Randwick City Council v Minister for the Environment
[1998] FCA 1376
•3 NOVEMBER 1998
FEDERAL COURT OF AUSTRALIA
EVIDENCE – expert evidence – admissibility of evidence –inappropriate expertise – relevance - s 79, s 80 Evidence Act 1995 (Cth) – duty and responsibility of the expert witness – weight to be given – Federal Court Rules Order 10 rule 1(2)(j) – evidence received as submission only
ADMINISTRATIVE LAW – judicial review – Administrative Decisions (Judicial Review) Act 1977 (Cth) – Judiciary Act 1903 (Cth) - decision under an enactment – whether substantive or determinative – whether of legal consequence or effect - exercise of Commonwealth executive power
ADMINISTRATIVE LAW - request for statement of reasons – s 13(1) Administrative Decisions (Judicial Review) Act 1977 (Cth) – objectives to be achieved by obligation to provide reasons – whether appropriate to exercise discretion to compel provision of statement of reasons
ADMINISTRATIVE LAW – environment protection - Environment Protection (Impact of Proposals) Act 1974 (Cth) - Administrative Procedures – obligations imposed by – scope and purpose
ADMINISTRATIVE LAW – judicial review – procedural ultra vires – Environment Protection (Impact of Proposals) Act 1974 (Cth) – Administrative Procedures – construction of obligation to provide information relating to “feasible and prudent alternatives”
ADMINISTRATIVE LAW – judicial review – uncertainty – direction to implement evolutionary plan – whether “result of the exercise of the power” uncertain - function of a statutory corporation - infra-governmental decision-making – responsible government
ADMINISTRATIVE LAW – judicial review – improper purpose – giving effect to election commitments – representative democracy
ADMINISTRATIVE LAW – judicial review – procedural fairness – representations as to procedure and substantive outcome – whether representations created a legitimate expectation – public administration – relevant and irrelevant considerations - discretion of court to grant relief – whether relief futile
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 3(1), s 5(1)(h), s 5(2)(h), s 5(3)(b), s 13(1), s 13(7)
Environment Protection (Impact of Proposals) Act 1974 (Cth), s 5(1), s 6, s 8, s 10
Australian Heritage Commission Act 1975 (Cth), s 30(1), s 30(3)
Air Services Act 1995 (Cth), s 8, s 9, s 10, s 11, s 16(3), s 21, s 23, s 35
Federal Airports Corporation Act 1986 (Cth)
Judiciary Act 1903 (Cth), s 39B
Acts Interpretation Act 1901 (Cth), s 25D
Administrative Appeals Tribunal Act 1975 (Cth), s 43(2B)
Evidence Act 1995 (Cth), s 55, s 56, s 79, s 80, s 135
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Applied)
Kelson v Forward (1995) 60 FCR 39 (Applied)
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 (Followed)
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 (Referred to)
New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 59 FCR 369 (Applied)
Comcare v Lees (1997) 151 ALR 647 (Referred to)
Pepsi Seven-Up Bottlers Perth Pty Ltd v Commission of Taxation (1995) 62 FCR 289 (Referred to)
Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79 (Applied)
Murphy v The Queen (1989) 167 CLR 94 (Referred to)
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (Referred to)
Clark v Ryan (1960) 103 CLR 486 (Applied)
The “Ikarian Reefer” [1993] 2 Lloyd’s Rep 68 (Referred to)
Whitehouse v Jordan [1981] 1 WLR 246 (Referred to)
Arnotts Ltd v Trade Practices Commission (1990) 97 ALR 555 (Referred to)
Quick v Stoland Pty Ltd, unreported, FCA, Full Court, 25 September 1998 per Branson J (Applied)
Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 (Applied)
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Applied)
Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1 (Referred to)
Friends of Hinchinbrook Society Inc v Minister for Environment (No 2) (1997) 69 FCR 28 (Referred to)
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 (Referred to)
Ballarat Broadcasting Pty Ltd v Australian Broadcasting Tribunal (1988) 3 BR 56 (Applied)
Minister forAboriginal and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40 (Referred to)
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 (Referred to)
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Referred to)
Attorney-General (NSW) v Quin (1990) 170 CLR 1 (Applied)
Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537 (Referred to)
Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93 (Applied)
Powerlift (Nissan) Pty Ltd v Minister of State for Small Business, Construction and Customs (1993) 40 FCR 332 (Referred to)
Pyneboard Pty Ltd v Trade Practices Commission (1982) 39 ALR 565 (Referred to)
Conley v Deputy Commissioner of Taxation (1998) 152 ALR 467 (Applied)
Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 (Referred to)
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 (Referred to)
RANDWICK CITY COUNCIL (First Applicant) WOOLLAHRA MUNICIPAL COUNCIL (Second Applicant) v MINISTER FOR THE ENVIRONMENT (First Respondent) MINISTER FOR TRANSPORT AND REGIONAL DEVELOPMENT (Second Respondent)
NG 881 of 1997
FINN J
CANBERRA (HEARD IN SYDNEY)
3 NOVEMBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 881 of 1997
BETWEEN:
