NVCV and Secretary, Department of Infrastructure, Transport, Regional Development and Communications
[2020] AATA 2662
•22 July 2020
NVCV and Secretary, Department of Infrastructure, Transport, Regional Development and Communications [2020] AATA 2662 (22 July 2020)
Division:GENERAL DIVISION
File Number: 2019/5680
Re:NVCV
APPLICANT
AndSecretary, Department of Infrastructure, Transport, Regional Development and Communications
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date of decision: 22 July 2020
Place:Melbourne
The Tribunal:
(1)decides that:
(a)within the meaning of s 27(1) of the AAT Act, applicant is not a person whose interests are affected by the decision made by the Minister on 19 January 2018 under s 81 of the Airports Act 1996;
(b)therefore, the applicant may not make an application to the Tribunal for review of the Minister’s decision; and
(c)other persons may not apply to be joined to an application if the application has not been made by a person entitled to make that application; and
(2)under s 35 of the AAT Act orders that the applicant be known as “NVCV” in so far as his application to the Tribunal and the proceedings leading to the Tribunal’s deciding that he is not a person whose interests are affected by the Minister’s decision and my giving reasons for my decision.
……………[sgd] ……………………
Deputy President S A Forgie
Catchwords
PRACTICE AND PROCEDURE – standing of applicant to make an application – whether applicant is a person whose interests are affected by the Minister’s decision under s 81 of the Airports Act 1996 – whether other persons claiming to be persons interested in the decision may be joined as parties to the application before the applicant’s entitlement to do so is determined – whether reasons exist to make order under s 35 of Administrative Appeals Tribunal Act – applicant not a person affected by minister’s decision – applicant has no standing to apply to the Tribunal – parties cannot be joined – confidentiality order made
Legislation
Administrative Appeals Tribunal Act 1975; s 25; s 27; s 29; s 30; s 35
Airports Act 1996; s 3; s 70(1); s 71; s 79; s 80; s 81; s 83; s 242
Airport Regulations 1997; s 5.02A; s 5.02B
Development Allowance Authority Act 1992; s 119
Fisheries Management Act 1991
Income Tax Assessment Act 1936
Cases
Allan v Transurban City Link Ltd [2001] HCA 58, (2001) 208 CLR 167; 183 ALR 380
Alphapharm Pty Limited v Smithkline Beecham (Australia) Pty Limited and Others (1994) 49 FCR 250; 121 ALR 373; 32 ALD 71
Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; (2009) 181 FCR 130
Botany Bay City Council v Minister for Transport [1996] FCA 1507; (1996) 66 FCR 537; 137 ALR 281; 41 ALD 84
Brisbane Airports Corporation Ltd v Wright [2002] FCA 359; (2002) 120 FCR 157; 77 ALD 411; 35 AAR 192
Comptroller-General of Customs v Members of the Administrative Appeals Tribunal (1994) 123 ALR 140; 32 ALD 463
Marrickville Council v Minister for the Environment, Sport and Territories [1996] FCA 851
Minister for Consumer Affairs and Others Unreported, 15 September 1988, No. G158 of 1988
Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 1) [1980] AATA 78; (1980) 3 ALD 74; 50 FLR 1
Re Eurovox Pty Ltd and Chief Executive officer of Customs [2000] AATA 809; (2000)
63 ALD 755; 32 AAR 15
Re McHattan and Collector of Customs (1977) 18 ALR 154
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health [1995] FCA 1060; (1995) 56 FCR 50; 128 ALR 238; 37 ALD 357
Salemi v MacKellar (No 2) (1977) 137 CLR 396
United States Tobacco Company v Minister for Consumer Affairs and Others Unreported, 15 September 1988, No. G158 of 1988
Secondary materials
Chambers 21st Century Dictionary (1999)
REASONS FOR DECISION
Deputy President S A Forgie
The Parafield Airport Limited (PAL) is an airport-lessee company. In November 2017, it gave the Minister for Infrastructure and Transport (Minister) a draft Master Plan 2017 for the Parafield Airport in South Australia (draft PAMP). On 19 January 2018, the Minister approved it under s 81 of the Airports Act 1996 (Airports Act) and advised PAL of his decision on the same day. Under s 83 of the Airports Act, the draft PAMP became the final PAMP (PAMP) on approval. PAL then published a notice in The Advertiser on 21 March 2018 advising that the Minister had approved the PAMP. The notice advised that the PAMP covered a planning horizon of 20 years and was to remain in force for an expected duration of five years. While the PAMP remained in force, it was available for inspection and or download free of charge or for purchase from either PAL or the Adelaide Airport Limited.
On 6 September 2019, NVCV lodged an application in the Tribunal for review of the Minister’s decision to approve the PAMP. He set out extensive reasons for making the application. Their essence is that the approval process, and particularly the public consultation process, was flawed and unlawful. He questioned the management of the airspace at the Parafield Airport by the Civil Aviation Safety Authority (CASA). NVCV said that he did not wish to apply for an extension of time within which to lodge his application at that time. During October 2019, three individuals applied to be joined as parties to his application. For reasons I will set out below, I cannot consider their applications until I have decided that NVCV is entitled to make an application in this matter.
A few days later, on 11 September 2019, NVCV applied for an order under s 35 of the Administrative Appeals Tribunal Act 1975 (AAT Act) to protect his identity from public disclosure and said that he would give reasons for his request were he to be asked for them. His reasons were given in separate correspondence also dated 11 September 2019. He alleged that people, including himself, who have publicly criticised the Parafield Airport and aviation in general have been subject to harassment, abuse, ridicule and slander. Information about the location of his property may lead to his being exposed to severe environmental nuisance causing him further losses. His actions in seeking review of the PAMP, NVCV said, is likely to be perceived by others as anti-commerce and anti-growth with consequent loss of employment opportunities for him in the business community.
I have decided that having regard both to the Minister’s decision and to the subject, scope and purpose of the Airports Act, NVCV is a not a person whose interests are affected by the Minister’s decision. Therefore, he is not entitled to make an application for its review. As he is not entitled to make an application, there is no application to which others may be joined and I have refused their applications for joinder. I have decided to make a confidentiality order under s 35 of the AAT Act restricting access to the identities of NVCV and the other three but only in the context of this application. Had I decided that NVCV was a person entitled to make an application so that the matter proceeded to review of the Minister’s decision, I would not have made a confidentiality order. My reasons are set out below.
THE LEGISLATIVE FRAMEWORK: THE AIRPORTS ACT
General outline
As the Long Title of the Airports Act says, it is “An Act about airports”. Its objects are:
“(a) to promote the sound development of civil aviation in Australia;
(b)to establish a system for the regulation of airports that has due regard to the interests of airport users and the general community;
(c)to promote the efficient and economic development and operation of airports;
(d)to facilitate the comparison of airport performance in a transparent manner;
(e)the ensure majority Australian ownership of airports;
(f)to limit the ownership of certain airports by airlines;
(g)to ensure diversity of ownership and control of certain major airports;
(h)to implement international obligations relating to airports.”[1]
[1] Airports Act; s 3
Section 4 sets out a simplified outline of the Airports Act. After providing that “The Act sets up a system for regulating airports”, it goes on to describe the limits that will be imposed on those who may lease a Commonwealth-owned airport to run it. That lessee is called the “airport-lessee company” and may contract the management of the airport to another company known as the “airport-management company”. The term “airport-operator company” covers either the lessee or the management company. There will be a master plan for each airport and major development plans will be required for significant developments at airports. Building activities on airport sites require approval and buildings and structures on airport sites must be certified as complying with regulations made under the Airports Act. For each airport, there will be an environment strategy. An airport operator company may be required to give various reports and accounts and comply with standards set out in regulations.
