Austin BMI Pty Ltd v Deputy Premier
[2023] QSC 95
•5 May 2023
SUPREME COURT OF QUEENSLAND
CITATION:
Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95
PARTIES:
In Matter No 2105 of 2022
AUSTIN BMI PTY LTD (ACN 164 204 308)
(applicant)
V
DEPUTY PREMIER, MINISTER FOR STATE DEVELOPMENT, LOCAL GOVERNMENT AND PLANNING AND MINISTR ASSISTING THE PREMIER ON OLYMPICS INFRASTRUCTURE
(first respondent)
AND
WANLESS RECYCLING PARK PTY LTD (ACN 623 407 081)
(second respondent)
AND
IPSWICH CITY COUNCIL
(third respondent)
In Matter No 2198 of 2022
VEOLIA ENVIRONMENTAL SERVICES (AUSTRALIA) PTY LTD (ACN 051 316 584) AND (AUSTRALIA) PTY LTD (ACN 100 535 751) trading as TI-TREE BIO-ENERGY (ABN 67 450 387 919) an unincorporated join venture
(applicant)
V
DEPUTY PREMIER, MINISTER FOR STATE DEVELOPMENT, LOCAL GOVERNMENT AND PLANNING AND MINISTR ASSISTING THE PREMIER ON OLYMPICS INFRASTRUCTURE
(first respondent)
AND
WANLESS RECYCLING PARK PTY LTD (ACN 623 407 081)
(second respondent)
AND
IPSWICH CITY COUNCIL
(third respondent)
In Matter No 2192 of 2022
CAROL ASHWORTH
(first applicant)
AND
CORNELIA TURNI
(second applicant)
AND
ROSEMAREE THOMASSON
(third applicant)
AND
KERRY MAREE BUTLER
(fourth applicant)
AND
KERRI ANNE LYNCH
(fifth applicant)
AND
MARK MEIER
(sixth applicant)
V
DEPUTY PREMIER, MINISTER FOR STATE DEVELOPMENT, LOCAL GOVERNMENT AND PLANNING AND MINISTR ASSISTING THE PREMIER ON OLYMPICS INFRASTRUCTURE
(first respondent)
AND
WANLESS RECYCLING PARK PTY LTD (ACN 623 407 081)
(second respondent)
AND
IPSWICH CITY COUNCIL
(third respondent)
FILE NO/S:
2105 of 2022; 2192 of 2022; 2198 of 2022
DIVISION:
Trial
PROCEEDING:
Applications
ORIGINATING COURT:
Supreme Court
DELIVERED ON:
5 May 2023
DELIVERED AT:
Brisbane
HEARING DATES:
28 to 30 September and 10 October 2022; Further written submissions of the joint applicants dated 7 October 2022; further written undated submissions of the Ashworth parties, further written submissions of the first respondent dated 14 October 2022; further written submissions of the second respondent dated 14 October 2022; further written submissions of the Attorney-General dated 20 October 2022; and further written submissions of the joint applicants dated 21 October 2022.
JUDGE:
Freeburn J
ORDERS:
1. The applications are dismissed.
2. The parties be heard on the form of the orders and on costs.
CATCHWORDS:
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – where a decision was made to call-in a development application – where the applicants argue that the decision made was affected by apprehended bias – whether the decision maker had an obligation of procedural fairness - whether the principles of procedural fairness will apply or whether the principles have been excluded by statute
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – APPREHENDED BIAS – where the bias rule is not excluded by statute – where it is argued the decision to call in the development was influenced by political considerations and lobbying – whether a fair-minded lay observer would apprehend bias based on the circumstances
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FAILURE TO TAKE INTO ACCOUNT A RELEVANT CONSIDERATION - where it is submitted that the decision maker failed to consider representations in deciding whether to call in the application – whether the decision maker was required to evaluate the representations – whether the decision maker has considered all things required by the legislation
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where it is alleged that the decision maker’s decision was an improper exercise of power on the basis that it was unreasonable or irrational – whether consistency is fundamental to a decision being reasonable and rational - whether the decision maker was required to act consistently or provide justification as to why similar applications were decided differently – whether the decision lacked intelligible justification
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – REASONS FOR DECISION – where the decision maker provided reasons for the decision to call-in the application - whether the decision maker was required to explain the path of reasoning for the decision to call in the application
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – HUMAN RIGHTS – where it is argued that the decision made was incompatible with human rights – where it is argued that the decision maker failed to give proper consideration to a relevant human right – whether the decision to call-in the application deprived the applicant of their right to a fair hearing, the right to participate in public life without discrimination or their right to property – whether there was a failure by the decision maker to properly consider human rights impacted by the call-in decision
Authorities
Acts Interpretation Act 1954 (Qld)
Anti-Discrimination Act 1991 (Qld)
Electoral Act 1992 (Qld)
Human Rights Act 2019 (Qld)
Integrated Planning Act 1997
Integrity Act 2009 (Qld)
Judicial Review Act 1991
National Health Act 1953 (Cth)
Planning and Environment Court Act 2016 (Qld)
Planning Act 2016 (Qld)
Planning Regulations 2017 (Qld)ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223
Andrews v Law Society of British Columbia [1989] 1 SCR 143
Annetts v McCann (1990) 170 CLR 596
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australia Pacific LNG Pty Ltd & Ors v The Treasurer, Minister for Aboriginal and Torres
Baker v DPP (Vic) [2017] VSCA 58; 2017) 270 A Crim R 318
Bare v Independent Broad-Based Anti-Corruption Commission (2015) 48 VR 129
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283
Builders’ Registration Board of Queensland v Rauber (1983) 47 ALR 55
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
Castles v Secretary, Department of Justice (2010) 28 VR 141
Charisteas v Charisteas (2021) 95 ALJR 824
Cohns Industries Pty Ltd v Deputy Federal Commissioner of Taxation (1979) 24 ALR 658
Council of the City of Parramatta v Pestell (1972) 128 CLR 305
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
Cummings v Claremont Petroleum NL (1996) 185 CLR 124
Dilatte v MacTiernan [2002] WASCA 100
Dovuro Pty Ltd v Wilkins [2003] 215 CLR 317
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Elias v Commissioner of Taxation (2002) 123 FCR 499
Francis v Crime and Corruption Commission [2015] QCA 218
Garde-Wilson v Legal Services Board (2018) 19 VR 398
Gas & Fuel Corporation Fund v Saunders [1994] 52 FCR 48
Goode v Common Equity Housing Ltd [2014] VSC 585
Greenwood v Winsor [2008] QSC 68
Gwandalan Summerland Point Action Group Inc v Minister for Planning (2009) 75 NSWLR 269
HJ v Independent Broad-based Anti-Corruption Commission (2021) 64 VR 270
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
Idonz Pty Ltd v National Capital Development Commission (1986) 13 FCR 70
Isbester v Knox City Council (2015) 255 CLR 135
Landel Pty Ltd v Hinchliffe [2009] QSC 408
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Legal Services Commissioner v Voll [2008] LPT 1
Legal Services Commissioner v Rowell [2013] QCAT 397
McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 246
Minister for Home Affairs v Brown (2020) 275 FCR 188
Minister for Immigration v Li (2013) 249 CLR 332
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Olympic Holdings Pty Ltd v Lochel [2004] WASC 61
Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273
Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17
PJB v Melbourne Health (2011) 39 VR 373
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Politis v Federal Commissioner of Taxation (1988) 16 ALD 707
R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295
Rasmussen v Denmark [1984] ECHR 17; (1984) 7 EHRR 371;
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Sabet v Medical Practitioners Board (Vic) (2008) 20 VR 414
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
Stambe v Minister for Health (2019) 364 ALR 513
Strait Islander Partnerships and Minister for Sport [2019] QSC 124
Swan Hill Corporation v Bradbury (1937) 36 CLR 746
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZVFW (2018) 264 CLR 54
Town of Gawler v Minister for Urban Development and Planning [2011] SASC 26
The Australian Institute for Progress Ltd v Electoral Commission of Queensland (2020) 4 QR 31
The Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128
Thompson v Minogue [2021] VSCA 358
Twist v Randwick Municipal Council (1976) 136 CLR 106
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492
Webb v The Queen (1994) 181 CLR 41
Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources (2007) 166 FCR 154
Willis v State of Queensland [2016] QSC 80
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480COUNSEL:
SC Holt KC, with S Spottiswood, for applicant in proceeding No 2105 of 2022
J Underwood, for applicant in proceeding No 2198 of 202
M Stewart KC, with S Caries, for applicant in proceeding No 2192 of 2022
D O’Brien KC, with N Loos, for first respondent in all proceedings
R Traves KC, with SJ Webster, with S Marsh, for second respondent in all proceedings
S McLeod KC, with D Chesterman, for third respondent in all proceedingsN Kidson KC, with KJE Blore, for the Attorney-General (intervening)
SOLICITORS:
McCullough Robertson for applicant in proceeding No 2105 of 2022
Ashurst for applicant in proceeding No 2198 of 2022
AJ & Co for applicant in proceeding No 2192 of 2022
Herbert Smith Freehills for first respondent in all proceedings
Gadens for second respondent in all proceedingsMcInnes Wilson for third respondent in all proceedings Crown Law for Attorney-General (intervening)
REASONS
INTRODUCTION
This proceeding concerned three separate applications:
(a)an application by Austin BMI Pty Ltd (2105/22) (Austin);
(b)an application by Carol Ashworth and a number of other local residents of Ipswich (2192/22) (the Ashworth applicants); and
(c)an application by Veolia Environmental Services (Australia) Pty Ltd and JJ Richards Ti Tree Pty Ltd trading as Ti Tree Bioenergy (2198/22) (Veolia).
Austin and Veolia made submissions jointly. For convenience, they are referred to as the joint applicants.
The three groups of applicants each seek a statutory order for review of a decision made by the first respondent (the Deputy Premier) on 27 January 2022 to “call-in” a development application made by the second respondent, Wanless Recycling Park Pty Ltd (Wanless). Wanless’ development application was to establish a new resource recovery and landfill facility involving the rehabilitation and reuse of existing mining voids at Ebenezer, west of Ipswich. The third respondent, the Ipswich City Council (the Council), approved the resource recovery component but refused the landfill component of the development. Wanless appealed the Council’s partial refusal to the Planning and Environment Court (P&E Court).[1]
[1]The Council is named as the third respondent in each of the applications. However, the Council’s submissions supported the applicants, at least in respect of the second, third and fourth grounds.
