Leppington Pastoral Co Pty Ltd v Department of Administrative Services

[1990] FCA 293

Re: LEPPINGTON PASTORAL CO PTY LIMITED
And: DEPARTMENT OF ADMINISTRATIVE SERVICES
Nos. G96 and G272 of 1990
FED No. 293
Lands Acquisition
23 FCR 148/20 ALD 607

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart(1), Wilcox(1) and Hill(1) JJ.

CATCHWORDS

Lands Acquisition - Pre-acquisition procedures - statement in pre-acquisition declaration purporting to define "policy" in connection with which the land was to be acquired - "Policy" stated to be the acquisition of land of which the subject land is a part - Whether this is a "policy" within the meaning of s.22(5) of the Lands Acquisition Act 1989.

Lands Acquisition Act 1989

HEARING

SYDNEY

#DATE 28:6:1990

Counsel for the Applicant: Mr J.L. Glissan, QC and Mr D.P. Wilson

Solicitors for the Applicant: Marsdens

Counsel for the Respondent: Mr D.F. Jackson, QC and Mr R.B. Wilson

Solicitors for the Respondent: Australian Government Solicitor

ORDER

No. G96 of 1990

1. The appeal be dismissed.

2. Each party pay its own costs of the appeal.
No. G272 of 1990

1. The questions asked in the Special Case be answered as follows:

Question 1

Did I err in law in holding that the pre-acquisition declarations contained a statement within the meaning of Section 22(5) of the Lands Acquisition Act 1989? Answer

Yes

Question 2

If the pre-acquisition declaration did contain a statement within the meaning of Section 22(5) of that Act did I err in holding that the practical result of that finding was to exclude from any review matters enumerated in Sections 31(1)(b)(i) and (iv) Section 31(1)(d), Section 31(1)(f), and Section 31(1)(d), Section 31(1)(g) of that Act?

Answer

Does not arise.

2. The respondent pay to the applicant its costs of the Special

Case.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is the first case to come before the Court under the Lands Acquisition Act 1989, which took effect on 9 June 1989. It raises an important question as to the scope of the right of review of a proposed acquisition of land by the Commonwealth, a right given for the first time by this Act.

The Background Facts

1. The case stems from the Commonwealth Government's proposal to acquire land at Badgerys Creek, near Sydney, for the construction of a new airport. The applicant, Leppington Pastoral Company Pty Limited ("Leppington"), apparently owns land at Badgerys Creek. On 10 July 1989, Mr A Gallery, State Manager of the Australian Property Group within the Department of Administrative Services, wrote to the company indicating that the government desired to acquire part of the company's land. He enclosed two pre-acquisition declarations, made by him under s.22 of the Lands Acquisition Act as a delegate of the Minister for Administrative Services. The schedules to the declarations referred to different parcels of land. Otherwise they were identical. Omitting formal parts, the declarations read:
   

"1. I, Arthur Francis Gallery, State Manager of the Australian Property Group, a person to whom the Minister administering the Lands Acquisition Act 1989 (the Act) has by delegation dated the 7th day of June 1989 delegated his powers and functions under sub-section 22(1) of the Act, DECLARE that I am considering the acquisition by the Commonwealth of Australia, an acquiring authority as defined in the Act, of the interest in land specified in the Schedule, for the public purpose of construction of an airport to facilitate trade and commerce with other countries, and among the states.

2. That land appears to me to be suitable for development for use for that public purpose.

3. The particulars of the use for which the land will be developed are airport and associated purposes.

4. The reason why the land appears to me to be suitable for that use is that it is within the site at Badgerys Creek selected by the Government (as described in 5 below) for Sydney's next major airport following detailed studies of environment, access, airport operations and variable cost factors.

5. The proposed use of the land is connected with the implementation of a Government policy, namely, that land at Badgerys Creek (as defined in Australian Surveying and Land Information Group plan catalogued as Negative No. 24759 NSW) has been selected as the site for Sydney's next major airport."