RANDWICK CITY COUNCIL
FIRST APPLICANTWOOLLAHRA MUNICIPAL COUNCIL
SECOND APPLICANTAND:
MINISTER FOR THE ENVIRONMENT
FIRST RESPONDENTMINISTER FOR TRANSPORT AND REGIONAL DEVELOPMENT
SECOND RESPONDENTJUDGE:
FINN J
DATE OF ORDER:
3 NOVEMBER 1998
WHERE MADE:
CANBERRA (HEARD IN SYDNEY)
THE COURT ORDERS THAT:
1. the application be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 881 of 1997
BETWEEN:
RANDWICK CITY COUNCIL
FIRST APPLICANTWOOLLAHRA MUNICIPAL COUNCIL
SECOND APPLICANTAND:
MINISTER FOR THE ENVIRONMENT
FIRST RESPONDENTMINISTER FOR TRANSPORT AND REGIONAL DEVELOPMENT
SECOND RESPONDENT
JUDGE:
FINN J
DATE:
3 NOVEMBER 1998
PLACE:
CANBERRA (HEARD IN SYDNEY)
REASONS FOR JUDGMENT
TABLE OF CONTENTS
ACRONYMS, ABBREVIATIONS AND NAMES........ ........ ........ ........ ........ ........ ........ ........ . 3
THE RUNWAYS AT SYDNEY AIRPORT AND THEIR PRE-LTOP USE........ ........ ....... 4
THE STATUTORY SETTING........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 7
GENERAL FACTUAL SETTING........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 12
ARE THE SECOND AND THIRD DECISIONS JUDICIALLY REVIEWABLE?........ . 19
A FURTHER STATEMENT OF REASONS........ ........ ........ ........ ........ ........ ........ ........ ...... 23
THE CHALLENGES TO THE FIRST DECISION........ ........ ........ ........ ........ ........ ........ .... 26
Expert Evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 27
Error of Law........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 30
Procedural Ultra Vires........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 39
Uncertainty........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 46
Improper Purpose........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 47
No Evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 48
Relevant Consideratons........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. 51
Irrelevant Considerations........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 55
Wednesbury Unreasonableness........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 55
THE CHALLENGES TO THE FOURTH DECISION........ ........ ........ ........ ........ ........ ...... 56
Procedural Fairness........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 58
Procedural Ultra Vires........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 65
Uncertainty........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 65
Improper Purpose........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 73
No Evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 76
Relevant Considerations........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 78
Irrelevant Considerations........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 78
Wednesbury Unreasonableness........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 79
Other Matters........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. 79
Concluding Observations........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 80
The concern of this application is those various decisions of the Minister for the Environment (Senator Hill) and the Minister for Transport and Regional Development (Mr Sharp) that resulted in the implementation of the Sydney Airport “Long Term Operating Plan” (“the LTOP”) without an environmental impact statement or public environment report being first required. The applicant councils – Randwick City Council and Woollahra Municipal Council – challenge these on a variety of grounds. The stimulus to their challenge is that the LTOP is said to impact adversely on their respective constituents by way of aircraft noise, environmental pollution and otherwise.
The variety and overlap of the challenges made have contributed to the length and complexity of these reasons. To assist an understanding of them, it has been considered appropriate to include both a table of contents and a list of acronyms, abbreviations and names used in the proceedings.
ACRONYMS, ABBREVIATIONS AND NAMES
ADJR Act Administrative Decisions (Judicial Review) Act 1977 (Cth)
Administrative Procedures
Subordinate legislation made under the Environment Protection (Impact of Proposals) Act 1974 (Cth)
AHC Act Australian Heritage Commission Act 1975 (Cth)
ANECAustralian Noise Exposure Concept: a contour mapping system providing an estimate of levels of aircraft noise exposure for particular proposals.
ANEFAustralian Noise Exposure Forecast: a modelling system providing a forecast of average daily aircraft noise exposure.
ANEIAustralian Noise Exposure Index: the historical equivalent to the ANEF calculated from actual rather than forecast air traffic data.
AsAAirservices Australia: a statutory corporation created by the Air Services Act 1995 (Cth).
As ActAir Services Act 1995 (Cth).
DoESTDepartment of the Environment, Sport and Territories.
DoTRDDepartment of Transport and Regional Development.
Draft LTOP/LTOP The Long Term Operating Plan for Sydney (Kingsford Smith) Airport and Associated Airspace prepared by AsA in 1996.
EISEnvironmental impact statement within the meaning of the EP(IP) Act.
Environment Australia
A program within DoEST.
EP(IP) ActEnvironment Protection (Impact of Proposals) Act 1974 (Cth).
