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Federal Court of Australia |
Last Updated: 28 March 2002
Brisbane Airport Corporation Limited ACN 076 870 650 v Wright [2002] FCA 359
ADMINISTRATIVE LAW - appeals from the Administrative Appeals Tribunal (Cth) - powers and procedure of Tribunal - whether Tribunal erred in decision - whether decisions of Tribunal are judicially reviewable under ADJR Act - parties - person `whose interests are affected' - standing - whether standing derived from statute or common law principles - standing determined by considering the subject, scope and purpose of the relevant legislation
Airports Act 1996 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth), s 27
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 6(1)
Comptroller-General of Customs v Members of the Administrative Appeals Tribunal (1994) 123 ALR 140, considered
Allan v Transurban City Link Ltd [2001] HCA 58; (2001) 75 ALJR 1551, applied
Alphapharm Pty Ltd v SmithKline Beecham (Aust) Pty Ltd (1994) 49 FCR 250, applied
Edwards v Australian Securities Commission (1997) 72 FCR 350, applied
Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1, considered
US Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520, considered
BRISBANE AIRPORT CORPORATION LIMITED, ACN 076 870 650 v DEPUTY PRESIDENT C R WRIGHT AS A PRESIDENTIAL MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL, KEVIN RUDD and MINISTER FOR TRANSPORT AND REGIONAL SERVICES
Q 198 OF 2001
DOWSETT J
28 MARCH 2002
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA |
|
QUEENSLAND DISTRICT REGISTRY |
THE COURT ORDERS THAT:
1. The decision of the Administrative Appeals Tribunal dated 17 August 2001 be set aside.
THE COURT DECLARES THAT:
2. The second respondent is not entitled to seek review of the decision of the Minister for Transport and Regional Services made on 11 February 1999 approving a master plan for the Brisbane Airport.
THE COURT ORDERS THAT:
3. The second respondent's application for such review be dismissed.
4. Submissions will be heard as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
QUEENSLAND DISTRICT REGISTRY |
JUDGE: |
DOWSETT J |
DATE: |
28 MARCH 2002 |
PLACE: |
BRISBANE |
The decision under review
1 On 11 February 1999, the Minister for Transport and Regional Services (the "Minister") approved a draft master plan for the Brisbane Airport, acting pursuant to s 81 of the Airports Act 1996 (Cth) (the "Airports Act"). The draft plan thereupon became the current final master plan for the airport. On 3 July 2000, the second respondent applied to the Administrative Appeals Tribunal (the "Tribunal") for review of the Minister's decision. On 10 August 2000 the Tribunal made an order nunc pro tunc, extending to 3 July 2000, the time for making such application. The present applicant then challenged the second respondent's entitlement to bring this application. That matter was argued as a preliminary issue. Its resolution depended upon whether or not, pursuant to s 27 of the Administrative Appeals Tribunal Act 1975 (Cth) (the "AAT Act"), the second respondent was a person whose interests were affected by the decision. The Tribunal found that the second respondent was entitled to seek review.
2 Pursuant to s 31 of the AAT Act that decision is "conclusive". Had the Tribunal held that the second respondent's interests were not so affected, he could have appealed to this Court pursuant to subs 44(2). However there is no provision for an appeal against a finding that the applicant's interests were affected. The second respondent argued to the contrary, but the matter is beyond doubt. The absence of a right of appeal does not exclude judicial review of the decision pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the "ADJR Act"). See Comptroller-General of Customs v Members of the Administrative Appeals Tribunal (1994) 123 ALR 140. The applicant now seeks such review. It is most unfortunate that this question of standing was not ventilated at the time of the application for an extension of time. It might reasonably have been thought that the applicant, by not raising the issue at that time, had conceded the second respondent's right to make the application, subject only to his obtaining an extension of time. I do not wish to be taken as encouraging the fragmentation of administrative and judicial review.
