Chapter 8
Constitutional and Legal Issues
Introduction
8.1 In Chapter 1 of this report, the Committee notes that the Senate Selection of Bills Committee
nominated constitutional and legal issues as 'a matter which the Committee was requested to specifically
report to the Senate upon, as a result of its inquiries.
8.2 Several issues relating to the legal issues affecting Regional Forest Agreements, as agreements
entered into between the Commonwealth and the States were dealt with in a detailed opinion prepared
by Mr Gary Corr, Barrister at Law, in February 1998. As part of this opinion, Mr Corr prepared an
opinion on issues relating to various Commonwealth enactments, and also addressed the question of the
validity of Regional Forest Agreements pursuant to section 99 of the Constitution.
8.3 In the course of this inquiry the Committee considered issues and arguments raised in Mr Corr's
opinion, and in a number of other submissions made to the Committee in relation to legal questions arising
from the nature and content of Regional Forest Agreements, and this Bill.
8.4 In approaching this question, the Committee had before it Mr Corr's opinion (dated February 1998),
a submission from Mr Corr which addressed the Bill, in light of his February 1998 opinion, an opinion
prepared for the National Association of Forest Industries Limited by Mr Pat Brazil, AO, (dated April
1998) on Mr Corr's 1998 opinion, an opinion prepared for the Committee by the Office of General
Counsel in the Commonwealth Attorney-General's Department (dated 12 February 1999). In addition,
the Committee heard evidence from Mr Corr, Mr Brazil and the author of the Attorney-General's opinion
to the Committee, Mr G Witynski, at its hearing on 16 February 1999. These opinions are reproduced at
Appendix 4 of the report to avoid the Committee unnecessarily quoting from them.
Principal issues for the Committee's consideration
8.5 In his February 1998 opinion, Mr Corr was asked to advise on the status of RFAs, and in particular
the RFA entered into between the Prime Minister on behalf of the Commonwealth and the Premier of
Tasmania. Mr Corr's opinion records that he examined a copy of the RFA Agreement, dated 8
November 1997, certain correspondence and attachments which dealt with the position of the Tasmanian
RFA under the Australian Heritage Commission Act 1975. In his opinion, Mr Corr addressed 12
issues, they were:
- the Export Control Act 1982
- the Export Control Regulations
- RFAs
- the Tasmanian RFA Agreement
- the 'Trade and Commerce' power in the Constitution with reference to control of exports
- the making of regulations
- Commonwealth environmental legislation, including the role of the Australian Heritage Commission
and the responsibilities of various Ministers
- the ability of the Commonwealth to enter into contracts and the affect of such contracts
- application of the law to the Tasmanian RFA
- parliamentary review of the Tasmanian RFA
- judicial review of the Tasmanian RFA; and
- section 99 of the Constitution.
8.6 A summary of Mr Corr's conclusions appears at the end of his opinion. Mr Corr reached 10
conclusions in respect of the Tasmanian RFA. They are:
- The Agreement is a statement of intent only and has no legal effect.
- The Agreement cannot bind Parliament or fetter the exercise of executive power.
- The Agreement cannot override any statutory obligations contained in legislation.
- In particular, the Australian Heritage Commission is still obliged to carry out its statutory functions
regardless of any statements or implications contained in the Agreement.
- The declarations in the Agreement that the obligations of the Commonwealth under the Australian
Heritage Commission Act 1975, the Environment Protection (Impact of Proposals) Act 1974 and
the Endangered Species Protection Act 1992 have been met are of no legal effect.
- The Export Control (Hardwood Wood Chips) (1996) Regulations and the Export Control
(Regional forest Agreements) (1997) Regulations are invalid to the extent that they attempt to
incorporate material contrary to the provisions of section 49A of the Acts Interpretation Act 1901.
- Any scheme of arrangement, either under primary legislation or regulation, which provides for a
discriminatory regime between one State and another is inconsistent with section 99 of the
Constitution and, therefore, invalid to the extent that they do so.
- The Export Control (Hardwood Wood Chips) (1996) Regulations and the Export Control
(Regional Forest Agreements) (1997) Regulations and the Tasmanian RFA are such an agreement
and are consequently invalid.
- Part 4 of the Export Control (Hardwood Wood Chips) (1996) Regulations is invalid.
- The Export Control (Regional Forest Agreements) (1997) Regulations are invalid.