FACFederal Airports Corporation: a statutory corporation created by the Federal Airports Corporation Act 1986 (Cth).
FAC ActFederal Airports Corporation Act 1986 (Cth).
KSAKingsford Smith Airport.
Paddington Conservation Area
An area within the Woollahra municipality that was registered in the Register of the National Estate within the meaning of s 22 of the AHC Act.
PERPublic environment report within the meaning of the EP(IP) Act.
Task ForceSydney Air Traffic Management Task Force formed by AsA with responsibility for formulating proposals for the LTOP.
THE RUNWAYS AT SYDNEY AIRPORT AND THEIR PRE-LTOP USE
With the opening of the “parallel runway” in 1994 the Kingsford Smith Airport (“KSA”) had three runways. These were (and are) –
(i)the main north-south runway;
(ii)the parallel runway on the eastern side of the north-south runway; and
(iii)the east-west runway which runs at approximately right angles to the parallel runways.
The main north-south runway when used for take-offs to the north and landings from the south is runway 34L. The same runway when used for take-offs to the south and landings from the north is runway 16R. The new parallel runway when used for take-offs to the north and landings from the south is Runway 34R. The same runway when used for take-offs to the south and landings from the north is runway 16L. The east-west runway when used for take-offs to the east and landings from the west is Runway 07. The same runway when used for take-offs to the west and landings from the east is Runway 25.
As a result of decisions of the Government of the time, on the opening of the parallel runway restrictions were placed upon the permitted uses of the airport’s runway system. Departures to the north from the parallel runway (34R) were not allowed. The main north-south runway (34L/16R) continued to handle all classes of air traffic. The use of the east-west runway (07/25) was restricted to when adverse weather conditions precluded the use of other runways.
In giving his reasons for one of the decisions challenged in this proceeding (the direction to Airservices Australia (“AsA”) of 30 July 1997), Mr Sharp was to make this comment on the limited use that could thus be made of the airport’s runways:
“The use of the parallel runways at the Airport together with the requirement to use legislated flight corridors, combined with the effective closure of the east-west runway other than in some limited weather conditions, resulted in a concentration of aircraft movements and related noise impacts in certain suburbs immediately to the north of the Airport. I was of the opinion that this concentration of aircraft movements represented an inequitable distribution of aircraft noise impacts.”
On 8 March 1995 the Senate established a select committee to inquire into aircraft noise at Kingsford Smith Airport and to explore possible solutions to the problem. There had been sharp public reaction following the opening of the third runway and the consequent use of the runways as described above. The view favoured by the committee in its Report “Falling on Deaf Ears” of November 1995 was that of sharing the burden of noise in preference to concentrating flight paths (hence noise impact) into narrow bands.
In January 1996 the Liberal-National Party Coalition produced a policy document on Sydney Airport entitled “Putting People First”. Its professed purpose was to –
“reduce the noise and pollution generated by the airport as much as possible and … share the noise burden in a safe and equitable way.”
It stated that under a Coalition Government:
“The airport will be operated subject to three principles:
·all three runways at the airport will be used, to spread the noise generated by the airport equitably. We will make the maximum possible use of approaches and departures over water and non-residential areas. We will not use the east west runway as a stub runway for propeller aircraft. The full length of the runway will be used by both jet and propeller planes.
·the runway capacity of the airport will be maintained, however, we will not allow the hourly movement rate to exceed 80 movements per hour.
·the safety of the airport will not be compromised.”
With the Coalition securing government, Mr Sharp as Minister for Transport and Regional Development issued a direction on 20 March 1996 to AsA under s 16 of the Air Services Act 1995 (Cth) (“As Act”). This step put in train the process leading to the decisions under challenge in these proceedings. This direction required AsA to:
“1. take immediate steps, consistent with the requirements of the Act, to increase the usage of Runway 07/25 (known as the east-west runway) at Sydney (Kingsford Smith) Airport in order to distribute the noise generated at the Airport more fairly. Consistent with this, the east-west runway is to operate in accordance with the following principles:
·the full length of the runway is to be available for use by both jet and propeller aircraft
·procedures involving independent use of the intersecting runways (such as the procedures known as SIMOPS) are not to be adopted
·usage of the runway should be directed, consistent with safety and efficiency of airport operations, towards achieving the earliest and maximum practicable reduction in the number of aircraft taking-off and landing over areas to the north of the Airport.
2. report to me by 16 December 1996 on a proposed long term operating plan for the Airport and associated airspace based on the following principles:
·all three runways at the Airport, including the full length of the east-west runway, are to be available for use by jet and propeller aircraft
·maximum use is to be made of flightpaths over water and non-residential areas
·the capacity of the Airport is to be maintained to the maximum practicable extent but the programmed movement rate is not to exceed 80 movements per hour
·the safety of aviation operations is not to be compromised.”
