North Queensland Conservation Council and Great Barrier Reef Marine Park Authority and Ors

[2000] AATA 924

CATCHWORDS – GREAT BARRIER REEF MARINE PARK AUTHORITY –
PRACTICE AND PROCEDURE – application to be joined as party to proceeding – whether applicant's interests affected by decision under review – whether discretion should be exercised – application refused.

Administrative Appeals Tribunal Act 1975 – ss 30(1A), 39
Administrative Decisions (Judicial Review) Act 1977 – s 13
Great Barrier Reef Marine Park Regulations – r 18

Dudzinski and Secretary, Department of Family and Community Services [1999] AAT 860
Re Lavery and Registrar of the Supreme Court of Queensland (1995) 40 ALD 72; (1995) 22 AAR 416
Re Marine World Victoria Ltd v Minister for Arts, Heritage and the Environment (1986) 10 ALD 262

DECISION AND REASONS FOR DECISION [2000] AATA 924

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q2000/354
GENERAL ADMINISTRATIVE DIVISION      )

Re                  NORTH QUEENSLAND CONSERVATION COUNCIL

Applicant

And                GREAT BARRIER REEF MARINE PARK AUTHORITY

Respondent

And                THE STATE OF QUEENSLAND

Party Joined

And                NELLY BAY HAROUR PTY LIMITED

Party Joined

DECISION

Tribunal  Miss S A Forgie (Deputy President)

Date  11 September, 2000

Place  Brisbane

DecisionThe Tribunal, refuses to make an order under s. 30(1A) of the Administrative Appeals Tribunal Act 1975.

S A FORGIE
  Deputy President

REASONS FOR DECISION

On 19 April, 2000, the applicant, North Queensland Conservation Council, applied for review of a decision of a delegate of the respondent, the Great Barrier Reef Marine Park Authority ("the Authority") dated 16 March, 2000.  The decision affirmed an earlier decision made by another delegate and dated 14 January, 2000.  That earlier decision was to grant permission to the State of Queensland ("the State") through the Department of Natural Resources ("DNR") to carry out certain works associated with reclamation, harbour works, dredging and excavation works and construction and installation of associated facilities including jetties and pontoons at Nelly Bay on Magnetic Island.  Prior to the hearing of the application, both the State and Nelly Bay Harbour Pty Ltd ("Nelly Bay Harbour"), which is the preferred developer, were joined as parties to the proceeding. 

1. The hearing of NQCC's application began on 28 August, 2000.  On 6 September, 2000 and while the hearing was continuing, Mr William (Billy) Peter Tait made an application to be joined as a party.  His application was heard on 11 September, 2000 after I had heard submissions that he made on his own behalf.  Submissions were also made by Mr Keim on behalf of NQCC, Mr Fellows on behalf of the Authority, Mr Plunkett on behalf of the State and Mr Prokuda on behalf of Nelly Bay Harbour.  I also considered Mr Tait's affirmation made on 6 September, 2000 as well as copies of the draft Townsville-Thuringowa Strategy Plan dated October, 1998 and the final Townsville-Thuringowa Strategy Plan dated March, 2000 he had filed.   

1. On 11 September, 2000, I refused Mr Tait's application. In a letter received on 3 October, 2000, Mr Tait asked for reasons for my decision. He did so pursuant to s. 13 of the Administrative Decisions (Judicial Review) Act 1977.

THE ISSUE

1. In deciding whether Mr Tait should be joined as a party to the proceeding, it is necessary to consider two issues.  The first is whether Mr Tait is a "person whose interests are affected by the decision" under review within the meaning of s. 30(1A) of the Administrative Appeals Tribunal Act 1975 ("AAT Act").  If he is such a person, I must consider whether I should exercise my discretion to make Mr Tait a party.