In the meantime, Wanless took steps to by-pass the appeal process by requesting the relevant Minister to call-in the Wanless development application. Those steps, which are the subject of challenge,[2] resulted in the decision of the Deputy Premier to call-in the Wanless development application. Having called-in the Wanless application, the Deputy Premier has not yet decided whether to approve or reject the application.
[2]The steps and the challenges are discussed in more detail below.
It is necessary to explain, briefly at least, the power of the relevant Minister, in this case the Deputy Premier, to make a decision to call-in a particular development. The power to call-in is used where a “State interest” is involved.[3] The effect of a call-in decision means that the approval process for that development is:
(a)removed from the conventional system whereby developments are approved or refused by a local council and are then subject to Planning and Environment Court appeals; and
(b)placed within the jurisdiction of the Minister who has power to assess and decide the application.[4]
[3]A “State interest” is widely defined in Schedule 2 of the Planning Act2016 as an interest that the Minister considers affects on economic or environmental interest of the State, or part of the State, or affects the interest of ensuring that the Act’s purpose is achieved.
[4]See s 101 to 106 of the Planning Act2016.
Each of the three applicants challenges the Deputy Premier’s decision to call-in the Wanless Application on four grounds:
(a)Ground 1: that a fair-minded lay observer might reasonably apprehend that the Deputy Premier might not have brought an impartial mind to the call-in decision;
(b)Ground 2: that the call-in decision was an improper exercise of power because the Deputy Premier failed to take into account relevant considerations or otherwise failed to carry out his statutory task by failing to consider the representations made to him under section 102(4) of the Planning Act 2016 (the Planning Act);
(c)Ground 3: that the call-in decision was an improper exercise of power because it was legally unreasonable and/or irrational; and
(d)Ground 4: that the Deputy Premier failed to provide ‘reasons’ for the call-in Decision as required by section 103(3)(a) of the Planning Act.[5]
[5]This summary is taken from the joint submissions of Austin and Veolia at [2]. There was no dispute regarding the issues.
The Ashworth applicants also contended that the Deputy Premier’s call-in decision was made in circumstances which give rise to a reasonable apprehension of bias but went further and raised a fifth ground to the effect that the call-in decision was incompatible with the Ashworth parties’ human rights as guaranteed under the Human Rights Act 2019 (Qld) (Human Rights Act). That fifth ground has led to the intervention of the Attorney-General pursuant to s 50 of the Human Rights Act.
Each of the five grounds of challenge are considered in turn below. There is, however, a threshold issue that needs to be resolved first.[6]
THRESHOLD ISSUE: RULES OF PROCEDURAL FAIRNESS
[6]Incidentally, some of the grounds of challenge overlap. And some of the submissions of the various parties overlapped. That has given rise to some unavoidable, but regrettable, repetition in these reasons.
Is there an Obligation of Procedural Fairness?
As the submissions for the Deputy Premier explained, the test for apprehended bias is well-established.[7] It will arise where a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the decision.[8] In oral argument this was referred to as the ‘double might’ test.[9] The apprehension of bias must be firmly established and will not be found lightly.[10]
[7]Submissions of the first respondent at [57].
[8]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. See also Charisteas v Charisteas (2021) 95 ALJR 824 at [11] (per Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ).
[9]This expression is used by the High Court. See, for example, CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at [18]. [132].
[10]British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at [44]-[46] per French CJ. See also Byrne J in Greenwood v Winsor [2008] QSC 68 at [89]: “It is not enough that the reasonable bystander has a vague sense of unease or disquiet.”
The applicants’ arguments that the Deputy Premier’s decision was affected by apprehended bias faced a threshold challenge. That challenge was whether the principles of procedural fairness, including apprehended bias, applied at all. Wanless’ submissions put that challenge in this way:
“…whether an obligation of procedural fairness applies at all, to whom the obligation is owed, and the content of any such obligation depends on “the particular statutory framework as well as the particular factual context of a particular exercise of the power”.[11]
[11]Wanless submissions at [74] relying on Isbester v Knox City Council (2015) 255 CLR 135 at [55]; CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at [130]; Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources (2007) 166 FCR 154 at [82].
There are two aspects to that submission. The first is that, depending on the statutory context, the obligations of procedural fairness may not apply at all.[12] The second is that the questions of to whom the obligations of procedural fairness are owed, and the particular content of those obligations of procedural fairness, are also dependent on the statutory framework, as well as the particular circumstances.[13]
[12]SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26].
[13]Isbester v Knox City Council (2015) 255 CLR 135 at [23], [55]. See also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26].
As the High Court has emphasised, the statutory framework within which a decision-maker exercises a statutory discretion is of critical importance when considering what, if anything, procedural fairness requires.[14]
[14]Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCR 154 at [57] based on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26].
In Isbester v Knox City Council[15] Kiefel, Bell, Keane and Nettle JJ explained:
How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker. The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised. The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision. [footnotes omitted]
[15](2015) 255 CLR 135 at [23], [55].
Gageler J took a similar view:
The standard incidents of procedural fairness, as it ordinarily conditions the exercise of a statutory power, include “the absence of the actuality or the appearance of disqualifying bias” in addition to “the according of an appropriate opportunity of being heard”.[16] The content of each of those incidents of procedural fairness accommodates to the particular statutory framework as well as to the particular factual context of a particular exercise of the power.
[16]The footnote in the original, with reference to the quotes within this passage, refers the reader to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367.
Thus, the statutory context is important. As McHugh J explained in Hot Holdings Pty Ltd v Creasy,[17] where a statutory power is to be exercised by a Minister, it is necessary to respect the role of the executive:
While the test for a reasonable apprehension of bias is the same for administrative and judicial decision-makers, its content may often be different. What is to be expected of a judge in judicial proceedings or a decision-maker in quasi-judicial proceedings will often be different from what is expected of a person making a purely administrative decision. One difference arises when the decision-maker is a Minister who is accountable to the Parliament and the electorate. In Minister for Immigration and Multicultural Affairs v Jia Legeng, Gleeson CJ and Gummow J, Hayne J agreeing, said that “[t]here are . . . consequences that flow from the circumstance that a power is vested in, and exercised by, a Minister”. Their Honours noted that, subject to any contrary indication in the legislative grant of power, a Minister would be entitled to act in accordance with governmental policy when making a decision. Thus, it will ordinarily be very difficult to impute bias or the reasonable apprehension of bias to the decision of a Minister who has considered all applications on their merits but made it clear that preference would be given to applicants who complied with government policy.
[17](2002) 210 CLR 438 at [70].
Just how does the statutory regime influence the infiltration of the rules of procedural fairness? Wanless addressed that question in their submissions by making three points. First, in some cases, the rules of procedural fairness including those relating to apprehended bias are implicitly excluded by the existence of a detailed statutory code. This occurs where the “statute manifests a sufficiently clear intention that no more than the statutory procedure is required, perhaps permitted”.[18]
[18]Wanless submissions at [75] relying on Twist v Randwick Municipal Council (1976) 136 CLR 106 at 109-110; Hannay v Brisbane City Council [1999] 2 Qd R 54 at 55.
Second, in other cases, an obligation to accord procedural fairness, including to avoid the appearance of bias, may exist in favour of some persons, but not others. Thus, “in general, the consideration of a planning matter does not invoke the rules of natural justice so far as concerns third parties”.[19]
[19]Wanless submissions at [76] relying on Idonz Pty Ltd v National Capital Development Commission (1986) 13 FCR 70 at 82.
Third, the cases identify various important matters of statutory context, including:[20]
(a)the stated objects of the relevant Act;[21]
(b)the person upon whom Parliament has conferred the decision-making capacity;[22]
(c)the institutional setting for the decision;[23]
(d)the task which is committed to the decision maker;[24]
(e)whether the decision is part of a multi-stage decision-making process;[25] and
(f)the way a person, or class of persons’ interests may be affected by the decision.[26]
[20]Wanless submissions at [79].
[21]Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCR 154 at [81]
[22]Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [78]; McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504 at [80].
[23]McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504 at [80].
[24]Gwandalan Summerland Point Action Group Inc v Minister for Planning (2009) 75 NSWLR 269 at [44].
[25]Isbester v Knox City Council (2015) 255 CLR 135 at [58].
[26]Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources (2007) 166 FCR 154 at [82], [86], [88].
I accept that those are the relevant principles. They do not appear to be in contest.[27] It remains to consider whether, applying those principles, it can be shown that the statutory regime here evinces a legislative intention to include or exclude obligations of procedural fairness.[28]
[27]No submissions were made that contested these paragraphs of the Wanless submissions.
[28]In analysing the statutory regime, it is necessary to bear in mind that the concern of the law is to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] (Gleeson CJ).
The Statutory Context
The call-in power in the Planning Act can be described as a multi-stage decision-making process.[29]
[29]Isbester v Knox City Council (2015) 255 CLR 135 at [58].
The first stage applies if the Minister proposes to call-in an application. In that event, the Minister must give notice seeking representations about the proposed call-in to four categories of people:
(a)the decision-maker (here that is the Ipswich City Council); and
(b)the applicant (here, Wanless); and
(c)each referral agency, other than the chief executive; and
(d)if the application is a development application or change application other than for a minor change—any submitters[30] for the application who the Minister is aware of when the notice is given.[31]
[30]A submitter is a person who makes a properly made submission about the application (for a development application or change application) or the person who made the submission (for a particular submission): Schedule 2 of the Planning Act 2016.
[31]Planning Act 2016 s 102(2).
Those four categories of persons are a confined class in the sense that the Act does not require that notice be given to the public generally, or even to any person who might be affected by the proposed call-in. Even the fourth category, ‘submitters’, is limited to those submitters of whom the Minister is aware. And there may well be no submitters, or very few, at the time of the notice.[32]
[32]The “submitters” referred to in s 102(2) are any members of the public (of whom the Minister is aware) who made a submission about the original development application, whether in favour, neutral or against it.
The second stage is that the four categories of people then have a representation period within which they may make representations to the Minister.[33] Before deciding to call-in the application, the Minister must consider any representations that have been made during the representation period.[34]
[33]Planning Act 2016 s 102(3)(d).
[34]Planning Act 2016 s 102(4).
Then, the third stage is that, within 20 business days after the end of the representation period, the Minister may call-in an application by giving a call-in notice to the four categories of people.[35] The call-in notice must state the reasons for the call-in, including the State interest giving rise to the call-in, and the point from which the process must restart.[36]
[35]As well as the P&E Court: see Planning Act 2016 s 103(1). Note that the notice need only be given to any principal submitter.
[36]Planning Act 2016 s 103(3).
