South Sister St. Marys, Tasmania

South Sister Letters

rmpat appeal against ministerial decision

The Registrar
Resource Management and Planning Appeal Tribunal
GPO Box 2036
HOBART 7001
7th December 2006

Dear Mr Bryan,

RMPAT Ref 337/06TH
THREATENED SPECIES PROTECTION ACT 1995
APPEAL PURSUANT TO §14(3)

D W CLEMENT v MINISTER FOR PRIMARY INDUSTRIES AND WATER

Set out below are my submissions in response to those of the Minister regarding the jurisdictional issue of appeal rights.

In formulating my response, it became apparent that it was desirable to separate three distinct issues arising from the submission by the Minister, whether the proposed order is in fact an order under the Act, whether an order 'not to add' is a valid order under the Act, and what is the relevance and meaning of the word 'omit' in relation to the proposed order.

I have, therefore, laid out my submissions in three PARTS, which taken together comprise my total submission. Should the Tribunal accept the submissions made in either PART 1 or PART 2, it would appear there would be no need to consider the further submissions made in PART 3.

SUBMISSION - PART 1

It is submitted that the decision made by the Minister and given public notification on 5th October, 2006, comprises a proposed order under §14(2) of the Act and as such is subject to an appeal under §14(3) of the Act, for the reasons set out below.

Alternatively, it is submitted that the proposed order is either an order under §13(5), in which case it is subject to an appeal under §14(3), or it is not an order under §13(5), in which case it has no effect. The Minister has asserted, in effect, that his decision and the proposed order is ultra vires.

1. Section 14 (2) of the Act requires public notification of an order proposed to be made under §13(5) before the order is made. In accordance with §21(3) of the Threatened Species Protection Act 1995 public notice was given dated 5th October of a decision made by the Minister under §21(1) of the Act 'not to add' certain species of lichen to Schedules of the Act.

2. Public notification of a proposed order to be made under §13(5) is the requirement to allow an appeal against that order under §14(3). The Act contains no limitation to the right of appeal against a proposed order which has been publicly notified under §14(2). The content of the proposed order is not an issue addressed in §14(3). There is no provision in the Act which allows for public notification of a non-appealable decision.

3. The process under the Act provided for in Division 2 - Listing of threatened flora and fauna in respect of nomination, recommendation, making of a decision, and public notification of the decision has been undertaken and completed. No relevant circumstance has changed since the public notification of the proposed order dated 5th October, 2006, other than the making of an appeal against that order.

SUBMISSION - PART 2

The Minister submits that 'the right of appeal relates to changes that are proposed to be ordered to the existing contents of a schedule, not to a decision not to make a change', asserting that a decision 'not to add' an item is not a decision or order from which §14(2) gives a right of appeal

In response, it is submitted that the proposed order 'not to add' is allowable under the Act and subject to appeal under §14(3) of the Act, having regard to
1. the Objective and purpose of the Act,
2. provisions of the Act which allow for an order to make a change or not to make a change to the schedules, and
3. that the contention by the Minister with regard to the meaning of 'omit' in §13(5) is irrelevant to the issue of whether his proposed order 'not to add' is subject to appeal.

1. Purpose and Objective of the Act

It is submitted that for the reasons set out below that the appeal is consistent with the objective and purpose of the Threatened Species Protection Act 1995 and of the Threatened Species Strategy to encourage public involvement and community participation in the conservation of threatened native flora and fauna. Accordingly the proposed order is subject to appeal.

1.1 It would be inconsistent with the Objective of the Act, the Threatened Species Strategy, and the purpose of the Act as expressed in §13-21, for a decision 'to add' a taxon to a schedule to be appealable but for a decision 'not to add' not to be appealable under §14(3)

1.2 The appeal is against a proposed order by the Minister not to add certain species of lichen to a Schedule of the Threatened Species Protection Act 1995, contrary to the final recommendation by the Scientific Advisory Committee 'to list' (to add) the species on the Schedule.

1.3 The appeal was pursuant to §14(3) of the Act 'A person may appeal to the Tribunal against the proposed order'. 'A person' is not an onerous test of standing, indicating that any member of the public may instigate an appeal.