Airport master plans
Part 5 of the Airports Act is concerned with land use, planning and building controls. Provided there is an airport lease for the airport, Part 5 applies to a “core regulated airport” and to an airport prescribed by regulation if there is an airport lease for the airport.[2] The boundaries of an airport are the boundaries of the airport site for the airport.[3] The Parafield Airport is both a core regulated airport and an airport prescribed by the Airport Regulations 1997 (Airport Regulations).[4]
[2] Airports Act; s 68(1)
[3] Airports Act; s 68(2) The airport site for Moorabbin Airport is that described in Part 1.15 to Schedule 1of the Airport Regulations.
[4] Airport Regulations; r 5.01A(e) and see also Airports Act; s 72
Section 70(1) requires that each airport must have a final master plan relating to a period of 20 years[5] but remaining in force for a period of five years or until it is replaced by a fresh plan.[6] Its purposes are:
“(a) to establish the strategic direction for efficient and economic development at the airport over the planning period of the plan; and
(b)to provide for the development of additional uses of the airport site; and
(c)to indicate to the public that the intended uses of the airport site; and
(d)to reduce potential conflicts between uses of the airport site, and to ensure that uses of the airport site are compatible with the areas surrounding the airport; and
(e)to ensure that all operations at the airport are undertaken in accordance with relevant environmental legislation and standards; and
(f)to establish a framework for assessing compliance at the airport with relevant environmental legislation and standards; and
(g)to promote the continual improvement of environmental management at the airport.”
[5] Airports Act; s 72(1)
[6] Airports Act; s 77(1). An airport-lessee company must give the Minister a further draft master plan before the expiration of the five year period: Airports Act; s 76. The master plan already in operation remains in operation, even beyond its five year term, until the further draft is approved by the Minister: Airports Act; s 78.
Section 71 specifies those matters that must be addressed in each draft master plan and final master plan. Those matters include:
“(a) the airport-lessee company’s development objectives for the airport; and
(b)the airport-lessee company’s assessment of the future needs of civil aviation users of the airport, and other users of the airport, for services and facilities relating to the airport; and
(c)the airport-lessee company’s intentions for land use and related development of the airport site, where the uses and developments embrace airside, landside, surface access ad land planning/zoning aspects; and
(d)an Australian Noise Exposure Forecast (in accordance with regulations, if any, made for the purpose of this paragraph) for the areas surrounding the airport; and
(da)flight paths (in accordance with regulations, if any, made for the purpose of this paragraph) at the airport; and
(e)the airport-lessee company’s plans, developed following consultations with the airlines that use the airport and local government bodies in the vicinity of the airport, for managing aircraft noise intrusion in areas forecast to be subject to exposure above the significant ANEF levels; and
(f)the airport-lessee company’s assessment of environmental issues that might reasonably be expected to be associated with the implementation of the plan; and
(g)the airport-lessee company’s plans for dealing with the environmental issues mentioned in paragraph (f) (including plans for ameliorating or preventing environmental impacts); and
(ga)in relation to the initial period (see subsection (3A)) of the master plan – a plan for a ground transport system on the landside of the airport that details:
(i)a road network plan; and
(ii)the facilities for moving people (employees, passengers and other airport users) and freight at the airport; and
(iii)the linkages between those facilities, the road network and public transport system at the airport and the road network and public transport system outside the airport; and
(iv)the arrangements for working with the State or local authorities or other bodies responsible for the road network and the public transport system; and
(v)the capacity of the ground transport system at the airport to support operations and other activities at the airport; and
(vi)the likely effect of the proposed developments in the master plan on the ground transport system and traffic flows at, and surrounding, the airport; and
(gb)in relation to the initial period (see subsection (3A)) of the master plan – detailed information on the proposed developments in the master plan that are to be used for:
(i)commercial, community, office or retail purposes; or
(ii)for any other purpose that is not related to airport services; and
(gc)in relation to the initial period (see subsection (3A)) of the master plan – the likely effect of the proposed developments in the master plan on:
(i)employment levels at the airport; and
(ii)the local and regional economy and community, including an analysis of how the proposed developments fit within the planning schemes for commercial and retail development in the area that is adjacent to the airport; and
(h)in relation to the initial period (see subsection (3A)) of the master plan – an environmental strategy that details:
(i)the airport-lessee company’s objectives for the environmental management of the airport; and
(ii)the areas (if any) within the airport site which the airport-lessee company, in consultation with State and Federal conservation bodies, identifies as environmentally significant; and
(iii)the sources of environmental impact associated with airport operations; and
(iv)the studies, reviews and monitoring to be carried out by the airport-lessee company in connection with the environmental impact associated with airport operations; and
(v)the time frames for completion of those studies and reviews and for reporting on that monitoring; and
(vi)the specific measures to be carried out by the airport-lessee company for the purposes of preventing, controlling or reducing the environmental impact associated with airport operations; and
(vii)the time frames for completion of those specific measures; and
(viii)details of the consultations undertaken in preparing the strategy (including the outcome of the consultations); and
(ix)any other matters that are prescribed in the regulations; and
(j) such other matters (if any) as are specified in the regulations.
Note 1: Airside means the part of the airport grounds, and the part of the airport buildings, to which the non-travelling public that does not have free access.
Note 2:Landside means the part of the airport grounds, and the part of the airport buildings, to which the non-travelling public has free access.”[7]
[7] Airports Act; s 71(2). The “initial period of the master plan” is, in the case of an airport such as the Parafield Airport, s 71(3A)(b). Section 71(3) requires other matters to be addressed if an airport is designated as a “joint-user airport” but the Parafield Airport does not come within the definition of that term either within ss 5(1) and 7B or within the Airports Regulations 1997.
A draft or final master plan must identify any proposed sensitive development in the plan.[8] Subject to certain exceptions specified in s 71A(2A), “sensitive development” is a development, or a redevelopment that increases the capacity, of a residential dwelling, a community care facility, a pre-school, a primary, secondary, tertiary or other educational institution or a hospital.[9] It does not include, among others, an aviation educational facility.[10] An “aviation educational facility” means a flying training school, an aircraft maintenance training school, a facility that provides training in relation to air traffic control, cabin crew or in relation to aviation related activities.[11]
[8] Airports Act; s 71A(1)
[9] Airports Act; s 71A(2)
[10] Airports Act; s 71A(2A)
[11] Airports Act; s 71A(3)
Before an airport-lessee company for the airport gives the Minister a draft master plan for an airport, it must advise certain State and local authorities of its plan to give the Minister a draft master plan. It must do so in writing. Those it must advise are the State Minister having responsibility for town planning or use of land, the relevant State authority having responsibility for town planning or use of land and each local government body having responsibility for an area surrounding the airport.[12] After it has notified those bodies but before giving the Minister the draft master plan, the airport-lessee company must give the public notice of its preliminary version of a draft master plan. It must do that by publishing notice of it in a newspaper circulating generally in the State in which the airport is located and on the company’s website. In that notice, it must advise that copies are available for inspection and purchase and, through, the website, available free of charge as well as inviting members of the public to give their written comments about the preliminary version.[13]
[12] Airports Act; s 79(1A)
[13] Airports Act; s 79(1)
If members of the public make written comments in accordance with the notice, their comments must be included in the documents that the airport-lessee company must submit to the Minister under s 79(1A) and (1B).[14] The airport-lessee company must also submit to the Minister a certificate listing the names of those members of the public who have made comments, summarising those comments, demonstrating how the company has had due regard to them in preparing the draft plan and setting any other information about those comments specified in the regulations.[15] If, before publishing the notice in the newspaper, the airport-lessee company consulted a State government, an authority of a State, a local government body, an airline or other user of the airport concerned or any other person, it must notify the Minister of that and summarise their views.[16]
[14] Airports Act; s 79(2)(a)
[15] Airports Act; s 79(2)(b)
[16] Airports Act; s 80
A Minister who has been given a written draft master plan may request further material relevant to the making of a decision if he or she believes on reasonable grounds that he or she does not have enough to make a proper decision under, in this case, s 81(2).[17] Under s 81(1), the Minister, must either approve, or refuse to approve, the plan. Without limiting them, the matters to which the Minister must have regard[18] are:
[17] Airports Act; s 80A(2)
[18] Airports Act; s 81(4)
“(aa) the extent to which the plan achieves the purposes of a final master plan (see subsection 70(2));
(a)the extent to which carrying out the plan would meet present and future requirements of civil aviation users of the airport, and other users of the airport, for services and facilities relating to the airport concerned;
(b)the effect that carrying out the plan would be likely to have on the use of the land:
(i)within the airport site concerned; and
(ii)in areas surrounding the airport;
(c)the consultations undertaken in preparing the plan (including the outcome of consultations)’
(d)the views of the Civil Aviation Safety Authority and Airservices Australia, in so far as they relate to safety aspects and operational aspects of the plan.”[19]
[19] Airports Act; s 81(3)
I note that s 81(10) provides:
“The Minister’s approval of a draft master plan that contains a sensitive development does not stop the Minister from refusing to approve, under Division 4, a major development plan for a sensitive development.”