As explained briefly above, the effect of a call-in notice is that the decision-maker is stripped of its power to make a decision on the application, and any appeal against the decision-maker is discontinued. The process for assessing the application devolves to the Minister from the specified restart point.[37]
[37]Planning Act 2016 s 104(1). In deciding the restart point, the Minister may consider anything that the Minister considers relevant: Planning Act 2016 s 103(4).
Thus, the fourth stage is reached in the event that the Minister gives a call-in notice to the decision-maker. In that event, the Minister effectively replaces the decision-maker - it is the Minister who is to assess and decide the application.[38] The role of the decision-maker, usually the local council, is reduced to being obliged to give the Minister all reasonable help that the Minister requires.[39]
[38]Planning Act 2016 s 105(1).
[39]Planning Act 2016 s 105(3).
In deciding the called-in application, the Minister —
(a)may assess and decide, or reassess and re-decide, all or part of the application; or
(b)may, if the call-in notice is given before the decision-maker decides the application—
(i)direct the decision-maker to assess all or part of the application; and
(ii)decide the application, or part of the application, based on the decision-maker’s assessment;[40]
(c)is not bound to decide the application against any assessment benchmarks such as a code, a standard, or an expression of the intent for a zone or precinct (i.e. the application is not subject to code assessment or impact assessment);[41]
(d)may consider anything that the Minister considers relevant;[42]
(e)may decide not to consider any referral agency’s response.[43]
[40]Planning Act 2016 s 105(1).
[41]Planning Act 2016 s 105(4)(a).
[42]Planning Act 2016 s 105(5). For present purposes, I have excluded cancellation applications.
[43]Planning Act 2016 s 105(6).
Thus, the assessment process for a called-in application is radically different from the conventional assessment process. A called-in application become subject to matters the Minister considers relevant.
The fifth stage is that the Minister’s decision is notified to the four categories of people.[44] The notice must state—
(a)the matters the Minister considered in making the decision; and
(b)if the Minister decided only part of the application—
(i)that the assessment manager must assess and decide, or reassess and re-decide, the other part; and
(ii)the point in the process for assessing the application, and the day from which the assessment must restart, for the other part.
[44]The four categories of people are slightly modified. The fourth category involves ‘principal submitters’ and there is a possible fifth category of the P&E Court. Incidentally, by Schedule 2 to the Act a ‘principal submitter’, for a properly made submission, means—(a) if the submission is by 1 person—the person; or (b) otherwise—(i) the submitter that the submission identifies as the principal submitter; or (ii) if the submission does not identify a submitter as the principal submitter—the submitter whose name first appears in the submission.
The sixth stage is another notice requirement. If the Minister decides a called-in application, the Minister must prepare a report that explains the nature of the decision, and the matters the Minister considered in making the decision and must include in the report a copy of the notice of the decision.[45] The Minister must table a copy of the report in the Legislative Assembly within 14 sitting days after giving the notice of the decision.[46]
[45]Planning Act 2016 s 106(1).
[46]Planning Act 2016 s 105(2).
The Statutory Concept of a ‘State Interest’
As explained above, the Minister’s call-in notice must state the reasons for the call-in, including the State interest giving rise to the call-in. That is because the Minister may only exercise a power under Part 6 of the Act - which is the Part that includes the Minister’s call-in power - if the matter involves, or is likely to involve, a ‘State interest’.[47]
[47]Planning Act 2016 s 91.
Counsel for Wanless described the threshold of a ‘State interest’ as relatively undemanding.[48] That is true. Section 91 is expressed as a limitation on the Minister’s power to intervene: “The Minister may exercise a power under this part in relation to a matter only if the matter involves, or is likely to involve, a State interest.” However, the definition of ‘State interest’ imposes little by way of practical restraint on the Minister’s powers:
State interest means an interest that the Minister considers—
(a) affects an economic or environmental interest of the State or a part of the State; or
(b) affects the interest of ensuring this Act’s purpose is achieved.
[48]Wanless submissions at [47].
The Minister need only consider that the application affects an economic or environmental interest of the State, or a part of the State, or affects a Planning Act purpose. The strong subjective element is notable because the intention is to give the Minister a discretion to intervene where the Minister perceives a ‘State interest’. And, when the Minister intervenes, the assessment of the application is largely a matter for the Minister who is not bound by planning codes or standards. The underlying intention of the legislation is to confer the discretion on the Minister who is responsible to Parliament.
Fortunately, all parties agree that this project falls within the concept of the State interest.
Statutory Scheme: Non-Appealable Decisions of the Minister
Chapter 6 Part 1 of the Planning Act defines the various appeal rights of parties under the Act. Section 231(1) provides that “unless the Supreme Court decides a decision or other matter under this Act is affected by jurisdictional error, the decision or matter is non-appealable”.
The expression “non-appealable” is defined as meaning that the decision or matter—
(a)is final and conclusive; and
(b)may not be challenged, appealed against, reviewed, quashed, set aside or called into question in any other way under the Judicial Review Act 1991 or otherwise, whether by the Supreme Court, another court, any tribunal or another entity; and
(c)is not subject to any declaratory, injunctive or other order of the Supreme Court, another court, any tribunal or another entity on any ground.[49]
[49]Planning Act 2016 s 231(4).
However, s 12 of the Planning and Environment Court Act 2016 makes specific provision for challenging a ministerial decision in relation to a call-in notice. That section permits the “assessment manager” (here the Council) to apply to the P&E Court for a declaration about “a matter done, to be done or that should have been done in relation to the call in”.[50] On such an application, the P&E Court has power to deal with any “noncompliance” with a provision of the Planning Act in “the way it considers appropriate”.[51]
[50]See the summary in Wanless’ submissions at [64].
[51]Planning and Environment Court Act 2016 s 37.
There are, therefore, restricted rights of challenge to Ministerial decisions. Together, these provisions evince a clear legislative intention to restrict challenges to Ministerial decisions made in relation to the exercise of a call-in power to two circumstances:
(a)where there has been jurisdictional error, in which case the application may only be made under Part 5 (rather than Part 3)[52] of the Judicial Review Act 1991;
(b)those in which the assessment manager seeks a declaration from the P&E Court – in which case the P&E Court has a broad discretion to deal with any statutory noncompliance.[53]
[52]Part 3 of the Judicial Review Act 1991 deals with applications for statutory orders for review. Part 4 enables statements of reasons and Part 5 deals with prerogative orders and injunctions. Only challenges under Parts 4 and 5 are permitted.
[53]See Wanless’ submissions at [66].
It will be necessary to return to s 231 when discussing the fifth ground (human rights).
The Legislative Intention
Does that statutory regime evince a legislative intention to include or exclude obligations of procedural fairness?[54]
[54]See Wanless’ submissions at [75], [76] and [79].
The joint applicants[55] contend that there was an obligation to afford the applicants procedural fairness. That contention is based on the following submissions.
[55]As explained, the first and third applicants (Austin and Veolia) filed joint submissions. The second applicants (the Ashworth Applicants) filed separate submissions.
First, the joint applicants say that procedural fairness obligations are not excluded from the statutory scheme. The correct starting point, according to the joint applicants, is the “fundamental principle” that, when a statute confers power to destroy or prejudice a person’s rights or interests, the common law implies an obligation to afford procedural fairness unless it is excluded by words of “irresistible clearness” or “plain words of necessary intendment”.[56]
[56]Joint Applicant’s supplementary submissions at [13] relying on Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [11]-[15] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ.
It is true that procedural fairness obligations are not expressly excluded from the statutory scheme. However, it is difficult to characterise the call-in power in the Planning Act as, to use the language of Mason CJ, Deane J and McHugh J in Annetts v McCann, a statute that confers power on a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations.[57] The evident legislative intention of the call-in power is to replace the decision-maker (such as the local council) with the Minister where the Minister considers that a State interest is affected. Certainly, the rights or interests of citizens might ultimately be affected if the Minister’s decides a called in application in a different way to the decision that has been made, or likely to be made, by the local council. But that is not the point of the call-in power. The point of that power is to invest the Minister, rather than the local authority and P&E Court, with decision-making power for planning applications of State interest. In that respect, this case is some distance from the individual visa rights considered in Saeed v Minister for Immigration and Citizenship[58] or the right to be heard in a coroner’s inquest as considered in Annetts v McCann.[59]
[57](1990) 170 CLR 596 at 598.
[58](2010) 241 CLR 252.
[59](1990) 170 CLR 596.
Second, the joint applicants contend that the existence of procedural fairness obligations is confirmed by the Explanatory Notes, which state that the clause that became s 102 of the Planning Act “is intended to afford procedural fairness to affected parties”. However, that statement in the Explanatory Notes does not assist the argument. The full explanation was:
“Clause 101 [now s 102] provides for the Minister to seek representations from affected parties if the Minister proposes to call in a development application. The provision is intended to afford procedural fairness to affected parties.”
That full explanation suggests that the legislative intention was that the Minister’s seeking of representations was to, in effect, stand in the place of any obligation to afford procedural fairness. However, this substitute mechanism for affording procedural fairness was not particularly broad. Those permitted to make representations are the “affected parties” but later parts of the Explanatory Note (and the legislation itself) make it clear that the “affected parties” are intended to be a limited class.[60]
[60]The later discussion refers to notice of the call-in being given to the assessment manager, the applicant and, if relevant, any referral agency or principal submitter for the application.
Further, the next part of the Explanatory Notes rather supports the idea, explained above, that the point of the call-in power is to invest the Minister with decision-making power for planning applications of State interest:
Clause 102 enables the Minister to call in a development application to assess and decide, or reassess and re-decide the development application. A Ministerial call in power may be exercised for both a development application that has been decided and a development application that has not been decided.
As with other Ministerial powers, the call in power is intended to allow the Minister to intervene in the development assessment process, where State interests are involved, and to be the final arbiter on State interest matters. Though not commonly used, occasions may arise where State interests could be severely affected by the implementation of a development approval or the refusal of a development application. In these situations, exercising the reserve power to call the application in and assess and decide, or reassess and re-decide, the application allows the Minister to redress what otherwise could become a serious problem. [emphasis added]
Read as whole, the Explanatory Notes shed little or no light on whether the legislative intention was that the call-in regime include, or exclude, obligations of procedural fairness. The Explanatory Notes largely summarise the proposed legislation without disclosing any particular objectives with regard to procedural fairness.
Third, the joint applicants contend that:
(a)it should be uncontroversial that the power in s 103 of the Act confers a power to destroy or prejudice the rights and interests of persons beyond that of an ordinary member of the public or a mere commercial competitor;
(b)in Landel Pty Ltd v Hinchliffe,[61] Fryberg J reached that conclusion in relation to the call-in power under the predecessor Integrated Planning Act 1997;[62]
(c)the key question is whether the applicants have an interest that directly affects them individually and not simply as a member of the public;
(d)Here, the applicants plainly do have such an interest.