The Airports Act
3 The Airports Act appears to have been adopted in the course of the privatisation of major Australian airports. It provides for the grant of leases over various airports and establishes mechanisms to facilitate continuing government supervision of their operations. It distinguishes between "core regulated airports" and other airports. Core regulated airports are the major capital city airports and some others. See s 7. Some airports are designated as "joint-user airports". This seems to mean that they are used for both civil and defence purposes. See s 7B. Brisbane Airport is a core regulated airport but not a joint-user airport.
4 Section 3 provides:
The objects of this Act are as follows:(a) to promote the sound development of civil aviation in Australia;
(b) to establish a system for the regulation of airports that has due regard to the interests of airport users and the general community;
(c) to promote the efficient and economic development and operation of airports;
(d) to facilitate the comparison of airport performance in a transparent manner;
(e) to ensure majority Australian ownership of airports;
(f) to limit the ownership of airports by airlines;
(g) to ensure diversity of ownership and control of certain major airports;
(h) to implement international obligations relating to airports.
5 It should be noted that with one exception, the Airports Act proceeds upon the basis that relevant airports are already in existence. This appears particularly from the definitions of "core-regulated airport" in s 7 and "joint-user airport" in s 7B. In other words, the Act is not about locating airports but about developing and regulating existing airports. The one exception is the Sydney West airport. Section 6 provides that it is to be treated as an airport even before its development.
6 Part 5 of the Airports Act provides for airport master plans, major development plans and building control. Part 6 deals with environmental management and relevantly provides for the adoption of environment strategies for core regulated airports and some others. It is necessary to address Part 5 in some detail. Division 3 of Part 5 deals with airport master plans. Subs 71(2) provides that each airport must have a final master plan which, in the case of a core regulated airport, must deal with:
* development objectives for the airport;
* assessment of future needs of airport users;
* proposals for land use and related development;
* forecasts relating to noise exposure levels;
* plans for managing aircraft noise intrusion above a specified level;
* assessment of environmental issues; and
* plans for dealing with environmental issues.
7 Paragraph 71(2)(j) provides that other matters may be prescribed by regulation for inclusion in a master plan and that the ambit of operation of that paragraph is not limited by the other paragraphs of subs 71(2). It is, however, of some significance that noise levels are expressly dealt with in pars 71(2)(d) and (e). I will return to this matter at a later stage. Subsection 71(8) provides that for the purposes of par 71(2)(e), reference must be had to Australian Standard AS 2021-1994 ("Acoustics-Aircraft noise intrusion - Building siting and construction").
8 Sections 75 and 76 of the Airports Act require the lessee of a relevant airport to prepare a draft master plan and submit it to the Minister for approval. A master plan must relate to a period of twenty years, but it is to remain current for a period of five years. See ss 72 and 77. Section 79 requires that before submitting the plan to the Minister, the lessee is to publish in a relevant newspaper, a notice:
* stating that a preliminary version of the plan has been prepared;
* advising that copies are available for inspection and purchase for a period of ninety days after the publication;
* stating the place where such inspection and/or purchase may occur; and
* inviting members of the public to make written comments within ninety days.
9 The lessee is obliged to make available copies of the draft in accordance with the notice. It must also include with the draft plan submitted to the Minister, a summary of written comments received and certify that it has had due regard to such comments.
10 Section 81 provides:
(1) This section applies if:(a) an airport lessee company gives the Minister a draft master plan;
...
(2) The Minister must:
(a) approve the plan; or
(b) refuse to approve the plan.
(3) In deciding whether to approve the plan, the Minister must have regard to the following matters:
(a) the extent to which carrying out the plan would meet present and future requirements of civil aviation users ...;
(b) the effect that carrying out the plan would be likely to have on the use of land:
(i) within the airport site concerned; and
(ii) in areas surrounding the airport;
(c) the consultations undertaken in preparing the plan ...;
(d) the views of the Civil Aviation Safety Authority and Airservices Australia ...;
(4) Subsection (3) does not, by implication, limit the matters to which the Minister may have regard.