1.4 Section 8A(1) of the Acts Interpretation Act 1931 requires that 'in the interpretation of a provision of an Act, an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not promote the purpose or object'

1.5 SCHEDULE 1 Objectives of the Threatened Species Protection Act 1995, in particular PART 1 §1(c ), states 'the objectives of the resource management and planning system of Tasmania are (c) to encourage public involvement in resource management and planning'.

1.6 The purpose of §13-21 of PART 3 Division 2 of the Act, Listing of Threatened flora and fauna is to set out the process for establishing and maintaining lists of threatened species in Schedules of the Act. The process allows for the addition of eligible taxa to the schedules, the removal of taxa from the schedules if they become ineligible, the amendment of the schedules by transfer of a taxon from one to another or by some other amendment such as updating taxonomic and authority references (as set out from time to time in various Threatened Species Protection Orders), and for the refusal of the Minister to add taxa to the schedules or to remove taxa from the schedules for whatever reason.

1.7 The Threatened Species Strategy for Tasmania is established under s.10 of the Threatened Species Protection Act 1995, as a strategy for the conservation of threatened native flora and fauna. The Strategy states
(pg 1) 'the Strategy has been developed with the aim of involving all Tasmanians in the work of conserving threatened species'. It establishes seven primary mechanisms (pg 1) 'to integrate threatened species conservation across all sections of the Tasmanian community', which include 'community participation' and establishing an adequate knowledge base.

2 Changing the Contents of a schedule

It is submitted that the right of appeal under §14(3) applies to a proposed order made in respect of a decision made under §21(1) which is given public notification in accordance with §21(3)(a) and §14(2), which is the case in this matter, and that whether an order proposes to change a schedule or not to change a schedule is not relevant to the right of appeal against a proposed order, for the reasons set out below.

2.1 There is no provision in the Act that limits the right of appeal only to orders changing the contents of a schedule, or prohibits a right of appeal against an order which does not change the contents of a Schedule.

2.2 Section 21(1) expressly requires the Minister to choose between changing a schedule or not changing a schedule, by requiring him to make a decision whether or not a taxon should be added to a schedule, or whether or not a taxon should be omitted from a schedule.

2.3 A decision 'not to add' is a positive decision made in response to a recommendation made in accordance with the requirement of §21(1) that the Minister must decide whether or not the species be added to or omitted from the Schedule. He decided 'not' to add the species to the schedule in accordance with his options under §13(5) and pursuant to his mandatory duty under §21(1).

2.4 Section 5 of the Judicial Review Act states 'reference to the making of a decision includes a reference to (a) making, suspending, revoking or refusing to make an order, award or determination'

3 'Not to Add' as a decision complies with the intent of the Act

It is submitted that the proposed order 'not to add' is fully compliant with the provisions of both §13(5) and §21(1), which are the relevant sections of the Act with regard to the making of an order in respect of Schedules of the Act, and that this interpretation is endorsed by the public notification of the proposed order made in accordance with §14(2).

3.1 The Minister acknowledges in his submission (item 2) that, 'section 14(2) requires the Minister, before making an order under §13(5), to give public notice of the proposed order and subsection 3 confers the right of appeal against that order'.

3.2 Public notification has been made on 5th October, 2006 of the Minister's decision 'not to add' the species of lichen in question to the Schedules of the Act. The notification advised that the decision was made under §21(1) of the Act.

3.3 Section 13(5) of the Act states 'after considering a recommendation of SAC and after giving notice in accordance with section 14, the Minister may, by order published in the Gazette, add an item to (my emphasis), amend an item in, or omit an item from, Schedule 3, 4 or 5'.

3.4 Public notice of a proposed order under §14(2) flows from the requirement under §21(3) to make such notification of a decision made under §21(1)

3.5 Section 21(1) specifies 'the minister must (my emphasis), within 30 days after receiving the final recommendation, decide whether or not (my emphasis) a taxon of flora or fauna is to be added to, or omitted from, Schedule 3, 4 or 5'.

3.6 The final recommendation of the SAC to the Minister, made on 20 July 2006, was to 'list' the lichens on the schedules, that is to add the lichens to the schedules.