The legislation

1. Section 22 is the first section in Part V of the Act. That Part is headed "Pre-Acquisition Procedures". Division 1, (ss.22 - 25 inclusive), deals with pre-acquisition declarations. Division 2, (ss.26 - 33 inclusive), relates to reconsideration and review of pre-acquisition declarations. Division 3 (ss.34 - 39 inclusive) contains some miscellaneous provisions, which are presently irrelevant. Part VI deals with the actual acquisition of interests in land and Part VII with compensation.

2. Pursuant to s.26 of the Act, Leppington requested reconsideration by the Minister of the pre-acquisition declarations. But the Minister confirmed them: see s.27(1)(a). Leppington thereupon sought review of the declarations by the Administrative Appeals Tribunal ("the AAT") as permitted, subject to some exceptions, by s.28 of the Act, which relevently reads:
   

"28(1) Subject to this section, where under section 27:

(a) the Minister has confirmed, or is to be regarded as having confirmed, a pre-acquisition declaration; or

(b) the Minister has varied such a declaration;

a person affected ... by the declaration as so confirmed or varied may apply to the Administrative Appeals Tribunal for a review of the declaration.

(2) Subsection (1) does not apply to an unreviewable pre-acquisition declaration.

(3) ...

(4) ...

(5) ... "

1. The term "unreviewable pre-acquisition declaration" is defined by s.6 of the Act as meaning "a pre-acquisition declaration that includes a statement under subsection 22(6)." Section 22, the section which authorises the making of pre-acquistion declarations, relevantly provides:
   

"22.(1) The Minister may declare in writing that the Minister is considering the acquisition by an acquiring authority of an interest in land (other than a mortgage interest) for a public purpose.

(2) The declaration shall identify the acquiring authority, the land, the interest in the land and the public purpose.

(3) Except where the interest is a restriction on the use of land, the Minister shall include in the declaration:

(a) a statement that the land appears to the Minister to be suitable for use, or for development for use, for a public purpose; and

(b) a statement setting out:

(i) particulars of the use to which the land will be put or for which it will be developed; and

(ii) the reasons why the land appears to be suitable for that use or for development for that use.

(4) Where the interest is a restriction on the use of land, ...

(5) The Minister may include in the declaration a statement that the proposed use of the land, or the proposed restriction on the use of the land, as the case may be, is connected with the implementation of a policy particulars of which are set out in the declaration.

(6) If the Minister includes in the declaration a statement under subsection (5), the Minister may also include a statement:

(a) that it is essential, for the implementation of the policy referred to in the statement under subsection (5), that the interest in the land be acquired; and

(b) that the declaration is, for that reason, not subject to review by the Administrative Appeals Tribunal.

(7) ...

(8) ...

(9) ...

(10) ...

(11) ... "

1. It is common ground that neither of the subject declarations included a statement under s.22(6). Therefore, neither statement is an "unreviewable pre-acquisition declaration" in respect of which AAT review is excluded by s.28(1).

2. Section 29 applies to reviews under the Lands Acquisition Act the provisions of the Administrative Appeals Tribunal Act 1975, subject to some exceptions. One exception is that, under the Lands Acquisition Act, the AAT does not have a determinative power. Its role is to make a recommendation to the Minister "that the declaration be confirmed, be revoked or be varied as specified in the decision": see Lands Acquisition Act s.30(1).

3. Section 31 of the Lands Acquisition Act lists the matters relevant to the AAT review. The section reads:
   

"31.(1) Subject to this section, the following matters are relevant to the review by the Administrative Appeals Tribunal of a pre-acquisition declaration:

(a)the nature of the public purpose identified in the declaration;

(b)except where the relevant interest in land is a restriction on the use of land:

(i)the nature of the proposed use of the relevant land;

(ii)the extent to which the proposed use is connected with the public purpose;

(iii)the extent to which the proposed use is in the public interest; and

(iv)the suitability of the land for, or for development for, the proposed use;

(c) where the relevant interest in land is a restriction on the use of land;

(i) the nature of the proposed restriction;

(ii) the extend to which the proposed restriction is connected with the public purpose;

(iii) the extent to which the proposed restriction is in the public interest; and

(iv) the appropriateness of the benefit of the proposed restriction being acquired by the acquiring authority;

(d) the effect of the acquisition of the interest in land to which the declaration relates upon persons affected ...

