Nona v Powell considers consequences of
non-compliance with statutory requirements
A recent decision of the Queensland Planning and Environment Court provides a useful example of the Court’s approach to determining whether an act undertaken in non-compliance with a statutory requirement will render that act invalid.
Nona v The Hon. Andrew Powell MP  QPEC 46 concerned a challenge by a group of traditional owners in Cape York to the validity of the declaration of the Steve Irwin Wildlife Reserve Nature Refuge (‘the SIWR’) under s 46 of the Nature Conservation Act 1992.
The applicants challenged the validity of the declaration on the basis that the Minister failed to comply with the requirement in s 44 of the Act that the proposal for the nature refuge specify the ‘proposed management intent for the area’.
The applicants contended that the statement of the proposed management intent did not adequately address cultural resources within the SIWR, specifically the preservation and management of Aboriginal human remains which may be present within the SIWR.
They submitted that the general terms of the proposed management intent were therefore insufficient and as a consequence, the process for declaring the SIWR was invalid.
The legal issue for the Court to consider was whether the Minister failed to comply with the requirements in s 44 of the Act and, if the Minister did, the consequences of that failure.
The Court rejected the applicants’ arguments and found the process of declaring a nature reserve under the Act did not require a more detailed statement of the proposed management intent than that provided. In other words, the statement of the proposed management intent was sufficient to meet the requirements of the Act.
The Court nevertheless went on to consider what the consequences would have been if it had found that the statement of proposed management intent was insufficient. Would that have rendered the declaration invalid?
The Court found guidance in the High Court’s decision in Project Blue Sky Inc v Australian Broadcasting Authority (1988) 184 CLR 355. The High Court said the answer to such a question depends on whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the statutory requirement.
That legislative purpose is to be ascertained by reference to the language, subject matter and objects of the statute in question and the consequences for the parties if the act done in non-compliance with the statutory requirement is rendered invalid.
The Court found that there was nothing in the wording of s 44 or its surrounding provisions to suggest a legislative purpose to invalidate the declaration if the statement of the proposed management intent was found to be insufficient or did not address cultural resources.
Further, the Court could not discern such a purpose from the subject matter and object of the Act. The purpose of the Act is conservation of nature. While nature refuge management principles extended to conserving and controlling use of significant cultural resources, that was not the primary purpose of the Act.
Finally, the Court also considered the relative consequences for the parties if it held the declaration of SIWR to be invalid. The Court found that the second respondent, Silverback Properties, could suffer prejudice given the significant investment it had made pursuant to the declaration.
In contrast, the Court saw no demonstrable prejudice to the applicants’ rights if the nature refuge continued to exist.
The applicants’ particular concerns regarding Aboriginal remains were expressly addressed in the Aboriginal Cultural Heritage Act 2003.
Non-compliance with statutory requirements does not necessarily invalidate decisions made or acts done in the exercise of the power regulated by those statutory requirements.
Whether it does depends on whether, as a matter of statutory construction, such a purpose can be discerned from the language, subject matter and object of the Act in question and the consequences for the parties of a determination of invalidity.
The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.
Published: 12 November 2013
Author: Peter Dwyer