extinct. 220 Mr. Rares submitted that it was important that reasons for a preliminary determination be published, so that persons can exercise their rights under s.22 to make submissions. He noted that reasons were expressly required to be given for final determinations, so as to expose whether these determinations were justified; and submitted the word "reasons" must be given the same meaning in s.24(c) as in s.23(1). 221 There is force in these submissions, but in my opinion they overlook the distinction between giving reasons, and publishing notice of a determination and reasons. I accept that the reasons required to be given under s.23 must be more than a bald statement of a statutory formula. However, in my opinion "notice … of reasons" in these provisions does not mean a full statement of the reasons, but is satisfied by a notice giving an indication of the general nature of the reasons and information as to where the reasons themselves may be found. 222 In this case, the notices showed that the reasons were directed to s.12(a) rather than s.12(b); and they stated where "the determination", plainly meaning a document containing more information about the matter, could be inspected. In my opinion, that was a sufficient indication of the general nature of the reasons, and sufficient information as to where the reasons themselves could be found, so as to amount to "notice … of the reasons" within each of the relevant provisions. 223 I would add that if I were wrong on this matter, I would agree with the view of Beazley JA that any breach in this regard did not invalidate the determination. 224 Next, I will look at the related issues called the "conditional resolution" issue and the "procedural" issue. What was resolved by the Scientific Committee on 24 April 2001 was that "subject to the advice from Brian Preston SC indicating that further action was required by the Committee, the Committee make a Final Determination …". 225 It was submitted for the appellant that this was a conditional and not a final determination; that it provided no mechanism to determine whether or not the condition was satisfied; that there was no evidence of any subsequent meeting of the Committee which may have finalised the matter; that there was no evidence that the condition was satisfied; and that it was inconsistent for the primary judge to find the condition was satisfied when he refused leave to re-open the case by admitting evidence on the question. 226 In my opinion, the determination was a final determination, albeit subject to what might be described as a condition defeasant. In my opinion, the question of whether or not the condition did operate so as to defeat the determination is a question of fact that can be determined by the Court, so that there was no need for any mechanism to be set up to determine whether the condition operated, or for any subsequent meeting of the Committee. In my opinion, in the absence of any evidence about the condition, the subsequent publication of the notices of the determination and of the determination itself was sufficient, coupled with the presumption of regularity, to justify a finding that the condition defeasant did not operate. 227 In relation to the re-opening question, in my opinion the initial decision on privilege was wrong: in circumstances where the respondent was asserting that its dealings or absence of dealings with Brian Preston SC were such that the condition defeasant did not operate it was not open to it to assert privilege in relation to the content of those dealings. However, when that privilege was waived, the evidence should have been admitted unless there was prejudice to the appellant; and prejudice is not asserted. That gives rise to the question on appeal whether the appellant should be given an opportunity to further explore the evidence on this matter, an opportunity which was in effect lost because of the refusal of the primary judge to allow the evidence to be led. In my opinion, the answer to that question depends upon the Court's assessment of whether there is any realistic possibility that this could make any difference to the result. In my opinion, there is no realistic possibility, so that the appellant fails on these issues. 228 I now will deal with the "nomination" issue. It is to be noted that what the Scientific Committee is to consider under s.22 of the Act is not a nomination as such, but rather a "proposal" which may be "in response to … a nomination". Plainly in my opinion, a proposal in response to a nomination need not be identical to the nomination itself. In any event, plainly also the Scientific Committee can raise a proposal on its own initiative. 229 In circumstances where there is no relevant difference between the procedure or requirements for support, acceptance or rejection of a proposal in response to a nomination, on the one hand, and the procedure or requirements for support, acceptance or rejection of a proposal raised on the Scientific Committee's own initiative, on the other hand, it just does not matter whether what was done in this case is correctly regarded as dealing with a proposal in response to a nomination or a proposal raised by the Scientific Committee on its own initiative. 230 There is one difference between the two situations: where the case involves a nomination, s.23(2) requires that the determination be made under s.23 within six months after specified dates. The lack of other differences between the two situations, plus the consideration that the Scientific Committee could at any time raise an identical proposal on its own initiative, confirms that this limitation period is one which determines how the Scientific Committee should properly act, but is not one the breach of which involves invalidity. 231 Next, I turn to what have been called the "uncertainty" issue and the "definition" issue. There is, as submitted for the appellant, a measure of uncertainty and lack of definition in the ecological community determined to be an endangered ecological community in this case. 232 However, this question must be addressed having regard to the approach taken by the legislature in the Act, and in particular to the definition of "ecological community" as "an assemblage of species occupying a particular area". Although this definition refers to a particular area, plainly the terms of the definition are such that the area in question will generally be impossible of definition by precise boundaries: the very nature of "occupation" of an area by an "assemblage" of species (of plants and/or animals) in the wild is such that such an area cannot possibly be given precise boundaries. 