Mr Brazil's opinion
8.7 In his opinion on Mr Corr's February 1998 opinion, Mr Brazil reaches the following conclusions:
- As to the view in particular that, as Regional Forest Agreements (RFAs) were not in force or in
existence at the time the Export Control (Hardwood Wood Chips) (1996) Regulations (the 1996
Regulations) and the Export Control (Regional Forest Agreements) (1997) Regulations (the 1997
Regulations) were promulgated, the exemption from export wood chip licences contained in those
Regulations does not apply to exports from the areas covered by RFAs - This view is
misconceived and wrong.
- As to the view that the unfettering of wood chip exports in places where an RFA applies is
unconstitutional because it "discriminates" between one State and another in matters of trade
contrary to Section 99 of the Constitution - The Opinion concedes that a contrary view can
be argued. Also, it does not consider a number of other matters that would have to be
dealt with in making a successful constitutional challenge.
- As to the view that the Tasmanian RFA is only a statement of intent with no legal effect - This is
partially but not wholly correct.
- As to the view that the Tasmanian RFA cannot bind either current governments or future
governments - This is clearly wrong, so far as the RFA is intended to be binding, but
supporting legislation on some aspects would be desirable.
- As to the view that Federal environment laws, including the Australian Heritage Commission,
Endangered Species, and Environment Protection Acts still apply despite contrary statements
in the RFA - The RFA could not, and did not, disapply them. The complaint in the Corr
Opinion is really about decisions under those Acts that are referred to in the RFA. Those
decisions stand unless and until they are successfully challenged.
8.8 In his submission to the Committee's inquiry on the Bill, dated 23 January 1999, Mr Corr addressed
the terms of the Bill, in the light of his 1998 opinion and stated:
This bill removes some of the difficulties associated with the Regional Forest Agreements
(RFAs) as they exist at the moment. These problems are outlined in the attached opinion.
Those which are removed are those relating to the ability of the executive to override
legislation and to fetter its own ability to operate. The difficulties which remain are those
relating to compensation and section 99 of the Constitution. In addition the matter of the
overriding or potential overriding, of the Commonwealth's Environmental Legislation
and Export Control Act 1982 is of concern. [1]
8.9 At its hearing in Melbourne on 2 February 1999, the Committee questioned Mr Corr regarding his
views and on issues relating to the Tasmanian RFA raised in his February 1998 opinion.
8.10 Mr Corr highlighted the points he made in his submission in relation to the Bill. In relation to the
question of section 99 of the Constitution, Mr Corr noted:
This particular provision, section 99, may lead to the invalidity of this bill because it is
open for the Commonwealth, for whatever reason it sees fit - whether it is on purely
difference of policy or whether it is an act of bad faith because they wish to discriminate
against a particular state as a result of differing political opinions - to create different
arrangements between the particular states and, therefore, the act may be invalid.
I think members of the committee would be aware that it is impossible to say with
certainty what the view of the High Court is going to be on any particular case. But I
think that in the recent judgments in relation to a number of similar provisions of the
constitution, namely, section 92 and section 90 in Cole v. Whitfield and more recently in
Ha's case, the interpretation which the High Court has given to the reason for those
particular provisions having been enacted in the constitution - namely, to establish one
economic union - are useful in seeing how it would interpret section 99. That is, within the
same part of the constitution as section 99, the High Court would see it as trying to have
one single economic framework throughout Australia, not for there to be different
economic regimes applying in the different states. If there are significant benefits which
accrue to producers in one particular state, which could be the situation and in fact does
occur if this bill is passed and there are only RFAs in relation to Victoria and Tasmania,
then the High Court is quite likely to say no, the legislation itself is invalid. [2]
8.11 In relation to Mr Corr's doubts regarding the compensation provisions in the Bill:
There are also significant problems in this legislation in relation to the compensation
provisions. I am not certain whether the senators have looked to any great extent at the
compensation provisions contained within the RFAs which have already been signed, but
in the Tasmanian one, for example, section 95 of that agreement contains a provision that
if the Commonwealth takes any 'Action' during a period the agreement which is
inconsistent with any provision of this agreement, then some compensation is payable. In
clause 95(20), 'Action' is defined as the commencement of legislation or subordinate
legislation, or any administrative action which is taken pursuant to legislation or
subordinate legislation.
For this to occur purely within a contractual or semicontractual document is quite bizarre,
but it similarly has difficulties in relation to incorporating it in legislation. It is saying if the
Commonwealth enters into any legislation in future which may impact back on the RFA
areas, then it is liable to pay compensation, or if someone is required under legislation to
take some administrative action and does so, but it has an effect on certain actions within
the regional forests agreement areas, compensation is also payable.