BACKGROUND

1. The material in Mr Tait's affidavit was not challenged at the hearing.  On the basis of that material and for the purposes of this matter, I find that he is a student at the James Cook University.  Mr Tait has an ongoing interest in the environment, social justice and drug law reform.  He regards himself as a representative of students and the community generally and as speaking on their behalf on those matters and on any matters he regards as affecting the public interest.  In that role, he has made many submissions, both oral and written, to various authorities and in various fora.  In 1996 and 1998, he stood for election to the Queensland Legislative Assembly.  He was a candidate in the Mundingburra electorate in 1996 and in the Townsville electorate in 1998.  During his campaign for election, he raised issues relating to drug law reform, social justice and the environment.  He polled approximately 1.9% of the primary votes in 1996 and 2% in 1998.

1. Mr Tait currently holds a boat licence issued by the Queensland Department of Transport.  He has used the waters around Magnetic Island in the past and intends to do so in the future.

CONSIDERATION

1. Section 30(1A) of the AAT Act provides that:

"Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding."

1. The effect of Mr Tait's submissions was that his interests are affected within the meaning of s. 30(1A) as he is very actively involved in public debate on environmental and planning matters and in commenting on those matters.  Such debate and comment is necessary to ensure that all of the relevant issues are considered in planning and management matters.  His level of interest is over and above that of the average member of the community. 

1. Accepting, as I have, that Mr Tait is a person who actively involves himself in the debate regarding matters relating to the environment and accepting that he is actively concerned also with matters relating to planning and management of the environment, I must first consider whether or not he is a "person whose interests are affected by the decision".  In the case of Re Lavery and Registrar of the Supreme Court of Queensland (1995) 40 ALD 72, I considered the meaning of the words "interests are affected by the decision" as they are used in the sub-section.  I said:

"(52.)   This provision has been considered in a number of cases but the case to which reference is always made when discussing the general principles applying to its application is Control Investments Pty Ltd v Australian Broadcasting Tribunal (1980) 3 ALD 74; 50 FLR 1 where Davies J said at ALD 79-80; FLR 8-9:

"In their context in ss 27 and 30, the words 'interests are affected' denote interests which a person has other than as a member of the general public and other than as a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed. The interest affected need not be a legal interest nor need the person seeking joinder establish legal ownership of the interest. ... However, a person seeking joinder must be able to identify a relevant interest which is his. In other contexts, dicta in cases have used the adjectives 'real', 'genuine' and 'direct' to describe the relationship required between the decision and the interest. Sections 27(1) and 30(1) do not make use of adjectives but they do require that the applicant demonstrates genuine affection of an interest which attaches to him. The nature of the interest required in a particular case will be influenced by the subject matter and context of the decision under review. As Brennan J said in McHattan's case [Re McHattan and Collector of Customs (1977) 18 ALR 154 at 157]: 'However, a decision which affects interests of one person directly may affect the interests of other indirectly. Across the pool of sundry interest, the ripples of affection may widely extend. The problem which is inherent in the language of the statute is the determination of the point beyond which the affection of interests by decision should be regarded as too remote for the purposes of s 27(1). The character of the decision is relevant, for if the interests relied on are of such a kind that a decision of the given character could not affect them directly, there must be some evidence to show that the interests are in truth affected."

(53.)     This passage has been cited with approval by the Full Court of the Federal Court in United States Tobacco Company v Minister for Consumer Affairs and Others; Alphapharm Pty Limited v Smithkline Beecham (Aust) Pty Ltd and Others and Comptroller-General of Customs v Members of the AAT. 

(54.)     In the case of United States Tobacco Co v Minister for Consumer Affairs, the full court considered whether a consumer organisation that had attended a conference held under s 65J of the Trade Practices Act 1974 in relation to the proposed publication of a notice under that legislation in relation to unsafe goods was entitled to be a party to proceedings under the Administrative Decisions (Judicial Review) Act 1977 (the AD(JR) Act). The provisions under the AD(JR) Act are analogous to those in the AAT Act in so far as the joinder of parties is concerned. The full court said that, had the consumer organisation only written to the Attorney-General seeking a ban, that would not have indicated a sufficient interest in the proceedings. The consumer organisation's invitation to the meeting under s 65J did, however, give it sufficient interest and it would be a breach of the rules of natural justice if it were denied an opportunity to be heard in proceedings relating to whether or not the meeting was lawfully called.