(e) the extent to which the environment in the area in which the relevant land is situated would be affected if the land were used or developed, or the use of the land were restricted, as the case may be, in the manner proposed and, in particular, the extent to which that use or development, or that restriction, would benefit or impair:

(i) an area of scenic beauty;

(ii) a place of architectural, historical, archaeological, geological or scientific interest;

(iii) the conservation of flora and fauna that should, in the public interest, be preserved;

(iv) the amenity of the neighbourhood; or

(v) public utility services;

(f) whether there is some other means of accommodating the relevant acquiring authority's needs;

(g) matters contained in a statement given to the applicant under section 28 of the Administrative Appeals Tribunal Act 1975 or lodged with the Tribunal under section 37 or 38 of that Act;

(h) practicable methods of avoiding or mitigating any injurious factors;

(j) any other matter that the Tribunal determines, on the application of the Minister or the applicant, to be relevant to the review.

(2) The following matters are not relevant to the review:

(a) the amount of compensation that may be payable under this Act if the acquisition proceeds;

(b) the fact that another interest in the land to which the declaration relates, or in other land in the vicinity of that land, has already been acquired.

(3) If a statement under subsection 22(5) was included in the declaration, the Tribunal shall not inquire, directly or indirectly, into:

(a) the merits of the policy, particulars of which are given in the statement; or

(b) the Minister's statement in accordance with that subsection that the proposed use, or proposed restriction on the use, as the case may be, of the relevant land is connected with the implementation of the policy.

(4) If a matter being considered by the Tribunal has been the subject of an inquiry under section 11 of the Environment Protection (Impact of Proposals) Act 1974, the Tribunal shall accept the finding of the inquiry in relation to that matter."

1. Section 33 deals with the Minister's consideration of the AAT decision:
   

"33.(1) Where the Administrative Appeals Tribunal recommends that the Minister take particular action in relation to a pre-acquisition declaration, the Minister shall consider the recommendation and shall:

(a) by writing accept the recommndation, and take such action (if any) as is necessary to give effect to the recommendation; or

(b) by writing reject the recommendation.

(2) The Minister is not entitled to reject a recommendation of the Tribunal more than 90 days after the decision of the Tribunal comes into operation.

(3) If the Minister rejects the recommendation, the Minister shall cause to be laid before each House of the Parliament, within 3 sitting days of that House after the rejection of the recommendation, a statement of the reasons for the rejection of the recommendation."

The AAT proceedings

1. Leppington's application for review came before a presidential member of the AAT, Moss J. His Honour was asked to determine, as a preliminary issue, the scope of the review available to the applicant. The respondent contended that the two pre-acquisition declarations served upon the applicant each included declarations under s.22(5) of the Act, thereby limiting the range of matters specified in s.31(1) which would be open for examination: see s.31(3) of the Act. Moss J upheld this submission. In a decision announced on 20 December 1989, the Tribunal determined that the scope of review available to the applicant excluded the matters specified in s.31(1)(b)(i) and (iv) of the Act (the nature of the proposed use of the land and its suitability for the proposed use); s.31(1)(d) (the effect upon Leppington of the acquisition of its land), and s.31(1)(f) (whether there is some other means of accommodating the Commonwealth's needs).

2. In his reasons for decision, Moss J dealt with the question whether the declarations contained s.22(5) statements in these words:
   

"16. I think this material does amount to a statement within the meaning of s.22(5). Given that the sole purpose of the inclusion of such a statement is to bring s.31(3) into effect, I think that s.22(5) is satisfied if there is included a statement that the proposed use of the land is connected with the implementation of a policy and if the subject matter or area of the policy sufficiently appears from a reading of the whole of the declaration. The declaration in question satisfies such a description in my opinion. The nature of the policy as it appears from the reading of the pre-acquisition declaration may be stated thus: the policy is to construct an airport to facilitate trade with other countries and among the states. The policy is for this airport to be 'Sydney's next major airport'. As part of the implementation of the policy land has been selected at Badgerys Creek which includes the applicant's land as the site for the construction of the airport."