It is difficult to see the quantum of this particular compensation which is payable, because
it is a very strange process. Namely, if a person has some intention of carrying out some
action, then they may be entitled to compensation. However, I would have to say that the
compensation provisions are not set in concrete. As the senators would know, if you
have got the power to pass legislation, you have got the power to repeal it. Therefore if,
before enacting any other legislation, the committee just repealed the RFA legislation,
then the compensation would not be payable. So it can be gotten around, which may in
fact remove some of the certainty which previous speakers were seeking. [3]
8.12 In relation to Clause 5 of the Bill, Mr Corr was asked by Senator Crane, the Committee Chairman,
whether an assertion during evidence by another witness (Mr Pearce) [4] that, whilst Commonwealth
laws relating to environment protection, heritage etc would now not apply to RFAs, State legislation of an
equivalent nature would. Mr Corr told the committee that:
It may well be that within the state acts there is something similar, but I do not know. I
can only comment on what happens here. But it is more the principle of parliament giving
to a minister or to the executive power to pass or to repeal or to reinstate legislation
which I think is the difficulty, and I would have thought that the Senate would have some
difficulty with that, to delegate power which goes well beyond that which is normally
delegated to the executive. [5]
8.13 In relation to the question as to how RFAs may be interpreted in light of section 99 of the
Constitution, Mr Corr told the Committee:
I think it is the intention that by next year woodchip exports can only come from areas
which are covered by regional forest agreements, and that I think is going back into some
of the currently existing regulations. There is a sliding scale of what can and cannot be
exported. But, for example, if a Regional Forest Agreement has been entered into by
Victoria and Tasmania, they remain the only ones which are still in existence, and people
who are exporting woodchips from Victoria and Tasmania can do so to their heart's
content. No agreement entered into with New South Wales. The minister says, 'No, no
further licence, et cetera, and no export of woodchips from New South Wales.' Any
company which had been exporting woodchips from New South Wales, or the New
South Wales government, would be capable of heading to the High Court and saying,
'We're challenging this because this piece of legislation is discriminating against companies
operating in New South Wales purely by virtue of the fact that they're operating in New
South Wales and we cannot come to a political agreement with the Commonwealth
government.' [6]
8.14 In relation to Clause 7 of the Bill, which provides for compensation payable by the Commonwealth
under certain circumstances, in response to a question from Senator Brown, Mr Corr told the
Committee:
I think there is a referral back to an earlier part of the definition section in the Tasmanian
Regional Forest Agreement, and then a reference to, I think, attachment 1 of that
particular Regional Forest Agreement, which relates to the scoping agreement of the
Tasmanian RFA in such matters as protection of old-growth forests, protection of
wilderness, endangered species under the Endangered Species Protection Act; similarly
the Heritage Commission Act, the World Heritage Commission, protection of indigenous
heritage, social values and economic values. So there is a significant amount of legislation
under which action could be taken which would give rise to compensation being payable
if it did in fact interfere with a person wishing to exercise some rights under the Regional
Forest Agreement. [7]
8.15 In his evidence to the Committee in relation to the Bill, Mr Patrick Brazil, AO, an adviser to the
National Association of Forest Industries Limited, told the Committee, in relation to Clause 7 of the Bill
that Clause 7 can be interpreted as follows:
The next clause is a very important clause. This is a matter to which Dr Bain has referred
and that is clause 7 dealing with compensation for breach of a regional forest agreement
by the Commonwealth. Certainly, if I just take the Tasmanian Regional Forest
Agreement, that appears to be to be an agreement in which the Commonwealth has
undertaken by way of contract to pay compensation in certain circumstances. My own
view - and this is a view that I have expressed in writing - is that that undertaking is a
legally binding one under the law of contract as it applies to the Commonwealth of
Australia. Nevertheless, I would be the first one to say that putting legislative backing into
that undertaking to pay compensation is an appropriate course. Indeed, from the point of
view of providing a satisfactory climate for investment, it is an indispensable course.