(55.)     In Alphapharm Pty Limited v Smithkline Beecham (Aust) Pty Ltd, the issue was whether the respondent was a person whose interests were affected by a decision made under the Therapeutic Goods Act 1989 and so entitled to lodge a request that the minister reconsider his decision. Davies J said at ALD 80-1; FCR 260-1:

"The question of standing is, indeed, related to issues of procedural fairness. If a person has interest which ought to be taken into account in the making of a decision, then ordinarily that person should be entitled to be heard. Mason CJ expressed the principle of natural justice in these terms in Kioa v West (1985) 159 CLR 550 at 584:

'The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interest and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.

...

Many such decisions do not affect the rights, interest and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the act or decision which attracts the duty is an act or decision:

'...which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a 'policy' or 'political' decision and is not subject to judicial review.' (Salemi v MacKellar (No 2) (1977) 137 CLR 396 at 452, per Jacobs J)"

Thus, in cases such as Bray v Faber [1978] 1 NSWLR 335, it has been held that, when a person did not have a right to be heard during the decision-making process, so also the person did not have a right to seek a declaration that the decision was void. On the other hand, in cases such as R v Hendon Rural District Council; Ex  parte Chorley [1933] 2 KB 696; R v Richmond Confirming Authority; Ex parte Howitt [1921] 1 KB 248, where the person had a right to be heard in the making of the decision, it was held that that person had a right if aggrieved by the decision to seek judicial review of it.

Such a factor weighed with the court in Sinclair v Mining Warden at Maryborough, (above). In US Tobacco, the participation of the Australian Federation of Consumer Organisations in the administrative decision-making process and its entitlement to attend a conference arranged by the Minister was held to place the organisation in a special position which gave it standing. In Telecasters North Queensland Ltd v Australian Broadcasting Tribunal, (above), an organisation which had not in fact participated in a public inquiry was nevertheless held to be an interested party in judicial review proceedings as it had been the initiator of the inquiry, and had been entitled to participate therein. A like case is Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127. In Mark v Australian Broadcasting Tribunal (1991) 32 FCR 476, standing was refused on the ground that, although the applicant had initiated administrative proceedings under the Broadcasting Act 1942 (Cth), he ought not to have done so and had no interest therein."

(56.)                Gummow J expressed a similar view and said that at ALD 91; FCR 272:

"In each case, the content of the terms 'affect' and 'interest' are to be seen in the light of the scope and purpose of the particular statute in issue."

(57.)                On the facts before him, Davies J concluded at ALD 82; FCR 262:

"In the case of the decision as to generic cimetidine, SmithKline's interests as outlined in the letter of 8 June 1993 and in the solicitor's affidavit were entirely irrelevant. The issue before the decision-maker was the safety of the drug and the appropriateness of its use in humans. Some elements of commerce may have intruded into the decision for, no doubt, the decision-maker would have wished to be satisfied that the manufacturer of the drug was reputable and had the capacity to ensure quality control. But the affairs of Smith Kline were irrelevant, though information related to its cimetidine may have been taken into account. The decision did not concern itself with any of SmithKline's affairs and was not a decision relating to SmithKline's cimetidine."

(58.)                Finally, in the case of Comptroller-General of Customs v Members of the AAT Hill J determined that Akai's interest in proceedings relating to applications for tariff concession orders made by Sanyo was more than merely an interest as a commercial competitor but a direct financial interest.  Consequently, it was entitled to be considered by the Tribunal for joinder as a party." (pages 82-84)   

1. In Dudzinski and Secretary, Department of Family and Community Services [1999] AAT 860 (17 November, 1999), I considered the principles which have been followed in the Federal Court in relation to the joinder of parties and said:

"… Those principles have been consistently applied and are reflected in the judgement of the Full Court of the Federal Court in News Ltd and Ors v Australian Rugby Football League Ltd (1996) 139 ALR 193 (Lockhart, Von Doussa and Sackville JJ). The Full Court was considering Order 6 Rule 8 of the Federal Court Rules which provide that:

'(1)      Where a person who is not a party:

(a)ought to have been joined as a party; or

(b)is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon,

the Court, on application by him or by any party or of its own motion, may order that he be added as a party and make orders for the further conduct of the proceeding.'