Once approved by the Minister, a draft master plan becomes a final master plan and comes into force at the time of approval.[20] Section 84 permits minor variation of a final master plan provided the process set out in s 84A is followed. Section 85 sets out the airport-lessee company’s obligations if it becomes aware of a matter that may significantly affect achievement of the plan.
[20] Airports Act; s 83(1)
Review of decisions under the Airports Act
A. Airports Act
Every time there is a question whether an application may be made to the Tribunal for review of a decision, the starting point is s 25 of the AAT Act. Section 25(1) provides:
“An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”[21]
[21] Section 25(2) also provides that regulations may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by a Norfolk Island enactment.
Where an enactment makes a provision of the sort described in s 25(1), that enactment:
“(a) shall specify the person or persons to whose decisions the provision applies;
(b)may be expressed to apply to all decisions of a person, or to a class of such decisions; and
(c)may specify conditions subject to which applications may be made.”[22]
[22] AAT Act; s 25(3)
Section 242 of the Airports Act is an enactment of the sort provided for by ss 25(1) and 25(3) of the AAT Act. Subject to s 242(2), s 242(1) of the Airports Act provides that applications may be made to the Tribunal for review of decisions made by the Minister under the Airports Act. Section 242(1) specifies decisions in respect of which applications may not be made to the Tribunal. A decision by the Minister under s 81 is not excluded. Therefore, the Minister’s decision to approve the draft master plan submitted by PAL for Parafield Airport is reviewable by the Tribunal.
The effect of s 242(3) is that, if the Minister makes a decision that is reviewable by the Tribunal, he or she must give the person or persons whose interests are affected by the decision written notice of the making of the decision. The notice must include a statement that the decision is reviewable by the Tribunal. Failure to give that statement or provide that information does not affect the validity of the Minister’s decision.[23]
[23] Airports Act; s 242(4)
B. AAT Act
Section 242 does not specify the conditions subject to which an application may be made to the Tribunal but it is apparent from s 242(3) provides that those conditions are found in the AAT Act. Section 242(3) provides that:
“If the Minister:
(a)makes a decision of the kind covered by subsection (1); and
(b)gives to the person or persons whose interests are affected by the decision written notice of the making of the decision;
that notice is to include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision.”[24]
[24] A failure to comply with s 242(3) does not affect the validity of the decision: Airports Act; s 83(4).
The first condition that is relevant in this case is found in s 27 of the AAT Act i.e. that the person who may make an application for review of a decision under the Airports Act is a person “whose interests are affected by it”.[25] That is the person to whom the Minister must give notice under s 242(3) of the Airports Act. Section 27(1) of the AAT Act provides:
“Where this Act or any other enactment (other than the Australian Security Intelligence Organisation Act 1979) provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth or Norfolk Island or an authority of Norfolk Island) whose interests are affected by the decision. (emphasis added)
Note:…”
[25] Section 27(1) of the AAT Act is relevant in this case but it may not always be. Section 27 is expressly referred to in s 25(6)(a) as a provision that may be added to, excluded or whose operation may be modified by an enactment that provides for applications to be made to the Tribunal. An example is found in
The second condition is that an application must fulfil the requirements of s 29(1) of the AAT Act. Of relevance in this case is s 29(1)(d), which provides:
“An application to the Tribunal for a review of a decision:
(a)-(cb) …
(d)if the terms of the decision were recorded in writing and set out in a document that was given to the applicant or the decision is deemed to be made by reason of the operation of s 25(5) or (5A) – shall be lodged with the Tribunal within the prescribed time.
Note:…”
Section 29(2) is concerned with the “prescribed time”, to which s 29(1)(d) refers. It is expressed to be subject to s 29(3) but that is concerned with situations in which a decision-maker has not made a decision before the expiration of a deadline set by legislation. This is not a case of that sort. Section 29(2) prescribes the time limit by reference to the date on which a document setting out the terms of the decision is given to an applicant and by reference to whether or not it also sets out the findings on material questions of fact and the reasons for the decision. It provides:
“… the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:
(a)if the decision sets out the findings on material questions of fact and the reasons for the decision – the day on which a document setting out the terms of the decision is given to the applicant; or
(b)if the decision does not set out those findings and reasons:
(i)if a statement in writing setting out those findings and reasons is given to the applicant otherwise than in pursuance of a request under subsection 28(1) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision is given to the applicant – the day on which the statement is so given;
(ii)if the applicant, in accordance with subsection 28(1), requests the person who made the decision to give a statement as mentioned in that subsection – the day on which the statement is given or the applicant is notified in accordance with subsection 28(3A) that the statement will not be given; or
(iii)in any other case – the day on which a document setting out the terms of the decision is given to the applicant.”[26]
[26] Section 29(7) provides that the Tribunal may extend the time for making an application if satisfied that it is reasonable to do so in all of the circumstances: AAT Act; ss 29(7). The time may be extended even though the time has expired: AAT Act; s 29(8). Section 29(9) provides that, before the Tribunal determines an application for an extension of time, it or an officer of the Tribunal may give notice of the application to any person or persons either considers to be affected by the decision or require the applicant to do so. Considerations of procedural fairness would suggest that the Tribunal would be obliged to exercise the power to give notice if it identified any such person. If a person to whom notice has been given, “… within the prescribed time after the notice is received by him or her, gives notice to the Tribunal that he or she opposes the application and does so within the prescribed time, the Tribunal shall not determine the application except after a hearing at which the applicant and any person who so gave notice to the Tribunal are given a reasonable opportunity of presenting their respective cases.”: AAT Act; s 29(10). The expression “prescribed time” is not defined but, in the context of s 29(1), cannot be sensibly read as having the same meaning as it bears in ss 29(1)(d), (2) and (3). Sections 29(7) to (10) are grouped together under the heading of “Tribunal may extend time for making application”. They are clearly meant to be read together and to ameliorate the operation of the requirement that an application be lodged with the Tribunal within a prescribed time. The reference to the “prescribed time” in s 29(10) is clearly a reference to the time that is specified in the notice given to the person under s 29(9) as the time within which he or she may state that he or she wishes to oppose the application for an extension of time under s 29(7).
If a document setting out the terms of a decision is not given to an applicant, then s 29(1)(d) cannot apply for it is conditional upon that having happened. There is, therefore, no requirement that an application be made within a prescribed time. NVCV was not given a document setting out the terms of a decision and so is not required to comply with s 29(1)(d). Assuming that he is a person whose interests are affected by the Minister’s decision, the fact that he was not given a copy of the decision does not mean that he may lodge an application at any time into the future. Section 29(4) is directed to that situation and provides:
“Where:
(a)no time is prescribed for the lodging with the Tribunal of applications for review of a particular decision; or
(b)no time is prescribed for the lodging with the Tribunal by a particular decision of an application for a review of a particular decision;
and the Tribunal is of the opinion that the application was not lodged within a reasonable time after the decision was made, the Tribunal shall, subject to subsection (6):
(c)in a case to which paragraph (a) applies – refuse to entertain an application for a review of the decision referred to in that paragraph; or
(d)in a case to which paragraph (b) applies – refuse to entertain an application by the person referred to in that paragraph for a review of the decision so referred to.”