1. His Honour then considered the effect of that ruling:
   

"17. Accordingly, upon any review of the relevant declaration by this Tribunal, it is prohibited from inquiring 'directly or indirectly' (words of wide import) into any matter falling within s.31(3)(a) or (b). The opening words of the section 'subject to this section', make it clear, in my opinion, that whether or not the enumerated subject matters, or any of them, are relevant to any particular review and if so, to what extent, depends upon the scope of the permissible review after the excision of any matter excluded from the review by the terms of subsection (3). It will be observed that not only is any inquiry, directly or indirectly excluded as to the merits of the particular policy, but further, as to the statement that the proposed use of the land is connected with the implementation of the policy.

18. ...

19. Thus, in my opinion, the Tribunal in a case where s.31(3) operates in respect of a particular declaration, is prohibited from inquiring, directly or indirectly, into any matter which goes to the intrinsic, that is, the inherent or essential, rights and wrongs of the stated policy. Nor do I see any ground for limiting the expression 'rights and wrongs' to those said to affect the particular party to the proceedings.

20. Further, it seems to me that the meaning to be attributed to the provisions of s.31(3)(b) is to extend the prohibited area of inquiry. There may be no inquiry, directly or indirectly, into any matter touching upon the statement that the proposed use of the relevant land is connected with (that is, forms part of) the implementation of the policy."

The appeal and stated case

1. As we understand the position, Leppington does not wish to put a case to the AAT against the development of an airport at Badgerys Creek. But it wishes to contend that the use of its land, which is apparently at the periphery of the area marked for acquisition, is not essential for this purpose. Apprehending that the preliminary decision of the AAT would unduly restrict the presentation of such a case, Leppington sought leave to appeal against that decision to this Court. Leave was necessary because the notice of appeal was not filed within the 28-day period specified by s.44(2A) of the Administrative Appeals Tribunal Act. During the hearing of the application for leave, a question arose as to the competency of any appeal at that stage: see Chaney v Director General of Social Security (1980) 31 ALR 571. Leave was granted subject to the entitlement of the respondent to contend to the Full Court that the appeal was not competent. But, in the meantime, Moss J stated a Special Case for the decision of this Court under s.45(1) of the Administrative Appeals Tribunal Act. By that case, Moss J referred the following questions:
   

"1. Did I err in law in holding that the pre-acquisition declarations contained a statement within the meaning of Section 22(5) of the Lands Acquisition Act 1989?

2. If the pre-acquisition declarations did contain a statement within the meaning of Section 22(5) of that Act did I err in holding that the practical result of that finding was to exclude from any review matters enumerated in Sections 31(1)(b)(i) and (iv), Section 31(1)(d), Section 31(1)(f), and Section 31(1)(j) of that Act?"

1. The appeal and the Special Case were listed together before us. Counsel agreed that it was convenient to deal with the matter by reference to the Special Case. So the question of the competency of the appeal was not argued.
   Determination of the relevant "policy"

2. The first question in the Special Case requires the Court to construe the pre-acquisition declarations served upon Leppington in the light of the relevant provisions of the Lands Acquisition Act. An important step in that task is to identify the "policy" referred to in any statement under s.22(5). Having regard to the exclusionary effect of such a "policy", it is preferable to use that word strictly, confining it to something identified as such in a s.22(5) statement.

3. The importance of this approach may be illustrated by reference to one of the quoted passages from the reasons of Moss J. In that passage, his Honour indicated that the requirements of s.22(5) would be satisfied "if the subject matter or area of the policy sufficiently appears from a reading of the whole of the declaration." This approach led him to construe the relevant "policy" as being "to construct an airport to facilitate trade with other countries and among the states", and "for this airport to be 'Sydney's next major airport'". He said that, as part of the implementation of that policy, land at Badgerys Creek, including the applicant's land, had been selected as the airport site.

