Hicks and Minister for Infrastructure and Regional Development
[2016] AATA 437
•28 June 2016
Hicks and Minister for Infrastructure and Regional Development [2016] AATA 437 (28 June 2016)
Division
GENERAL DIVISION
File Number(s)
2016/0986
Re
John Hicks
APPLICANT
Gold Coast Lifestyle Association Incorporated
OTHER PARTY
Tugun Cobaki Alliance Incorporated
OTHER PARTY
And
Minister for Infrastructure and Regional Development
RESPONDENT
Gold Coast Airport Pty Ltd
OTHER PARTY
Airservices Australia
OTHER PARTY
INTERLOCUTORY DECISIONS & DIRECTIONS
Tribunal Deputy President Bernard J McCabe
Date 28 June 2016 Place Brisbane
Standing
The Tribunal ORDERS that:
1. The Applicant, John Hicks, does not have standing to bring this Application;
2. Gold Coast Lifestyle Association Incorporated (GCAPL) be joined as the first Applicant;
3. Tugun Cobaki Alliance Incorporated be joined as the second Applicant;
4. Gold Coast Airport Pty Ltd be joined as the second respondent;
5. Airservices Australia be joined as the third respondent;
Stay request
The Tribunal DIRECTS that:
6. Within 21 days of the date of these reasons, Tugun Cobaki Alliance Incorporated (the ‘Alliance’) lodge with the Tribunal and give to the respondent, GCAPL and Airservices Australia, submissions and evidence in relation to the request for a Stay pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth);
Section 35 confidentiality request
7. Whereas the respondent has written submissions in its possession that were obtained in the course of the public consultation process, the Tribunal DIRECTS that:
(a) the respondent redact from those submissions any personal details that identify the authors of those submissions; and
(b) the respondent provide redacted copies of the documents to the other parties; and
(c) the respondent shall not provide un-redacted copies of those documents to any person except as required for the purposes of conducting these proceedings.
Non-party access to documents
Tribunal ORDERS that:
8. The request for non-party access to documents filed on 8 June 2016 is refused.
Case management directions
9. The Tribunal’s directions of 13 May 2016 are varied in accordance with these reasons so that they now read:
5. On or before 8 August 2016, the Tugun Cobaki Alliance Incorporated (TCAI) and the Gold Coast Lifestyle Association Incorporated (GCLAI) shall each lodge with the Tribunal and provide to each other party, a Statement of Facts, Issues and Contentions together with any other material they wish to rely upon at the hearing.
6. On or before 10 October 2016, the MIRD, GCAPL and AA shall each lodge with the Tribunal and provide to each other party, a Statement of Facts, Issues and Contentions together with any other material they wish to rely upon at the hearing.
7. On or before 7 November 2016, the TCAI and GCLAI lodge with the Tribunal and provide to the each other party any material in reply, or a letter stating they do not intend to provide any further material.
8. The matter be listed for Mediation in the week commencing 14 November 2016.
9. The matter be listed for hearing for 5 days commencing on 7 December 2016.................................[Sgd]........................................
Deputy President Bernard J McCabe
Catchwords
STANDING – Minister’s decision to approve Major Development Plan - Gold Coast Airport – Instrument Landing System – whether applicant’s interests are affected – whether applicant has ‘special interest’ – whether other parties’ interests are affected – applicant has no standing – all other parties joined
STAY – whether stay required to secure effectiveness of hearing – where construction may cause contamination of surrounding soil – interim stay order may be appropriate
CONFIDENTIALITY – Where large volume of public submissions – whether authors personal details should be redacted – process of redaction already commenced – application for s 35 order granted
ACCESS TO DOCUMENTS – non-party request for access to Tribunal documents – no reason to depart from usual rule –access to Tribunal documents is refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 27, 30, 35, 37, 41
Airports Act 1996 (Cth) Part 5, Division 4 – ss 89, 90, 93A, 94
Air Services Act 1995 (Cth) ss 8, 73
Civil Aviation Act 1988 (Cth)
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 160Civil Aviation Regulations 1988 (Cth)
Cases
Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50; (2014) 254 CLR 394
Australian Conservation Foundation Inc v Commonwealth (1979) 146 CLR 493
Brisbane Airports Corporation v Wright [2002] FCA 359; (2002) 120 FCR 157
Moorabbin Airport Corporation Pty Ltd and Minister for Infrastructure and Regional Development [2014] AATA 101
North Coast Environment Council Inc v Minister for Resources [No 2] (1994) 55 FCR 492
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health and Family Planning Inc (Vic) [1995] FCA 1060Salemi v MacKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396
REASONS FOR INTERLOCUTORY DECISIONS
Deputy President Bernard J McCabe
28 June 2016
The Gold Coast Airport Pty Ltd (‘GCAPL’) operates an airport in Coolangatta, Queensland. At present, aircraft landing on the main runway must make a visual approach, or use an RNP (required navigation performance) procedure. Inbound aircraft using runway 14 typically fly over the coastline near Currumbin, make a sharp left turn and land soon after. On that track, the final approach over land is only 7.5 kilometres long. The GCAPL wants to install an instrument landing system (ILS) at the airport. An ILS is a ground-based radio navigational aid that guides pilots towards the runway using instruments. Inbound aircraft using the ILS will have to commence their final approach to runway 14 about 15 kilometres up the coast from the runway so they can ‘line up’ with the ILS beacons on the ground. While the final details of the flight paths or airways have not been decided, it is likely aircraft making an ILS landing on runway 14 (the airport’s main runway) will fly at a relatively low level over suburbs along the coast further to the North.
