Case: Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8 ; (1999) 46 NSWLR 55
Outcome: applied
The applicant alleges that the delegate's decision that the second respondent's proposed action was not a controlled action was not authorised by the Act and that she did not have jurisdiction to make it. The delegate's decision was based on the factual finding that the proposed mine will not have and is not likely to have a significant impact on a matter protected under Part 3 of the Act. The applicant submits that this fact is a jurisdictional fact. By this it means that the existence of this fact is a precondition to the Minister making a valid decision. In other words, if the Minister's factual finding on this point is in error then he or she has no jurisdiction to decide that the proposed action is not a controlled action. A better way of stating the jurisdictional fact proposition is that to say that the Minister's determination of the fact is not conclusive and that Court has power to review the finding on the basis of evidence as to the existence or non-existence of the fact. As Spigelman CJ pointed out in Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8 ; (1999) 46 NSWLR 55 at 71: ... facts, even where they are described as "objective", do not have an existence independent of their identification by some process of human agency. An administrative decision-maker often has to determine jurisdictional facts, but does not do so conclusively. This has been recognised as long ago as Bunbury v Fuller (1853) 9 Ex 111at 140; 156 ER 47 at 60 60 Ultimately the question whether a particular finding of fact is jurisdictional depends on the proper construction of the relevant statute. The consequence of characterising a fact as jurisdictional is that the finding of fact can be reviewed on the merits and the court's opinion may be substituted for that of the administrative decision-maker. 61 The concept of jurisdictional fact was explained most lucidly by Spigelman CJ in Timbarra at 64: The parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (objectivity) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (essentiality) ... ... Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply. ... Where the process of construction leads to the conclusion that parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts. 62 In support of the submission that the fact that the proposed mine will not have, or is unlikely to have, a significant impact on matters protected under Part 3 is a jurisdictional fact, the applicant makes four points: (a) the construction for which it contends would best promote the declared objects of the Act; (b) in applying the civil offence provisions or deciding whether to grant an injunction under s 475, the Court must construe the same language, as must the State and Territory courts for the purpose of applying the criminal offence provisions. It would be inconsistent for the Act to provide for the Minister's determination under s 75 to be conclusive when the Court has to determine the same issue under the prohibition sections of Part 3; (c) there is no reference to the Minister's state of mind in s 75 whereas there is in closely related provisions of the Act; (d) the definition of "controlled action" in s 67 and the reference to such actions in s 82 do not refer to the decision of the Minister. 63 Section 75(1) obliges the Minister to decide whether an action is a controlled action and, if it is, which provisions of Part 3 are the controlling provisions. The applicant rightly points out that the language of s 75 requires the Minister to recognise his jurisdiction and that it does not follow that the Minister is to determine the issue subjectively. It is relevant that s 75 contains no reference to the Minister's mental state by the use of words such as "opinion", "belief" or "satisfaction" which often signify that the decision is not a jurisdictional fact. While the presence of such terms would almost invariably indicate that the determination of fact is not jurisdictional (see for instance, Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6 ; (1999) 46 NSWLR 78 at 90-91), their absence is not decisive; see Timbarra at 64. See also Beyazkilinc v Baxter Immigration Reception and Processing Centre [2006] FCA 1368 ; (2006) 155 FCR 465 at 475-8 per Besanko J.