The Minister had previously sought from Senator Hill, and had been granted, an exemption of this action from the requirements of the Administrative Procedures made under the Environment Protection (Impact of Proposals) Act 1974 (Cth) (“EP(IP) Act”).
In May of 1996 Mr Sharp directed AsA to examine the feasibility of introducing aircraft take-offs from runway 34R in accordance with policy principles he had specified. Having been informed that the procedure was feasible he gave a direction of 14 September 1996 requiring the introduction of take-offs on runway 34R “in order to distribute the noise generated at the Airport more fairly”. Again Senator Hill had previously exempted the action proposed from the requirements of the Administrative Procedures.
The LTOP was provided to Mr Sharp on 16 December 1996. It was released for public comment on 5 February 1997. Were its proposals to be implemented by AsA, it was appreciated by Mr Sharp that the environment would, or would be likely to, be affected to a significant extent. For this reason Mr Sharp then initiated the processes required by and under the EP(IP) Act. Before outlining the steps taken, it is necessary to refer to the statutory setting in which they occurred.
THE STATUTORY SETTING
The EP(IP) Act
The immediately relevant sections of this Act are s 5(1) and s 8(a). Section 5(1) provides:
“5.(1) The object of this Act is to ensure, to the greatest extent that is practicable, that matters affecting the environment to a significant extent are fully examined and taken into account in and in relation to:
(a)the formulation of proposals;
(b)the carrying out of works and other projects;
(c)the negotiation, operation and enforcement of agreements and arrangements (including agreements and arrangements with, and with authorities of, the States);
(d)the making of, or the participation in the making of, decisions and recommendations; and
(e)the incurring of expenditure;
by, or on behalf of, the Australian Government and authorities of Australia, either alone or in association with any other government, authority, body or person.”
Section 8(a) in turn requires:
“8. Each Minister shall give all such directions and do all such things as, consistently with any relevant laws as affected by regulations under this Act, can be given or done by the Minister:
(a) for ensuring that procedures for the time being approved under this Act are given effect to in and in connexion with matters dealt with by the Department administered by the Minister and that any authority of Australia in relation to which the Minister has ministerial responsibilities observes, and assists in giving effect to, those procedures."
The Administrative Procedures
These need to be referred to at some length. Where an action of a type mentioned in s 5(1) of the EP(IP) Act is proposed to be taken by the Commonwealth or a Commonwealth authority and where the minister who is responsible for it (in the present instance, Mr Sharp) is satisfied that that action is an environmentally significant one, then that minister must set in train the steps prescribed in the Administrative Procedures: see para 1.2.1.
First, the minister (described in the Administrative Procedures as the “action Minister”) must designate an appropriate person or Department as “the proponent of the proposed action” and must, for present purposes, notify the Department of the Environment, Sport and Territories of the proposed action. In the instant case Mr Sharp designated his own department – the Department of Transport and Regional Development (“DoTRD”) – as the proponent. The proponent was required to do all things necessary to enable the Administrative Procedures to be complied with in relation to the proposed action.
Secondly, a process was then to be engaged in leading to a decision whether or not an environmental impact statement (“EIS”) or a public environment report (“PER”) was required. This process, insofar as presently relevant, is set out in full below. I would note that the references in the text of the clauses below to “the Minister” and “the Department” are in this matter, references to the Minister for the Environment and to the Department of Environment, Sport and Territories (“DoEST”). I would also note that DoEST is colloquially referred to as Environment Australia in relation to its actions relevant to this matter. That usage will be adhered to in these reasons.
“SUPPLYING OF INFORMATION
Proponent to supply information
2.1 As soon as possible after the Department has been informed of a proposed action under paragraph 1.2.1. or 1.2.4., the proponent shall supply to the Minister, or the Department, such information as is required by these procedures, or is otherwise necessary, for the purpose of consideration, by the Minister or on the Minister’s behalf, of the necessity for an environmental impact statement or a public environment report in relation to the proposed action.
Information required by procedures
2.2 For the purpose of paragraph 2.1, the information required by these procedures shall, to the extent appropriate in the circumstances of the case, be information –
(a)summarizing any preliminary planning, consideration or work undertaken in relation to the proposed action and, in particular, describing any feasible and prudent alternative to the proposed action considered by the action Minister or the proponent;
(b)describing the environment that is likely to be affected by the proposed action and by any feasible and prudent alternative to the proposed action;
(c)indicating the potential impact on the environment of the proposed action and of any feasible and prudent alternative to the proposed action, including any enhancement of the environment;
(d)describing any safeguards or standards for the protection of the environment intended to be adopted or applied in connection with the proposed action; and
(e)stating any investigations or studies intended to be made of the possible impact on the environment of the proposed action.
Requirement to provide information
2.3 For the purpose of consideration, by the Minister or on the Minister’s behalf, of the necessity for an environmental impact statement or a public environment report in relation to a proposed action, the Minister, or the Department on behalf of the Minister, may require the proponent to provide, within a reasonable period, such other information as is specified and is necessary for that purpose.