A number of approvals are required from various agencies with responsibilities under different statutes before work can begin and the ILS can be brought into effective operation. An essential part of the construction work will occur on airport land controlled by GCAPL. The plan detailing the development on airport land must be set out in a Major Development Plan that requires the approval of the Minister for Infrastructure and Regional Development under Part 5, Division 4 of the Airports Act 1996 (Cth) (the Airports Act). That approval has already been obtained: the Minister made a reviewable decision to approve the Major Development Plan on 19 January 2016. But other approvals have also been sought, most obviously from Airservices Australia (‘Airservices’). Airservices is involved because it is responsible for overseeing the establishment of the ILS. (GCAPL is ultimately funding the work and contracting for it to be done, but it is still done, in effect, on behalf of Airservices.) Some of the ILS facilities will be installed on crown land at the other end of the airport in New South Wales. Airservices is able to authorise that construction without having to participate in the usual planning and environmental planning processes imposed by the state government. Airservices (and perhaps CASA, the Civil Aviation Safety Authority) must also make decisions in due course with respect to flight paths that will be necessary so aircraft can make use of the ILS.
The applicant is Mr John Hicks. Mr Hicks and two other organisations want to challenge the Minister’s decision to approve the Major Development Plan. The GCAPL and Airservices say the challengers do not have standing. The parties provided detailed submissions and engaged in oral argument at a directions hearing in relation to standing. The argument went to the question of whether the applicant or the two incorporated associations had an interest in the subject matter of the Minister’s decision that would justify them bringing an application or being made a party to the proceedings. There was also discussion of whether Airservices should be joined as a party. The parties also addressed me on whether:
· a stay should be granted pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act);
· a confidentiality order should be made under s 35 of the AAT Act in relation to the names and addresses and other personal information contained in the thousands of written submissions made to the Minister and the GCAPL before copies of those submissions were released to the parties;
· media organisations should be given access to the Tribunal’s files following a request for access made by a journalist from the Gold Coast Bulletin newspaper.
I adjourned after the interlocutory hearing so I could prepare these reasons. While it is important that these matters be decided quickly so the proceedings are not delayed, I wanted all of the parties to clearly understand why I have made certain orders and directions. I will begin with the standing issue, as my rulings on that point have implications for some of the other issues I must decide.
Questions of standing
Section 27(1) of the AAT Act say an application for review of a reviewable decision “may be made by or on behalf of any person or persons … whose interests are affected by the decision.” Mr Hicks was the first to lodge an application. Provided he is able to demonstrate his interests are affected by the decision in the relevant sense, he is entitled to participate in the proceedings as of right. The Gold Coast Lifestyle Association Incorporated (the ‘Lifestyle Association’) and the Tugun Cobaki Alliance Incorporated (the ‘Alliance’) initially indicated they also wished to apply for review but, after discussions with the Tribunal’s staff, elected to request that they be joined as parties to the existing proceedings for reasons of economy and convenience. Each of the incorporated associations subsequently made an application to be joined as parties pursuant to s 30(1A) of the AAT Act. The test for standing in that section is essentially the same as that in s 27, in that it refers to a “person whose interests are affected” being eligible to be joined, but there is one important additional qualification. Section 30(1A) provides “the Tribunal may, in its discretion, by order, make that person a party to the proceeding.” It follows the power to join is discretionary, so it is not enough that an individual or group establish its interests are affected. The Tribunal must also be satisfied it is appropriate to make the order. I will have more to say about all that shortly.
The Minister is the respondent in these proceedings but the burden of defending the Minister’s decision is likely to fall on the GCAPL. As the principal proponent of the plan to install the ILS, the GCAPL is the main beneficiary of the Minister’s decision. The GCAPL is funding the work, and its commercial interests are at stake if the plan is not allowed to proceed. In those circumstances, the GCAPL is clearly a “person whose interests are affected by the decision” within the meaning s 30(1A) of the AAT Act. I have already decided the GCAPL should be joined as a party given the circumstances. The GCAPL was represented by Mr McLeod at the interlocutory hearing.
Airservices has also asked to be joined as a party. Its written submissions to that effect were filed in advance of the recent interlocutory hearing. Airservices is responsible for overseeing the establishment of the ILS. It must take action, consider approvals and exercise powers under other legislation if the reviewable decision is implemented. Indeed, Airservices is the key to implementing the decision under review. Most obviously, Airservices has responsibility (with input from CASA and the Minister for Environment) for approving the new flight paths which will be required when the ILS becomes operational.[1] Airservices must also use its powers to authorise construction of equipment on crown land in New South Wales that would otherwise be subject to state development approvals. All that is clear from the terms of the reviewable decision itself. It seems to me Airservices does have interests that will be affected by the decision; it may also be convenient to have the benefit of its input given its involvement in the implementation of the decision in the ordinary course. I will return to this issue. Ms Gleeson appeared at the interlocutory hearing on behalf of Airservices.
