Case: Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421
Outcome: cited
Such language as "may only" in legislation is indicative of a need to comply with a set time limit, although not conclusive (see, for example, Bond v WorkCover Corporation of South Australia (2005) 93 SASR 315). However it is of some use to contrast the language in s 74B EPBC Act with that in s 459G Corporations Act , and similarly, for example, with: &#8226; the legislation considered in Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 which provided that an application to renew a mining licence was required to be made "during the currency of such license... and not later than one month before the expiry of such license". In that case the High Court interpreted the legislation to mean that a valid application had to comply strictly with prescribed time limits; and &#8226; the relevant section of the Liquor Ordinance 1929 (ACT) considered in Ayres v Chacos (1972) 19 FLR 468, which provided that "An applicant for the grant, removal or transfer of a licence...shall, not less than twenty-one days before making the application, give notice in writing to the Registrar and to an Inspector...". In the circumstances of that case Joske J held that the Licensing Court had no jurisdiction to deal with an application made on a period of notice less than the period of 21 clear days. 47 I agree with the submission of the Minister that it follows from the applicant's interpretation of the legislation that, immediately upon the expiration of the 20 business days time limit in s 74B(1), even in circumstances where the Minister considers that the proposed action will have unacceptable environmental impacts, the Minister's power to invoke Div 1A could not be exercised, and the Minister must proceed to make decisions under ss 75, 87 and 88. I accept the Minister's submission that this interpretation is not supported by the terms of Ch 4 Pt 7. It is highly unlikely that the legislature would have intended that non-compliance with the time limit in s 74B would inevitably prevent the Minister from making a valid decision (cf Charles v Judicial and Legal Service Commission [2002] UKPC 34 at [12] ), particularly as, if the time limit under s 74B were absolute, the subsequent invalidation of any decision made under s 74B would result in substantial frustration of the ultimate purpose of s 74B. This is not a case where, for example: &#8226; the consequences of failure to comply strictly within the prescribed time limit outweigh the public interest in the Minister making a valid decision that the proposed action would have unacceptable environmental impacts and invoking Ch 4 Pt 7 Div 1A (cf comments of the House of Lords in R v Soneji [2005] 3 WLR 303); or &#8226; the object contemplated by the legislature could not be carried into effect unless the duty required by the statute were performed on or by a certain day (cf David Grant , Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 , Ayres v Chacos (1972) 19 FLR 468, Bowman v Blyth [1857] EngR 678 ; (1857) 7 E &amp; B 26, 119 ER 1165 , In re Petition of Douglass 46 NY 42 (1871) and cases discussed in Black HC, Handbook on the Construction and Interpretation of the Laws (The Lawbook Exchange Ltd, Clark, New Jersey, 2008) at 346).