4. The problem with this approach is that it confuses the various discrete ingredients of the subject pre-acquisition declarations. In order to be valid, a pre-acquisition declaration must first identify "the acquiring authority, the land, the interest in the land and the public purpose": see s.22(2). The specification of a public purpose within the legislative competence of the Parliament, is a constitutional pre-requisite to the compulsory acquisition of land by the Commonwealth. See s.51(xxxi) of the Constitution and the two Jones cases: Jones v The Commonwealth (No.1)(1963) 109 CLR 475 and Jones v The Commonwealth (No.2)(1965) 112 CLR 206. Section 6 of the Lands Acquisition Act defines "public purpose" as meaning "a purpose in respect of which the Parliament has power to make laws ..." Paragraph 1 of Mr Gallery's two declarations specified the public purpose of the proposed acquisitions as being "construction of an airport to facilitate trade and commerce with other countries, and among the states". This is an available public purpose: see Constitution s.51(i).

5. The next requirement of a valid pre-acquisition notice, for the acquisition of an interest other than a restriction on the use of land, is that it contain a statement setting out particulars of the proposed use or development of the land and the reasons why the land appears to be suitable for that use or development: see s.22(3). Mr Gallery addressed the first of those elements in paras.2 and 3 of his declarations, sufficiently indicating that it was proposed that the land be developed for an international and interstate airport and associated purposes. He sought to address the second element in para 4. As the matter has not been argued before us, we express no opinion as to whether that attempt was successful; that is, whether para 4 is sufficient to satisfy the requirements of s.22(3)(b)(ii) of the Act. For present purposes, it is enough to note that paras.1 to 4 of the declaration are related to the requirements of s.22(2) and (3) of the Act. They are ingredients which must be included in any valid declaration, whether or not a statement under s.22(5) of the Act is intended to be made.

6. Only para.5 of the declaration attempts to identify a policy, as is permitted - but not required - by s.22(5). It is obvious that Mr Gallery had s.22(5) in mind when he phrased para.5. He intended the paragraph to be "a statement that the proposed use of the land ... is connected with the implementation of a (particularised) policy". In seeking the claimed "policy", Moss J should have confined himself to the policy identified by Mr Gallery in para.5 of the declaration.

7. Of course, a statement such as that contained in para.5 must be read in its context. It is always possible that other parts of a s.22 declaration may assist the interpretation of that part of it which constitutes a statement under s.22(5). However, in applying the s.31(3) exclusion to a particular case, the Tribunal should look only at the policy claimed by the declaration-maker in any statement which is intended to satisfy s.22(5). The Tribunal should not attempt to construct for itself what it believes must have been the government policy which caused the making of the declaration. To do otherwise is to limit unduly the available scope of the review, excluding review of matters not connected to the policy defined by the government itself. As we will elaborate, wide discretions are available under the Act for limitation of pre-acquisition review. But it is a fundamental principle of the Act that the responsibility for limiting review shall be taken, and be publicly seen to be taken, by a particular person. To expand the ambit of a "policy" beyond that claimed pursuant to s.22(5) by the declaration-maker himself or herself, is to infringe that principle.
   The permissibility of a "site-specific policy": the meaning of "policy"

8. The government policy identified by Mr Gallery, in the present case, is "that land at Badgerys Creek (identified in a particular map) has been selected as the site for Sydney's next major airport." The issue raised by the first question in the Special Case is whether these words define a "policy" within the meaning of s.22(5).

9. "Policy" is not defined by the Act, so the word must be given its ordinary English meaning. But that meaning is imprecise. For example, the Shorter Oxford English Dictionary (3rd edition) lists the following meanings of "policy":
   

"1. A constitution, polity ...

2. Government, administration; political science.

3. Political sagacity; statecraft; diplomacy; in bad sense, political cunning;

4. In ref. to conduct or action generally: Prudent, expedient, or advantageous procedure; prudent or politic course of action; ...