I have already referred to section 70n of the Telecommunications Act 1990. I am not
suggesting that is necessarily a completely analogous case. But I think it illustrates the
point that even though government contracts are binding, in many cases they have got no
legislative backing, and the Commonwealth of Australia is writing and signing contracts
by the hundreds and thousands every week of the year, or every month of the year,
without specific legislative backing. I do not want to say that a contract without legislative
backing is not necessarily legally enforceable, far from it. On the other hand, I am saying
that, particularly in areas like this, legislative backing is highly desirable indeed. That is
what is provided by Clause 7. [8]
The final point I want to make, however, in relation to all that is that, nevertheless, clause
7 is a valuable clause. It is notwithstanding that shortcoming, if that is the right word -
namely, that there is no standing appropriation. It provides a very significant provision in
relation to resource security. [9]
Opinion of the Office of General Counsel, Commonwealth
Attorney-General's Department
8.16 The Office of General Counsel in the Attorney-General's Department prepared an opinion for the
Committee, dated 12 February 1999 on Mr Corr's February 1998 opinion, Mr Corr's February 1998
opinion, Mr Corr's submission on the Bill and Mr Brazil opinion. With respect to specific matters raised
in the Corr opinion, and Mr Corr's submission, the OGC opinion indicates as follows:
Delegation of legislative authority - Clause 5 of the Bill
8.17 In the opinion, the OGC has advised:
In my view, neither subclause 5(1) nor subclause 5(3) involves any delegation of
legislative power of the kind which was at issue in Dignan's case. Subclauses 5(1) and
(3) do not purport to authorise the executive to make subordinate legislation relating to
the export of 'RFA wood' or to 'RFA forestry operations' (cf. The provision of the
Transport Workers Act 1928-29 which was at issue in Dignan's case). Moreover,
contrary to Mr Corr's assertions, those provisions do not purport to empower the
executive to determine which existing export control or environmental or heritage
protection laws should apply in relation to those matters. Rather, subclauses 5(1) and (3)
themselves specify the circumstances (ie. Existence of an RFA) in which the specified
export control and environmental and heritage protection laws are not to apply in relation
to those matters. In other words, those provisions would themselves operate so as to
'disapply' the specified legislation and legislative instruments in respect of 'RFA wood'
and 'RFA forestry operations'. In enacting the Bill, it would thus be the Parliament, and
not the executive, which would determine the nature and scope of the legislative regime
that is to apply in relation to the export of 'RFA wood' and in connection with 'RFA
forestry operations'.
The position is the same in relation to subclause 5(2) of the Bill. That subclause has the
effect that a provision of a law of the Commonwealth (other than the Export Control Act)
that prohibits or restricts exports, or has the effect of prohibiting or restricting exports,
does not apply to 'RFA wood' unless it expressly refers to 'RFA wood'. Subclause 5(2),
if enacted, would operate so as to modify the effect of export control laws (other than the
Export Control Act) in relation to 'RFA wood'. That is, the provision would have the
effect of limiting the range of export control laws which are applicable in relation to 'RFA
wood'. The provision would itself operate so as to have that effect, and would not in any
way be contingent for its operation on the taking of action by the executive. Thus, there
can be no question of subclause 5(2) involving any delegation of legislative power.
Impairment of future parliament - compensation
8.18 The OGC opinion to the Committee, after canvassing the provisions in Clause 7, notes:
The effect of clause 7 of the Bill, if it were to become law, would essentially be to give
statutory force to any liability to pay compensation that may arise under the terms of an
RFA. So, for example, if the Commonwealth were to take any action of a kind to which
clause 95 of the Tasmanian RFA applies, the Commonwealth would be liable to pay
compensation to Tasmania not merely by force of that clause in the agreement, but by
virtue of the RFA legislation.
8.19 After canvassing other matters raised by Mr Corr in his opinion in relation to compensation,
particularly in relation to whether the provision in the RFA providing for payment of compensation by the
Commonwealth in the event that the Commonwealth enacts specified legislation or exercises statutory
powers in a particular way would, of its own force, be legally binding. The opinion notes:
In any event, I do not consider that this question is of any relevance in relation to the Bill.
As indicated above, clause 7 of the Bill would have the effect of subjecting the
Commonwealth to a liability to pay compensation, in accordance with the compensation
provisions of an RFA, if the Commonwealth takes legislative or administrative action of
the kind specified in those provisions. While there may be a question whether the
executive has power to bind the Commonwealth by means of a provision in an agreement
such as clause 95 of the Tasmanian RFA, it cannot be maintained that the Parliament
lacks the capacity to subject the Commonwealth, by means of legislation, to such a
liability to pay compensation.