48.      It referred to the opinion of the Privy Council expressed in relation to a precursor of Order 6 Rule 8 in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52. In that case, Lord Diplock had expressed the Privy Council's opinion as follows:

'The cases illustrate the great variety of circumstances in which it may be sought to join an additional party to an existing action. In their Lordships' view one of the principal objects of the rule is to enable the court to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given an opportunity of being heard. To achieve this object calls for a flexibility of approach which makes it understandable in the present case, in which the facts are unique, to attempt to lay down any general proposition which could be applicable to all cases.

It has been sometimes said as in Moser v Marsden [1892] 1 Ch 487 and in Re IG Farbenindustrie AG [1944] Ch 41 that a party may be added if his legal interests will be affected by the judgment in the action but not if his commercial interests only would be affected. While their Lordships agree that the mere fact that a person is likely to be better off financially if a case is decided one way rather than another is not a sufficient ground to entitle him to be added as a party, they do not find the dichotomy between 'legal' and 'commercial' interests helpful. A better way of expressing the test is: will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?' (page 298)

49.                  The Full Court continued:

'There are some classes of case where the ascertainment of the necessary parties who 'ought to have been joined' is not difficult. Where the orders sought establish or recognise a proprietary or security interest in land, chattels or a monetary fund, all persons who have or claim an interest in the subject matter are necessary parties. This is because an order in favour of the claimant will, to a corresponding extent, be detrimental to all others who have or claim an interest. Grovenor v Permanent Trustee Co of NSW Ltd is an example of this class of case. Where the subject matter of the proceedings is not of this kind, the ascertainment of necessary parties who ought to have been joined may be more difficult.

In our opinion, the question should be decided according to the test proposed by Lord Diplock. The test involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected. The requirement that a third party's rights against, or liability to, any party to the proceedings be directly affected is an important qualification that recognises that many orders of a court are likely to affect other people to a greater or lesser extent. This is particularly so with remedies in the nature of an injunction: see Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 AT 322, per Kirby P. The requirement of a direct effect on rights or liabilities differentiates the case where a person ought to be joined, from other cases where the effect of the order on non-parties can be characterised as only indirect or consequential.' (pages 298-299)"

1. It seems to me that these principles are directly applicable to the exercise of the Tribunal's powers under s. 30(1A) of the AAT Act. I must have regard to the scope and purpose of the Great Barrier Reef Marine Park Act 1975 ("the Act").  As the long title to that Act states, it is "An Act to establish a Great Barrier Reef Marine Park and for related purposes". An examination of the provisions of the Act reveals that among those related purposes are the management of the Great Barrier Reef Marine Park ("Marine Park"). The Authority is given responsibility for the management of the Marine Park and, in doing so, must achieve a balance between conservation, protection and preservation on the one hand and reasonable use and resource exploitation on the other.

1. It follows that the range of issues that need to be considered by the Authority is very wide indeed.  They are matters that concern not only the communities living in areas adjacent to the Marine Park but also the Australian community if not, in view of the Marine Park's World Heritage List, the wider world community.  The range of issues that the Authority needs to consider in determining whether a particular use is to be permitted in the Marine Park and an applicant to be given a relevant permission are set out in r. 18(4) of the Great Barrier Reef Marine Park Regulations.  Those matters raise similar issues to those facing the Authority in its general management of the Marine Park. 

1. In making its decision in this matter, therefore, the Authority had to consider issues that raise matters of public interest and that are of concern to the general public. This, however, is not sufficient to give any member of the community, who may have interests in those issues, interests of the sort referred to in s. 30(1A) of the AAT Act. Interests of the sort referred to in S. 30(1A) are those "… affected by the decision" (emphasis added).  That means that the decision must have some effect upon the particular interests of the person seeking to be joined and not simply upon his or her interests as a member of the general public or even as a member of that section of the general public that has concerns about the environment generally or about the Marine Park in particular. 

