Case: David Grant &amp; Co Pty Ltd v Westpac Banking Corporation Ltd (1995) 184 CLR 265
Outcome: considered
The submissions of Mr Walker SC, who appeared for the applicant in these proceedings, may be summarised as follows: 1. The legislative provision pursuant to which the Minister made his decision was s 74B EPBC Act. 2. The validity of s 156(3) and s 518(1) EPBC Act as statutory provisions is not in contest, however in relation to the application of these sections s 74B is distinguishable from such provisions as ss 75, 88 and 130 because: a) section 74B does not impose any obligation on the Minister to make a decision of the kind referred to in those other sections; b) the operation of s 74B is conditional upon a decision of the Minister which satisfies s 74B(1), namely a decision of a particular description which is made within 20 business days after the Minister receives the referral. 3. Section 156(3) and s 518(1) are concerned with the validity of decisions which there is an obligation to make. 4. The construction of s 74B urged by the Minister leads to absurd results because it places s 74B in conflict with other provisions of the EPBC Act. 5. A continuing right to make a decision under s 74B cannot co-exist with the alternative and inconsistent procedure under s 75 and s 87 EPBC Act. 6. If s 156(3) and s 518(1) are capable of applying to a decision purportedly made by the Minister under s 74B more than 20 business days after the receipt of a referral, it should be concluded that s 74B(1) evinces an intention to exclude the prima facie operation of those provisions. 7. The principles articulated in David Grant &amp; Co Pty Ltd v Westpac Banking Corporation Ltd (1995) 184 CLR 265 apply to this case. 8. Section 74B and Ch 4 Pt 7 Div 1A EPBC Act were inserted as part of a new process designed to enable the Minister to make a "prompt refusal" for a proposed action that would be clearly unlikely to receive approval under the other provisions of Ch 4. To treat a decision made any time outside the 20 business days referred to in s 74B(1) as effective to invoke s 74B(2) would be to dispense entirely with the "prompt refusal" rationale of the provision. This would be in direct conflict with the evident statutory purpose of s 74B and must be rejected by reason of s 15AA Acts Interpretation Act 1901 (Cth). 30 The applicant has also submitted that s 156(3) and s 518(1) do not apply to s 74B because, paraphrasing an issue posed in David Grant (1995) 184 CLR 265: [T]he difficulty in construction arises, perhaps not so much from the particular text of either [s.74B] or [ss.156(3) and 518(1)], as from the interrelation between those...provisions in circumstances where the enactment of [ss.156(3) and 518(1)] preceded that of [s.74B], and the earlier section is general and the later section is specific in its operation. 39 First, there is nothing in the language of s 74B which suggests that making a decision within 20 business days is a condition of validity of a decision made under that section. This can be contrasted with, for example, the language of s 459G Corporations Act 2001 (Cth) to which the applicant referred in submissions, and which was the subject of consideration by the High Court in David Grant (1995) 184 CLR 265. Section 459G Corporations Act 2001 (Cth) provides: (1) A company may apply to the Court for an order setting aside a statutory demand served on the company. (2) An application may only be made within 21 days after the demand is so served. (3) An application is made in accordance with this section only if, within those 21 days: (a) an affidavit supporting the application is filed with the Court; and (b) a copy of the application and a copy of the supporting affidavit, are served on the person who served the demand on the company. 40 In David Grant (1995) 184 CLR 265 the High Court observed at 276-277: In providing that an application to the court for an order setting aside a statutory demand "may only" be made within the 21 day period there specified and that an application is made in accordance with s 459G only if, within those 21 days, a supporting affidavit is filed and a copy thereof and of the applications are served, sub-ss (2) and (3) of s 459G attach a limitation or condition upon the authority of the court to set aside the demand. In this setting, the use in s 459G(2) of the term "may" does not give rise to the considerations which apply where legislation confers upon a decision-maker an authority of a discretionary kind and the issue is whether "may" is used in a facultative and permissive sense or an imperative sense (13). Here, the phrase "(a)n application may only be made within 21 days" should be read as a whole. The force of the term "may only" is to define the jurisdiction of the court by imposing a requirement as to time as an essential condition of the new right conferred by s 459G. An integer or element of the right created by s 459G is its exercise by application made within the time specified. To adapt what was said by Isaacs J in The Crown v McNeil (14), it is a condition of the gift in sub-s (1) of s 459G that sub-s (2) be observed and, unless this is so, the gift can never take effect. The same is true of sub-s (3). This consideration gives added force to the proposition which has been accepted in some of the authorities that it is impossible to identify the function or utility of the word "only" in s 459G(2) if it does not mean what it says, which is that the application is to be made within 21 days of service of the demand, and not at some time thereafter and that to treat s 1322 as authorising the court to extend the period of 21 days specified in s 459G would deprive the word "only" of effect (15). 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).