Section 99 of the Constitution
8.20 After canvassing the matters raised in Mr Corr's submission and opinion, the OGC opinion notes
that
The contentions in the Corr opinion are directed at establishing that the Export Control
Act and the regulations made under it are discriminatory between States. In fact,
section 99 prohibits the giving of preference to one State, or part of a State, over
another. As indicated below, the distinction is significant. A law of trade or commerce
will not be invalid under section 99 unless it: (I) discriminates between States or parts of
States and (ii) gives preference to one State or part of a State over another State or part
of a State (Elliott v The Commonwealth (1935-36) 54 CLR 657 ('Elliott v The
Commonwealth') at 683). A law will therefore not give an unconstitutional preference
unless it is first found to be discriminatory.
8.21 The opinion canvassed the meaning of particular phrases within section 99 and concluded as follows
in relation to the question of 'discrimination' the opinion noted:
The consequence of sections 51(ii) and 99 being considered as establishing a 'free trade
area' throughout the territory of the Commonwealth is that the discrimination that they
prohibit is discrimination between different place on the basis of geographical criteria.
Legislation will not be discriminatory in this sense if it applies non-geographical criteria,
even though the application of those criteria may have different consequences in different
places because of inherent differences between those places.
8.22 In relation to the meaning of the world 'preference' in section 99, the opinion stated:
some tangible advantage obtainable in the course of trading or
commercial operations, or, at least, some material or sensible benefit of a
commercial or trading character' Crowe v The Commonwealth (1935)
54 CLR 69 at 92).
Section 99 will therefore not be infringed unless a State or part of a State has received,
under a Commonwealth law, a 'tangible' or 'material' trading or commercial advantage. It
is not enough to show that the Commonwealth law treats different areas differently. The
law will only be invalid if it gives preference in the above sense.
Other matters - wood chip export regulations
8.23 The opinion prepared for the Committee by the OGC contained a lengthy discussion (at paragraphs
36-61) on the possible application of section 99 of the constitution to RFAs.
8.24 In relation to preference, the OGC opinion notes:
It is not possible to predict whether the High Court would be prepared to hold that
preference had been given contrary to section 99 on the basis of the circumstances of an
individual exporter. Section 99 prohibits the giving of preference as between States or
parts of States. While the judicial decisions referred to in paragraph 33 above do treat
section 99 as one of the provisions establish 'a type of free trade area' throughout the
territory of the Commonwealth, and while this does appear to indicate that section 99 is,
in a sense, an 'individual' right, and not merely a State's right, it is not clear that this would
extend to enabling a legislative scheme to be invalidated by reference to the
circumstances of an individual trader, where those circumstances were not indicative of
preference having been given to an entire 'part of a State'. For example, in Elliott v The
Commonwealth, Dixon J said (at 684):
On the other hand, as I have said above, there are no recent decisions on section 99, and
the question whether the High Court would approach a challenge to the woodchips
export scheme in the transition period on the basis of the trading outcomes for an
individual exporter cannot be predicted with any confidence.
8.25 During Committee discussions with Mr Orr and Mr Witynski from the Office of General Counsel,
issues in relation to the opinion prepared for the Committee, were canvassed by Senator Brown.
…The implication I get from this paragraph is whether or not the act is constitutional is
going to depend on whether those RFAs are signed. That is an administrative action; it is
not the passage of the bill. Are we lift in the situation - this is not hypothetical; this is a
real question - where it is an administrative action which could make the legislation
constitution or otherwise?
Mr Witynski - I think that is a hypothetical question, Senator. The situation would not arise unless at the
year 2000 some states were not covered by RFAs.
Senator BROWN - But the point I am making is that the act in itself has to wait upon the signature on
the RFAs around the country before we can be assured that it is constitutionally bulletproof.
Mr Witynski - The first part of our opinion considers the operation of the bill in the period up to the
year 2000. It concludes that, despite the fact that during that time there may be some areas that are not
covered by RFAs, that would not necessarily give rise to a constitutional problem. In relation to the
period commencing on January 2000, we have treated that as a hypothetical situation on the basis that it
is the government's intention that there will be RFAs in place by that time. [10]
8.26 Mr Orr of the Office of General Counsel also made a similar point:
I suppose we have to be a bit wary about getting too much into hypothetical situations.