5. A course of action adopted and pursued by a government, party, ruler, statesman, etc; any course of action adopted as advantageous or expedient."

In s.22(5), "policy", no doubt, is used in one or more of the senses set out in definitions 4 and 5.

1. Amongst the definitions given by the Macquarie dictionary are:
   

"1.a definite course of action adopted as expedient or from other considerations: a business policy. 2.a course or line of action adopted and pursued by a government, ruler, political party, or the like: the foreign policy of a country.

3.action or procedure conforming to, or considered with reference to, prudence or expediency: it was good policy to consent."

1. However, the dictionary definitions all leave open the degree of specificity inherent in the word. In their submissions to us, counsel for the respondents emphasised the flexibility of "policy". As an example of the use of the word "policy" to describe an attitude upon a specific issue, they referred to a letter from the Director-General of Civil Aviation which was quoted by Kitto J in The Queen v Anderson; ex parte Ipec-Air Pty Limited (1965) 113 CLR 177 at p 191. Counsel contended that the meaning of the word was wide enough to include a proposal to acquire a particular parcel of land. They described this as a "site-specific" policy, arguing that s.22(5) permitted the inclusion in a pre-acquistion declaration of a statement that the relevant policy was to acquire a particular parcel of land. Indeed, this is the intended effect of para.5 of the subject declarations, the matter being complicated only by the fact that the relevant map also includes the land of others.

2. This submission has far-reaching ramifications. Although s.31(3) does not totally exclude AAT review, it does exclude any inquiry by the Tribunal, directly or indirectly, into "the merits of the policy". If the relevant policy could be a "site-specific" policy - that is, a policy that a particular parcel of land shall be acquired for a particular use or development - there would be little room left for review. The land-owner would be precluded from raising the very matter which he or she would normally wish to raise: the desirability of the Commonwealth acquiring the particular parcel of land for the specified purpose. At least those questions which are listed in paras. (a), (b) and (c), (e) and (f) would be excluded from any practical review. It may still remain open to a land-owner to raise matters under para. (d)(effect of the acquisition upon him or her) and para. (h)(practicable methods of avoiding or mitigating any injurious factors). But the land-owner's case, even on those grounds, is likely to be hopelessly undermined by the fact that the Tribunal has to accept, as an unchallengeable premise, the proposition that the particular acquisition is connected with the implementation of a meritorious government policy. In practical terms, the statement of a "site-specific" policy under s.22(5) - if that be permissible - would frustrate any meaningful review of the relevant pre-acquisition declaration. The effect would be to deprive the land-owner of the right of review contemplated, as a matter of general principle, by the Act and also to deprive the Minister of the benefit of the findings of the Tribunal upon such matters, important to the Commonwealth, as the suitability of the land for the proposed purpose, the economic and environmental costs of the proposed use or development and the availability of alternative means of satisfying the Commonwealth's perceived need.
   The permissibility of a "site-specific policy": logical problems

3. However, in our opinion the submission is incorrect. In the first place, it involves a significant logical problem. As counsel for the respondents agreed in argument, the effect of their submission was that there could be a valid s.22(5) statement that Blackacre was required for use as an airport pursuant to a government policy of acquiring Blackacre for an airport. This absurdity can be avoided only by interpreting the word "policy", in s.22(5), as referring to a course of action of greater generality than the particular acquisition. Indeed, the relevant policy must be more general than the proposed use. It would be equally absurd to say that Blackacre was required for use as an airport pursuant to a government policy of acquiring Blackacre for use as an airport.