[1] See s 8 of the Air Services Act 1995 (Cth) and the provisions of the Civil Aviation Act 1988 (Cth) and the Civil Aviation Safety Regulations 1988 (Cth) that invest Airservices with responsibility for managing air traffic at the airport.
Questions over the standing of Mr Hicks, the Lifestyle Association and the Alliance are more complicated. While the Minister has not opposed including the applicant or the two associations in the proceedings, the GCAPL and Airservices say Mr Hicks, the Lifestyle Association and the Alliance lack standing because their interests are not affected in the sense intended by the Airports Act or the AAT Act. Those arguments are put against each of the three parties in slightly different ways. For now, it is enough that I outline the way in which those arguments unfold. Firstly, GCAPL says an applicant or joined party must have a direct or special interest in the decision that is distinguishable from other members of the general public, or from those of a class of the general public of which the applicant forms part. GCAPL says that, to the extent the applicant or the Lifestyle Association complain of the impact of aircraft noise, their interests are no different to anyone else who lives in the same general area. In the context of aircraft noise in particular, the GCAPL relies on the decision of Dowsett J in Brisbane Airports Corporation v Wright [2002] FCA 359; (2002) 120 FCR 157. Secondly, GCAPL and Airservices say the decision under review is narrow in compass. It only relates to the construction which occurs on land controlled by GCAPL. It is not a decision to approve the installation of an ILS per se, and it is certainly not a decision to authorise construction work on crown land in New South Wales or change flight paths – even if those things are contemplated by and dependent upon the Minister’s reviewable decision. To the extent that the interests of the various opponents of the larger scheme are affected, those interests are affected by separate albeit related decisions by Airservices. And that is the point: the “decision” to establish an ILS is in fact a complex process that involves a range of decisions by different entities under a range of legislation. GCAPL argues the opponents of the ILS and its impact should focus their attention on those decisions which actually offend them. The construction on the airport land, viewed in isolation, is much less controversial.
Having foreshadowed those arguments, I turn my attention to the applicant and the two associations. I will deal with each in turn, although some of the issues are common to more than one party.
Mr Hicks
Mr Hicks is a resident of the Gold Coast. He retired there recently from North Queensland. His new home is located in an area to the North of the airport that may experience increased noise if the flight path of aircraft landing at the airport were to change as expected. (Mr Hicks acknowledged in his submissions (at [22]) it was difficult to predict how many aircraft would use the ILS approach that would result in flights over his home. He noted runway 14 was currently used around 240 days a year, and up to 82 landings a day are made on those days: at [23]. The usage estimates set out in the Minister’s decision are more sanguine. At this stage of the proceedings, it is difficult to say what the changes in the flight paths would mean in practice.) In any event, Mr Hicks explained his “specific interest” in the decision in paragraphs [29]-[41] of his statement dated 27 May 2016. In summary, he says:
·His exposure to noise will be higher than other members of the public who do not live under the flight path;
·There will be a loss of residential amenity (Mr Hicks and his wife are retiring and anticipated living quietly in their home);
·There will be a cost of noise-proofing measures at his residence;
·There will be a loss of amenity of nearby beaches and other recreational places (Mr Hicks says he and his wife routinely enjoy walking on the beach, and fears those walks will be interrupted by the noise associated with low-flying aircraft);
·He will not have access to alternative accommodation that is not affected by noise (the expected changes to flight paths will affect much of the residential accommodation in a stretch along the coast to the North of the airport. That means the applicant will be unable to move to another location nearby that will not be similarly affected);
·The transaction costs associated with relocating to a new property will be significant if the applicant decided to seek a quieter location;
·There is no proposal to compensate residents affected by changes to flight paths;
·There may be increased health risks that might be connected with long term exposure to increased aircraft noise; and
·There will be a loss of property value.
That explanation of interests was intended to demonstrate Mr Hicks is entitled to apply for review because he has interests [that] are affected by the decision under review within the meaning of s 27(1) of the AAT Act.[2]
[2] Section 27(1) provides:
Where this Act or any other enactment (other than the Australian Security Intelligence Organisation Act 1979 ) provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth or Norfolk Island or an authority of Norfolk Island) whose interests are affected by the decision.
GCAPL says Mr Hicks is in the same position as thousands (perhaps tens of thousands) of other people; his interest is really no different to any other member of the public, or at least to the interests of that class of members of the public who reside in a large area along the coast south of Surfers Paradise. Mr McLeod, counsel for the GCAPL, said that is not enough. He pointed out the authorities in relation to standing make it clear that individuals are typically required to demonstrate a more direct and personal interest (also referred to as a “special interest”) in the subject matter of a decision under review. The requirement to demonstrate standing ensured that decisions were not challenged by mere busy-bodies or those bent on disruption.[3]
[3] See, for example, North Coast Environment Council Inc v Minister for Resources (1994) 55 FCR 492 at 512 per Sackville J.