As we understand it, the policy of the government is that there will be RFAs in each
state. Therefore, that is the policy under which we are working. [11]
Other issues - matter related to environmental protection (Impact of
Proposals) Act 1974
8.27 In the submission to the Committee, Ms Elizabeth Ingham provided the Committee with a detailed
view on how the provisions of the EPIP Act have been complied with, in the process of finalising the East
Gippsland RFA in Victoria, and whether the Comprehensive Regional Assessment (CRA) in East
Gippsland coincided with an environmental assessment under the EPIP Act.
8.28 In her submission, and in evidence to the Committee, Ms Ingham maintained that it was her view
that the CRA for East Gippsland (and CRAs in general) should be in the same form, and fulfil the same
functions, as an EIS under the EPIP Act.
8.29 Ms Ingham's conclusion led her to scrutinise the process followed in the East Gippsland case, and
to make an FOI request seeking information regarding compliance with the EPIP Act.
8.30 Following receipt of advice from appropriate agencies, Ms Ingham's conclusion is as follows:
The Proponent almost certainly did not supply information as required under s. 2.2 (a)
(b) and (c) of the EP(IP) Act.
My submission is that the information, if supplied, would have led the action minister to
the conclusion that an environmental assessment would have been necessary. It is my
submission that such an assessment would have uncovered the effects of clearfelling
(which were not examined in the CRA) and would have recommended a vastly different
management regime, with less quantity of clear-fell logging.
It is my submission that the laws of this country were broken, and deliberately so, in
order to avoid a reduction in clear-felling. [12]
8.31 The Committee was concerned to ascertain whether the assertions made in Ms Ingham's opinion
had any validity, and referred them specifically to the Department of Agriculture, Forestry and Fisheries -
Australia, which undertook to provide the Committee with an opinion on Ms Ingham's assertions.
8.32 In its further information to the Committee, provided by the Department, an opinion written in
respect of Ms Ingham's submission, noted in part
Ms Ingham argues that the proponent should, in order to comply with paragraph 2.2,
have provided information on alternatives to concluding an RFA, rather than only
alternatives as to the contents of an RFA. It appears from Ms Ingham's submission that
the information provided by the proponent did deal with the alternative of not concluding
an RFA, and retaining the status quo, but she argues that other alternative schemes
should have been dealt with. As an example of the sort of alternative on which she
considers information should have been provided, Ms Ingham refers to reducing logging
but boosting tourism, as an alternative to reliance on clear fell logging.
This argument appears to be based on an interpretation of paragraph 2.2 according to
which the proponent is obliged to provide information on all possible feasible and prudent
alternatives to the action proposed (in this case, to conclusion of the RFA). This
interpretation was rejected by the Federal Court in a recent case, in my view correctly.
In Randwick City Council and Woollahra Municipal Council v Minister for the
Environment and Minister for Transport and Regional Development [1998] 1376
FCA (3 November 1998), Finn J said:
The burden of the applicant's construction would seem to be that the
Proponent, for the purposes of [paragraph 2.2] (b) and (c), is obliged to
provide the required information in relation to any (by which seemingly is
meant "all") alternatives to the proposed action that are feasible and
prudent. …
For my own part, I consider the only reasonable construction to give the
sub-paragraphs is that proposed on behalf of Senator Hill. The
information to be supplied under each sub-paragraph in relation to
feasible and prudent alternatives is of such alternatives as have been
considered by the action Minister or the proponent. I do not consider
that the reference to the alternatives considered in sub-paragraph (a) is
limited in the way the applicants contend. That paragraph I would
construe as requiring the proponent to describe such feasible and prudent
alternatives as have been considered when the Proponent's Statement is
supplied to the Minister of the Environment or to DoEST. The
subsequent references to alternatives is likewise to those that have been
so considered. It is in my view improbably that sub-paras (b) and (c)
were intended to impose a general obligation on the Proponent to
describe all feasible and prudent alternatives - cf Tasmanian
Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516
at 537-539 - an obligation which in many instances could be both
exceptionally onerous and inimical to reasonable and practical
decision-making. An objective criteri[on] of the type proposed is made
the more improbable when, for the purposes of making a para 3.1.1(b)
decision, the matters alone that the Minister is required to take into
account under para 3.1.2 all relate to the "proposed action". No level of
satisfaction is required to be achieved in relation to feasible and prudent
alternatives.
I draw to your attention that an appeal has been lodged in the Randwick City Council
case against the judgment of Finn J and is due to be heard on 18 February by the Full
Federal Court. As I have indicated, I consider that the interpretation of paragraph 2.2
put forward in Finn J's judgment is correct.