(5) If the Minister neither approves nor refuses to approve, the plan before the end of the period of ninety days after the day on which the Minister received the draft plan, the Minister is taken, at the end of that period, to have approved the plan under subsection (2).
(6) As soon as practicable after deciding whether to approve the plan, the Minister must notify the company in writing of the decision.
(7) If the Minister refuses to approve the plan, the Minister must notify the company in writing of the Minister's reasons for the refusal.
(8) ...
(9) ...
11 The "consultations" referred to in par 81(3)(c) are presumably those referred to in s 80. They are not relevant for present purposes. Section 84 provides for minor variations to a master plan which has been approved. There is again a requirement for public notice and an invitation to the public to comment. After approval of a master plan or variation thereto, the lessee must advertise, advising that the plan or variation has been approved and that it is available for inspection and purchase at a particular location. It must make the plan available for inspection and purchase throughout the period during which it remains in force. See s 86.
12 Division 4 of Part 5 deals with major development plans. Section 89 defines a "major airport development". That term includes construction of a new runway or other major building project. Such a project must be carried out in accordance with an approved major development plan, the content of which is prescribed by s 91. Section 92 provides for advertisement and public comment in terms which are similar to those prescribed for master plans. Pursuant to s 94 the Minister must approve or refuse the plan, advise the lessee and give reasons if the plan is not approved. The plan must be consistent with the master plan. Section 96 provides for publication of a notice following approval of a major development plan. The requirements are similar to those which apply to a master plan, save that copies of a major development plan need only be available for a period of 180 days after publication of the relevant notice.
13 Division 5 of Part 5 provides for "Building control". It seems to apply to any construction work (including earthworks and road construction) which would not require a major development plan. Part 6 relates to environmental management. Division 2 provides for environment strategies. The lessee must prepare a draft environment strategy for submission to the Minister. The approval procedure is similar to those prescribed for master plans and major development plans.
Administrative review of decisions
14 Section 242 of the Airports Act provides:
(1) Applications may be made to the Administrative Appeals Tribunal for review of decisions made by the Minister under this Act.(2) Subsection (1) does not apply to the following decisions:
(None are relevant for present purposes.)
(3) If the Minister:
(a) makes a decision of a kind covered by subsection (1); and
(b) gives to the person or persons whose interests are affected by the decision written notice of the making of the decision;
that notice is to include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision.
(4) A failure to comply with subsection (3) does not affect the validity of the decision.
(5) ...
15 Subsection 27(1) of the AAT Act provides:
Where this Act or any other enactment (other than the Australian Security Intelligence Organisation Act 1979) provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth) whose interests are affected by the decision.
The second respondent must therefore demonstrate that his interests are affected by the decision to approve the master plan.
The second respondent's interests
16 The second respondent originally advanced three bases upon which he claimed to be entitled to seek review, namely:
* as a member of Parliament;
* as representative of a community group known by the acronym "BARB"; and
* that he and his wife own and occupy a dwelling house at 85 Norman Crescent, Norman Park, about three kilometres east of the Brisbane CBD, on the south side of the Brisbane River and, in the view of the Tribunal, about 9-10 kilometres from the southern (nearer) end of the existing runway.
17 The Tribunal rejected the first two claimed bases for the second respondent's status but upheld the third. The applicant challenges that decision. Although the second respondent's criticisms of the master plan have been widely drawn, it seems that his concern is a proposal in the master plan that there be a second runway at Brisbane Airport. He fears that noise from such a development would adversely affect residential areas including his property. It is, as I understand it, accepted that, using the relevant standard prescribed by subsection 71(8) of the Airports Act, the master plan does not forecast, for the purposes of par 71(2)(e), that the second respondent's property will be subject to exposure above the significant ANEF levels. It rather forecasts that such property will not be exposed to ANEF levels in excess of twenty, the significant level being thirty. However the second respondent points to aspects of the evidence which suggest that ANEF levels are not always accurate in their predictions, particularly at levels below twenty. See AB 242 - 243. I turn to consider the cases concerning "affected interests".