[61][2009] QSC 408.
[62]The call-in power under the Integrated Planning Act 1997 involved a different, more abbreviated regime which just empowered the Minister to call-in.
However, it is doubtful that s 103 can properly be described as conferring a power to destroy or prejudice the rights and interests of persons beyond that of an ordinary member of the public or a mere commercial competitor. As explained, the broad purpose of the call-in power is to invest the Minister with decision-making power for planning applications of State interest. And, care should be taken not to confuse notions of a person’s standing to make submissions or to bring proceedings with the question of whether the statutory regime evinces a legislative intention to include or exclude obligations of procedural fairness.
Some Features of the Call-in Regime
It is important to identify some of the relevant features of the call-in regime.
First, the multi-stage character of the call-in regime means that, if the Minister proposes to call-in an application, the Minister is to give notice to four categories of persons, each of whom may make representations – which the Minister is obliged to consider. However, the four categories of persons who are entitled to notice and to make submissions are a confined group. The first two categories, the decision-maker and the applicant, are obviously parties who are already directly interested. The decision-maker is to be replaced. And the applicant is entitled to know that the entity deciding the application may be different, and the State interests that are said to be involved. Similarly, notice needs to be given to each referral agency which is assessing the application.[63] The fourth category, those submitters of whom the Minister is aware, comprises those who have made submissions and are therefore engaged in the application process. A person who intends to make a submission does not make the cut. Nor does a person who might be directly affected by the decision on the application – unless they happen to have already made a submission.
[63]See Planning Act 2016 s 55.
Thus, the persons entitled to notice of the proposed call-in, and entitled to make submissions to the Minister, do not include all those parties who might be affected by the decision on the application. The confined categories of persons entitled to make representations to the Minister means that the legislature cannot have intended that the Minister would be obliged to consider the representations of all of those who might be affected by the decision to approve or reject the application. Indeed, the confined nature of the categories may mean that the people most affected by the application may have no entitlement to make representations to the Minister on whether the call-in should be exercised.
Rather than affording those affected by the application with access to practical justice,[64] the focus appears to be to providing a limited opportunity for representations to be made by those already directly engaged in the decision-making process.
[64]Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources (2007) 166 FCR 154 at [82].
Second, the confined categories of persons entitled to notice of the proposed call-in is continued with the persons entitled to notice of the Minister’s decision to call-in. Within 20 business days after the end of the representation period, the Minister may call-in an application by giving a call-in notice to the four categories of people.
Third, the Minister’s call-in decision has a distinctive character. The reasons for the call-in must include the State interest giving rise to the call-in. And, State interest is a concept that has a strong subjective element. It is an interest that the Minister considers affects an economic or environmental interest of the State, or a part of the State, or affects the purposes of the Planning Act. The fact that the decision to call-in depends on a State interest, accompanied by a strong subjective element residing with the Minister, strongly suggests that the legislature did not contemplate that that those affected by the application were entitled to be heard on the Minister’s decision to call-in.[65]
[65]The position might be different if, for example, the decision-maker was required to assess whether there was evidence satisfying criteria.
The call-in power is concerned with the State’s interests, or at least the Minister’s view of State interests, rather than the protection of private rights or avoiding practical injustice.
Fourth, as explained above, if the Minister decides a called-in application, the Minister must prepare a report that explains the nature of the decision, and the matters the Minister considered in making the decision and must include, in the report, a copy of the notice of the decision (that is, including the reasons). A copy of that report must be tabled by the Minister in the Legislative Assembly within 14 sitting days after giving the notice of the decision. That duty to report to Parliament, in respect of a discretionary decision of the Minister, reinforces the impression that, rather than accommodating a right to be heard for those affected, the intention was to ensure that the Minister’s decision regarding State interests was reported to Parliament.
And so, in summary, the statutory framework provides that:
(a)only four categories of people are entitled to notice of the proposed call-in from the Minister;
(b)those categories of people also have an entitlement to put representations to the Minister on whether the Minister should exercise the call-in power;
(c)the Minister then has a duty to consider those representations before arriving at his decision to call-in or not call-in;
(d)the Minister may call in an application by giving a call-in notice to the four categories of people;
(e)The call-in notice must state that the Minister is proposing to call-in the application, the reasons for the proposed call-in, including the State interest giving rise to the call-in, and the point from which the process must restart;
(f)Whether the application involves, in the opinion of the Minister, a State interest is a decision that has a strong subjective element;
(g)The Minister then decides the called-in application and gives notice to the four categories of people and reports to Parliament; and
(h)The Minister’s decision is subject to restricted challenges or appeals.
A Wide Obligation to Afford Procedural Fairness?
It is well-established that the common law implies an obligation of procedural fairness unless it is excluded by “irresistible clearness”.[66] However, in my view, the features outlined above make it irresistibly clear that the legislative regime is inconsistent with the Minister having a wide obligation to afford procedural fairness to those that might be directly or indirectly affected by the Minister’s call-in decision.[67]
[66]Joint Outline of Submissions in Further Reply to the Applicants at [9]; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [14]. See also the useful discussion of this topic at Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 7th ed at [8.190]
[67]By a ‘wide’ obligation of procedural fairness the intention is to refer to both the hearing rule and the bias rule.
The critical issue is whether the wide application of the rules of procedural fairness is inconsistent with the proper operation of the statute.[68] Here, the application of the hearing rule is inconsistent with a regime which:
(a)confines notice of the proposed call-in to those already participating in the application process, and so implicitly excludes notice to and the participation of a broader class of persons who may be affected by the call-in decision;
(b)has, as its core, a consideration of whether a State interest is involved, in a statute whether State interest is defined subjectively as any interest that the Minister considers affects an economic or environmental interest of the State, or a part of the State, or a Planning Act purpose.
[68]Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 7th ed at [8.130].
In that context, it would make no sense to engraft on to the call-in provisions of the statute a broad right for any person affected to be heard on the proposed call-in and to make submissions as to whether a State interest was involved. I find that there is no broad right to be heard. The legislative regime is inconsistent with there being such an obligation.
Is the Bias Rule Excluded?
That said, I have considerable hesitation in accepting that the legislative intention was that the procedural fairness rules were intended to be excluded in their entirety. There is considerable force in the submission by the joint applicants that:
For Wanless's procedural fairness argument to succeed the Court would have to accept the proposition that the Parliament intended, by implication from the terms of the Planning Act, that persons affected by a call-in decision could suffer a biased (actual or apprehended) decision-maker. That proposition only needs to be stated to be rejected. No section of the Planning Act comes close to implying that the bias rule is excluded.[69]
[69]Joint Outline of Submissions in Further Reply to the Applicants at [11]. The submission has parallels with the approach Kirby J took to what his Honour described as an “astonishing” submission that the bias rule did not apply to a tribunal decision: The Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 at 138 at [45], [46].
The decision of the Minister, to call-in or not, requires the Minister to consider the representations and the State interest. In considering that decision the common law would ordinarily imply an obligation to avoid bias or the appearance of bias unless that obligation is excluded by “irresistible clearness”.[70] There is no such irresistible clearness here. To the contrary, it would be expected that a Minister would consider the representations, and decide whether to call-in the application, and do so free of bias or the appearance of bias. The exercise of a statutory power should be exercised free of bias and the appearance of disqualifying bias.[71]
[70]See the discussion above at 0.
[71]Isbester v Knox City Council (2015) 255 CLR 135 at [55].
At its core, the Minister’s decision to call-in or not call-in is a decision designed to serve public purposes. It is appropriate that decisions for public purposes do not deviate from the true course of decision-making.[72] The legislature can be presumed to have intended that a statutory decision of the Minister for public purposes would be attended by integrity in the decision-making process. After all, the rule that decisions be made without bias is a principle of common sense and common decency that is shared by all democratic societies and their systems of jurisprudence.[73] For those reasons, I conclude that the legislative intention was not to exclude the bias rule.
[72]This is the language of Hayne J in Minister for Immigration and Cultural Affairs v Jia Legeng (2001) 205 CLR 337 at [183]. See also Isbester v Knox City Council (2015) 255 CLR 135 at [21].
[73]Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 7th ed at [8.10].
That conclusion differs from the conclusion reached in relation to the implication of the rules of procedural fairness more generally. Those different conclusions are justified because, as explained above, whether an obligation of procedural fairness applies at all, and to whom the obligation is owed, and the content of any such obligation, depends on the particular statutory framework as well as the particular factual context of a particular exercise of the power.[74] Here, the statutory features outlined above and, in particular, the multi-stage and confined character of the statutory framework, make it difficult to engraft a broad right to be heard on to that statutory regime. However, the considerations are different for the Minister’s call-in decision which involves a consideration of the representations and State interests.
[74]See above at [9].
On that aspect, in their text, Aronson, Groves & Weeks acknowledge that legislation which expressly alters the hearing rule, such as by introducing procedures that are said to be an exhaustive statement of the requirements for hearings, are impliedly confined to the hearing rule.[75] A distinction between the implication of the hearing rule and the bias rule is also clear in the High Court’s decision in The Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka.[76] In that case Kirby J spoke of “the deeply entrenched presupposition that a repository of statutory power will be free from actual or ostensible bias in exercising such power”. His Honour continued:
Depending on the circumstances, the presence of actual or ostensible bias may be so antithetical to the lawful performance of statutory functions that it could strike at the very heart of the power conferred and suggest that such power has been deployed for a personal or idiosyncratic (and thus unlawful) purpose.[77]
[75]Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 7th ed at [8.170]
[76](2001) 206 CLR 128 at 138 and 144.
[77](2001) 206 CLR 128 at [57], [60].
All of those considerations make it impossible to conclude that the legislature intended to exclude the operation of the bias rule. Thus, it is now necessary to apply the bias rule to the facts of this case.
FIRST GROUND: APPREHENDED BIAS
The Bias Rule
No party contended that there was actual bias. The applications turn on whether there was apprehended bias.
The apprehended bias rule arises where a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the decision - commonly referred to as the ‘double might’ test or the Ebner test.[78] Whether the fair-minded lay observer would have that reasonable apprehension is largely a factual one to be answered by reference to the full factual context in which the decision is made.[79] The hypothetical fair-minded observer is taken to be aware of the nature of the decision and the context in which it was made, as well as to have knowledge of the circumstances leading to the decision.[80]
[78]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Charisteas v Charisteas (2021) 95 ALJR 824 at [11] (per Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ). Note that there is a helpful discussion of the law on the legal test for apprehended bias in the ALRC’s Final Report 138: Without Fear or Favour, December 2021 at [3.13].