Mr McLeod pointed out the interests of an individual must be evaluated in light of the actual decision that was made, the enactment under which it was made and the legal effect and operation of the decision. He referred me to the recent decision of the High Court in Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development[2014] HCA 50; (2014) 254 CLR 394. That case considered whether the owners of shops in a shopping centre had standing under the Administrative Decisions (Judicial Review) Act 1989 (ACT) to challenge a decision of the relevant minister under planning laws to approve the establishment of a rival shopping centre that might take away business from the existing shop owners. The Act in question was, for present purposes, identical to the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) which required that a person demonstrate they were a ‘person aggrieved’ in the sense that their ‘interests are adversely affected by the decision’.[4] The lower courts had made a finding of fact that the business interests of two of the shop owners were likely to be adversely affected. That was significant: French CJ and Keane J pointed out (at 406) a number of earlier authorities had said individual businesses did not have standing where there was a mere possibility of being adversely affected, whereas it was accepted the profitability of two of the businesses in Argos would be affected by the decision.
[4] Section 3B(1)(a), Administrative Decisions (Judicial Review) Act 1989 (ACT).
French CJ and Keane J said (at 409) the test for standing was contained within the AD(JR) Act. They expressly rejected an argument that the standing provision in the Act should be “applied with reference to the scope and purpose of the statute under which the decision under review was made”. Their Honours explained:
The test for standing to apply for review of a decision under the AD(JR) Act is expressed in that Act. The applicant must be "a person aggrieved", a criterion which may be satisfied if the applicant is a person whose interests are adversely affected by the decision. The text of the criterion, on its face, does not allow for its expansion or contraction according to the scope and purpose of the enactment under which the decision is made. It is not to be read or applied with reference to normative considerations based on the policy of the enactment. To do so by reference to individual enactments would undermine an important purpose of the AD(JR) Act, which was to simplify judicial review processes.
While the High Court was dealing with the Administrative Decisions (Judicial Review) Act 1989 (ACT), it seems appropriate to approach s 27 of the AAT Act in the same way given that section adopts a similar criterion for standing – and which presumably has the same objective, namely, to simplify the review process.
In Wright, the challenger was a local resident who was worried about the impact of aircraft noise in years to come if the airport’s Master Plan were approved. Master Plans require the Minister’s approval under Part 5 Division 3 of the Airports Act, whereas Major Development Plans (like the one in issue here) are approved under Division 4. There are admittedly similarities in the deliberative processes involved in Division 3 and Division 4 approvals, but Dowsett J also acknowledged his reasons related to approvals under Division 3. His Honour explained Master Plans were necessarily more general than Major Development Plans; his Honour said it would be premature and unhelpful if individuals were able to object to proposals that had not been crystallised and which were not imminent. That reality had to be kept in mind when determining questions of standing, his Honour explained (at [37]), because:
Too wide an approach to identification of affected interests would lead to the administrative review process becoming a purely theoretical exercise involving debate about mere future possibilities and how they should be accommodated. It would also have the potential capacity to disrupt a major public function. It seems unlikely that Parliament intended such an outcome.
I do not think Wright assists me to resolve the different question of standing that arises in applications for review of a decision made under Part 5, Division 4 of the Airports Act. I must instead have regard to the more general authorities in relation to standing – such as the judgment of Sackville J in North Coast Environment Council Inc v Minister for Resources [No 2] (1994) 55 FCR 492 and the authorities discussed in the decision of Deputy President Forgie in Moorabbin Airport Corporation Pty Ltd and Minister for Infrastructure and Regional Development [2014] AATA 101. Those authorities emphasise the need to distinguish how the person’s interests are distinguishable from those of the general public. As Lockhart J explained in Right To Life Association (NSW) Inc v Secretary, Department of Human Services and Health and Family Planning Inc (Vic) [1995] FCA 1060 (at [65]):
The applicant's interest must not be remote, indirect or fanciful. The interest must be above that of an ordinary member of the public and must not be that of a mere intermeddler or busybody.
His Honour went on to explain (at [66]-[67]):
Plainly the applicant need not have a legal, financial or proprietary interest in the subject matter of the proceeding. The applicant must establish that he is a person who has a complaint or grievance which he will suffer as a consequence of the decision beyond that of an ordinary member of the public.
In order that an applicant may show that he is a person "aggrieved", the element of "grievance" must be special to the applicant. He must suffer more greatly or a different way than other members of the community.…
Lockhart J added (at [68]):
…the applicant must establish that if successful in the proceeding he will gain a benefit or advantage greater than the benefit or advantage thereby conferred upon ordinary members of the public; or, in the alternative, that success in the proceeding would relieve the applicant of a disadvantage or detriment to which he would otherwise have been subject to an extent greater than ordinary members of the public.