The cases
18 In Allan v Transurban City Link Ltd [2001] HCA 58; (2001) 75 ALJR 1551, the High Court was concerned with the Development Allowance Authority Act 1992 (Cth) (the "Authority Act") which provided the framework for an infrastructure borrowing tax incentive scheme. The Development Allowance Authority (the "DAA") had power to grant infrastructure borrowing certificates which were part of the process for obtaining the relevant incentives. The Authority Act permitted a person affected by a reviewable decision to apply for reconsideration of it. The DAA issued a certificate, and the appellant sought reconsideration of its decision to do so. The DAA held that he was not relevantly affected. He applied to the AAT for review, again unsuccessfully. After unsuccessful proceedings in this Court, the appellant was given leave to appeal to the High Court, but the appeal was unsuccessful.
19 At [15] - [17], the majority (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ) observed:
[15] The expression "affected by" and cognate terms appear in a range of laws of the Commonwealth. This is not the occasion for a disquisition on that topic. It is necessary to answer the questions posed above in respect of s 119(1) of the Authority Act by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as "standing". "Standing" is a metaphor to describe the interest required, apart from a cause of action as understood at common law, to obtain various common law, equitable and constitutional remedies.[16] In Re McHattan v Collector of Customs (NSW), Brennan J stated that `[a]cross the pool of sundry interests, the ripples of affection may widely extend.' However, as Davies J pointed out in Alphapharm Pty Ltd v SmithKline Beecham (Aust) Pty Ltd, Brennan J "did not propose that any ripple of affection would be sufficient to support an interest". A particular statute may establish a regime which specifically provides for its own measure of judicial review on the application of persons meeting criteria specified in that statute. The present case involves such a statute. The starting point, as indicated by several authorities in the Full Court of the Federal Court, is the construction of the Authority Act with regard to its subject, scope and purpose.
[17] Transurban correctly submitted that the phrase in s 119(1) of the Authority Act "who was affected by a reviewable decision" has an ambulatory operation. What serves to identify a person as one affected by a reviewable decision will vary having regard to the nature of the reviewable decision itself. ...
20 I will return to Allan at a later stage. The decisions of Full Courts of this Court to which the High Court referred in [16] of Allan were Alphapharm Pty Ltd v SmithKline Beecham (Aust) Pty Ltd (1994) 49 FCR 250 at 261 and 272; Edwards v Australian Securities Commission (1997) 72 FCR 350 at 367 - 369; and Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1 at 4 - 5 and 34 - 37. Alphapharm and Edwards are of particular relevance for present purposes. In Alphapharm the Full Court was concerned with a ministerial decision made pursuant to the Therapeutic Goods Act 1989 (Cth) to register a generic brand of medication. A competing manufacturer applied to the Minister to reconsider the decision, claiming to be a person whose interests were affected by the decision. The Act authorized such an application by a person so affected. The question was whether or not the competitor met that test. Davies J referred (at 260) to an earlier decision of the Full Court in US Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 at 529, where the Court said:
The nature of the interest required in a particular case will be influenced by the subject matter and content of the decision under review.
21 His Honour then continued:
This must be so with respect to the phrase "interests are affected", when used in a statute which provides for the administrative review of an administrative decision. In such an event, the review, which forms part of the process of administrative decision-making, is provided to promote the achievement of the objects of the statute. The term "aggrieved", when used in the context of judicial review, may have a different connotation, for the object of judicial review is to ensure that the law is observed.
22 Gummow J said (at 272):
Like the expression "a person aggrieved", the phrase "a person whose interests are affected by the decision" and cognate terms, appear in a variety of statutes as the identification of the persons who are given standing to seek administrative or judicial review. The day is long gone when there was any general presumption that in such statutes the "interest" concerned must be proprietary or even legal or equitable in nature, or that the affectation be of a nature as understood in private law. However, it is important not to draw from what was said in any particular decision by way of identification of that which did or did not amount to a sufficient affectation of an interest any general proposition which may be translated to the instant dispute. In each case, the content of the terms "affect" and "interest" are to be seen in the light of the scope and purpose of the particular statute in issue....