In forming an opinion for the purposes of s 29(4), the Tribunal is required to have regard to the time at which NVCV became aware of the making of the decision and, if a time is prescribed for lodgement by another person or persons, the period that has been so prescribed.[27] Notwithstanding s 29(4), the Tribunal may entertain an application if it is of the opinion that there are special circumstances justifying its doing so.[28]
[27] AAT Act; s 29(5)
[28] AAT Act; s 29(6)
Although not referred to in s 30(1A), there are occasions on which considerations of procedural fairness will require the Tribunal to be proactive in giving notice of an application for review to others who may have interests affected by a decision. The range of persons who may have their interests affected will be clear to the Tribunal. Take, for example, a decision determining the percentage of care one parent gives a child in relation to the other parent. Review of that decision may lead to a change in that percentage and to a consequential change in the amount of child support payments paid by one parent to the other. The other parent will clearly be a person whose interests are affected by the decision. Another example may arise when an occupation is regulated and those who may engage in that occupation are limited by quotas with reference to a finite resource. Decisions made in the past by the Australian Fisheries Management Authority under the Fisheries Management Act 1991 in relation to fisheries provide an example.
The Tribunal’s power to join a party to an application
The Tribunal’s power to make a person a party to a proceeding is found in s 30(1A) of the AAT Act. It provides:
“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.”
It is apparent that s 30(1A) has three elements. First, an application must have been made by a person to the Tribunal for review of a decision. That person must be a person different from the person seeking to be joined as a party. If such an application has been made, the second element is that the Tribunal must be satisfied that the person applying to be joined as a party is a “person whose interests are affected by the decision”. Whether the second element is satisfied is determined by reference to the same principles as those which are relevant in determining whether a person satisfies the requirements of s 27(1) of the AAT Act. If the person is such a person, the third element arises. That is that the Tribunal must decide whether it should exercise its discretion to make an order joining that person as a party. It is not obliged to exercise its discretion to make an order even if it satisfied that the person applying to be made a party is a person whose interests are affected by the decision.
If the Tribunal exercises its discretion to join a party to a proceeding, the Tribunal will, consistently with s 39 of the AAT Act and its obligation to provide procedural fairness, ensure that he or she has a reasonable opportunity to present his or her case. Subject to any confidentiality orders under s 35, he or she will be entitled to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to them. Once the application is determined, either by hearing with a subsequent decision, a decision by consent under ss 34D or 42C or by withdrawal or dismissal, the matter is at an end. A party joined has no separate right to continue the matter for there is only one application for review of a decision made by the applicant and not by the parties joined to that application.[29]
CONSIDERATION
[29] I have discussed these issues in Re Eurovox Pty Ltd and Chief Executive officer of Customs [2000] AATA 809; (2000) 63 ALD 755; 32 AAR 15
The principles determining when a person’s interests are affected by a decision within the meaning of s 27(1) or s 30(1A) of the AAT Act
A. General principles
In Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 1)[30] (Control Investment), Davies J considered when a person’s “interests are affected” within the meaning of ss 27(2)[31] and 30(1)(c) of the AAT Act. At the time, s 30(1)(c) provided that “… the parties to a proceeding are … any other person … whose interests are affected by the decision and who applied to the Tribunal to be made a party to the proceeding and was made such a party by an order of the Tribunal.” The equivalent provision is now s 30(1A) of the AAT Act. In Control Investments, Davies J said:
“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 a 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.’”[32]
This passage was approved by the Full Court in United States Tobacco Company v Minister for Consumer Affairs and Others[33] (US Tobacco), Alphapharm Pty Limited v Smithkline Beecham (Australia) Pty Limited and Others[34] (Alphapharm) and Comptroller-General of Customs v Members of the Administrative Appeals Tribunal.[35]
[30] [1980] AATA 78; (1980) 3 ALD 74; 50 FLR 1
[31] Section 27 provides, in part, that a person whose interests are affected by a decision may apply for review.
[32] (1980) 3 ALD 74; 50 FLR 1 at 79-80, 8-9
[33] Unreported, 15 September 1988, No. G158 of 1988
[34] (1994) 49 FCR 250; 121 ALR 373; 32 ALD 71; Davies, Burchett and Gummow JJ
[35] (1994) 123 ALR 140; 32 ALD 463
B. Specific principles
I will summarise the principles that can be drawn from those cases and from subsequent cases. Some were decided in the context of civil proceedings in the courts when the decision was whether an applicant for joinder was a person “aggrieved” by a decision. The principles are, however, equally applicable in the Tribunal. That is so even though, as will become apparent, being aggrieved carries with it the connotation of being badly or unfairly treated[36] and no sense of being aggrieved is required before a person can be said to have his or her “interests … affected by the decision”.
[36] Chambers 21st Century Dictionary (1999), (reprinted 2004) (Chambers)
B.1No technical rules apply to determine when person’s interests affected
(1)“… The meaning … is not encased in any technical rules; much depends upon the nature of the particular decision and the extent to which the interest of the applicant rises above that of an ordinary member of the public.”[37]
[37] Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (Right to Life) [1995] FCA 1060; (1995) 56 FCR 50; 128 ALR 238; 37 ALD 357; Lockhart, Beaumont and Gummow JJ at [65]; 65; 251; 370 per Lockhart J
B.2Relevant interests determined by relevant enactment and each decision
(2)The relevant interests must be determined by reference to the terms of the particular decision that has been made and the enactment under which that decision was made:[38]
[38] Alphapharm (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71 at 260; 383; 80 per Davies J citing US Tobacco at 529
(a)“ The expression ‘affected by’ and cognate terms appear in a range of laws of the Commonwealth. … It is necessary to answer the questions posed … in respect of s 119(1) of the Authority Act by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as ‘standing’. …
… A particular statute may establish a regime which specifically provides for its own measure of judicial review on the application of persons meeting criteria specified in that statute. … The starting point, as indicated by several authorities in the Full Court of the Federal Court …, is the construction of the Authority Act with regard to its subject, scope and purpose. …
… What serves to identify a person as one affected by a reviewable decision will vary having regard to the nature of the reviewable decision itself. …”[39]
[39] Allan v Transurban City Link Ltd [2001] HCA 58; (2001) 208 CLR 167; 183 ALR 380 at [15]-[17]; 174, 384 per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ
(i)“… In such event, the review, which forms part of the process of administrative decision-making, is provided to promote the achievement of the objects of the statute. …”.[40]
[40] (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71 at 260; 383; 80
(3)Where more than one decision can be made under an enactment, interests that are relevant in relation to one decision may not be in relation to another. Therefore, what are relevant interests must be determined by reference to each decision and the legislative context in which it is made:
(a)“… The denotation of the phrase ‘whose interests are affected’ … should not be assumed to be the same across this spectrum of decision making. It has a series of distinct operations and, in this sense, is of an ambulatory nature. … it cannot be correct that … the class of persons whose interests are affected by an initial decision is limited to disaffected applicants. Persons whose existing situation under the legislation is changed by operation of the initial decision, which was not sought but was imposed upon them, must be persons whose interests are affected by the initial decision.”[41]
[41] (1994) 49 FCR 250; 121 ALR 373; 32 ALD 71 at 273, 396, 91-92
(4)What may amount to relevant interests must be determined afresh in relation to each applicant, whether for review or joinder, in relation to each decision under each enactment:
“… it is important not to draw from what was said in any particular decision by way of identification of that which did or did not amount to a sufficient affectation of an interest any general proposition which may be translated to … [a particular] dispute. In each case, the content of the terms ‘affect’ and ‘interest’ are to be seen in the light of the scope and purpose of the particular statute in issue.”[42]
[42] (1994) 49 FCR 250; 121 ALR 373; 32 ALD 71 at 272, 395, 91 per Gummow J
B.3The person’s interests must be more than those of a concerned member of the public
(5)The effect on a person’s rights or interests must be something more than the effect on that person as a member of the public:
(a)“The question whether the Council qualified as an applicant … involves an assessment of the importance of the concern which an applicant has with respect to the particular subject matter of the decision and the closeness of the applicant’s relationship to that matter …”[43]
[43] Marrickville Council v Minister for the Environment, Sport and Territories [1996] FCA 851 per Kiefel J
(b)“ Many such decisions do not affect the rights, interests 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 not subject to judicial review.”