I would not describe Mr Hicks as a ‘busybody’ or an ‘intermeddler’. He is genuinely concerned about the proposal, and he thinks the law should permit an ordinary person to seek redress. He has also demonstrated courage in bringing this application. He represented himself at the hearing and has put a good deal of work into his submissions. In those submissions, he clearly explained his concern about the effects of increased aircraft noise. But he did not suggest he would be impacted more extensively than his neighbours, or that he would experience more noise or more deleterious effects than thousands of other residents who might soon find themselves living beneath revised flight paths. In that sense, Mr Hicks is not directly affected as an individual. He is affected in his capacity as a member of the public, or at least that class of the public comprised of residents in a large area of the Gold Coast. The decision in this case is, at most, like a decision to impose a levy or tax. As Jacobs J explained in Salemi v MacKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396 at 452, a decision with that sort of impact on the public, or a section of the public, is more accurately characterised as “truly a ‘policy’ or ‘political’ decision and not subject to judicial review” - or, it might be interpolated, review by the Tribunal.
I note the Tribunal permitted other parties to participate in the review in Moorabbin, but that case is distinguishable from the present. The dispute in Moorabbin related to a proposal to establish a shopping precinct on airport land. Local businesses claimed they were directly affected by what was planned on the land, rather than by what happened elsewhere as a consequence of the approved development. The Tribunal accepted the commercial interests of local traders were directly affected by the proposal in much the same way as the shop owners in Argos. In this case, it is the subsequent discrete decisions by Airservices that will impact on the applicant: that is different to Moorabbin. Interestingly, I note the Tribunal in Moorabbin decided not to join the local businesses that were affected but it joined the two relevant local government authorities. The Tribunal accepted the interests of those authorities were affected because their planning and development functions with respect to neighbouring land under state law were critically affected by the Minister’s planning decisions made in relation to the airport. Once again, we are dealing with a different situation in this case.
That brings me to the second basis on which the GCAPL and Airservices have opposed Mr Hicks’ involvement in these proceedings. The GCAPL and Airservices say the decision under review is really quite narrow. It relates only to developments at the airport; it does not relate to (even if it contemplates) contentious decisions that are yet to be made about flight paths which are the real focus of Mr Hicks’ concerns. To understand the argument, one must examine the Minister’s role in the decision-making process.
The Minister’s power under Part 5 Division 4 of the Airports Act is limited to approving a Major Development Plan. A Major Development Plan is required in respect of any development on airport land that answers the description of a major airport development in s 89. Section 90 says work that answers that description must not be carried out without an approved Major Development Plan.
There is no doubt construction of ILS facilities on the airport land amounts to a major airport development that triggers the need to develop and obtain approval of a Major Development Plan. The GCAPL refers in particular to sub-sections 89(1)(n) and (na) which speak of:
(n) a development which affects an area identified as environmentally significant in the environment strategy; or
(na) a development of a kind that is likely to have a significant impact on the local or regional community…
The Minister’s power to approve a Major Development Plan is contained in s 94. Section 94(3) sets out a non-exhaustive list of matters that he must take into account when deciding whether the plan should be approved. Those matters include:
(c) the impact that carrying out the plan would be likely to have on the environment;
(d) the consultations undertaken in preparing the plan (including the outcome of the consultations);
The Minister has undertaken a public consultation process. Thousands of submissions were received from members of the public like Mr Hicks, and from community groups and businesses. Thousands of submissions were also provided to the GCAPL. Most of the submissions opposed the plan to establish an ILS. I am told many of the submissions expressed concern about changes to flight paths and noise in particular. But GCAPL and Airservices say the Minister properly focused on the impact that the construction work would have on the environment where the construction is to take place – that is, on airport land. While the Minister referred to the wider implications of a decision to establish an ILS, GCAPL says those matters do not go to the heart of the decision the Minister was required to make.
I note the Minister refers to information he was provided about the impact of ‘off-airport’ work and expected changes to the flight paths. But the Minister’s approval document also clearly proceeds on the basis that decisions in relation to those matters were matters for Airservices exercising powers under different legislation. The approval document points out Airservices referred matters affecting its decisions to the Minister for the Environment for advice under s 160 of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth). The document notes the Minister for the Environment approved the plan to install the ILS subject to certain measures being taken by Airservices in relation to aircraft noise.
The Minister’s approval document sets out the components of the ILS project (at p 5), which include:
- glidepath antenna and associated infrastructure (referred to as the ‘glidepath footprint’) to be located adjacent to the aircraft touchdown point of runway 14 on Commonwealth-leased airport land;
- localiser antenna array and associated infrastructure (referred to as the ‘localiser footprint’) to be located on NSW state land to the south of the runway;
- widening of the existing 150 metre runway strip to 300 metres on Commonwealth-leased airport land to comply with CASA’s requirements for the operation of the ILS;
- in-ground communications and mains power systems for both the glidepath and localiser installations on both Commonwealth and NSW state land; and
- a proposed new flight path to the north of the airport for the operation of the ILS.