[79]Isbester v Knox City Council (2015) 255 CLR 135 at [20]; Joint Applicants’ submissions at [34].
[80]Ibid.
It is important to recognise the broad scope of the bias rule. In Webb v The Queen, Deane J identified four distinct (but overlapping) categories of cases in which apprehended bias might arise:
“The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.[81] [emphasis added]
[81](1994) 181 CLR 41 at 74. These four categories are discussed in some detail in ALRC 138 at [3.32].
The approach of the fair-minded lay observer[82] may vary according to the type of apprehended bias alleged. As Spigelman CJ has noted:
A conflict of interest requires a different analysis as to the relationship, as reasonably perceived, between the interest and the decision. Questions of fact and degree do not arise in the same way. In a pre-judgment case it is necessary to consider the degree of “closure” of the allegedly closed mind. Where a relevant conflict of interest is established the reasonable apprehension follows almost as of course.[83]
[82]The concept of a fair-minded lay observer has been described as a ‘kind of thought experiment’: The Hon Richard Chisholm, ‘Apprehended Bias and Private Lawyer-Judge Communications: The Full Court’s Decision in Charisteas’ (2020) 29(3) Australian Family Lawyer 18, 30 discussed in the ALRC 138 at [3.27].
[83]McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504 at [26].
Of course, again, the application of the bias rule must be accommodated within the particular statutory framework, as well as the particular factual context of the particular exercise of the statutory power.[84] An illustration can be given of the need to accommodate the bias rule to this particular statutory regime,[85] although, in doing so, it is necessary to re-visit the threshold issue considered above.[86]
[84]Isbester v Knox City Council (2015) 255 CLR 135 at [55].
[85]Wanless submissions deal with this aspect in some detail at [103]-[106] of the Wanless submissions.
[86]There is some overlap in the way the issues fall to be considered.
A Neutral Decision-Maker?
It will be recalled that the first stage of the call-in process is activated if the Minister proposes to call-in an application. Thus, this statutory framework presupposes that, before any representations are received, the Minister is already inclined to call-in the application. The legislation makes clear that the submitters are not entitled to a neutral decision maker, at least at the outset.[87]
[87]Wanless submissions at [105], [106].
However, that feature of the statutory regime cannot be taken too far. The regime contemplates that, having started from the standpoint that the Minister proposes to call-in the application, the Minister is then obliged to consider the representations made to him before the Minister makes a decision. And, in making the decision, the Minister is obliged to state the reasons for the call-in, including the State interest giving rise to the call-in.
None of that can be regarded as the legislature impliedly excluding the operation of the bias rule. Instead, the evident objective of these provisions is to ensure that the Minister does consider the views of those already engaged in the application process and that his reasons for the call-in are clearly articulated and identify the relevant State interest. In short, the regime contemplates the likelihood that the Minister may not start the process from a neutral position, but it aims to ensure that the Minister’s decision at the end-point, the call-in decision, has been arrived at after the Minister has properly considered the representations and the State interest.
Thus, by its nature, the call-in decision is discretionary and will not involve an initial neutral stance, or even a balanced consideration of the issue in the same way as a judge or arbitrator may approach a dispute in a conventional adversarial context. For example, a Minister may take an initial view that a large infrastructure project, such as an airport or a rail line, involves a State interest. The Minister’s subsequent consideration of the representations, and the State interest, may do little, if anything, to alter that view.
All of that is perfectly consistent with the scheme of the Act and illustrates that the process required of the Minister is substantially different from that of a judge, or quasi-judicial officer, adjudicating in adversarial litigation.[88] The Minister is not required to start from a neutral position, and the Minister’s consideration of whether to call-in merely requires a consideration of the representations made during the representation period, and a determination of what the Minister considers to be the State interest.
[88]Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [102].
However, despite Wanless’ submissions to the contrary,[89] those requirements of the legislation do not exclude the application of the principles of bias and apprehended bias to the Minister’s call-in decision. As explained above, the legislature ought to be presumed to have intended that a statutory decision of the Minister for public purposes would be attended by integrity in the decision-making process.
[89]Wanless submissions at [109].
It is necessary to inquire as to what kind or degree of neutrality (if any) is to be expected of the decision-maker.[90] The expectation will differ from one statutory context to another.[91] In some contexts what is required is a ‘fair and unprejudiced mind’ which is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.[92] As explained, a Minister may well commence consideration of the representations with a firm view that the airport or a rail line or other development involves a State interest.
[90]Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 565 [187] relied on by Spigelman CJ in McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504 at [11].
[91]McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504 at [11].
[92]McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504 at [22].
Certainly, it is a mistake to start from the position that a Minister’s decision under a statute is akin to a judicial decision or even that neutrality is required. The starting point is the statutory scheme.
A Policy or Political Decision?
The Deputy Premier and Wanless contend that the Minister’s call-in decision is a policy or political decision, or is a decision strongly influenced by policy or political considerations. Both the Deputy Premier and Wanless draw a distinction between judicial and quasi-judicial decision-makers, on the one hand, and an elected Minister exercising statutory powers on the other hand.[93] However, there are no clean lines of demarcation between these types of decisions. As Aronson, Groves & Weeks point out:
(a)even highly political decisions involving Cabinet are not necessarily precluded from the requirements of fairness, although the involvement of Cabinet presents a hurdle at which many claims fail;
(b)different considerations arise where the decision is one that seeks to give effect to general social or political goals, or which formulate or apply general principles that are not concerned with the circumstances of particular individuals;
(c)the formulation or adoption of a policy does not attract a duty to hear but its application to a particular case does attract such a duty;
(d)decisions made pursuant to statutory powers often involve a combination of an application of policy as well as a consideration of the interests of individuals.[94]
[93]See the Deputy Premier’s submissions at [62]; Wanless submissions at [107]. Those submissions emphasise the distinction between political and judicial decision-making but do not go on to explicitly contend that by reason of the political nature of the decision-making the rules of procedural fairness are excluded.
[94]Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 7th ed at [8.130]. See also Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at [50] where Gaudron, Gummow and Hayne JJ repeated the observation of text writers Wade and Forsyth, Administrative Law, 8th ed at 464 that ‘‘the whole object’’ of a statutory provision placing a power into the hands of the Minister ‘‘is that he may exercise it according to government policy’’.
Here, the call-in decision plainly involves policy and political considerations, as well as an impact on a number of affected individuals. That mix makes it different to the decisions of Cabinet, but also different from the mere application of a policy to an individual case.
The Allegations of Apprehended Bias Alleged
The applicants argue that there are six reasons which support a finding of apprehended bias against the Deputy Premier.[95] Broadly, they are:
(a)The Deputy Premier called in this application, despite not calling-in other applications which are ‘materially indistinguishable’.
(b)Donations were made to the Deputy Premier’s political party, the Australian Labor Party (ALP), by a lobbying firm retained by Wanless;
(c)That lobbying firm had direct and outside-of-work-hours access to the Deputy Premier’s Chief of Staff;
(d)A request was made by former long-serving ALP Lord Mayor of Brisbane, who is also the project director of the Wanless Application, to the Deputy Premier that the call-in decision be made expeditiously;
(e)The call-in request was placed in the “VIP corro” email folder;
(f)The Deputy Premier opted to call-in the application despite the Deputy Premier’s government subsequently banning the “dual hatting” practice which likely occurred in this instance.
[95]The Deputy Premier is the relevant Minister.
It is necessary to examine these individual allegations, and also to look at the allegations in a collective way.
Failure to Call-in Indistinguishable Applications
The joint applicants submit that that the Deputy Premier did not call-in other applications that were materially indistinguishable. They submit that the call-in decision was made following a series of decisions refusing to call-in development applications similar to the Wanless application. Like the Wanless application, each concerned proposed resource recovery and landfill facilities in the Ipswich City Council area. Prior to the call-in of the Wanless application, the three similar call-in requests were rejected.[96]
[96]Submissions of the Joint Applicants at [4]. The Ashworth Parties make a similar objection. They point out that of the four development applications for landfill facilities in Ipswich that have been before the P&E Court, the Deputy Premier decided to call-in only the Wanless Development Application: Ashworth Parties’ submissions at [73(k)].
The first of those three requests was made on 2 March 2018, when the Council requested the Hon Cameron Dick MP, the then Minister for State Development, Manufacturing, Infrastructure and Planning, to call-in an application by Bio Recycle.[97] Bio Recycle’s application was to expand an existing resource recovery and landfill facility at Swanbank, and for a new waste and transfer facility at Jeebropilly. The Council made this request on the basis that the application involved a State interest.
[97]The request is at 5.1 of the Agreed Bundle.
On 3 April 2018, the then Planning Minister refused the request on the basis that it “[did] not involve a state interest in a manner that warrants a call in” and that the “Planning and Environment Court is the appropriate forum”.[98]
[98]Agreed Bundle at 5.2.
The second of the call-in requests was also made by the Council. On 13 June 2018 the Council requested that the Planning Minister call-in four development applications, on the basis that they involved State interests. The four development applications were as follows:
(a)The Bio Recycle application at Swanbank;
(b)A development application by Austin BMI to build a new resource recovery and landfill involving the rehabilitation and reuse of existing mining voids at New Chum;
(c)A development application by Lantrak to build a new resource recovery and landfill facility involving the rehabilitation and reuse of existing mining voids at Jeebroopilly;
(d)A development application by Cleanaway to extend an existing resource recovery and landfill facility at New Chum.[99]
[99]The applications are useful summarised by the submissions of the joint applicants at [6]. Note however, that Ms Morrissy’s report refers to the Bio Recycle project as involving both an expansion of an existing resource recovery and landfill facility at Swanbank and a new waste and transfer facility at Jeebropilly.
On 22 August 2018 the Council’s request to call-in those four development applications was, again, refused.[100] The Planning Minister stated that the Austin BMI and Lantrak applications did not involve State interests, and the Cleanaway application remained to be assessed by the Council and by the State Assessment and Referral Agency. The Minister relied on his earlier decision in relation to the Bio Recycle application.
[100]Agreed Bundle at 5.4.
The third of the call-in requests was made a year later. On 12 August 2019, the Council requested that the Planning Minister call-in all development applications involving landfill that were pending before the Council in 2019. The request was again refused.[101] The Planning Minister at the time reiterated that “there are no grounds for a call-in” and the aspects that impacted State interests would be “adequately assessed and addressed” by the State Assessment and Referral Agency.
[101]Agreed Bundle at 5.6.