REQUIREMENT FOR ENVIRONMENTAL IMPACT STATEMENTS AND PUBLIC ENVIRONMENT REPORTS
Requirement for environmental impact statement or public environment report
3.1.1 Subject to the Act and these procedures, the Department shall, as soon as possible after the information referred to in paragraph 2.1., and any further information required under paragraph 2.3., has been received in relation to a proposed action –
…
(b)refer the question whether the preparation or obtaining, and submission to the Minister, of an environmental impact statement or a public environment report in relation to the proposed action is required for the purpose of achieving the object of the Act to the Minister who shall forthwith determine the question and shall make a direction accordingly.
3.1.2 The Department, or the Minister, as the case may be, in making a determination under paragraph 3.1.1, must take into account at least:
(a)whether, and to what extent, the proposed action may result in –
(i)a substantial environmental effect on a community;
(ii)the transformation of a substantial area;
(iii)a substantial impact on the eco-systems of an area;
(iv)a significant diminution of the aesthetic, recreational, scientific or other environmental quality, or value, of an area;
(v)an adverse effect upon an area, or structure, that has an aesthetic, anthropologic, archaeologic, architectural, cultural, historical, scientific or social significance or other special value for the present or future generations;
(vi)the endangering, or further endangering, of any species of fauna or flora;
(vii)important long-term effects on the environment;
(viii)the degradation of the quality of the environment;
(ix)the curtailing of the range of beneficial uses of the environment;
(x)the pollution of the environment;
(xi)environmental problems associated with the disposal of waste; or
(xii)increased demands on natural resources which are, or are likely to be, in short supply; and
(b)any environmental assessment action taken, or being taken, in relation to the proposed action, that the Minister or the Department, as the case may be, considers relevant action, including action of that kind by a State or Territory or an authority of a State or Territory.
3.1.3 The Minister shall not make a determination under paragraph 3.1.1 that the preparation or obtaining, and submission to the Minister, of an environmental impact statement or a public environment report is required if the Minister is satisfied that to do so would be contrary to the public interest.
3.1.4 Where under subparagraphs 3.1.1(b) the Minister determines that the preparation or obtaining and submission to the Minister of an environmental impact statement or a public environment report is not required, the Minister may nevertheless make comments, suggestions or recommendations to the action Minister concerning the proposed action, including suggestions or recommendations concerning conditions to which the proposed action should be subject, that the Minister thinks necessary or desirable for the protection of the environment, and the Minister, or the Department on behalf of the Minister, shall inform the proponent accordingly.
3.1.5 The Minister shall make available to the public as soon as possible, but at the latest within 3 months after the date of receipt of a written request to do so, the reasons for an environmental impact statement or a public environment report not being directed, with the exception of such material of commercial confidence, having security implications or providing confidential advice to the Minister as would be exempt from disclosure under the Freedom of Information Act 1982.”
Finally, because of their relevance to particular submissions made by the applicant councils, I set out the provisions of para 4.1, 7.1, 7.2 and 10.1.1 of the Administrative Procedures.
“Contents of environmental impact statement
4.1 To the extent appropriate in the circumstances of the case, an environmental impact statement shall –
(a)state the objectives of the proposed action;
(b)analyse the need for the proposed action;
(c)indicate the consequences of not taking the proposed action;
(d)contain a description of the proposed action;
(e)include information and technical data adequate to permit a careful assessment of the impact on the environment of the proposed action;
(f)examine any feasible and prudent alternative to the proposed action;
(g)describe the environment that is likely to be affected by the proposed action and by any feasible and prudent alternative to the proposed action;
(h)assess the potential impact on the environment of the proposed action and of any feasible and prudent alternative to the proposed action, including, in particular, the primary, secondary, short-term, long-term, adverse and beneficial effects on the environment of the proposed action and of any feasible and prudent alternative to the proposed action;
(i)outline the reasons for the choice of the proposed action;
(j)describe, and assess the effectiveness of, any safeguards or standards for the protection of the environment intended to be adopted or applied in respect of the proposed action, including the means of implementing, and the monitoring arrangements to be adopted in respect of, such safeguards or standards; and
(k)cite any sources of information relied upon in, and outline any consultations during, the preparation of the environmental impact statement.”
“Consultation concerning inquiries
7.1 If, at any time before a proposed action has been completed, the Minister considers that there may be grounds to direct that an inquiry be conducted in respect of all or any of the environmental aspects of the proposed action, the Minister shall consult with the action Minister or the relevant authority (as the case may require).