The approval document then goes on to explain:
The statutory planning controls prescribed in the Airports Act apply only to components of the ILS on project on Commonwealth land. The [draft Major Development Plan] therefore seeks approval under the Airports Act for on-ground works on Commonwealth airport land only. Nevertheless, the formal regulatory approval for the proposed ILS flight path is dependent on the [draft Major Development Plan] being approved.
The passage is important. It correctly identifies the limits of the Minister’s function under the Airports Act. He approved a Major Development Plan to establish an ILS at the airport. Once he does that, other decision-makers – most obviously Airservices – make decisions with respect to ‘off-airport’ construction and reconfigured flight paths that are required so the ILS can become operational. Those consequential or ancillary decisions are premised on the Minister’s decision under s 94, but they are separate from the Minister’s decision-making process under the Airports Act. To put it another way, the Minister’s decision to approve a plan for works under the Airports Act is just one (admittedly essential) part of a larger decision-making process required to establish an ILS. The larger process spans a number of government decision-makers and takes into account a range of policy, technical, scientific, political and legal issues. The Tribunal cannot ‘shoehorn’ that wider multi-level decision-making process into proceedings commenced to review the Minister’s decision.
The parties were unable to explain whether a person dissatisfied with decisions with respect to flight paths or construction on New South Wales Crown land could seek merits review of those decisions in this Tribunal.[5] It does not make any difference for present purposes. The Tribunal’s jurisdiction to review a decision (and the standing of a party to commence proceedings with respect to that decision) does not depend on the availability of review rights in relation to other decisions.
[5] Section 73 of the Air Services Act 1995 (Cth) does provide for review of certain decisions of Airservices in the Tribunal, but none of the decisions discussed in this case are reviewable under that provision.
I am not satisfied the applicant has standing to bring an application for review of the Minister’s decision. It follows Mr Hicks is not a party to the proceedings.
The Gold Coast Lifestyle Association Incorporated
Mr Michael Renison provided an affidavit in support of the Lifestyle Association’s submissions in relation to the question of standing. Mr Renison said the Association was incorporated on 3 September 2015. The Lifestyle Association’s objects and purposes are set out in its constitution. They include:
To prevent unnecessary degradation of the Gold Coast lifestyle and environment by inappropriate infrastructure development;
To prevent the Gold Coast Airport and Airservices Australia from installing an ILS (instrument landing system) at the Gold Coast airport that will create a new flight path over homes and beaches of the Gold Coast.
To promote the use of an RNP (required navigation performance) landing system that is currently in use at the airport and maintains an approach flight path that is largely over the ocean.
The Lifestyle Association relies on s 27(2) of the AAT Act to argue it is taken to have an interest in the decision under review because the decision relates directly to a matter included in the entity’s objects or purposes.[6] Section 27(2) appears to overcome the obstacle to standing at general law that was discussed in Australian Conservation Foundation Inc v Commonwealth (1979) 146 CLR 493. In that case, Gibbs J explained (at 531):
The fact that the Foundation is incorporated with particular objects does not strengthen its claim to standing. A natural person does not acquire standing simply by reason of the fact that he hold certain beliefs and wishes to translate them into action, and a body corporate formed to advance the same beliefs is in no stronger position.
[6] Section 27(2) provides:
An organization or association of persons, whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organization or association.
Mr Duffy QC, who appeared for the Lifestyle Association, suggested s 27(2) was the end of the matter: once it was accepted the decision related to a matter mentioned in the objects, the Lifestyle Association should be added as a party forthwith. He pointed out s 27(2) was introduced to avoid precisely the sort of arguments that were discussed in the Australian Conservation Foundation case.
I should note at this juncture that the Association is not formally seeking to become an applicant pursuant to s 27. Mr Hicks had already applied when the Association approached the Tribunal about the review. The Association sensibly decided it would seek to be joined as a party to the proceedings already in train. While the standing requirements are essentially the same – under both ss 27 and 30, one must establish one’s interests are affected by the decision – the power to join a party in s 30 is discretionary whereas an applicant is entitled to participate pursuant to s 27 once standing is established.
I have decided it is appropriate to approach the issue on the basis that the Lifestyle Association should be considered as a prospective applicant under s 27, since that is what it originally sought to be. If I were to deal with the Association under s 30, it would be unfair to exercise the discretion against it if I were otherwise satisfied the Lifestyle Association had standing.
The Association is able to rely on s 27(2) to overcome the first of the objections offered by the GCAPL and Airservices in relation to Mr Hicks. I accept s 27(2) operates as a kind of deeming provision that enables organisations like the Lifestyle Association to avoid arguments about the nature and extent of their interests. But what of the second basis on which I found Mr Hicks did not have standing – namely, that he was really objecting to decisions by Airservices with respect to flight paths? Is that an obstacle for the Lifestyle Association as well?
The material from the Lifestyle Association tends to focus on the flight paths issue. For reasons I have already explained, that is not part of my review. But the Lifestyle Association’s objects expressly refer to its purpose of opposing the installation of an ILS at the airport – albeit that its stated motivation for doing so is to avoid new flight paths over homes and beaches.