It is vital to approach the issues on the present appeal upon a review of the scope and purpose of the Act.
23 After a detailed analysis of the Act, his Honour said at 279 - 280:
... However, here the immediate issue is one of standing under s 60 to seek reconsideration of an initial decision under s 25 ... . In answering that question, the registration system provided for in Pt 3 is of central importance.There is no requirement for the provision of an opportunity to any third parties to be heard upon an application for registration. Reasons are required only where the decision is not to register ... . Nor is there a requirement that a decision ... to register goods be published generally. I have referred to other provisions which provide for notification of decisions in the Gazette; see also s 60(2)(a) which gives to a person whose interests are affected by a decision particulars of which are so notified in the Gazette, 90 days thereafter to request reconsideration. ...
Further, an interpretation of the legislation which treated a third party as a person interested in, in the sense of opposed to, a grant of registration would not sit well with that object of the legislation which is concerned with the timely availability of therapeutic goods, after evaluation by an expert body and pursuant to a "complex and delicate administrative scheme" ... . If such a third party could intervene, the application might be made within 90 days after the decision first came to the notice of the complainant ... . At that time, as is the position in the present case, entry on the Register may have been effected pursuant to the favourable decision under s 25 and trading commenced by the sponsor. As I have also indicated, the interposition at that stage of a review procedure with the substitution of the decision to refuse registration could have the effect of rendering unlawful activities by the sponsor which, at the time in which they were engaged, did not contravene the prohibition ... . Finally, the legislation contains elaborate provisions for cancellation of a registration. Those provisions do not operate other than prospectively.
24 I have referred in detail to the facts of the case as outlined by his Honour because there are obvious parallels between that case and the present.
25 In Edwards the Full Court was concerned with a decision of the Australian Securities Commission to register a company as a foreign company under the Corporations Law. Persons who were opposed to the company in litigation applied to the Tribunal for review of that decision. They claimed that their interests were affected by the decision for the purposes of s 27 of the AAT Act. The application was refused upon the basis that their interests were not so affected. R D Nicholson J (with whom Lee and Carr JJ agreed) referred to US Tobacco and Alphapharm and said (referring to Alphapharm) at 368:
His Honour (Gummow J) concluded where the initial decision was not to register or to register with conditions, the applicant would be a person whose `interests are affected' within the meaning of s 60. However, where there had been an initial decision to register which had been acted upon by the effecting of registration, the operation of the (relevant legislation) upon the steps leading up to registration was spent. His third conclusion was the scope and purpose of the legislation in the above situation did not allow of third parties as persons who have an interest affected by the initial decision to grant registration and who may seek reconsideration and reversal of it under s 60. ...The statutory regime in Alphapharm as reviewed by Gummow J bears many similarities to the one under consideration in this case. The regime resulted in criminal penalties being imposed for non-compliance with s 343. The regime did not require third parties to be heard on the application for registration. There was no requirement to give reasons (except under the Therapeutic Goods Act where there may be a refusal). There is also no requirement that the decision be published generally.
26 His Honour then went on to consider certain other aspects of the legislation, drawing further parallels with Alphapharm and concluding that the appellant's interests were not relevantly affected. Alphapharm differed from Edwards in that in Alphapharm the Court was concerned with a review process prescribed by an Act other than the AAT Act, although a similar test for "standing" was prescribed. In Edwards, however, the review procedure prescribed by the AAT Act had been adopted for the purposes of the Corporations Law. Nonetheless, in both cases, the Court looked to the "subject, scope and purpose" of the legislation authorizing the decision in question in order to identify the content of the test of affectation of interest. In other words, Edwards demonstrates that the phrase "whose interests are affected" in s 27 of the AAT Act may have an ambulatory effect, dependent upon the terms of any legislation which may adopt the review procedure there prescribed. The review process under consideration in Allan was, as in Alphapharm, prescribed by the statute authorizing the relevant decision, but both Alphapharm and Edwards were apparently approved.