Inquiries
7.2 Subject to the Act and to the extent relevant, the Minister shall, in deciding whether to direct that an inquiry be conducted in respect of all or any of the environmental aspects of a proposed action, take into account –
(a) the significance of all or any of the environmental aspects of the proposed action;
(b) any views expressed by the action Minister or the relevant authority (as the case may require); and
(c) whether all or any of the environmental aspects of the proposed action have been, are, or will be the subject of a public inquiry conducted otherwise than under the Act.”“Review and assessment of environmental aspects of proposed action
10.1.1 For the purpose of achieving the object of the Act, the Department may at any time, whether before or after a proposed action has been completed, review and assess all or any of the environmental aspects of the proposed action, including, in particular, the effectiveness of any safeguards or standards for the protection of the environment adopted or applied in respect of the proposed action and the accuracy of any forecasts of the environmental effects of the proposed action, and the Department shall report to the Minister.”
GENERAL FACTUAL SETTING
In this part of these reasons I will deal generally with both the decisions and the processes followed that have been called into question in this proceeding. Factual matters which relate distinctively to a particular ground of review will be outlined separately when that ground is considered.
(1) On 5 February of 1997 Mr Sharp released the LTOP for public comment. The closing date for submissions was 7 March 1997. Over 7,500 people and organisations in fact made submissions and in light of some of them amendments were made to several of the flight paths proposed in the LTOP. On 26 May 1997 Mr Sharp signed a departmental memorandum recommending (inter alia) that he “announce [his] intention to implement the Plan, subject to environmental clearance from Senator Hill, through [a] media release …”. That release was issued on 29 May 1997. Importantly it embodied the following:
“I must stress that the operational measures I have announced today are proposals. It will not be possible to implement any of the measures until these proposals have been granted the necessary clearances under the Environment Protection (Impact of Proposals) Act.”
This so-called “decision” to implement the LTOP subject to environmental clearance, is one of the four decisions challenged in this proceeding. It is referred to as “the third decision” in the applicants’ statement of claim and for convenience I will retain that usage in these reasons.
(2) DoTRD submitted its Proponent’s Statement to Environment Australia on 11 June 1997. This document of more than 300 pages had as its principal burdens (a) an account of community involvement in the process of developing the LTOP and an analysis of comment received on it in the February-March 1997 public comment period; and (b) an explanation of, and supplementation of information about, noise impacts considered in the LTOP. It contained modifications to the LTOP made in consequence of the consultative process.
On 18 July 1997 Environment Australia sent a memorandum to Senator Hill containing a number of recommendations the principal of which being that the Minister determine under para 3.1.1(b) of the Administrative Procedures that neither an EIS nor a PER was required before the LTOP was adopted.
(3)Senator Hill made his decision on 22 July 1997. It was in the following terms:
“Pursuant to paragraph 3.1.1(b) of the Administrative Procedures of the Environment Protection (Impact of Proposals) Act 1974, I, Robert Murray Hill, Minister for the Environment, having taken into account the requirements of the Administrative Procedures, determine that neither an environmental impact statement nor a public environment report is required for the purpose of achieving the object of the Act in regard to the proposal by the Department of Transport and Regional Development to adopt a long-term operating plan for Sydney (Kingsford Smith) Airport aimed at putting in place, on a long term basis, new operating procedures designed to more equitably share noise generated by Sydney Airport.”
Additionally the Senator made seven recommendations under para 3.1.4 of the Administrative Procedures that related to the LTOP and its implementation.
This decision (referred to in the statement of claim and in these reasons as the first decision) is challenged in this proceeding.
(4) 0n 30 August 1997 Senator Hill provided a Statement of Reasons for his decision. It is necessary to set out part of it in some detail. The Statement, having noted matters of background, made a series of “findings on material questions of fact”. These were that:
“
·all prudent and feasible alternatives appear to have been taken into account;
·the impacts of aircraft movements around Sydney KSA have been previously studied, including in the Third Runway EIS and in all stages of the preparation of LTOP;
·there are commitments and recommendations to monitor the LTOP and respond to changes identified as beneficial or necessary with experience and over time;
·there are commitments and recommendations to inform the community, take account of community views and involve community representatives in future decision making;
·there has been extensive consultation with members of the public and community representative organisations;
·the LTOP will not affect the volume of air traffic using Sydney KSA (as future growth in air traffic will be mostly demand driven by factors other than the capacity of the airport or the nature of air traffic management).”
The Statement noted the obligations imposed by paras 2.1, 2.2 and 3.1.1 to 3.1.3 of the Administrative Procedures, and continued:
“8. In regard to the matters that I was required to take into account in accordance with paragraph 3.1.2(a) (in italics below) I found as follows:
(i)a substantial environmental effect on a community
A substantial environmental effect upon some parts of the Sydney community, through changes to the pattern of aircraft noise impacts, can be expected if the Plan is implemented. Other areas can be expected to be affected less than at present by aircraft noise. These effects have been taken into account in the proposal and in responses to it. The intent of the proposal is to more equitably share the noise generated by Sydney Airport.