In this proceeding the Deputy Premier submits that, in refusing each of the three requests, the Planning Minister did not decide that the applications were not capable of giving rise to a State interest. That is, the character of the then Planning Minister’s decisions, was not to reject the applications on the grounds that the applications were incapable of giving rise to a State interest. In my view that is right. A fair reading of each of the refusals makes it clear that the Minister’s decisions not to exercise his call-in power were based on these views:
(a)the application “does not involve a state interest in a manner that warrants a call in”;
(b)“no State interests are affected by the proposed developments which warrant his involvement”;
(c)“The exercise of ministerial call in powers, as a reserve power, also necessitates me to take the view, above and beyond determining that a state interest is affected, that the circumstances should also warrant the exercise of these powers.”
Thus, the Planning Minister’s call-in decision plainly involved a policy or political choice. It is also worth noting that each of the requests for the Minister to exercise his power to call-in was made by the Council. The Council’s concern was that it continued to receive development applications for landfills contrary to the then operating planning instruments, and that each of the applications were subject to community opposition. The result was that the Council was being required to expend large sums defending its decisions to refuse applications. In other words, the Council’s view was that it was being besieged by applications that, if successful, those applications would benefit Southeast Queensland or even broader Queensland, and yet the burden of dealing with the applications was being unfairly borne by the ratepayers of Ipswich.
Wanless made its application to the Council on 24 December 2019. The application sought a new resource recovery and landfill facility involving the rehabilitation and reuse of existing mining voids at Ebenezer. On 16 September 2021, the Council refused the Wanless application, at least in part. The Council approved the resource recovery component and refused the landfill component. Wanless appealed against the Council’s decision refusing the landfill component. The appeal was proceeding in the P&E Court. However, by reason of the Deputy Premier’s call-in, the P&E Court appeal was discontinued pursuant to s 104(1)(b) of the Planning Act.
Materially Indistinguishable
The joint applicants submit that the Wanless application is materially indistinguishable from the previous applications. The joint applicants say that:
“the decision to call-in the Wanless application is inexplicable (or at least left unexplained in the reasons) in light of the repeated refusals to call-in projects based on materially indistinguishable requests in the past. None of those previous similar applications were found to involve State interests.”
There are three broad problems with that submission. The first is that an assumption that underlies the submission is the notion that the Minister is obliged to adopt a consistent approach to call-in decisions. For the reasons that follow, that is an assumption that cannot be accepted.
At the outset it is important to note that there is some difficulty in properly categorising this allegation of apprehended bias. It is an allegation which is based, not so much on the circumstances of this particular call-in, but on the allegation of an inconsistency between the decision made on this call-in as against prior decisions. The difficulty is more than an issue of taxonomy or nomenclature. Of the four categories described by Deane J in Webb v The Queen,[102] the only relevant category is ‘disqualification by conduct’. That category of apprehended bias comprises conduct, either in the course of, or outside, the proceedings, that gives rise to an apprehension of prejudice, partiality or prejudgment.[103] And so a judge might be disqualified by reason of having made strong adverse findings about a party in unrelated proceedings.[104] Or extrajudicial writing and statements made out of court, including to the media, may raise issues of prejudgment. That occurs if the judge expresses ‘preconceived views which are so firmly held’ that the hypothetical observer may think it might not be possible for them to approach cases with an open mind’.[105]
[102](1994) 181 CLR 41 at 74. See the discussion above at FIRST GROUND: APPREHENDED BIAS, The Bias Rule.
[103]Webb v The Queen (1994) 181 CLR 41 at 74; ALRC 138 at [3.42].
[104]British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at [145].
[105]ALRC 138 at [3.45]; Aronson, Groves and Weeks at 676, citing Locabail (UK) Ltd v Bayfield Properties [2000] QB 451, 495.
Thus, it appears that the joint applicants contend that the conduct of the Minister in calling in the Wanless application, having previously refused the three similar prior applications, is disqualifying conduct that gives rise to an apprehension of bias. It is hard to see why that is so. The submission assumes that it is incumbent upon the relevant Minister to treat applications consistently and to explain any inconsistency in decision-making. It is not apparent why the Minister is required to deal with Wanless’ application in a manner that is consistent with similar, or even materially indistinguishable, prior applications.
The call-in discretion and the associated policy decisions of the Minister are dynamic rather than static. In this case, the Council first requested that the then Planning Minister call-in the Bio Recycle application in March 2018. The Wanless application was called-in by the Deputy Premier, the new Planning Minister, on 27 January 2022 – nearly four years later. Nothing in the legislative regime requires that the new Minister exercise the call-in power in a manner that is consistent with that Minister’s predecessor, let alone consistently over a period of nearly four years. The political and environmental context can hardly be thought to be static over that four-year period. And so, there is no reason to oblige the Minister to apply a static treatment to similar applications over that four-year period, or indeed for any period.[106]
[106]If there were an obligation of consistency, for how long was the Minister bound to render consistent decisions?
The Minister’s call-in power is a power personal to the Minister. As explained, it has a strong subjective element, as well as a right to consider policy issues. The call-in power is not confined by any principle of, or akin to, precedent. The Minister is ultimately responsible to Parliament for the decisions and discretions exercised.
To return to the joint applicants’ submission, there is no requirement for the decision to call-in the Wanless application to be explicable in the sense of being consistent with the repeated refusals to call-in projects based on materially indistinguishable requests in the past. For reasons I will come to shortly, the prior projects have not been shown to be ‘materially indistinguishable’. However, for present purposes it must be emphasised that, even if the Wanless application was materially indistinguishable from the prior applications, the call-in power exercised by the Minister under the Planning Act is not confined or restricted by previous decisions. The Minister was entitled to make the determination afresh.
The second broad problem with that submission by the joint applicants is a factual problem. As explained above, the previous applications did not involve a substantive determination by the previous Minister that there was no State interest involved in each application. And, even if the previous Minister had made such a determination, or determinations, about State interest, the new Minister was entitled to take a different view.
Third, the court is unable to make a finding of fact that the Wanless application was “materially indistinguishable from the previous applications”. For one thing, in each case the land sought to be developed was different. With one exception, the sites were located in different suburbs of Ipswich.[107] One can easily envisage that planning, housing, environmental and transport corridor issues are likely to make the policy choices different in each case.
[107]The suburbs are Swanbank (Bio Recycle), New Chum (Austin and Cleanaway), Jeebropilly (Lantrak and Bio Recycle) and Ebenezer (Wanless). Swanbank and New Chum are adjoining suburbs to the east of Ipswich. Jebropilly and Ebenezer are adjoining suburbs to the west of Ipswich.
Morrissy Report
The joint applicants relied on an expert report of a town planner, Ms Jennifer Morrissy, as evidence that the Wanless application was ‘materially indistinguishable’ from the previous applications. The Deputy Premier and Wanless contended that the expert report was inadmissible but, for reasons explained below, those objections fail. However, the expert report is of little assistance and is not persuasive that the Wanless application was materially indistinguishable from the prior applications.
Even if that conclusion is wrong, the Ashworth parties bear the onus of demonstrating that the call-in deprived them of property in an arbitrary way.[291] That onus has not been discharged. The Deputy Premier has acted in accordance with the call-in regime in the Planning Act. That statutory regime can hardly be described as arbitrary.[292]
[291]Arbitrariness in this context means capricious, unpredictable or unjust and also unreasonable in the sense of not being proportionate to a legitimate aim sought: PJB v Melbourne Health (2011) 39 VR 373 at [85].
[292]Wanless make this point at [194] of their submissions.
Right to a Fair Hearing
Section 31 of the Human Rights Act provides:
31 Fair hearing
(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
(2) …
The Ashworth parties submit that:
(a)The Ashworth parties were all parties to the Wanless appeal, being a civil proceeding in the P&E Court;
(b)The effect of the call-in decision was to discontinue that proceeding, thereby limiting their right to have the appeal determined by an independent and impartial court after a fair hearing;
(c)It is difficult to imagine a more extreme limitation on their rights given that the decision of the Deputy Premier had the effect of unilaterally extinguishing their appeal rights retrospectively;
(d)The HR Assessment does not consider or properly consider s 31 of the Human Rights Act;
(e)The Deputy Premier failed to turn his mind to s 31 of the Human Rights Act and give it proper consideration;
(f)It follows that the procedural limb in s 58 of the Human Rights Act has been contravened;
(g)Even if the Deputy Premier had considered s 31 of the Human Rights Act, there is no doubt that the call-in decision (and the consequential discontinuance) limits the Ashworth parties’ human rights under s 31 of the Human Rights Act in a radical way;
(h)A strong justification would be required for the imposition of such a limitation;
(i)The Deputy Premier therefore bears the onus of showing that the limitation arising from the exercise of the call-in power is compatible with human rights;
(j)The Deputy Premier has simply failed to discharge this onus;
(k)In the circumstances, it is contended that even if the Deputy Premier had given proper consideration to the Ashworth parties’ right to a fair hearing, he has failed to demonstrate by cogent evidence that the limitation on that right is compatible with their human rights; and
(l)Section 58 of the Human Rights Act has therefore been contravened.[293]
[293]This is a paraphrasing of paragraphs [120]-[125] of the Ashworth parties’ submissions.
In response, the Attorney-General relies on the House of Lords decision in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions.[294] The issue in Alconbury was similar to the issue here, namely whether the powers of the Secretary of State under the Town and Country Planning Act 1990 (UK) to ‘call in’ a development application or to ‘recover’ an appeal were compatible with the right of access to the courts under article 6 of the European Convention on Human Rights.[295] The UK planning legislation provided for development applications to be decided by local governments, with a right of appeal to an inspector. In exceptional cases involving major development proposals, the Secretary of State had power under s 77 of the Act to call in the application to be decided by the Secretary of State instead of the local government, as well as a power under sch 6 [3] of the Act to ‘recover’ an appeal underway before an inspector.
[294][2003] 2 AC 295, 308, 309, 324 and 343.
[295]Article 6 of the European Convention on Human Rights is similar but not identical to s 31: “Right to a fair trial 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
The Attorney-General’s submissions have usefully summarised the House of Lords’ reasoning, and its application of the jurisprudence of the European Commission of Human Rights and the European Court of Human Rights as follows:[296]
[296]The Attorney-General’s submissions on Alconbury are gratefully acknowledged and adopted here.