(Salemi v MacKellar (No 2) (1977) 137 CLR 396 at 452, per Jacobs J.)’”[44]
[44] Alphapharm (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71 at 260; 383-384; 80-81 per Davies J
(c)“ 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 be above that of a mere intermeddler or busybody. …
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. …”[45]
[45] Right to Life [1995] FCA 1060; (1995) 56 FCR 50; 128 ALR 238; 37 ALD 357 at [66]; 65; 252; 370 per Lockhart J
(6)A person’s interests are not assessed by reference to the effect of a decision on other persons but by reference to the effect on him or her:
(a)“ If a decision concerns the affairs of one person alone, other persons may not institute or join in the proceedings merely because it would be to their commercial advantage that the person should not receive a benefit or should suffer a disadvantage. …”[46]
[46] Alphapharm (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71 at 261-262; 385; 82 per Davies J
B.4Decision-maker’s obligation to accord procedural fairness relevant
(7)“ The question of standing is, indeed, related to issues of procedural fairness. If a person has interests 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 to procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary intention.
…’”[47]
[47] Alphapharm (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71 at 260; 383; 80
(8)A person who has a right to be heard in the decision-making process leading to the decision under review may be regarded as a person whose interests are affected by it whether or not that person exercised that right to be heard at the earlier time.[48]
[48] Alphapharm (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71 at 260-261; 384; 81 per Davies J
(9)Where an enactment has not expressly conferred upon a person a right to be heard during the decision-making process or on review, the enactment must be examined to determine whether that right is implicit having regard to its object or objects.
(a)This is illustrated in the case of Alphapharm, which considered a decision made under the Therapeutic Goods Act 1989:
“ The Act is dominated by public interest concerns. An object is to ensure that drugs which are imported are suitable for use in humans in Australia. Another object is to ensure that drugs which are suitable are registered or listed and become available in Australia for public use as soon as is practicable: see ss 4 and 17 of the Act. The Regulations specify times within which certain evaluations must be made and certain applications decided and a remedy in the nature of damages is provided for failure to make certain decisions within the specified time. And, as I have pointed out, the Act and the Regulations set up a structure, including the Australian Drug Evaluation Committee, for the carrying out of the necessary inquiries and for the making of skilled judgments as to the suitability or otherwise of a drug.
In this context, it is difficult to see that the Act would recognise the interest which a competitor may have in delaying or hindering the introduction of the drug onto the market. Such an interest is not relevant to the process which the Act establishes or to any decisions made under the Act. Such an interest is indeed in conflict with interests which the Act promotes.”[49]
[49] Alphapharm (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71 at 261; 385; 81-82 per Davies J
Decision-maker’s lack of obligation to consult not necessarily definitive
(10)“…[I]t is appropriate briefly to return to the comments of Mason J in Kioa, particularly his reliance on the observations of Jacobs J, to which I have referred. Where, as I think is the case here, a decision which does not attract requirements of procedural fairness is administrative in nature, rather than legislative, it does not follow from those comments, in my view (given the provisions of the ADJR Act, if no other reason) that the decision is not amenable to judicial review. It is by no means inconsistent with a decision that there is no duty to hear persons in relation to a proposed decision to hold also that there are persons ‘aggrieved’ by such a decision who have standing to impugn it, under the ADJR Act, on other grounds. It is therefore necessary to turn to the other grounds on which the applicants rely.”[50]
[50] Botany Bay City Council v Minister for Transport [1996] FCA 1507; (1996) 66 FCR 537; 137 ALR 281; 41 ALD 84 at 556; 299; 100 per Lehane J. See [128]-[129] below
No requirement that effect on interests be adverse
(11)“… It was submitted that the persons seeking to be joined in these proceedings should not be joined for their interests are not adversely affected by the decision under review. However, interests may be affected by a decision either adversely or beneficially and they may be so affected whether the decision was right or wrong. A person whose interests are affected by a decision is entitled to be joined as a party to proceedings reviewing that decision so as to put forward a view that the decision should not be set aside or changed.”[51]
Examples of the application of the principles determining when a person’s interests are affected by a decision
[51] Control Investment [1980] AATA 78; (1980) 3 ALD 74; 50 FLR 1 at 81; 10
In this section of my reasons, I have summarised the way in which the principles have been applied in two cases to illustrate their practical application in a case such as this.
A.Allan v Transurban City Link Ltd
In Allan v Transurban City Link Ltd[52] (Allan), the High Court considered whether Mr Allan, whose property was close to a proposed toll road, was a person affected by a decision of the Development Allowance Authority (DAA) to issue a certificate to Transurban City Link Limited (Transurban) in relation to borrowing it intended to undertake. A certificate would entitle any entity lending funds to Transurban to concessional tax treatment under the Income Tax Assessment Act 1936 (ITAA36). Transurban would be denied deductions under the ITAA36 for interest payments on its borrowings but would benefit because lenders would have an incentive to offer it funds at a lower interest rate than would otherwise be the case.
[52] [2001] HCA 58, (2001) 208 CLR 167; 183 ALR 380; Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting
Section 119(1)(a) of the Development Allowance Authority Act 1992 (DAA Act) provided that a person who was “affected by a reviewable decision”, which included a decision to issue a certificate, and who was dissatisfied with that decision could request the DAA to reconsider it. Mr Allan applied for review of the DAA’s decision to grant Transurban a certificate on the basis of the impact that the proposed toll road would have on his property and, more generally, with the environmental impact of the proposed project as a whole.
The majority of the High Court referred to the objects of the DAA Act. Among them was the provision of tax incentives. What was at stake in the issue of certificates to Transurban, the majority said, was the tax benefit that those lending funds to Transurban would obtain from them. In turn, Transurban would obtain a commercial advantage in obtaining cheaper finance. Section 93A of the DAA Act described the tax incentives as available for “genuine private secure investment” and what was “genuine” was to be identified by reference to the requirements of Chapter 3. Were a certificate to be refused, the majority found, the would be borrower applying for the certificate and the would be lender would each be a person aggrieved for the purposes of s 119(1)(a). Once a certificate has been granted, the applicant for the certificate may apply to have the conditions on which it was issued varied. That would mean that a dissatisfied applicant for variation would be a person dissatisfied with a decision to refuse to vary those conditions. The DAA may cancel a certificate if certain situations arise. Until it is cancelled, a certificate remains in force.
Section 119 provides that a person affected by a reviewable decision may, with reasons, apply to the DAA for review of a reviewable decision within 21 days after the decision first comes to the person’s attention. That time may be extended by the DAA. The majority of the High Court in Allan first considered whether s 119 permits review of a decision favourable to the applicant for a certificate. They decided that it did not. There were four strands to their reasons.