3.7 The Minister made his decision in response to that recommendation, within the requirements of §21(1), not to add the species, and a notice dated 5th Octobe, 2006, was published in the Gazette to that effect.

3.8 The Acts Interpretations Act 1931 states (§10A(a)) the word 'must' is to be construed as mandatory, and that by §10A(c) the word 'may' is to be construed as discretionary or enabling, as the context requires. Under §21(1) of the Threatened Species Protection Act 1995, the Minister 'must' decide 'whether or not' to add an item to a schedule. In §13(5) the Minister 'may', by order published in the Gazette, add an item to a schedule. It is held that §21(1), containing the mandatory requirement, and being the section under which a decision is made, allows a decision 'not to add'.

3.9 It is contended that an order 'to add to' may be construed to carry within it the inverse option of not to add to. For example 'To be, or not to'. 'To be' carries within it the alternative option of 'or not to be', even if it is not expressly stated. Therefore the option of a proposed order not to add is inherent in the option contained in §13(5) to add an item to, particularly in response to a recommendation 'to list' (to add). (Spiegleman CJ in R v Young (1999) 46 NSWLR 681 at 687-9).

3.10 It follows that defining 'to omit from' as 'to remove from' in §13(5) necessarily means that 'to add to' in §13(5) must be construed as including the negative option of 'not to add to'. Otherwise the Minister is powerless to refuse to add a taxon to a schedule in response to a recommendation from SAC. Section 19(1) and §21(1) of the Act together require that the the Minister support or reject a recommendation by deciding whether or not to add a taxon to a schedule.

SUBMISSION - PART 3

This Part contains submissions with regard to assertions made by the Minister in respect of the meaning of the word 'omit'

It is submitted that the Minister's contentions that 'it is only possible to omit an item from a schedule if it already appears there', and that 'a decision 'not to add' an item is not a decision 'to omit' an item' are, on the one hand incorrect, and on the other hand irrelevant to the issue as to whether his publicly notified decision 'not to add' is subject to an appeal.

Submissions have been made in PART 1 and PART 2 above that 'not to add' is a decision and a proposed order which is subject to appeal under §14(3). In the event that the Tribunal does not accept these arguments it is further submitted that the meaning of 'omit' within §13-21 of the Act allows an order 'not to add' to be made as a decision in response to a recommendation 'to list' a species on a schedule, having regard to the ordinary and legal meanings of the word 'omit' and to the context of the word, and that such proposed order is subject to appeal.

3.1 Ordinary Meaning of 'Omit'

.1 It is submitted that 'the ordinary and natural meanings of what is actually said in the Act must be the starting point' (Cooke J in Reid v Reid ( 1979) NZLR 572), and that a decision 'not to add' is clearly within the ordinary meaning of the word 'omit', for the reasons set out below.

.2 If the legislature intended 'omit' to only mean 'remove', it would have made sense for the legislation to have used the actual word 'remove', and so have reduced ambiguity. Section 3 of the Act provides no definition of 'omit'. Clearly it was felt that the ordinary meaning of the word within the context of surrounding words and within the context of the provisions containing those words provided clarity of meaning.

.3 The Acts Interpretation Act 1931 §8B(b) and §8B(2(a)) gives pre-eminence to the 'ordinary meaning' of a provision, by allowing consideration to be given to extrinsic material in the interpretation of a provision only 'if the ordinary meaning of the provision leads to a result that is manifestly absurd or unreasonable' and emphasises that firstly 'regard is given to the desirability of a provision being interpreted as having its ordinary meaning'.

.4 Reference to dictionaries is used as one way of interpreting the ordinary meaning of words in their general usage. The Macquarie Dictionary defines 'omit' to mean 'to leave out', and the Shorter Oxford English Dictionary defines 'omit' as meaning 'to leave out, not to insert or include', with no reference to the meaning 'to remove'. Other dictionaries define 'omit' as 'to disregard', 'to pass over', 'not to accept' and 'to leave unmentioned'.

An internet reference www.thefreedictionary.com supports the meaning of 'omit' as 'prevent from being included or considered or accepted', but did also refer to 'take out' or 'strike out or get rid of'.