(ii)the transformation of a substantial area
There would be no transformation of a ‘substantial area’ in a physical sense.
(iii)a substantial impact on the eco-systems of an area
There would be no substantial impacts upon ecosystems in the Sydney area.
(iv)a significant diminution of the aesthetic, recreational, scientific or other environmental quality or value of an area
There could be a significant diminution of environmental qualities in some parts of the Sydney Basin. This is taken into account in the proposal and in the responses to it.
(v)an adverse effect upon an area, or structure, that has an aesthetic, anthropologic, archaeological, architectural, cultural, historical, scientific or social significance or other special value for the present or future generations
There could be some adverse effects on areas of social significance. The intent of the proposal is to minimise such effects. These effects have been taken into account in the proposal and in responses to it.
(vi)the endangering, or further endangering, of any species of fauna or flora
There would be no effect upon any species of flora or fauna.
(vii)important long-term effects on the environment
There would be long-term effects on the human environment in some parts of Sydney. These have been taken into account in the proposal and in responses to it.
(viii)the degradation of the quality of the environment
There would be some degradation in the quality of the environment through increased exposure to aircraft noise in some areas. This is taken into account in the proposal and in responses to it.
(ix)the curtailing of the range of beneficial uses of the environment
There might be some curtailment of beneficial uses of the environment. This has taken (sic) into account in the proposal and in responses to it.
(x)the pollution of the environment
Any changes to levels of air pollution from aircraft-related sources would be very small. Changes to noise pollution will be significant and are taken into account in the proposal and in responses to it."
The Statement further noted that, for the purposes of para 3.1.2(b) of the Administrative Procedures, the EIS of the proposed Third Runway at KSA was a relevant environmental action taken. It equally noted that the Minister’s decision was not based upon the public interest ground contained in para 3.1.3.
In that part of the Statement headed “Reasons for Decision”, the Minister made the comment:
“I was satisfied that the requirements of the Administrative Procedures had been met and that, to the greatest extent practicable, matters affecting the environment to a significant extent had been fully examined and taken into account.”
The Reasons Statement concluded by noting the evidence, etc on which the Minister’s findings were based.
“13. In reaching this finding, I took into account the advice and recommendations on the long-term operating plan for Sydney Airport provided to me by my Department on 18 July 1997, including the attachments to my Department’s advice. This advice took into account information contained in the documents referred to in paragraph 8 above and provided as Attachment G to my Department’s advice. It also took into account the public submissions received on the Plan by DoTRD during 1997 and representations that I and Environment Australia had received from the public and community groups and institutions.
The advice contained the following attachments.
Attachment A Issues for consideration
Attachment B Draft advice and recommendations to the Minister for Transport and Regional Development
Attachment C Matters relating to paragraph 3.1.2(a) of the Administrative Procedures
Attachment D Draft letter to the Minister for Transport and Regional Development
Attachment E Letter of designation from the Minister for Transport and Regional Development
Attachment F Background Report prepared by Environment Australia
Attachment G Documents provided by the Department of Transport and Regional Development as follows.
.The Long-Term Operating Plan for Sydney (Kingsford Smith) Airport and Associated Airspace (Airservices Australia, December 1996)
.The Long-Term Operating Plan for Sydney (Kingsford Smith) Airport and Associated Airspace – Report Summary (Airservices Australia, December 1996)
.The Long-Term Operating Plan for Sydney (Kingsford Smith) Airport and Associated Airspace: Proponent’s Statement (Department of Transport & Regional Development, June 1997)
Attachment H Terms of Reference for, and Recommendations contained in The Long-Term Operating Plan for Sydney (Kingsford Smith) Airport and Associated Airspace (Airservices Australia, December 1996)
Attachment I Proposed Third Runway, Sydney (Kingsford Smith) Airport, Environmental Assessment Report.”
(5) On 30 July 1997, after receiving Senator Hill’s letter informing him that an EIS was not required, Mr Sharp gave a direction to AsA that it implement progressively the LTOP in accordance with a schedule to that direction. The direction, after reciting the history of the matter, was as follows:
“I, John Randall Sharp, Minister for Transport and Regional Development, acting under subsection 16(1) of the Air Services Act 1996 (“the Act”), DIRECT Airservices Australia, consistent with the requirements of the Act, to implement progressively the Sydney Airport Long Term Operating Plan in accordance with the schedule.”
It is unnecessary to set out the terms of the schedule. I would note, though, that (inter alia) it substantially embodied the recommendations made by Senator Hill.
This direction (the fourth decision as it has been referred to) is challenged by the applicant councils.