It is not appropriate to question the motivations of an applicant. It either has standing because its interests are affected, or it does not. In this case, s 27(2) of the AAT Act assists the Lifestyle Association to establish its interests are affected. It therefore has standing to participate in the proceedings, and there is no relevant basis for excluding it. But that does not mean the Association is free to press its arguments about flight paths and noise and safety concerns. It may well be appropriate to make formal directions under s 25(4A) of the AAT Act limiting the scope of the review to reflect the limited nature of the Minister’s decisions. I propose asking the respondent (bearing in mind its statutory obligation to assist the Tribunal to reach the correct or preferable decision) to draft and circulate proposed directions under s 25(4A) that give effect to these reasons.
The Tugun Cobaki Alliance Incorporated
I turn next to the Alliance. The Alliance is an incorporated association. It was incorporated in New South Wales on 20 March 2006. Its objects are expressed as follows:
To protect and preserve the environmental values of the Cobaki lakes, Murraba landscape and its surrounds, and to preserve and share matters of Aboriginal Cultural Heritage significance to the local Aboriginal people in the context of this environmental area.
The Alliance says its constitutional object clearly relates to the work contemplated in the Major Development Plan. In those circumstances, I was told, the Alliance was entitled to rely on s 27(2) as the Lifestyle Association had done. (I interpolate at this point that the Alliance also approached the Tribunal to discuss an application for review but elected to seek orders that it be joined to the proceedings that had already been commenced by Mr Hicks. For the reasons I gave in relation to the Lifestyle Association, I think it is appropriate to treat the Alliance as if it were making an application rather than simply seeking to be joined to the proceedings.)
The Lifestyle Association’s objects clauses expressly identified the organisation’s role in opposing construction of an ILS. The objects clause of the Alliance does not permit as clear a connection to be made. I note a good deal of the material the Alliance filed in support of its arguments in relation to standing and the stay application focuses on the environmental risks posed by construction on Crown land in New South Wales which, as I have already explained, is not the subject of the Minister’s decision. But I accept there are references to pollution escaping from the airport site itself. I am satisfied the objects clause of the Alliance suggests it has an interest in contamination spreading from the construction site within the airport into the wider environment. Given the plan for the construction of the ILS works within the airport is at the heart of the Minister’s decision, it follows I accept the Alliance has standing and should be joined as an applicant in the proceedings. I would add it may be appropriate to make directions under s 25(4A) of the AAT Act that focus and limit the evidence which the Alliance may lead. I will ask the respondent to prepare and circulate draft directions giving effect to these reasons.
Airservices Australia
I have already noted Airservices have a clear interest in the proceedings: while the work is being funded and driven by the GCAPL, it is being overseen by Airservices. I am satisfied it is appropriate to join Airservices as a party pursuant to s 30 of the AAT Act given the assistance which Airservices will be in a position to provide.
The stay applications
I discussed the Lifestyle Association’s application for orders under s 41(2) of the AAT Act at the interlocutory hearing. The Association (and Mr Hicks, for that matter) had asked the Tribunal to make orders that would prevent the GCAPL and Airservices from acting on the approval given by the Minister. The GCAPL declined to give an undertaking that it would take no steps until the application for review was finally heard and determined by the Tribunal. It has already commenced a tender process. It is keen to start work.
The power under s 41(2) is available for the limited purpose of ‘securing the effectiveness of the hearing and determination of the application for review’. But nothing the GCAPL does will impact on the effectiveness of the review as far as the Lifestyle Association is concerned. Mr McLeod confirmed the GCAPL was prepared to take the risk it might incur substantial expense installing the ILS only to have the Tribunal set aside the Minister’s decision at the end of the proceedings. Mr Duffy did not press the Lifestyle Association’s application in light of that submission. I agree the Lifestyle Association does not have any basis for seeking a stay in the circumstances.
The stay application made by the Alliance is in a different category. As I understand it, the Alliance says construction on the airport site may trigger contamination of the surrounding environment because of pollutants in the soil. (The Alliance wants to address me on the potential for pollution flowing from construction on Crown land at the direction of Airservices, but I have already explained that falls outside the scope of the decision I must review.) I was told that the damage may well be irreversible if the GCAPL and Airservices set to work before the hearing and review concluded. The review would be a pointless exercise in those circumstances.
I am satisfied the Alliance should be allowed to present its argument in favour of staying the decision to approve the plan for constructing the ILS facilities at the airport site. (The Alliance should not address the potential impact of construction work other than that which is to occur on the airport site pursuant to the Minister’s decision.) That should be done within a short time frame. Ms Smith, an officer of the Alliance who appeared at the interlocutory hearing, has already filed some material. The Alliance presumably has expert material and technical evidence at hand which has provided a basis for the allegations it made in its submissions to the Minister and more recently in these proceedings. GCAPL has presumably already considered most of the issues about soil contamination and other pollutants in the course of preparing its original submissions to the Minister before the approval decision was obtained, and in light of the submissions from the public. There should not be any surprises. I propose making directions that permit the Alliance an opportunity to assemble its brief of evidence in support of its stay application which must be provided to the respondent, GCAPL and Airservices within 21 days of these reasons. The GCAPL will then have the opportunity to assemble a response. I am not inclined at this point to issue a direction setting a time limit within which the GCAPL must reply if it is prepared to offer an undertaking that it will not proceed with construction work pursuant to the decision under review while the stay application remains on foot. (If the GCAPL is unwilling to offer that undertaking, I will consider whether it is appropriate to make an interim stay order.) Once the GCAPL has considered the evidence – and that process should not take long – it can provide its material to the other parties and apply to bring on the stay hearing.