4. These comments do not mean that s.22(5) lacks utility. To take a hypothetical case close to the present, the declarations might have included a statement referring to a policy that there should be a second international airport in the Sydney region. If that had been done, it would have been meaningful to have said that the proposed use of the subject land was connected with the implementation of that policy. The effect would have been to exclude from AAT review the large and controversial question whether Sydney needs another major airport. This would have been a defensible result. The desirability of an additional Sydney airport involves a host of considerations - social, political, economic and environmental - which do not depend only, or perhaps even primarily, upon conclusions of fact. It is a matter about which the decision must be made by an elected government at the highest level. Moreover, the procedures of the AAT are not designed for the resolution of such issues. It would be difficult for the AAT to handle such a case. But the determination whether a particular parcel of land is suitable for development as part of that second airport is a matter of fact upon which evidence may usefully be taken and a recommendation made. As one progresses downwards on the scale of generality, into the realm of considerable particularity, the less apt becomes the use of the word "policy", as that term is normally understood in the Australian political context.
   The permissibility of a "site-specific" policy: the history and scheme of the legislation

5. The distinction we draw between the level of generality required of a policy and that involved in specifying the proposed use of the particular parcel of land is, we think, supported both by the history and scheme of the legislation.

6. The present Act had its genesis in a report by the Australian Law Reform Commission, Land Acquisition and Compensation (ALRC 14), tabled in Parliament in April 1980. In its report the Commission identified, as a major defect in the existing law, the lack of any independent review of government decisions to acquire privately owned land. The Commission suggested new pre-acquisition procedures. They included review by the AAT, at the request of an affected land-owner and subject to three specified exceptions, of any decision to acquire land. The three exceptions suggested by the Commission were cases where a relevant inquiry had already been held under the Environment Protection (Impact of Proposals) Act 1974, and where the Minister certified to Parliament the existence of either urgent necessity or security reasons militating against holding an inquiry.

7. There was considerable delay before action was taken to implement the Commission's report. But, in 1988, a Bill was introduced. The Explanatory Memorandum circulated at that time by the Minister, the Hon Stewart West, referred to the Commission's report and to the government's acceptance of "most of the ALRC recommendations into new legislation to replace the Lands Acquisition Act" (i.e. the existing, 1955, Act). The major exception was that the government deferred a decision on the Commission's recommendation for increased injurious affection rights. The Minister went on to list the major features of the new legislation. Those features included "a new provision for review by the Administrative Appeals Tribunal of the Minister's decision to acquire". In his Second Reading Speech, Mr West emphasised the significance of this provision.
   

"One of the particularly significant provisions of the Bill is that an owner can seek a review of the Government's decision to acquire a property. Clause 26 of the Bill stipulates that the owner can formally seek that the Minister reconsider the decision to acquire. Following that, if the minister reaffirms the decision to acquire, clauses 28 and 29 provide that the owner is able to seek reveiw by the Administrative Appeals Tribunal of the Minister's decision. The Bill provides at clauses 29 and 30 that the Tribunal will hear the appeal expeditiously and recommend to the Minister a course of action. It is intended by clause 31 that any review by the Tribunal should be limited to whether the Minister's decision was fair, sound and necessary for the implementation of the policy decision. The review should not include environmental matters where an inquiry has been held under the Environment Protection (Impact of Proposals) Act and should take into account technical, operational and economic factors. It is intended by clause 31 that any such review would encompass a number of matters, including the nature of the public purpose; the extent to which the public purpose is in the public interest; the suitability of the land for the public purpose; the effect of the acquisition on the land owners; the environmental effect of the use and development of the land; and any other means of achieving the public purpose. However, clause 22 makes it clear the the policy decision of Government which has led to the acquisition cannot be subject to review. This government is concerned by the need to strike a balance between the rights of private property owners on the one hand and the legitimate needs of society for land for public purposes on the other. It is also concerned at the effects on efficient administration of legislation relating to acquisitions of land and the speedy resolution fo claims for compensation. For these reasons the Bill specifies instances where a review by the Administrative Appeals Tribunal is considered inappropriate and should not be allowed. However, such circumstances are clearly defined and constrained and include, for instance, at clause 24, where the Minister is prepared to certify that the review should not be held due to urgency or where to not acquire would be prejudicial to the national interest. It is also not intended that review processes would apply in situations described in clause 40 where the acquisition is of the nature of a normal commercial transaction between parties dealing with one another on an equal basis and from which any party is able to withdraw."

See Parliamentary Debates, House of Representatives, 25 May 1988, p 2996.