The Shorter Oxford English Dictionary defines 'include' as 'to place in a class or category'. Similarly 'add' has the meaning of 'to make an addition to'.

The overwhelming weight of definition was that 'omit' meant 'not to insert', or 'not to include', which meanings clearly encompass 'not to add'.

.5 Nevertheless, it is acknowledged that 'omit' in the sense of 'remove' is clearly the meaning intended in §16(1) and §13(4). However, these sections refer only to the options available to a person making a nomination, and to the SAC making a recommendation to the Minister in response to a nomination.

They do not refer to the options provided to the Minister in making his decision and proposed order: these are provided quite separately and distinctly in §13(5) and §21(1), and within these sections, the interpretation of omit as 'not add to' is not an absurd or repugnant meaning, particularly in response to a recommendation to list a species that is not already listed, within the mandatory requirement to decide whether or not the taxon will be added to, or omitted from the schedules. Within this context an interpretation of omit as remove would be absurd, but a meaning of 'not to include' or not to add would be consistent with the surrounding words and provisions.

3.3 'Omit' within the context of the Act

noscitur a sociis applies when determining meaning - the meaning of a word or phrase is derived from its context. Accordingly, the ordinary meaning must be assessed within the context of the use of the words, to interpret the intended meaning.

PART 3 Division 2 of the Act includes provisions for the respective roles within the listing process of the person making a nomination to the Committee (SAC), the Committee making a recommendation to the Minister, and the Minister making a decision leading to an order.

.1 It is submitted that the use of the word 'omit' in the Act has been intended by the legislature to have a dual meaning. That is, both 'not to add' and 'to remove', according to the context in which it is used.

It is further submitted that 'omit' contains the meaning 'not to add' within §13(5) and 21(1) within 'PART 3 Division 2 - Listing of threatened flora and fauna' and that an order 'not to add' is subject to appeal.

.2 Within §13(5) the intended meaning of 'omit' is 'not to add', both in the ordinary and legal meaning of the word, and within the context of the word in relation to other options within §13(5). This meaning is in quite specific contrast to the alternative meaning of 'to remove' contained within §13(4) and §16(1).

.3 'Every passage in a document must be read, not as if it were entirely divorced from its context, but as part of the whole instrument' (Isaacs and Rich JJ in Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1925) 35 CLR 449). This principle of interpretation means, according to Cook et al 'a word or phrase in a section should be interpreted with reference to the other words of the section'.

.4 The use of the word 'omit' to mean 'remove' in §13(5) would take away from the Minister the option of refusing to add a species to a schedule when presented with a recommendation by SAC to add a taxon to a schedule under §21(1). Omit as remove would not provide the option, neither would amend, as they can only refer to a recommendation in respect of a taxon already listed.

.5 The words 'omitted from', or 'omit from' occur 4 times within the provisions relevant to this matter, in §13(4), 13(5), 16(1) and 21(1).
'Omit' within these sections clearly has two distinct meanings. One meaning is 'to leave out', in the sense of 'not add to or not include', while the other meaning is 'to remove from'.

§13(4) SAC may recommend that any taxon which is no longer eligible be omitted from the schedule - clearly meaning 'to remove' a taxon already listed.

§13(5) The Minister may omit an item from the schedule - considered in context with the other options in the section 'to add an item to' or 'to amend an item in' a schedule, and to §21(1) it clearly means 'to leave out', not to add, not to include. The option of 'amend an item in' provides the Minister with the power to remove an item from the schedule.

The power of the Minister in §13(5) to respond to a recommendation from the SAC 'to omit an item from a schedule' (in the sense of remove a taxon which is no longer eligible) is given by 'amend an item in'. The power to make an order to amend an item contains within it the power to remove an item from a Schedule. This is adverted to in the Minister's own submission (item 4) 'it is perfectly clear that it is only possible to amend an item in the schedule where the item is already in the schedule'.