(a)When the Secretary of State determines a development application following a call-in notice or when he determines an appeal he has ‘recovered’, he is not himself an independent and impartial tribunal.[297]
(b)However, the decisions made by the Secretary of State following a call-in or recovery were not incompatible with article 6(1) of the European Convention on Human Rights, provided those decisions are subject to review by an independent and impartial tribunal which has full jurisdiction to deal with the case as the nature of the decision required.[298]
(c)In this context, ‘full jurisdiction’ does not require a review on the merits. ‘What is required … is that there should be a sufficient review of the legality of the decisions and of the procedures followed’.[299]
(d)More than that is not required. Indeed, as Lord Nolan pointed out:
“…the decisions made by the Secretary of State will often have acute social, economic and environmental implications. A degree of central control is essential to the orderly use and development of town and country. Parliament has entrusted the requisite degree of control to the Secretary of State, and it is to Parliament which he must account for his exercise of it. To substitute for the Secretary of State an independent and impartial body with no central electoral accountability would not only be a recipe for chaos: it would be profoundly undemocratic.”[300]
(e)To similar effect, Lord Hoffmann said:
“In a democratic country, decisions as to what the general interest requires are made by democratically elected bodies or persons accountable to them … Town and country planning or road construction, in which every decision is in some respects different, are archetypal examples. In such cases Parliament may delegate the decision-making power to local democratically elected bodies or to ministers of the Crown responsible to Parliament. In that way the democratic principle is preserved … There is no conflict between human rights and the democratic principle … There is no principle of human rights which requires such decisions to be made by independent and impartial tribunals.”[301]
(f)The power of the High Court in judicial review proceedings to review the legality of the decision and the procedures followed is sufficient to ensure compatibility with article 6(1).[302]
(g)Accordingly, the call-in and recovery powers of the Secretary of State are not incompatible with article 6(1) of the European Convention on Human Rights.
[297][2003] 2 AC 295 at 318.
[298][2003] 2 AC 295 at 318.
[299][2003] 2 AC 295 at 320, 323, 330, 339, 350 & 362.
[300][2003] 2 AC 295 at 323.
[301][2003] 2 AC 295 at 325.
[302][2003] 2 AC 295 at 321, 334.
That reasoning applies here. And, coincidentally, this hard-fought litigation is compelling evidence of the availability of a review of the legality of the Deputy Premier’s call-in decision – consistent with factor (f) above.
In their reply submissions the Ashworth parties contended that Alconbury served only to demonstrate the importance of considering a right to a fair trial in the context of a ministerial call-in.[303] I do not agree. Alconbury establishes an important principle in the balancing of an individual’s human rights and the broader community interests with economic and environmental implications. For the same reason, it is not significant that there are some factual distinctions between Alconbury and this case.
[303]Ashworth reply submissions at [45].
It is not the case that the authority of Alconbury can be discarded because s 31 and Article 6 are substantively different.[304] A comparison of the two provisions, side-by-side, illustrates their commonality and common heritage:
[304]The Ashworth parties make this distinction in their reply submissions at [46].
Section 31(1), Human Rights Act
Article 6(1), European Convention on Human Rights
Fair hearing (heading)
Right to a fair trial (heading)
A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…
It can be seen that the right given by s 31(1) is not substantially different from the right given by Article 6 of the European Convention on Human Rights. In particular, there is no substantive difference in the condition under which the right applies – civil or criminal proceedings. Both provisions require a “fair and public hearing”. The right given under the Queensland Act is to have the proceeding decided by a “competent, independent and impartial court or tribunal”. The right given under the European Convention is to have the proceeding decided by “an independent and impartial tribunal established by law”. The European provision requires a hearing within a reasonable time. The Queensland provision is silent about that.
The differences, that is Queensland’s additional requirement of a ‘competent’ tribunal[305] and the European requirement of a hearing within a reasonable time,[306] are not material differences which would justify distinguishing the point of principle in Alconbury. Similar considerations apply to the differences in the respective planning schemes.
[305]More likely than not ‘competence’ is assumed as part of the UK’s requirement of “an independent and impartial tribunal established by law”.
[306]The Queensland provision refers to a hearing of a ‘court or tribunal’ whereas the European provision is limited to ‘tribunal’. The difference is not material because a court is likely to be comprehended by the expression ‘tribunal’.
It follows that the Ashworth parties have not established that their rights under s 23, 24 and 31(1) were limited.
Justified Limitation?
Section 13 of the Human Rights Act provides as follows:
13 Human rights may be limited
(1) A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
(2) In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant—
(a)the nature of the human right;
(b)the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;
(c)the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
(d)whether there are any less restrictive and reasonably available ways to achieve the purpose;
(e)the importance of the purpose of the limitation;
(f)the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
(g)the balance between the matters mentioned in paragraphs (e) and (f).
Therefore, even if the Deputy Premier’s call-in decision limited the rights of the Ashworth parties, the question that s 13 of the Human Rights Act poses is whether those limitations comprise reasonable limits that can be demonstratively justified in a free and democratic society based on human dignity, equality and freedom. Of course, not every limit on human rights effected by a call-in decision will be reasonable and justified. Much depends on the rights limited and the features and circumstances of the call-in decision.
In deciding whether a limit on a human right is reasonable and justifiable, s 13(2) requires a consideration of the following relevant factors:
(a)The nature of the three human rights identified and discussed above[307] are significant, but, as regards the property right, this case does not involve core personal property such as food, clothing, and housing;
(b)Any limits on those human rights arising from the Deputy Premier’s exercise of the call-in power is focussed on the State interest and has the effect of altering the decision-maker from the Council to the Minister who is answerable to Parliament;
(c)The change in decision-maker is designed to achieve the purpose of serving the State interest;
(d)There is no alternative method of achieving that purpose of serving the State interest;
(e)The exercise of the call-in power achieves a reasonable balance between the scope of matters left to the Minister’s decision and the scope of control possessed by the courts over the exercise of his discretionary power;[308]
[307]The right to take part in public life (s 23) the right to property (s 24) and the right to a fair hearing (s 31(1)).
[308]R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, 351-2. Some of these factors were identified by the Assessment under Human Rights Act 2019 which is Schedule 2 to the Briefing Note.
For those reasons, even if the Deputy Premier’s call-in decision limited the rights of the Ashworth parties, there is a cogent and persuasive basis for concluding that the limits were reasonable and justified.
Conclusions on Substantive Compatibility
I therefore find that:
(a)the call-in decision did not limit the Ashworth parties’ opportunity to participate in public life ‘without discrimination’ (s 23);
(b)the statutory right to elect to be a co-respondent and participate as a party in an appeal pursuant to s 229(1)(b)(iv) of the Planning Act does not constitute property, and it has not been demonstrated that the call-in deprived the Ashworth parties of their property in an arbitrary way (s 24); and
(c)the exercise of the call-in power by the Deputy Premier is compatible with the Ashworth parties right to a fair hearing (s 31).
Procedural Complaints
The ‘procedural limb’ in s 58(1)(b) of the Human Rights Act provides that: “It is unlawful for a public entity …(b) in making a decision, to fail to give proper consideration to a human right relevant to the decision.”
Subsection 58(5) of the Human Rights Act provides that:
For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to—
(a) identifying the human rights that may be affected by the decision; and
(b) considering whether the decision would be compatible with human rights.
Again, the Queensland Parliament has utilised the legislative device of defining a term by reference to what it includes. The absence of an exclusive definition makes it relevant and help to consider three Victorian cases have discussed what ‘proper consideration’ requires of the public entity. It is important to note that these cases pre-date the Queensland Human Rights Act and that the equivalent Human Rights legislation in Victoria does not include an equivalent to s 58(5).
First, in Castles v Secretary, Department of Justice[309] Emerton J explained the concept of giving ‘proper consideration’ to human rights in this way:
[185] The requirement in s 38(1) to give proper consideration to human rights must be read in the context of the Charter as a whole, and its purposes. The Charter is intended to apply to the plethora of decisions made by public authorities of all kinds. The consideration of human rights is intended to become part of decision-making processes at all levels of government. It is therefore intended to become a “common or garden” activity for persons working in the public sector, both senior and junior. In these circumstances, proper consideration of human rights should not be a sophisticated legal exercise. Proper consideration need not involve formally identifying the “correct” rights or explaining their content by reference to legal principles or jurisprudence. Rather, proper consideration will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of justification, proper consideration will involve balancing competing private and public interests. There is no formula for such an exercise, and it should not be scrutinised over-zealously by the courts.
[186] While I accept that the requirement in s 38(1) to give proper consideration to a relevant human right requires a decision-maker to do more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person’s human rights and the implications thereof for the affected person, and that the countervailing interests or obligations were identified.
[309](2010) 28 VR 141 at [185]-[186]
Second, in Bare v Independent Broad-Based Anti-Corruption Commission[310] the Victorian Court of Appeal quoted and accepted those views of Emerton J in Castles.
[310](2015) 48 VR 129 at [52], [146], [276]-[279] and [535]. All three judges of appeal quoted paragraphs [185] and [186] from Castles with evident approval.
Third, the approach in Castles was again endorsed by the Victorian Court of Appeal in HJ v Independent Broad-based Anti-Corruption Commission:
“For a decision-maker to give ‘proper’ consideration to a relevant human right in compliance with s 38(1) of the Charter, he or she must: (1) understand in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision; (2) seriously turn his or her mind to the possible impact of the decision on a person’s human rights and the implications for the affected person; (3) identify the countervailing interests or obligations; and (4) balance competing private and public interests as part of the exercise of justification.” [311]
[311](2021) 64 VR 270 at [155].
In Queensland, though, the 2019 legislation has given more guidance. Section 58(5) of the Human Rights Act specifies that ‘proper consideration’ at least requires the decision-maker to both identify the human rights that may be affected by the decision and to consider whether the decision would be compatible with human rights. However, both those tasks need to be approached in a common sense and practical manner. In Owen-Darcy v Chief Executive, Queensland Corrective Services Martin J said:
The identification of the relevant human rights is an exercise that must be approached in a common sense and practical manner. Decisionmakers like Ms Newman are not expected to achieve the level of consideration that might be hoped for in a decision given by a judge. On this point, I agree with what Emerton J said in Castles… [His Honour then quoted the passages from Castles extracted above.] [312]
[312][2021] QSC 273 at [137].
It follows that, in Queensland ‘proper consideration’ at least requires the decision-maker to, in a common sense and practical manner, both identify the human rights that may be affected by the decision and to consider whether the decision would be compatible with human rights.[313]
[313]In that respect, the position in Queensland may vary from that in Victoria where the view expressed in Castles was that proper consideration need not involve formally identifying the “correct” rights: see Owen-Darcy v Chief Executive, Queensland Corrective Services [2021] QSC 273 at [136].
The Deputy Premier’s Consideration of Human Rights
As explained, the Deputy Premier’s call-in decision expressly refers to his proper consideration of the human rights relevant to his decision whether to issue the call-in notice. The Deputy Premier expressly referred to the HR Assessment assisting with his consideration and his determination that his call-in decision was compatible with human rights.[314]
[314]The Deputy Premier was entitled to seek and obtain the advice of relevant public servants: see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 at 340.