At the basis of their first reason was the DAA’s obligation to give written notice of its decision to each applicant. Its obligation to give reasons was limited to occasions on which it decided to refuse an application. They continued:
“ Notice of a refusal, not of a grant, must set out the reasons for the decision. This suggests that where, as here, the decision is one to grant, the legislation treats that as an end of the matter, save for the potential operation of the variation and cancellation provisions. …
Further, there is no provision for the giving of notice to the public or to any person other than the applicant. This, in turn, throws light upon the apparently unfixed operation of the temporal requirement of s 119(1)(a). This requires that the person affected by a reviewable decision make the request for reconsideration within the period of twenty-one days after the date on which the decision first comes to the attention of that person. Paragraph (a) has a sensible operation if, with respect to decisions under Ch 3, the person affected by the decision are those to whom the written notice must be given.”[53]
[53] [2001] HCA 58; (2001) 208 CLR 167; 183 ALR 380 at [31]-[32]; 178-179, 388
The second line of reasoning in the majority’s judgment begins with reference to the fact that the DAA Act does not make provision for public inquiries or for public participation in the process of consideration of the applications:
“ The absence of provisions for public inquiries or for public participation in the process of consideration of applications is not surprising given that the system for the provision of certificates is concerned with the provision of certain financial incentives. The legislation is not concerned with broader public interests such as those relating to the environmental, engineering, social or other aspects of the proposed infrastructure project. If the position were that a member of the public could seek reconsideration of a decision to issue a certificate within 21 days of that person becoming aware of the decision, there would be a potential for reconsideration at a delayed time of a decision to issue a certificate. This might even be later than the completion of the infrastructure project.”[54]
[54] [2001] HCA 58; (2001) 208 CLR 167; 183 ALR 380 at [34]; 179; 388
The third matter that swayed the majority was the provision that had been made in the Regulations made under the DAA Act for an annual cap on the amount that the certificates would cost the Commonwealth. The majority observed:
“…Transurban correctly submitted that the legislation would establish a curious regime if, whilst it stipulated for caps, the effect of the reconsideration provisions of s 119 was to permit late intervention by third parties so that it would not be known by the Revenue with certainty whether or not the cap had or had not been met in any particular year.”[55]
That element of certainty is also inherent in the fact that the certificates remain in force until cancelled under the DAA Act.
[55] [2001] HCA 58; (2001) 208 CLR 167; 183 ALR 380 at [35]; 179; 388
Finally, the majority noted, the applicant for the certificate is the borrower. It is not the lender who ultimately derives the taxation advantage but who does so after coming to a commercial arrangement with the borrower on the faith that the certificate will bring those tax advantages:
“… It would be an odd result if accommodation could be provided on the faith of the certificate and a third party in the position of Mr Allan was empowered by s 119(1) to apply for reconsideration of the decision to issue the certificate, in circumstances where the lender itself, the party immediately affected by the decision, had not been a party to the original application. The legislation is designed to achieve confidence in the outcomes for which it provides so as to encourage the financing of the facilities with which it deals.”[56]
[56] [2001] HCA 58; (2001) 208 CLR 167; 183 ALR 380 at [36]; 179-180; 389
C. Brisbane Airports Corporation Ltd v Wright
The case of Brisbane Airports Corporation Ltd v Wright[57] (Wright) was concerned with an application that had been made by the former Federal Member for Griffith, Mr Kevin Rudd, for review of a decision made by the Minister to approve a Master Plan for the Brisbane Airport. Initially, Mr Rudd had based his claim to be entitled to apply for review on three bases: his being a Member of Parliament; his representing a community group known as “BARB”; and his owning, together with his wife, a residential property approximately nine to ten kilometres from the southern end of the existing runway of the airport. The Tribunal had rejected the first two grounds and accepted the third as establishing his interest.
[57] [2002] FCA 359; (2002) 120 FCR 157; 77 ALD 411; 35 AAR 192; Dowsett J
After analysing Allan, Dowsett J considered those provisions of the Airports Act relating to noise exposure levels for noise was at the heart of the issues raised by Mr Rudd. Section 71(2)(e) required the airport-lessee company to forecast areas that would be subject to aircraft noise above 30 ANEF levels, consult with user airlines and relevant local authorities and develop a plan for managing aircraft noise intrusion in those areas and develop a plan for managing aircraft noise intrusion in those areas. In concluding that Mr Rudd was not a person aggrieved by the decision, Dowsett J made the following points:
(1)The Airports Act does not require that a lessee consult with occupiers of properties which, it is forecast, will be so affected. Their interests are presumably to be protected by the relevant local authorities. In those circumstances it seems unlikely that Parliament intended that they should be able to commence proceedings for review of a decision to approve a master plan. It is even less likely that occupiers likely to be exposed to lower levels of noise intrusion should be able to do so. To paraphrase the words of Davies J, their relevant ‘ripple of affectation’ is insufficient to constitute an affected interest for present purposes. In the present case, the second respondent challenges the reliability of the forecast that his property will be exposed to noise intrusion at levels below 20 ANEF levels, but there is no evidence suggesting that such intrusion would reach 30 ANEF levels.”[58]
[58] [2002] FCA 359; (2002) 120 FCR 157; 77 ALD 411; 35 AAR 192 at [31]; 166; 201
(2)“ Section 81 requires the Minister to take into account, in considering whether to approve a master plan, the effect that ‘carrying out the plan’ would be likely to have on the use of land, both within the airport site and in areas surrounding it. Significantly, the focus is on the use of land, not amenity or value. There is no suggestion that the use of the second respondent's land would be so affected, even if its amenity were reduced. It is also relevant that although public comment is to be invited, the Minister is not obliged to take it into account, although, as I have pointed out, the lessee must summarize such comment in the draft plan and certify that it has had due regard to it. …”[59]
[59] [2002] FCA 359; (2002) 120 FCR 157; 77 ALD 411; 35 AAR 192 at [32]; 166; 201
(3)“ Pursuant to subs 81(6), the Minister must notify the lessee of any decision as to the master plan and, pursuant to subs 81(7), if he or she refuses to approve it, give reasons. In this respect the legislation appears to be similar to that considered in Allan and Alphapharm. The lessee is clearly a person whose interests are affected by such a decision within the meaning of subs 242(3), and so the Minister would have to give notice of the right to apply for review pursuant to the AAT Act. The absence of any requirement for notice to other persons or for reasons in case of approval might well suggest that where the decision is to approve, the matter is at an end as was the case in Allan. See [31] of that decision.”[60]
[60] [2002] FCA 359; (2002) 120 FCR 157; 77 ALD 411; 35 AAR 192 at [33]; 166; 201
(4)This case, Dowsett J considered, differed from Allan, Alphapharm and Edwards v Australian Securities Commission and Others[61] (Edwards) in that, unlike them, s 79 of the Airports Act required public notification of a draft plan and a notice inviting the public to comment. He continued:
[61] (1997) 72 FCR 350; 142 ALR 455; 24 AAR 192; Lee, Carr and RD Nicholson JJ
“… It might therefore be thought that the presence of such provisions in this legislation is to contrary effect. However s 79 requires notice to ‘members of the public’. It is most unlikely that it was intended that any member of the public might seek review of a decision to approve a master plan. Further, although the lessee must have due regard to public comment, that is part of the formulation of the draft master plan and not necessarily part of the Minister’s decision-making process. As I have said, s 81 does not compel consideration of such comments by the Minister.
As to s 86, it appears to be designed to advise members of the public as to how they can inform themselves of the content of the master plan during its currency. The notice must appear within ninety days after approval. That means that for a period of up to three months, the plan may be in force and action taken pursuant to it without public notification of its approval. Further, the plan must be available for inspection throughout the period of its currency. It cannot have been intended that a person becoming aware of the content of a plan at any time during its five year term should be able to seek review of the decision to approve it. Yet no other time frame is prescribed other than that which appears in subss 29(2) and 29(4) of the AAT Act. There are obvious difficulties in applying those provisions to a decision of this kind. Further, there is no requirement that a s 86 notice should contain any reference to the AAT Act procedure. In this respect it is to be contrasted with the provisions of subs 242(3).