27 In Allan, the majority, in considering the Authority Act, observed:
[31] Notice of a refusal, but not of a grant, must set out the reasons for the decision. This suggests that where, as here, the decision is one to grant, the legislation treats that as the end of the matter, save for the potential operation of the variation and cancellation provisions. ...[32] Further, there is no provision for the giving of notice to the public or to any person other than the applicant. This, in turn, throws light upon the apparently unfixed operation of the temporal requirement of s 119(1)(a). This requires that the person affected by a reviewable decision make the request for reconsideration within the period of 21 days after the date on which the decision first comes to the attention of that person. Paragraph (a) has a sensible operation if, with respect to a decision under Ch 3, the persons affected by the decision are those to whom the written notice must be given.
The present case
28 In seeking to identify a person "whose interests are affected" by the decision to approve the master plan, the starting point is a construction of the subject, scope and purpose of the Airports Act. The "objects" of that Act. as set out in s 3, focus on the provision of airport services. Paragraph 3(b) refers to the interests of the "general community" but that seems to refer to collective, rather than individual interests. This is of some importance, given that the Airports Act assumes the continuing commercial operation by lessees of airports at existing locations. Inevitably, some, perhaps many people will be affected by the existing operation. They, and others, may be affected, favourably or otherwise, by any change in the mode of operation. In some cases, the effects of any change will be minor; in others, those effects will be extreme. It is of the nature of a major airport operation that it is likely to affect many people in varying degrees. A master plan is part of a business plan for an existing airport. It is not a town planning document.
29 It is especially relevant that subs 71(2) requires that a master plan specify:
* forecasts relating to noise exposure levels; and* the airport lessee company's plans, developed following consultations with the airlines that use the airport and local government bodies in the vicinity of the airport, for managing aircraft noise intrusion in areas forecast to be subject to exposure above the significant ANEF levels ... .
30 The expression "significant ANEF levels" is defined in s 5 to mean "a noise above 30 ANEF levels." I have previously drawn attention to subs 71(8) which prescribes the relevant standard for assessing noise. Paragraph 71(2)(e) requires that the lessee:
* forecast areas which will be subject to aircraft noise experienced above 30 ANEF levels;
* consult with user airlines and relevant local authorities; and
* develop a plan for managing aircraft noise intrusion in those areas.
31 The Airports Act does not require that a lessee consult with occupiers of properties which, it is forecast, will be so affected. Their interests are presumably to be protected by the relevant local authorities. In those circumstances it seems unlikely that Parliament intended that they should be able to commence proceedings for review of a decision to approve a master plan. It is even less likely that occupiers likely to be exposed to lower levels of noise intrusion should be able to do so. To paraphrase the words of Davies J, their relevant "ripple of affectation" is insufficient to constitute an affected interest for present purposes. In the present case, the second respondent challenges the reliability of the forecast that his property will be exposed to noise intrusion at levels below 20 ANEF levels, but there is no evidence suggesting that such intrusion would reach 30 ANEF levels.
32 Section 81 requires the Minister to take into account, in considering whether to approve a master plan, the effect that "carrying out the plan" would be likely to have on the use of land, both within the airport site and in areas surrounding it. Significantly, the focus is on the use of land, not amenity or value. There is no suggestion that the use of the second respondent's land would be so affected, even if its amenity were reduced. It is also relevant that although public comment is to be invited, the Minister is not obliged to take it into account, although, as I have pointed out, the lessee must summarize such comment in the draft plan and certify that it has had due regard to it. I will return to this matter at a later stage.
33 Pursuant to subs 81(6), the Minister must notify the lessee of any decision as to the master plan and, pursuant to subs 81(7), if he or she refuses to approve it, give reasons. In this respect the legislation appears to be similar to that considered in Allan and Alphapharm. The lessee is clearly a person whose interests are affected by such a decision within the meaning of subs 242(3), and so the Minister would have to give notice of the right to apply for review pursuant to the AAT Act. The absence of any requirement for notice to other persons or for reasons in case of approval might well suggest that where the decision is to approve, the matter is at an end as was the case in Allan. See [31] of that decision.
