Case: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355
Outcome: applied
The submissions of Mr Gotterson QC, who appeared for the Minister in these proceedings, may be summarised as follows: 1. Section 156(3) and s 518 are express provisions in the EPBC Act which put beyond doubt that it is clearly not a purpose of the EPBC Act that an act done outside a time period set by the EPBC Act should be invalid. 2. Even apart from those provisions, the same result is achieved by applying the approach to statutory interpretation as articulated in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355. 3. The purpose of Ch 4 Pt 7 Div 1A EPBC Act, which was inserted into the EPBC Act in 2006 by the Environmental and Heritage Legislation Amendment Act (No 1) 2006 , was explained in the Explanatory Memorandum accompanying that legislation. 4. Section 75 and s 88 also call for "prompt" decisions to be made. 5. Importantly, a prompt refusal under s 74B avoids the expense and time involved in conducting the full assessment and approval process for an action that is unlikely to receive approval. 6. The construction of s 74B advanced by the applicant risks substantial frustration of the ultimate purpose of s 74B. 7. On the applicant's argument once the 20 business days have elapsed the Minister must proceed to make decisions under ss 75, 87 and 88 even if the Minister considers the proposed action will have unacceptable environmental impacts. This is precisely what s 74B was intended to avoid. 8. The real condition precedent to the application of Ch 4 Pt 7 Div 1A is the formation of the opinion by the Minister. While the Minister is obliged and required to act within the time specified in s 74B, it does not follow that the consequence of a late decision is that it is invalid and of no effect. 25 In my view, substantially for the reasons advanced by Mr Gotterson QC on behalf of the Minister, the application must fail. 26 Notwithstanding the detailed submissions of the applicant, a plain reading of the EPBC Act demonstrates clearly that failure of the Minister to comply with a time limit prescribed by the EPBC Act does not affect the validity of a decision under the Act made outside a set time limit, including decisions made under s 74B. No contortion of the legislation or speculation as to the manner in which s 74B is to be construed in the broader context of Ch 4 Pt 7 detracts from the natural and ordinary meaning of the words in s 156(3) and s 518(1) EPBC Act. That the failure of the Minister to comply with a time limit set by the EPBC Act does not affect its validity is clear not only in relation to any action of the Minister under the Act as a whole (s 518(1)), but, in my view crucially, is clear in relation to any decision made by the Minister under Ch 4 EPBC Act (s 156(3)). Although the legislation reflects an apparent duplication so far as concerns decisions under Ch 4 (which, presumably, would also fall within the scope of actions of the Minister for the purposes of s 518(1)) the effect of that duplication is to remove any doubt as to the validity of decisions made under Ch 4, including those in Pt 7 Div 1A and more specifically s 74B, notwithstanding a failure to comply with a set time limit. 35 However putting to one side for the moment my views concerning the application of s 156(3) and s 518(1), I consider that in any event the legislative purpose of the EPBC Act is that a decision made by the Minister under s 74B more than 20 business days after receipt of a referral will be valid. This is clear from applying the principles articulated in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 , as well as taking into consideration the explanation of Ch 4 Pt 7 Div 1A in the Explanatory Memorandum accompanying that Division introduction into the EPBC. 36 The majority of the High Court observed in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355: 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. (at 388-389, cf at 390-391) 37 As was observed in commentary on Project Blue Sky (1998) CLR 355 (in my view correctly): On this approach...there is a fundamental difference between a provision which simply regulates a function which has already been conferred on the decision-maker and a provision which establishes an essential pre-condition to the valid exercise of the function. (Lane WB and Young S, Administrative Law in Australia (Lawbook Co, 2007) at 133) 38 Applying the principles articulated in Project Blue Sky [1998] HCA 29 ; (1998) 194 CLR 355 to the facts of the case before me, an important question is whether the legislative purpose of the EPBC Act is that a decision made by the Minister under s 74B more than 20 business days after the referral is received is invalid, taking into account 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. 46 Historically there is a wealth of authority supporting the principle that failure to perform an act within time limits prescribed by legislation does not necessarily invalidate the act notwithstanding that it is made after the expiration of that time limit. While these cases, and the extent to which the courts applied the traditional distinction between directory and mandatory requirements, must be read in light of the test for determining validity articulated in Project Blue Sky [1998] HCA 29 ; (1998) 194 CLR 355 , nonetheless it is useful to note that traditionally: where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the Legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them. It has often been held, for instance, when an Act ordered a thing to be done by a public body or public officers and pointed out the specific time when it was to be done, that the Act was directory only and might be complied with after the prescribed time. Thus, the 13 Hen. IV. (c.7), which required justices to try rioters "within a month" after the riot, was held not to limit the authority of the justices to that space of time, but only to render them liable to a penalty for neglect. (Maxwell Sir PB, The Interpretation of Statutes (8th ed by Sir GHB Jackson, Sweet &amp; Maxwell, London, 1937) at 326) (footnotes omitted)