The difficulty inherent in relying upon ss 79 and 86 as justifying a wide approach to the question of entitlement to seek review is that those sections offer no guidance in that respect. The requirement is for notice to the general public, but it is most unlikely that Parliament intended that any member of the public could seek review. Nonetheless, it is difficult to see how these sections can be read so as to narrow the relevant range of affected interests if it be conceded that they are designed to facilitate the review process. The better view is that while s 79 is intended to invite comment from the general public, s 86 is designed to inform the general public of the content of the approved plan. They are not relevant to the review process. Any public comment concerning a draft master plan must be considered by the lessee and summarized in a report to the Minister, but there is no intention that any member of the public be heard in connection with the Minister’s decision-making process, nor may such a person seek review of the Minister’s decision.”[62]
(5)His Honour distinguished between a master plan and a draft MDP:
“ An airport lessee enters into a commercial arrangement with the government. To allow a wide range of people to seek review of the Minister’s approval of a master plan might well threaten the capacity of the lessee to carry on its business as it has undertaken to do, a business which is of considerable public importance. A master plan does not authorize any development in the absence of a major development plan or building approval, although it may close off some options during its currency, at least in the absence of an approved variation. It must also be kept in mind that the master plan will deal with a period of twenty years. Many relevant circumstances will change, so that proposals appearing in one master plan may be abandoned in its successor. Too wide an approach to identification of affected interests would lead to the administrative review process becoming a purely theoretical exercise involving debate about mere future possibilities and how they should be accommodated. It would also have the potential capacity to disrupt a major public function. It seems unlikely that Parliament intended such an outcome.
My preferred view is that at least where the decision in question concerns approval of a master plan, only the lessee is an interested party for the purposes of seeking review. If the plan is approved, that is an end of the matter. If it is not approved, reasons must be given, and the lessee may seek review. A wider approach might also permit such an application by the airlines and local authorities referred to in par 71(2)(e). An even wider approach might include property owners likely to be exposed to noise intrusion above significant ANEF levels. As I have said, I prefer the first-mentioned approach. None of these approaches would permit an application by the second respondent. In the above observations, I have dealt only with the position where the attack upon a master plan is based upon ‘noise issues’. A proper construction of Division 3 of Part 5, especially ss 71 and 81, may arguably permit other persons to seek review upon other bases. It is not necessary to consider that possibility.”[63]
[62] [2002] FCA 359; (2002) 120 FCR 157; 77 ALD 411; 35 AAR 192 at [34]-[36]; 166-167; 201-202
[63] [2002] FCA 359; (2002) 120 FCR 157; 77 ALD 411; 35 AAR 192 at [37]-[38]; 167-168; 202
Is NVCV a person whose interests are affected by the Minister’s decision to approve the PAMP?
I accept that NVCV and the three individuals seeking to be joined as parties are concerned residents or former residents in areas located close to Parafield Airport. Some, or perhaps all, own real estate in the area if not the house in which they live. The essence of their concerns lies in the number of training flights undertaken at the airport. They submit that the volume of flight training at the Parafield Airport means that it stands apart from most other airports. Apart from noise pollution, they complain of air pollution. They had attended public meetings during the consultation phase relating to the draft PAMP but state that they were told not to mention noise in their submissions. Efforts to engage relevant Ministers have not resolved the issues. House prices have dropped in the area. NVCV has put forward material to support the concerns he has expressed.
There can be no doubting the sincerity, which NVCV and the applicants seeking to be joined to his application, have in expressing their concerns. This is not the appropriate time to determine whether objective evidence supports them for it is not the appropriate time to even begin to gather that objective evidence. Whether or not a person’s interests are affected by a decision is not a question determined by the nature of their concerns or the sincerity with which they are held. They may be factors but the starting point has to be the decision of which review is sought and the subject, scope and purpose of the Airports Act in which it is made.
The decision is a decision to approve the draft PAMP under s 81(2)(a). The only other decision that the Minister could have made was to refuse approval under s 81(2)(b). The matters to which the Minister had to have regard are set out in s 81(3). While s 81(4) makes it clear that the Minister is not limited to those matters alone, he is limited in his consideration by the subject, scope and purpose of the Airports Act. As Dowsett J observes in Wright, s 3(b) does refer to establishing a system for the regulation of airports that has due regard to the interests of airport users and of the “general community” but that seems to be a reference to collective, rather than individual interests or, I would add, the common individual interests of a number of individuals.
There is no further reference to the “general community” in the Airports Act but there is reference to “community”. There are two references in s 71(2) when prescribing what a draft or final master plan must specify. One is a requirement imposed by s 71(2)(gb)(i) is that it set out detailed information on the proposed developments in the master plan that are to be used for commercial, community, office or retail purposes. The other is imposed by s 71(2)(gb)(ii) to set out, in relation to the initial period, the likely effect of the proposed developments in the master plan on the local and regional economy and the community. Further reference to the community is found in Division 4 of Part 5 relating to major development plans but they are not the subject of the Minster’s decision in this case. The references to community in the context of the preparation of a draft master plan are not expressed in terms that encompass individual concerns such as those expressed by NVCV.
NVCV has decried the consultative process that was followed in the preparation of the draft PAMP. A draft master plan must include reference to consultations but those consultations are not expressed to be with the general public. One reference appears in s 71(2)(e) in the context of the airport-lessee company’s plans developed following consultations with airlines using the airport and local government bodies in the vicinity of the airport for managing aircraft noise intrusion. That reference is not to public consultation. Rather, the reference to consultation with local government bodies would seem to be that consultation must be had with them because they are responsible for noise issues. They are responsible on behalf of their ratepayers, residents, business interests, sporting groups and so on. There is no room for consultation with individuals. The other references in s 71(2) to consultation are found in s 71(2)(h). Under s 71(2)(h)(ii), the airport-lessee company is required to identify in its environmental strategy areas within the airport site that are environmentally significant. It must do so in consultation with State and Federal conservation bodies. Under s 71(2)(h)(viii), the draft master plan must set out details of the consultations undertaken in preparing the environmental strategy. Regulations 5.02A and 5.02B of the Airports Regulations expand on the requirements relating to the environmental strategy but there is no reference to consultations with the community generally.
Section 79(1) requires an airport-lessee company such as PAL to invite public comment and s 79(2)(b)(ii) requires it to demonstrate that it has had due regard to that comment in preparing the draft plan. That requirement could be said to give those members of the public who have made comments an interest in the draft plan’s reflecting their comments accurately and having due regard to them. If the airport-lessee company’s decision to sign off on the draft master plan it presents to the Minister were the decision under review, it might be arguable that those members of the public would have an interest in the decision. But that is not the decision under review.
The decision under review is the decision of the Minister to approve the draft plan. Consideration of public comment is not one of the matters specified in s 81(3) as a matter to which the Minister must have regard. He or she must have regard to “the consultations undertaken in preparing the plan (including the outcome of the consultations)” under s 81(3)(c) but the Airports Act draws a distinction between “consultations” and “public comments”. The former are the subject of s 80 and sought from the persons named in s 80(1)(b) being a State government, an authority of a State, a local government body, and airline or other user of the airport concerned or “any other person”. The reference to “any other person” does not extend to members of the public from whom “comments” are invited under s 79(1). Those comments are dealt with differently from the “views expressed by the persons consulted” under s 79. Comments are summarised and a certificate given to the Minister demonstrating that due regard has been paid to them in preparing the draft master plan. Section 81(3) does not require the Minister to have regard to them.
Having regard to the matters to which the Minister must have regard, I would conclude that, even if NVCV and the those seeking to be joined to any application he makes made comments in response to PAL’s invitation to do so, they would not be persons whose interests can be said to be affected by the Minister’s decision. They stand too far away from the matters to which the Minister must have regard under s 81(3) in the context of legislation whose objects, as set out in s 3, carry a strong focus on the promotion of the development of civil aviation, the efficient and economic development of airports and their regulation.