233 Furthermore, what is contemplated is plainly a number of species, and specification of the species will not in most cases identify with precision either the extent of the assemblage or the area occupied. When one looks at any particular location, plainly one will not find all species at that particular location. It will often be the case that the species in question include many species which are commonplace. Thus there are questions inevitably raised as to whether a group of species at or near a particular location, some or all of which may be commonplace, do or do not form part of the assemblage of species, which assemblage of species includes but is not exhausted by the species at or near this particular area. There will often be cases where there are areas of transition between one ecological community, broadly considered, and another ecological community, where species which are part of each ecological community occur. Precise determination of whether those species in the transitional area are to be regarded as part of one ecological community or of the other, or of neither, will be incapable of precise and definite determination. 234 It is plain therefore that a certain amount of vagueness and uncertainty in the determination of boundaries of ecological communities is an inevitable result of the formulations chosen by the legislature. It must follow, in my opinion, that a certain amount of vagueness and imprecision will not necessarily cause a determination that a named ecological community is an endangered ecological community to be regarded as void or invalid because of uncertainty or lack of definition. 235 When one has regard to these considerations, and to the further discussion by Beazley JA, it is clear to my mind that this particular attack made by the appellant must fail. 236 I appreciate that there is force in the appellant's submission, based on s.118A of the National Parks & Wildlife Act 1974, that this raises difficulties for people having to decide whether to remove or otherwise damage a plant of a particular species in an area which may or may not be occupied by an endangered ecological community. Section 118A of that Act is in the following terms: 118A. Harming or picking threatened species, endangered populations or endangered ecological communities (1) A person must not: (a) harm any animal that is of, or is part of, a threatened species, an endangered population or an endangered ecological community, or (b) use any substance, animal, firearm, explosive, net, trap, hunting device or instrument or means whatever for the purpose of harming any such animal. Penalty: (a) in respect of any endangered species, population or ecological community---2,000 penalty units or imprisonment for 2 years or both, and, in a case where an animal of any endangered species, population or ecological community is harmed, an additional 100 penalty units in respect of each animal that is harmed, (b) in respect of any vulnerable species---500 penalty units or imprisonment for 1 year or both, and, in a case where an animal of any vulnerable species is harmed, an additional 50 penalty units in respect of each animal that is harmed. (2) A person must not pick any plant that is of, or is part of, a threatened species, an endangered population or an endangered ecological community. Penalty: (a) in respect of any endangered species, population or ecological community---2,000 penalty units or imprisonment for 2 years or both, and an additional 100 penalty units in respect of each whole plant that was affected by or concerned in the action that constituted the offence, (b) in respect of any vulnerable species---500 penalty units or imprisonment for 1 year or both, and an additional 50 penalty units in respect of each whole plant that was affected by or concerned in the action that constituted the offence. (3) It is a defence to a prosecution for an offence against this section if the accused proves that the act constituting the alleged offence: (a) was authorised to be done, and was done in accordance with, a general licence under section 120, a licence under section 131, 132 or 132A, a scientific licence under section 132C or a licence granted under Part 6 of the Threatened Species Conservation Act 1995, or (a1) was the subject of a certificate issued under section 95 (2) of the Threatened Species Conservation Act 1995, or (b) was essential for the carrying out of: (i) development in accordance with a development consent within the meaning of the Environmental Planning and Assessment Act 1979, or (ii) an activity by a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, or (iii) an activity in accordance with an approval of a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, or (b1) was authorised by, and done in accordance with, a conservation agreement, or (b2) was authorised by, and done in accordance with, a joint management agreement entered into under Part 7 of the Threatened Species Conservation Act 1995, or (c) was authorised to be done by or under the State Emergency and Rescue Management Act 1989 or the State Emergency Service Act 1989 and was reasonably necessary in order to avoid a threat to life or property, or (d) was not done for commercial purposes and was done in relation to a plant that was cultivated by the person as a hobby or was cultivated by another person as a hobby, or (e) was done in relation to a plant that was obtained from a person who was authorised to grow and sell it by a licence issued under section 132. (3A) This section does not apply in relation to any thing authorised to be done by or under the Rural Fires Act 1997 in relation to any emergency fire fighting act within the meaning of that Act. (4) If the provisions of any other Act or law or of any instrument made under any other Act or law authorise or require anything to be done that would constitute an offence under this section: (a) this section prevails (except in relation to a matter referred to in subsection (3) (b) or (c)), and (b) a person is not to be convicted of an offence against the other Act, law or instrument because of the person's failure to comply with the other Act, law or instrument if compliance with the other Act, law or instrument would constitute an offence under this section. 237 Regard should also be had to s.181(2A) of the same Act, which is in the following terms: 181. Evidentiary provision etc. … (2A) An allegation, in an information in respect of an offence against this Act or the regulations, that an animal or plant is a member of a species, population or ecological community specified in that information is sufficient proof of the matter so alleged unless the defendant proves to the contrary. 238 I accept that these provisions raise difficulties for people considering what to do about plants or animals of particular species in areas that may or may not be occupied by an endangered ecological community. However, these difficulties are necessarily involved in the way the legislation has been framed. It may be possible that hardship will be avoided by consideration of the element of mens rea involved in s.118A offences: there may for example be recognised a defence to the effect that the person in question reasonably believed that the species being dealt with was not part of an endangered ecological community. 239 Finally, on the disqualification issue, in my opinion the appellant's submissions have no substance whatsoever. 240 The appeal should be dismissed with costs. ********** Last Modified: 10/23/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.