The confidentiality orders
The respondent has asked the Tribunal to make orders under s 35 of the AAT Act in relation to personal information included in the submissions provided by members of the public in the course of the public consultation process. Mr Knowles, counsel for the respondent, said the authors of those submissions would not have contemplated their personal information being released to a wider audience after they filed their submissions with the Minister or the GCAPL. They would, in a sense, be unwilling (or at least unwitting) participants in the Tribunal’s public processes. That would not be appropriate.
Mr Knowles said the respondent had already started the process of redacting personal information from the submissions. Given the volume of submissions, the redaction process has taken some time. He said he anticipated the material would be ready for delivery shortly if the Tribunal made confidentiality orders.
Mr Hicks objected to the confidentiality order. He said he needed to know who made the submissions in order to speed up the process of preparing his arguments for the hearing. He said it would be easier for him to locate material in the submissions that might assist him if he knew the identity of authors. The other parties at the hearing did not oppose orders being made.
The power to make orders under s 35 is not to be exercised lightly. Section 35(5) requires that the Tribunal start its deliberations from the principle that it is desirable:
(a) that hearings of proceedings before the Tribunal should be held in public; and
(b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c) that the contents of documents lodged with the Tribunal should be made available to all the parties.
Section 35(5) goes on to say that the Tribunal should also have regard to any arguments in favour of making an order, including ‘the confidential nature (if applicable) of the information’.
Section 35(4) of the AAT Act permits me to make orders in appropriate cases directing that ‘information that comprises evidence or information about evidence’ not be disclosed to any person, including other parties. The respondent has asked for orders under this sub-section.
I am satisfied the personal details and identifying information contained in the submissions is confidential. The authors of those documents were not told their submissions might be produced in a public forum. Redacting those details will permit the substance and body of the individual submissions to be provided to the parties for use in connection with these proceedings without unacceptably compromising the privacy of the many individuals who made submissions. Unless and until those documents are tendered in evidence, the parties should not provide them to any person otherwise than for the purposes of the review process.
Allowing non-party access to the Tribunal’s file
Non-parties are routinely permitted to access evidence that was exhibited at the final hearing of a matter in the General and Other Divisions if confidentiality orders were not made. The reasons for decisions are also published on the internet in the absence of orders. But the Tribunal does not ordinarily open its files to non-parties, and certainly not before the final hearing is concluded.
A reporter from the Gold Coast Bulletin newspaper has been following the proceedings closely. She has sought access to the Tribunal file which includes correspondence between the Tribunal and the parties and other documents. If she is given access to the file, she will be entitled to see the documents filed pursuant to s 37 of the AAT Act (subject, of course, to any confidentiality orders that are made).
None of the parties spoke in favour of departing from the usual rule in relation to the non-party access. Several of them actively opposed relaxing the rule. Mr Duffy, for the Lifestyle Association, said there was nothing about this case that suggested it should be treated differently to other cases. I agree. Representatives of the media are entitled to attend the hearings. They are free to speak with the parties. When the evidence is presented, they will be free to see and hear it unless there are extraordinary circumstances which result in the hearing being closed. When the case is concluded, it is likely the decision and reasons will be published for all to see. The process is already being conducted in an open and transparent way; there is no justification for departing from the usual arrangements.
Conclusion
I have decided the applicant, Mr Hicks, does not have standing. That means he cannot bring or agitate an application for review of the decision in question. His formal role in these proceedings is therefore at an end – although he is free to liaise with the Lifestyle Association or the Alliance as they continue their involvement in the case. Of course, the involvement of those organisations will be limited by the scope of the decision under review. I propose inviting the respondent to draft and circulate directions under s 25(4A) to this end.
Directions were made for the further conduct of these proceedings on 13 May 2016. The timetable contemplated in those directions remains in place although the precise terms of the directions will require amendment in light of the decision I have made in relation to standing. I will also make the directions I have foreshadowed in relation to the confidentiality orders.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe ..............................[Sgd]..........................................
Associate
Dated 28 June 2016
Date of hearing 23 June 2016 Applicant In person Respondent
Counsel
In person
Mr P Knowles
Gold Coast Lifestyle Association In person Counsel Mr A Duffy QC Airservices Australia In person Counsel Ms C Gleeson Gold Coast Airport Pty Ltd In person Counsel
Tugan Cobaki Alliance
Mr S McLeod
In person
Advocate Ms L Smith
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