1. Mr Tait has demonstrated how his interests are affected as a member of the general public who has concerns, and even deep concerns, about the environment generally and the Marine Park and so an interest in those matters. He also has an interest in those matters as a member of the general boating community. I am not satisfied, however, that his interests are affected by the decision that the Authority has made and that is the subject of review in this case. His interests are no more affected than as a member of the general community. It follows that he may not be joined as a party pursuant to s. 30(1A).

1. Should I be incorrect in this conclusion, I have considered the second issue raised by s. 30(1A).  That is whether, if he were a person whose interests are affected by the Authority's decision, I should exercise my discretion to join him as a party.  General principles regarding the exercise of the discretion were given some consideration by Deputy President Thompson in Re Marine World Victoria Ltd v Minister for Arts, Heritage and the Environment (1986) 10 ALD 262:

"… That discretion must, of course, be exercised rationally with regard paid to all the circumstances of the proceeding and the nature of the interest of each of the persons applying to be made a party.  It is necessary to have regard to the nature of review proceedings before the Administrative Appeals Tribunal. As was pointed out in Re Control Investments Pty Ltd, the Tribunal is required by the AAT Act to provide a fair hearing and to carry out the review as expeditiously as the subject matter of the review permits (see in particular s 33(1)(b) and s 39). The increased cost of the proceeding to the applicant and the respondent which will result from the joinder of additional parties in the proceeding is a factor to be taken into account. … I am unable to accept that the Tribunal should allow Marine World to be subjected to greater expense than is necessary for the proper review of the Minister's decision. Further, the Tribunal must be concerned with the cost not only to Marine World but also to a public funds and endeavour to contain it to what is sufficient to enable it to undertake a proper review.

(33)There is also the requirement that the matter be dealt with expeditiously. That, and the need to keep the cost within proper bounds, make it undesirable that there should be a multiplicity of additional parties each separately represented and presenting a separate case. Only if their interests affected by the decision under review are both substantial and significantly different from one another can that be justified. …" (pages 271-272)

1. In addition to the matters of expedition, costs and proper review addressed in Re Marine World (or perhaps simply another aspect of them), I also consider that I must have regard to the Tribunal's obligation under s.39(1).  That is an obligation to:

"… ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal intends to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents."

1. When Mr Tait made his application to be joined as a party, the hearing was in its eighth day.  Some considerable effort had been made to define those matters in issue between the parties.  Within that framework, the parties had presented a considerable amount of both oral and written evidence.  Each of them had been given an opportunity to cross-examine the witnesses called by one or other of the parties.  Were Mr Tait to have been joined as a party to the proceedings at that stage, it could be expected that the hearing would be delayed as Mr Tait would have to be given an opportunity to inspect documents and there could well have been a need to revisit matters already traversed.  In some cases, that might not be unreasonable and, indeed, might be essential to ensure that the Tribunal can undertake a proper review of a decision.  That might be so even though the parties and the Tribunal were put to additional cost.  In this case, however, it was not reasonable as there was no evidence that Mr Tait would raise matters other than matters of general public interest.  Matters of public interest, together with matters of particular concern to it, were the focus of NQCC's case.  Indeed, they were matters that were before the Tribunal in any event and were the subject of submissions by all of the parties.  There was no basis on which I could find that joining Mr Tait as a party would add to the depth of material or cast new light on the issues raised by the decision under review so that the review process would be enhanced by his being a party.

1. In view of these matters I decided that, even if Mr Tait were a person whose interests were affected by the decision under review, I should not exercise my discretion to join him as a party. For these reasons, I refused to make an order under s. 30(1A) of the Administrative Appeals Tribunal Act 1975.

I certify that the eighteen preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)

Signed: .......................................…

M MartinezAssociate

Date of Hearing  11 September, 2000
Date of Decision  11 September, 2000
Applicant to be Joined                 Mr W P Tait
Counsel for the Applicant            Mr S Keim
Solicitor for the Applicant           Mr L Manning
Counsel for the Respondent        Mr M Fellows
Solicitor for the Respondent        Australian Government Solicitor
Counsel for State of Queensland  Mr M Plunkett
Solicitor for State of Queensland  Crown Law
Solicitor for Nelly Bay Harbour   Mr H Prokuda, Corrs Chambers Westgarth