34 The present case differs from Allan, Alphapharm and Edwards in that s 79 of the Airports Act requires public notification of a draft plan and an invitation to the public to comment. Further, s 86 contemplates notification of the fact of approval. Passages in those cases suggest that the absence of such provisions led to the court in question adopting a narrow approach to the identification of relevant affected interests. It might therefore be thought that the presence of such provisions in this legislation is to contrary effect. However s 79 requires notice to "members of the public". It is most unlikely that it was intended that any member of the public might seek review of a decision to approve a master plan. Further, although the lessee must have due regard to public comment, that is part of the formulation of the draft master plan and not necessarily part of the Minister's decision-making process. As I have said, s 81 does not compel consideration of such comments by the Minister.
35 As to s 86, it appears to be designed to advise members of the public as to how they can inform themselves of the content of the master plan during its currency. The notice must appear within ninety days after approval. That means that for a period of up to three months, the plan may be in force and action taken pursuant to it without public notification of its approval. Further, the plan must be available for inspection throughout the period of its currency. It cannot have been intended that a person becoming aware of the content of a plan at any time during its five year term should be able to seek review of the decision to approve it. Yet no other time frame is prescribed other than that which appears in subss 29(2) and 29(4) of the AAT Act. There are obvious difficulties in applying those provisions to a decision of this kind. Further, there is no requirement that a s 86 notice should contain any reference to the AAT Act procedure. In this respect it is to be contrasted with the provisions of subs 242(3).
36 The difficulty inherent in relying upon ss 79 and 86 as justifying a wide approach to the question of entitlement to seek review is that those sections offer no guidance in that respect. The requirement is for notice to the general public, but it is most unlikely that Parliament intended that any member of the public could seek review. Nonetheless, it is difficult to see how these sections can be read so as to narrow the relevant range of affected interests if it be conceded that they are designed to facilitate the review process. The better view is that while s 79 is intended to invite comment from the general public, s 86 is designed to inform the general public of the content of the approved plan. They are not relevant to the review process. Any public comment concerning a draft master plan must be considered by the lessee and summarized in a report to the Minister, but there is no intention that any member of the public be heard in connection with the Minister's decision-making process, nor may such a person seek review of the Minister's decision.
37 An airport lessee enters into a commercial arrangement with the government. To allow a wide range of people to seek review of the Minister's approval of a master plan might well threaten the capacity of the lessee to carry on its business as it has undertaken to do, a business which is of considerable public importance. A master plan does not authorize any development in the absence of a major development plan or building approval, although it may close off some options during its currency, at least in the absence of an approved variation. It must also be kept in mind that the master plan will deal with a period of twenty years. Many relevant circumstances will change, so that proposals appearing in one master plan may be abandoned in its successor. Too wide an approach to identification of affected interests would lead to the administrative review process becoming a purely theoretical exercise involving debate about mere future possibilities and how they should be accommodated. It would also have the potential capacity to disrupt a major public function. It seems unlikely that Parliament intended such an outcome.
38 My preferred view is that at least where the decision in question concerns approval of a master plan, only the lessee is an interested party for the purposes of seeking review. If the plan is approved, that is an end of the matter. If it is not approved, reasons must be given, and the lessee may seek review. A wider approach might also permit such an application by the airlines and local authorities referred to in par 71(2)(e). An even wider approach might include property owners likely to be exposed to noise intrusion above significant ANEF levels. As I have said, I prefer the first-mentioned approach. None of these approaches would permit an application by the second respondent. In the above observations, I have dealt only with the position where the attack upon a master plan is based upon "noise issues". A proper construction of Division 3 of Part 5, especially ss 71 and 81, may arguably permit other persons to seek review upon other bases. It is not necessary to consider that possibility.