A Threatened Species Protection Order by the Minister is issued in the following terms 'I make the following order under section 13(5) of the Threatened Species Protection Act 1995'. An EXLANATORY NOTE added to, but not forming part of the Order, typically states 'This order amends the Threatened Species Protection Act by adding certain species to and omitting certain species from the Schedules of endangered, vulnerable and rare flora and fauna'. 'Amending' allows for 'omitting' in the sense of removing items already listed on the schedules.

The only relationship between §13(4) and 13(5) in terms of 'omit' is that 'omit from' in §13(4) meaning 'to remove from' may be reflected within §13(5) as 'to amend'.

§16(1) any person may nominate an ineligible taxa to be omitted from a schedule - clearly the taxon is already in the schedule and the nomination is to remove it, particularly when contrasted with the only other option in the section, to add an eligible taxon. The Minister could make the decision under §21(1) to omit the taxon, or not to omit the taxon, but not a decision 'not to add' it, as it is already in the Schedule.

A decision made in the terms of 'not to add' clearly is not made in the sense of 'to remove', which is the decision that would flow from a nomination 'to omit'.

It would be absurd for a nomination deliberately to be made to add a known ineligible taxon to a schedule to obtain the decision 'not to add' or not to include the item when the same result would be achieved by making no nomination at all.

On the other hand, a nomination to add a taxon considered to be eligible may result in a decision under §21(1) by the Minister 'not to add', it.

§21(1) the Minister must decide whether or not a taxon is to be added to, or omitted from a schedule - the meaning of 'omit from' can only be considered in relation to the final recommendation made to the Minister.

He has options of 'to add' or 'not to add', 'to omit' or 'not to omit'.

If the recommendation flows from a nomination under §16.1 to omit an ineligible taxon from a schedule, then he must support or reject the recommendation by omitting or not omitting the item from the schedule, using those words as meaning to remove or not to remove. He would not make such a decision in terms of 'add' or 'not add to', it would not be an applicable usage.

On the other hand, a recommendation flowing from a nomination to add an eligible taxon to the schedule can only draw from the Minister a decision to add or not to add the item to a schedule, which can derive either from the requirement under §21(1) to add or not to add, or can derive from the ordinary meaning of omit as not to include. In either case, the wording of the order given by the Minister within the context of this matter, 'not to add' automatically denies the meaning of omit as to remove, and directly contradicts the Minister's own submission.

3 Meaning of 'Omit' within Legislation and Statutory Interpretation

Statutory provisions may have more than one meaning. Reference to different provisions may make the meaning of a contested word more apparent - 'although there is no absolute requirement that the same words in a statute must be given the same meaning, the need to give different meanings should be clearly apparent and should lead to a result which is consonant with the purpose of the statute' (Wilson v Commissioner of Stamp Duties (1986) 6 NSWLR 410 per Lee J at 418-19).

.1 It is submitted that legislative use and statutory interpretation support the meaning of 'omit' as 'not to include' and 'not to add', for the reasons set out below.

.2 A search of the consolidated Tasmanian legislation database www.thelaw.tas.gov.au for Acts containing the phrase 'omit from' within the body of Acts or Statutory Rules found general use in legislation of 'omit' as meaning 'not to add to' or 'not to include', namely:

Supreme Court Rules 2000 §667 Cases in which evidence is lengthy - 'in any case in which the evidence or material used at the trial is of great length or may not conveniently be reproduced, the Court or a judge may direct that it be omitted the appeal book', and §666 (4)(c) Settlement of appeal book - 'The Principal Registrar (in settling the list of documents to be inserted in the appeal book) may specify in the list of documents any part of a document or other material that is to be inserted into or omitted from the appeal book.'

Valuation of Lands Act 2001 §4 'The Valuer General may omit from a court list and include in a Supreme Court list any objection'

Government Business Enterprise Act 1995 §26 an officer must not omit from any statement anything without which the statement is misleading. (This provision, meaning not to leave out or fail to include, is echoed in the Surveyors Act 2002 and the Radiation Protection Act 2005).

Fire Damage Relief Act 1995 §27 No person shall willfully omit from any application or evidence any material particulars or information.

SUMMARY

Having regard to the submissions made above, it is submitted that the proposed order by the Minister is subject to appeal.

Yours faithfully,

D W CLEMENT

The positive response and the grounds of appeal

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