Case: Hatton v Beaumont (1977) 2 NSWLR 211
Outcome: cited
As Mahoney JA observed in Hatton v Beaumont (1977) 2 NSWLR 211 at 225: The administration of the law would be facilitated if, in the formulating of legislation, attention were given as a matter of routine to this question. If this were done by a specific indication in the particular enactments of the effect of non-compliance with its provisions...or by a general enactment which provided for relief against the consequences of non-compliance with a mandatory statute, the cases of the present kind would be, if not avoided, at least greatly reduced in number. (cf Helman v Byron Shire Council (1995) 87 LGERA 349 at 355, Ceric v CE Heath Underwriting and Insurance (Australia) Pty Ltd [1993] NTSC 86 ; (1993) 91 NTR 26 at 39) 43 However in any event, and more compellingly in relation to s 74B, neither the purpose nor the structure of Ch 4 Pt 7 as a whole support a construction of s 74B that a decision made under that section after the expiration of 20 business days is invalid. Although the legislative purpose in enacting Div 1A was to facilitate a prompt refusal by the Minister of an action which would have unacceptable environmental impacts, the legislation does not support an interpretation that a decision made by the Minister on, for example, the 21st business day after the referral would not be of equal validity to a decision made within the prescribed time period. The event upon which the operation of the section depends is the prompt making of a decision by the Minister that the proposed action will have unacceptable environmental impacts, not the passage of 20 business days. In other words the making of a decision of the Minister is critical the time period of 20 business days, while relevant to the making of the decision, does not determine its validity (cf Hatton v Beaumont (1977) 2 NSWLR 211 at 224). To paraphrase the learned authors of Administrative Law in Australia , to which I referred earlier in this judgment, the provision as to time in s 74B simply regulates a function which has already been conferred on the decision-maker, namely that of making a decision in the circumstances described in s 74B(1)(a) EPBC Act. 44 Explanation as to the legislative purpose of Ch 4 Pt 7 Div 1A (including s 74B) can be found in the Explanatory Memorandum to the Environment and Heritage Legislation Amendment Act (No 1) 2006 (Cth) which inserted Ch 4 Pt 7 Div 1A into the EPBC Act. So far as relevant the Explanatory Memorandum provides as follows: 78. This item inserts new Division 1A of Part 7 of the Act. Division 1A establishes a new process that allows the Minister to make a prompt refusal for an action that would have unacceptable impacts on a matter protected by Part 3 of the Act. This avoids the expense and time involved in conducting the full assessment and approval process under Chapter 4 for actions that would be unlikely to receive approval under Part 9 of the Act. The scope and process for making a prompt refusal is established in three new sections of the Act &#172; 74B, 74C, and 74D. 79. If the Minister considers that an action would have unacceptable impacts on a matter protected under Part 3 of the Act on the basis of the information contained in a referral then the Minister may decide under s 74B that Division 1A applies to the action. The other provisions of Chapter 4 (referral assessment and approvals processes) then cease to apply to the action. Under s 74C the Minister must then notify the person proposing to take the action and provide reasons why the action is unacceptable. The person may withdraw the referral, withdraw the referral and refer a new proposal, or request the Minister to reconsider the referral. 80. New s 74D outlines the process to be followed in the event the Minister is asked to reconsider the referral. At the completion of this process the Minister may either confirm that the action is not to be approved, or determine that it should be subject to the formal assessment and approvals processes under the Act. If the Minister decides that the referral should be assessed, the Chapter 4 processes and timeframes recommence at the point where they were initially stopped under s 74B of the Act. 45 Significantly, I note that the Explanatory Memorandum makes no mention of the 20 business day time period, nor is any importance attached to that period of time. Consistently with the proposition that it is the making of the decision which is critical, the Explanatory Memorandum refers to promptitude, and the avoidance of expense and time otherwise applied in making a full assessment.