Accordingly, I see no reason for concluding that the proponent, in relation to conclusion
of the East Gippsland RFA, failed to comply with the requirements of the Administrative
Procedures concerning the provision of information. [13]
8.33 The Committee notes that the matters relevant to this issue are still before the Courts, and makes no
further comment on the issue.
Other issues - judicial review
8.34 An administrative decision was made in respect of RFAs. During the inquiry, a question arose as to
whether an RFA could be examined by the courts to determine whether it satisfied the definition of RFAs
in clause 3 of the Bill. A further question raised was who, including groups, may have standing to bring
any action in court.
8.35 In an opinion prepared for the National Association of Forest Industries Limited, Mr Pat Brazil AO
advised that organisation that
It seems reasonbly clear therefore, that on the application by a person or body with legal
standing to do so, Courts would feel able and bound to address the question whether an
Agreement so far departed from the requirements of the definition of an RFA as to not
be within the meaning of the Act. The fact that the Agreemnt is an agreement between
governments (Commonwealth and State) does provide some basis for an argument that
the matter is not justiciable before a Court at all. But I do not think that such a view
would prevail. [14]
8.36 In relation to the central question, that is how far the Courts may go in reviewing whether a
particular RFA satisfies the definition in the Bill, Mr Brazil advised:
In this regard some guidance is to be got from a series of recent decisions concerning
another kind of document that, like RFA's, has important legal consequences. These
cases concern Fishery Management Plans to be made by the relevant Minister, after the
consultations provided for in the Fisheries Management Act, have taken place and in
accordance with the objectives set forth in the Act. These Plans provide for the creation
and grant of important statutory fishing rights. [15]
8.37 Mr Brazil was of the opinion that the requirements for an RFA and the definition in the Bill are a
matter justiciable before the Courts in the supervisory way, contemplated by the Courts in other, similar
cases.
8.38 In relation to the question of who would have standing before the Court in such matters, Mr Brazil
advised that
The issue of establishing standing at general law and under the Administrative Decisions
(Judicial Review) Act (ADJR Act) turns on whether the person (which can include a
group) is an "aggrieved" party or is considered to have a "special interest". The definition
of an "aggrieved party" is not as broad at general law as it is under the ADJR Act.
8.39 In relation to the concept of 'special interest', Mr Brazil advised
Establishing special interest standing requires a very specific relationship with the subject
matter of the litigation (see Robinson v Western Australian Museum (1977) 138 CLR
283 at 327-8). For example while the ACT was not held to have standing in ACT v Cth
they were found to have standing in Australian Conservation Foundation v Minister
for Resources (1989) 19 ALD 70. [16]
In Australian Conservation Foundation v Minister for Resources it was held that the
issue of whether or not an organisation would be granted standing had not only to do
with its role in relation to the decision which it challenged but in terms of whether, in
terms of "current community perceptions and values" the organisation should be granted
standing to represent the public interest. [17]
8.40 Whilst the Committee did not seek further opinion from the Attorney-General's Department on this
issue, it considers that Mr Brazil's views are valuable and convincing in relation to the question of judicial
review of decisions that may be taken in relation to RFAs. The Committee draws these matters to
the Government's attention in relation to the Bill.
Footnotes
[1] Submission, Mr Gary Corr, p. 1.
[2] Evidence, 2 February 1999, p. 206.
[3] Evidence, 2 February 1999, p. 206.
[4] Evidence, 2 February 1999, p. 170
[5] Evidence, 2 February 1999, p. 207
[6] Evidence, 2 February 1999, p. 208
[7] Evidence, 2 February 1999, p. 209
[8] Evidence, 1 February 1999, p. 64.
[9] Evidence, 1 February 1999, p. 64.
[10] Evidence, 16 February 1999, p. 16
[11] Evidence, Mr Orr, Tuesday, 16 February 1999, p. 15.
[12] Submission, Ms Elizabeth Ingham, p. 4.
[13] Opinion by the Australian Government Solicitor dated 10 February 1999, provided to the
Committee.
[14] Opinion, Mr Pat Brazil AO, dated 15 February 1999, p. 1.
[15] Opinion, Mr Pat Brazil AO, dated 15 February 1999, p. 1.
[16] Opinion, Mr Pat Brazil AO, dated 15 February 1999, p. 2.
[17] Opinion, Mr Pat Brazil AO, dated 15 February 1999, p. 3.