1. The Bill underwent some amendment during its Parliamentary progress, including amendments to some of the clauses mentioned by the Minister in the above extract from his speech. However, these amendments did not affect the importance of the new provisions for AAT review, as is apparent from the Senate debate on 4 and 5 August 1989, when the amended Bill was read for the second and third time in that House. During the course of that debate, the Minister representing Mr West in the Senate, Senator Robert Ray, referred to comments made about the essentially provisions of cl.24 of the Bill:
   

"The Bill has now been amended to delete the more severe of these provisions at clause 24(1)(b). However, the Government is of the view that clause 22(4) - clause 22(6) in the revised Bill - should remain unaltered because, in its present form, the need for public accountability is met. If a Minister chose to use the provision, he would not be able to do so without the details of what he was doing becoming public. A pre-acquisition declaration would be issued to anyone affected by acquisition and copies of the declaration would have to be published in the Gazette and in a newspaper circulated in the area where the land was located.

Furthermore, if an owner of land being acquired using any of the above three provisions - that is, urgency, national security or essentiality - believed that the provision was being misused, he or she would be able to appeal to the Federal Court under the provisions of the Administrative Decisions (Judicial Review) Act 1977."

See Parliamentary Debates Senate, 5 April 1989, p 960.

1. Against this background, and, particularly, the careful selection of circumstances under which AAT review might be denied, it would be surprising if the new Act was capable of being applied in such a manner as to exclude review, in a practical sense, in other cases.

2. The selected circumstances include two of the three situations recommended by the Law Reform Commission: urgent necessity and security cases: see s.24, noting that, in such cases, the Minister must certify in writing that he or she is satisfied the relevant circumstances exist, and this certificate must be laid before each House of Parliament within three sitting days. Such a certificate must be made by the Minister personally. The power given by s.24(1) may not be delegated: see s.139(2)(c). The other exception suggested by the Law Reform Commission was not adopted by the Bill, as a total exclusion of review. Instead, s.31(4) requires that, if a matter being considered by the AAT has been the subject of an inquiry under s.11 of the Environment Protection (Impact of Proposals) Act, the AAT must accept the finding of that inquiry.

3. However, a new exception - not recommended by the Law Reform Commission - was added. It is contained in s.22(6) whereby the Minister may include in a declaration a statement "that it is essential, for the implementation of the policy" referred to in a s.22(5) statement, that the land be acquired. In such a case the declaration is not subject to review by the AAT. But, once again, this is a non-delegable power: see s.139(2)(b). And the declaration must be published in the Commonwealth Gazette and in a local newspaper: see s.23. The obvious intention of Parliament was that the Minister could exclude review in a case of essentiality, but only upon terms that he or she personally took the decision to do so, and was seen to do so. Consistently with the position under s.24, Parliament insisted upon political accountability.

4. Against this background, it would be incongruous if Parliament intended to permit a mere delegate of the Minister effectively to exclude review by claiming a "policy" to acquire a specific parcel of land, without the political accountability required by s.22(6) and s.24 being attached to the decision.

5. The conclusion we have reached about the scope of the word "policy" in s.22(5) need cause no disquiet. If a government proposal has been well thought out, for example if the necessary work has been done to establish that the acquisition of Leppington's land is indeed necessary for the provision of a second Sydney airport, and that the land is suitable for that purpose, it ought not be difficult for the respondent to demonstrate this fact to the AAT. But, if the investigation has been inadequate, or if the land-owner is able to come up with some alternative strategy for satisfying the relevant need, there may be a considerable public benefit in those facts being demonstrated. The Minister has the last word, the AAT's decision is only recommendatory.

6. In our view, the acquisition or use of a particular parcel of land cannot be a "policy" within the meaning of s.22(5). The first question in the Special Case must be answered, "Yes". Consequently, it is not necessary to answer the second question. The respondent must pay the applicant's costs of the Special Case.

7. As the issue between the parties is disposed of by our answers to the Special Case, it is unnecessary for us to deal with the merits of the appeal. Without expressing any view as to its competency, we will dismiss the appeal but without making any order relating to the costs.