The HR Assessment considered by the Deputy Premier, recognised that a call-in decision would mean that the appeal to the P&E Court would be discontinued, and that this may have an impact on the human rights of the submitter co-respondents in that appeal. The HR Assessment acknowledged that the parties to the appeal would no longer have the opportunity to be heard in Court which may limit their freedom of expression under s 21 of the Human RightsAct but concluded that any limit on freedom of expression was proportionate under s 13 for the following reasons:
• the decision involves restarting the development assessment process at the confirmation period, meaning that the application will be required to undergo public notification. This has the effect of enhancing the human right of freedom of expression because the submitters will have an opportunity to comment further on the development application if called in
• the purpose of the potential limitation is to protect or give effect to state interests (Economic and environmental interests of the State or part of the State as explained in the assessment report)
• this purpose is significant and recognised as such under the Planning Act 2016
• there are no less restrictive ways to achieve the purpose.
The HR Assessment also considered the impact of a decision to call in the application on human rights related to environmental impacts (ss 16, 19, 25, 26 and 29), as well as the property interests at stake in the development application (s 24).
Identification and Consideration
For the reasons that follow, I am satisfied that the Deputy Premier correctly identified the human rights that might have been affected by the call-in decision and correctly considered whether the call-in decision would be compatible with human rights.
First, for the reasons explained above, the call-in decision did not limit the Ashworth parties’ opportunity to participate in public life ‘without discrimination’. There was, therefore, no need for the Deputy Premier to identify that human right as one that may be affected by the call-in decision.
Second, the exercise of the call-in power by the Deputy Premier is compatible with the Ashworth parties right to a fair hearing. The Deputy Premier was not required to identify that right as one that may be affected by the call-in decision. For completeness, whilst the HR Assessment did not expressly tackle the right to a fair hearing under s 31, the HR Assessment did address the call-in decision’s impact on the opportunity to be heard in court which, it was thought, may limit freedom of expression under s 21 of the Human Rights Act, but that limitation was thought to be proportionate because of right to be heard that might be afforded by the new process.
Third, the statutory rights to participate in a P&E appeal does not constitute property, even if it did, it has not been demonstrated that the call-in deprived the Ashworth parties of their property in an arbitrary way.
Further, the HR Assessment took the view that property rights were affected:
If this [i.e. the call-in] occurs, the property rights, both of Wanless (and its individual employees) and any submitters may be potentially limited in that the Minister would be stepping in to determine whether or not the development may proceed.
[and later]
Any potential limitation on property rights is reasonable and justifiable in the circumstances, because:
· as noted above, the restarting point of the development assessment process at the confirmation period means that the application will be required to undergo public notification
· the purpose of the potential limitation is to protect or give effect to state interests (economic and environmental interests of the State or part of the State as explained in the assessment report);
· this purpose is significant and recognised as such under the Planning Act 2016
· there are no less restrictive ways to achieve the purpose.
And so, whilst the Deputy Premier need not have identified and considered the rights given by s 23, 24 and 31 of the Human Rights Act, because those rights were not affected by the proposed call-in decision, the Deputy Premier did in fact identify and consider the potential impact on the right to property under s 24.
I am not satisfied that there is any basis for a finding that, in making the call-in decision, the Deputy Premier failed to give proper consideration to a human right relevant to the decision. I therefore find that the Deputy Premier has not breached the ‘procedural limb’ in s 58(1)(b) of the Human Rights Act.
The Piggyback Provisions
The Attorney-General submits, and I accept, that s 59(5) of the Human Rights Act makes plain, the applicants may seek relief or remedy on a ground of unlawfulness arising under s 58 only under the ‘piggyback clause’ in s 59. Section 59(2) permits a person to seek relief or a remedy for unlawfulness arising under s 58, but only if the condition in s 59(1) is met, that is, “if the person may seek any relief or remedy” in relation to the same decision on a ground of unlawfulness arising “other than because of s 58”. In other words, the ‘piggyback’ clause permits an applicant to seek relief for a breach of s 58 only where the applicant has at least one ‘independent ground’, unrelated to s 58, for alleging that the impugned act or decision was unlawful.[315]
[315]See also Owen-Darcy v Chief Executive, Queensland Corrective Services [2021] QSC 273 at [100].
Here, the Ashworth parties satisfied the ‘piggyback’ requirements by relying also on the other four grounds of challenge to the Deputy Premier’s call-in decision. However, they also contended that, in some circumstances, the failure to consider properly, or to consider at all, those human rights that are relevant to the call-in decision provides a separate judicial review ground.[316] I reject that contention. It is inconsistent with the plain words of s 59. As the Attorney-General submits, an applicant who establishes a breach of s 58 is limited to the ‘relief or remedy’ to which they would have been entitled for the independent ground. The obvious purpose of s 59 is to safeguard against an increase in litigation.[317] And, as Tate JA observed in Bare v Independent Broad-Based Anti-Corruption Commission[318] these provisions were intended to have a normative effect on the conduct of public authorities.[319] The intention was to change behaviour, not to provide an additional weapon.
[316]Ashworth parties’ reply submissions at [23].
[317]Queensland, Parliamentary Debates, Legislative Assembly, 31 October 2018, 3185-6
[318](2015) 48 VR 129 at [299].
[319]See also Castles v Secretary, Department of Justice (2010) 28 VR 141 at [185]-[186] (quoted above).
A Further Obstacle?
That rationale is relevant to a further argument raised by Wanless and adopted by the Attorney-General. Wanless and the Attorney-General submitted that s 231 of the Planning Act precluded any relief under s 59 of the Human Rights Act.
Section 231 of the Planning Act provides:
231 Non-appealable decisions and matters
(1) Subject to this chapter, section 316(2), schedule 1 and the P&E Court Act, unless the Supreme Court decides a decision or other matter under this Act is affected by jurisdictional error, the decision or matter is non-appealable.
(2) The Judicial Review Act 1991, part 5 applies to the decision or matter to the extent it is affected by jurisdictional error.
(3) A person who, but for subsection (1) could have made an application
under the Judicial Review Act 1991 in relation to the decision or matter, may apply under part 4 of that Act for a statement of reasons in relation to the decision or matter.
(4) In this section—
decision includes—
(a) conduct engaged in for the purpose of making a decision; and
(b) other conduct that relates to the making of a decision; and
(c) the making of a decision or the failure to make a decision; and
(d) a purported decision; and
(e) a deemed refusal.
non-appealable, for a decision or matter, means the decision or matter—
(a) is final and conclusive; and
(b) may not be challenged, appealed against, reviewed, quashed, set aside or called into question in any other way under the Judicial Review Act 1991 or otherwise, whether by the Supreme Court, another court, any tribunal or another entity; and
(c) is not subject to any declaratory, injunctive or other order of the Supreme Court, another court, any tribunal or another entity on any ground.
[emphasis added]
The evident purpose of s 231 is to oust the jurisdiction of courts and tribunals, except for those specific proceedings that are specified, and except for those proceedings where the Supreme Court decides that the relevant decision is affected by jurisdictional error. Of course, privative clauses like s 231 should be narrowly construed.[320] It is presumed that the Parliament does not intend to cut down the jurisdiction of the courts save to the extent that the legislation in question expressly so states or necessarily implies.[321]
[320]Bare v Independent Broad-Based Anti-Corruption Commission (2015) 48 VR 129 at [100]; citing Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 631 and a number of other cases.
[321]Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. By the same token, it is appreciated that the Human Rights Act is to be read liberally as it allows for the vindication of human rights: Goode v Common Equity Housing Ltd [2014] VSC 585 at [25].
In Victoria it is a matter of some controversy as to whether a breach of the Victorian equivalent of s 58(1) the Human Rights Act[322] is a jurisdictional error. In Bare v Independent Broad-Based Anti-Corruption Commission[323] Warren CJ found that a breach of the Victorian equivalent of s 58(1) did not amount to jurisdictional error. Her Honour decided that there was no indication that it was the intention of the legislature in drafting the Act, including the equivalent of s 58(1), that a decision by a public authority that did not properly consider a human right, or that breached a human right would be invalid. However, the other two members of the Victorian Court of Appeal, Tate JA and Santamaria JA, both offered some detailed observations but found it unnecessary to decide the issue and left it unresolved.[324]
[322]Section 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
[323](2015) 48 VR 129 at [100].
[324](2015) 48 VR 129 at [378]-[397] (Tate JA) and [496], [600] and [617]-[626] (Santamaria JA).
In Queensland, however, the controversy has been quelled by s 58(6) of the Human Rights Act which provides that:
To remove any doubt, it is declared that—
(a) an act or decision of a public entity is not invalid merely because, by doing the act or making the decision, the entity contravenes subsection (1); and
(b) a person does not commit an offence against this Act or another Act merely because the person acts or makes a decision in contravention of subsection (1).
And so, the legislative intention in Queensland is clear. On the one hand, s 58(1) provides that it is unlawful for a public entity to act or make a decision in a way that is not compatible with human rights, or to fail to give proper consideration to a human right relevant to the decision. On the other hand, the unlawfulness[325] does not make the decision invalid (or even an offence).
[325]The use of the term ‘unlawful’ does not necessarily connote invalidity: that every invalid act is an ‘unlawful’ act does not entail that every unlawful act is invalid: Bare v Independent Broad-Based Anti-Corruption Commission (2015) 48 VR 129 at [617].
In my view, the Attorney-General’s submissions are correct that s 58(6) makes it clear that a breach of s 58(1) amounts to a non-jurisdictional error.[326]
[326]Attorney-General’s supplementary submissions at [19]. However, it is doubtful that one can go so far as to say that s 58(6) evinces an intention to allow for human rights review to be ousted by privative clauses in other Acts that apply to non-jurisdictional errors of law.
Thus, even if there were a breach of s 58 of the Human Rights Act, s 59 presents an obstacle to the applications. Section 231 of the Planning Act is a further obstacle because it bars non-jurisdictional errors such as those based on s 58(1) of the Human Rights Act.
It is understandable that the outcome may not be a palatable one for the Ashworth parties. They are local residents who were participating in the P&E process. No doubt they had invested time, energy and expense in that proceeding. The Minister’s call-in put a halt to that process and imposed a new, largely discretionary process. However, that has come about as a consequence of the law, which expressly reserves those powers to the Minister. The Minister is responsible to Parliament – and ultimately the electors.
CONCLUSION
For those reasons I refuse the applications.
I will hear the parties on the appropriate form of orders and on costs.
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