I note that Dowsett J in Wright said that his preferred view was that the only interested party for the purpose of the approval of a master plan is the lessee.[64] His Honour did acknowledge that the circle might be wider but did not go on to consider the issue. I would respectfully suggest that those who were consulted under s 80 and to which the Minister has had regard under s 81(3)(c) might be able to argue that they are persons whose interests are affected by the Minister’s decision. Not only would they have been consulted but, as State and local government bodies, would have had interests affected by an airport located in or adjacent to their geographical areas of responsibility. I put it no higher than an argument for I am not considering an application lodged by any such body.
[64] [64] [2002] FCA 359; (2002) 120 FCR 157; 77 ALD 411; 35 AAR 192 at [38]; 167; 421; 202
I also note that s 242(3) requires the Minister to notify the person or persons whose interests are affected by the decision. That does not take the matter any further but care must be taken to ensure that such a provision does not lead to an outcome that the identification of a person whose interests are affected by a decision is determined by reference to those to whom the Minister sent a notice of the decision. I am not suggesting that this has happened in this case but it is a common provision and an easy trap for a busy review body to fall into.
NVCV and those who join an application he might make do not suggest that they were consulted under s 80. They are members of the public who live in areas near or adjacent to the airport and who have concerns. The matters relevant to the Minister’s decision do not have an immediate regard to concerns such as theirs. Concerns such as theirs may have been summarised in the certificate accompanying the draft master plan when it was presented to the Minister for approval. If they were, PAL would have had to demonstrate that it had given them due regard in the draft PAMP. Beyond that, those comments lie outside the scope of the matters to which the Minister must have regard. The Airports Act has put those who made those comments outside the circle of those who have interests affected by the Minister’s decision. They are part of the process but excluded from the final consideration so that they cannot be said to have interests affected by the Minister’s decision.
It follows, therefore, NVCV cannot be a person whose interests are affected within the meaning of s 27(1) of the AAT Act and he cannot make an application for review of the Minister’s decision to approve the PAMP on 10 January 2018. As NVCV cannot make an application, I must dismiss the applications of the three persons who sought to be joined as parties. Without and application to which to be joined, there can be no joinder order.
APPLICATION FOR A CONFIDENTIALITY ORDER UNDER SECTION 35
Section 35 of the AAT Act
The fundamental principle is set out in s 35(1):
“Subject to this section, the hearing of a proceeding before the Tribunal must be in public.”
That principle is ameliorated by s 35(2) when it provides for a private hearing. It is further ameliorated by s 35(3) when it provides:
“The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:
(a)information tending to reveal the identity of:
(i)a party to or witness in a proceeding before the Tribunal; or
(ii)any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or
(b)information otherwise concerning a person referred to in paragraph (a).”
Section 35(4) also provides that:
“The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:
(a)relates to a proceeding; and
(b)is any of the following:
(i)information that compromises evidence or information about evidence;
(ii)information lodged with or otherwise given to the Tribunal.”
Section 35(5) sets out the principles underpinning the way in which the Tribunal may exercise its powers:
“In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration 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.
However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.”
Section 35 was considered by Downes and Jagot JJ in Australian Securities and Investments Commission v Administrative Appeals Tribunal.[65] At that time, section 35 was drafted in slightly different terms as the court considered it in its form before its amendment by the Tribunals Amalgamation Act 2015. The variations between the two forms make no difference to the substantive terms in which s 35 is drafted and the statements made by Downes and Jagot JJ, with whom Moore J agreed, are equally relevant. The plurality said:
74 Again, we think it is important to emphasise certain aspects of the statutory provisions. Although s 35(1) is subject to the balance of the section, it establishes a norm. The norm is that the proceedings before the AAT shall be in public. This norm is reinforced by the requirements of s 35(3) which expressly confirm the principle that it is desirable that hearings be held in public. It follows that when deciding whether it is satisfied that it is desirable to exercise its powers under s 35(2), the AAT is required to form a state of satisfaction which recognises the existence of the norm and the values it is intended to protect. This, no doubt, is why Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 510 described the power in s 35(2) to depart from this norm as one to be exercised ‘sparingly’. It also explains the approach in Australian Securities and Investments Commission v PTLZ (2008) 48 AAR 559; [2008] FCAFC 164 at [6], [41] and [42] (an appeal to the Full Court of the Federal Court from the decision of the AAT in Re PTLZ and Australian Securities and Investments Commission (2008) 100 ALD 648; [2008] AATA 106) emphasising that the words of s 35(3) require this principle of the desirability of hearings to be in public to be ‘the basis’ of the AAT’s consideration of adopting a different approach (in contrast, for example, to ‘a basis’ for that consideration).
75 Suppression orders are rarely made in courts, even though publicity undoubtedly disadvantages the parties. Criminal proceedings are a good example. In the AAT itself facts which parties would not wish to be published and which may disadvantage them are frequently published. Social security applications are a good example. The reason these matters are not kept secret is the overriding importance of justice being administered openly and in public. It is not readily apparent why persons in businesses should be treated differently even when, for example, employees may be disadvantaged.
76 When measured against the existence of the norm of a public hearing and the scheme established by the Corporations Act with respect to banning orders, it is apparent that the AAT would need some cogent reason by reference to the particular case to depart from the ordinary requirement of a public hearing. It is difficult to accept that harm (even serious harm) to the recipient’s reputation resulting from public awareness of the banning order will be a sufficiently cogent reason to justify the grant of a stay in most cases. This is because the risk of harm of this type is inherent in the nature of a banning order.”[66]
[65] [2009] FCAFC 185; (2009) 181 FCR 130
[66] [2009] FCAFC 185; (2009) 181 FCR 130 at [74]-[76]; 148-149
Principles relevant to the circumstances of this proceeding
NVCV and the applicants for joinder have all expressed concerns that they would face repercussions in challenging the Minister’s decision. I do not understand those concerns to be referrable to the Minister or the Commonwealth but to private interests. Had I decided that NVCV and the persons seeking joinder to his application are persons whose interests are affected by the Minister’s decision, I would not have made a confidentiality order. Although NVCV and the other three individuals might prefer that they not be identified, their no doubt genuinely held but unsubstantiated claims of potential discrimination for making the application and pursuing the review would not have been a strong enough basis on which to grant an order keeping their identity from the public. NVCV’s application would have been for review of a master plan for an airport that affects not only of the airport-lessee company but also airport users and the community generally. It is important that any merits review of such a decision takes place in an open forum, to which the general public has access. The matter is not simply a matter between two parties but one with wider ramifications. The public is entitled to know the identity of those who challenge the decision that affects them to a greater or lesser degree.
As matters stand, my conclusion means that the Minister’s decision is not subject to review on an application made by NVCV. There may be public interest in knowing that someone has sought review of the Minister’s decision but that public interest is satisfied without the need to know his identity or that of those would have sought to join his application.
DECISION
For the reasons I have given, I have:
(1)decided that:
(a)within the meaning of s 27(1) of the AAT Act, NVCV is not a person whose interests are affected by the decision made by the Minister on 19 January 2018 under s 81 of the Airports Act;
(b)therefore, NVCV may not make an application to the Tribunal for review of the Minister’s decision; and
(c)other persons may not apply to be joined to an application if the application has not been made by a person entitled to make that application; and
(2)under s 35 of the AAT Act ordered that the applicant be known as “NVCV” in so far as his application to the Tribunal and the proceedings leading to my deciding that he is not a person whose interests are affected by the Minister’s decision and my giving reasons for my decision.
| I certify that the preceding sixty two (62) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie |
.....................[sgd].................................................
Associate
Date of decision: 22 July 2020
| Heard: | 11 October 2019, 1 November 2019 and |
| Applicant’s solicitor: | Self-represented |
| Respondents: | Asaf Fisher HWL Ebsworth Lawyers |
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