Judicial Review
39 Section 6 of the ADJR Act prescribes the grounds upon which this Court may intervene to review a decision of the Tribunal. The applicant relies upon pars 6(1)(e) and 6(1)(f). For present purposes it is necessary only to address the ground raised pursuant to par 6(1)(f), namely error of law. The particulars of this criticism appear in par 4 of the application and may be summarized as follows:
* The second respondent failed to demonstrate any interest adversely affected by the decision.
* The Tribunal failed properly to address the question of affected interest, preferring to adopt a "tentative" view, leaving the final resolution of the question for determination in conjunction with the substantive issues.
40 The applicant asserts that "there was no evidence which supported a conclusion that the second respondent was a person affected by the Minister's decision". There may be substance in that observation, but it implies the existence of an objective standard against which the second respondent's claimed interest can be assessed. As appears from Allan and the other cases to which I have referred, this exercise requires an examination of the subject, scope and purpose of the Airports Act. I have performed that exercise above. The Tribunal clearly did not do so. It rather relied upon the decision of the Full Court of this Court in Allan (reported sub nom Transurban City Link Ltd v Allan [1999] FCA 1723; (1999) 168 ALR 687), no doubt because the High Court decision was not handed down until after the Tribunal had delivered its decision and reasons. Unfortunately, the majority in the High Court effectively rejected the reasons of the Full Court. At [32] of its reasons the Full Court observed:
The previous Full Court and the submissions of counsel in the present appeal proceeded upon the basis that the question should be determined by reference to the general law tests of standing, which, of course, involve consideration of the relevant legislation. We shall consider the question in the same way.
41 At [55] it continued:
We would, however, reject the submission of counsel for Transurban that standing can be considered by reference only to the object, scope and purpose of the legislation under which the decision is made, and in particular by reference to the persons whom the legislature has directed to be notified of the decision. It is correct to say that the object, scope and purpose of the legislation will be relevant in determining the question of standing. It is not correct to say that it is the only matter which is relevant.
42 Although the Full Court, in [32], referred to the legislation as being a relevant aspect of its consideration, it is clear, both from that paragraph and from its reasons as a whole, that it applied the general law as it relates to standing. It is equally clear from the reasons of the majority in the High Court ([15] and [16] cited above) that construction of the legislation should have been the focus of the exercise. That is not to say that factual matters of the kind considered in determining standing under the general law may not be relevant once the terms of a relevant statute have been construed, but those terms must be the starting point. The Tribunal erred in determining the matter by reference to the decision of the Full Court in Allan. It ought to have looked to the subject, scope and purpose of the legislation. Had the law been correctly applied, the second respondent's application would have been found to be incompetent. The error was in no sense blameworthy. The decision of the Full Court was faithfully applied, as it should have been at that time.
43 It is not necessary that I deal with the specific criticisms made of the Tribunal's reasons. I observe, however, that where the Tribunal decides to consider the question of standing as a preliminary issue, the question must be determined finally upon the material then available. It cannot be determined in some preliminary way. If the Tribunal comes to the conclusion that notwithstanding an earlier order, it is not appropriate to decide one question in isolation from other questions, it may be necessary to reconsider the appropriateness of the order.
Orders
44 I order that the decision of the Administrative Appeals Tribunal dated 17 August 2001 be set aside.
45 I declare that the second respondent is not entitled to seek review of the decision of the Minister for Transport and Regional Services made on 11 February 1999 approving a master plan for the Brisbane Airport.
46 I order that the second respondent's application for such review be dismissed.
47 I will hear submissions as to costs.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. |
Associate:
Dated: 28 March 2002
Counsel for the Applicant: |
Mr T Sullivan |
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Solicitor for the Applicant: |
Mallesons Stephen Jaques |
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Counsel for the Second Respondent: |
The second respondent appeared in person |
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Solicitor for the First and Third Respondents: |
Australian Government Solicitor |
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Date of Hearing: |
6 February 2002 |
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Date of Judgment: |
28 March 2002 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2002/359.html