(6) Mr Sharp provided a Statement of Reasons for his direction on 4 September 1997. That Statement gave an historical narrative of the use of KSA’s runways from the opening of the parallel runway; of the Minister’s concerns over the burden borne by suburbs to the north of the airport; and of the various steps taken in relation to more fairly distributing aircraft noise. The one matter in this that I would emphasise in the LTOP proposal he finally adopted was what he described as a “key element”. This was the noise sharing targets proposed by AsA and their contrast with earlier runway usages. Though only verbally described in the Statement and though not referring to the pre-1993 figures, these are most easily represented in the diagram used in the LTOP and the Proponent’s Statement. The percentage figures given aggregate both landings and take-offs.
Pre Parallels (1993 ANEI) Parallels (1995 ANEI)
North North
21% 47%
West East West East
21% 16% 1% 1%
South South
41% 51%
Mar 1996-Mar 1997 LTOP-TARGET
North North
39% 17%
West East West East
6% 6% 15% 13%
South South
49% 55%
That part of the Statement entitled “Reasons for Decision” stated:
“19. I considered that the Government’s election commitments to distribute the noise generated by the Airport in a fairer way and to rework flight paths for take-offs and landings at the Airport to minimise the impact on surrounding communities made it appropriate for me to consider the introduction of a long term operating plan for the Airport with targets directed at sharing the noise generated by the Airport.
20. I considered that, notwithstanding the diversion of some overflights from areas to the north of the Airport to areas to the east and the west of the Airport pursuant to my directions of 20 March 1996 and 14 September 1996, people living to the north of the Airport were still unfairly bearing the burden of aircraft noise generated by the Airport.
21. I considered that the proposal constituted a total package of measures for the Airport which built on, and superseded, the measures introduced pursuant to my directions of 20 March 1996 and 14 September 1996. I formed the view that the proposal, if implemented, would result in a more equitable distribution of the noise generated by the Airport as follows:
.the proposal would have the effect of spreading flight paths over residential areas more widely;
.the proposal contains targets for patterns of runway use which are designed to achieve a more equitable distribution of aircraft noise than had been achieved to date as described in paragraph 15 of these reasons [ie, the distribution represented diagrammatically above];
.the proposal would have the effect of placing more aircraft movements over areas of water;
.no residential areas would receive the highest levels of noise exposure that communities to the north of the Airport had been subjected to under parallel runway operations; and
.fewer people would be likely to suffer the more severe levels of noise exposure but more people would be in areas of more moderate levels of exposure.
22. I also formed the view that measures proposed by the Minister for the Environment would enhance progressive monitoring, public consultation and review of the effectiveness of the plan in achieving its targets and should therefore be adopted.
23. I therefore directed AA, consistent with the requirements of the Air Services Act 1995, to implement progressively the Sydney Airport Long Term Operating Plan in accordance with the schedule to the direction.”
(7) The final matter that should be noted in this general factual account is an omission of Senator Hill which is said to constitute a “decision” (referred to as the second decision) that had occurred sometime between 18 July 1997 when he received Environment Australia’s recommendation and 22 July 1997 when he made the first decision. This was his failure to consult with (a) AsA; (b) the Australian Heritage Commission (“AHC”); and/or (c) the applicants.
ARE THE SECOND AND THIRD DECISIONS JUDICIALLY REVIEWABLE?
The applicant councils claim that the four decisions challenged are “decisions” for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (“the ADJR Act”) and are decisions to which s 39B of the Judiciary Act 1903 (Cth) applies, both respondents being officers of the Commonwealth for the purposes of the latter section. In their Defence, the respondents deny that the second and third decisions – ie Senator Hill’s failure to consult and Mr Sharp’s 26 May 1997 decision to implement the LTOP subject to environmental clearance –are decisions to which either the ADJR Act or s 39B apply. An objection to competency has accordingly been made.
It is appropriate to resolve this dispute before considering the substance of the application itself. The applicable principles are well settled.
First the ADJR Act, and it is sufficient for present purposes merely to state a number of propositions.
(i)To be reviewable the “decision” in question must first and foremost be one for which provision is made by or under a statute: ADJR Act, s 3(1); Salerno v National Crime Authority (1997) 75 FCR 133. The decision itself must have the “quality of finality”. Ordinarily it must be –
“final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration”: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337.
(ii)A decision reached as a step along the way to an ultimate decision will, ordinarily, not be a reviewable one because it has no operative and determinative effect upon a person’s rights, interests, or expectations: Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 68; Kelson v Forward (1995) 60 FCR 39 at 61-62; or because it is not invested by the statute in question with such character as a finding or ruling on the point in question that, though an intermediate decision, it might “accurately be described as a decision under an enactment”: Bond’s case, at 337.
(iii)The decision itself must involve a substantive, not merely a procedural, determination: Bond’s case, at 337.
Secondly, the Judiciary Act, and I should note at the outset that the relevant relief sought in respect of the two impugned decisions would appear to be by way of prohibition and injunction. For present purposes it is sufficient to say that for prerogative relief to lie the decisions in question must have legal consequences or legal effect: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 579-581. A preliminary decision may have such effect or consequence provided it is sufficiently connected to an ultimate decision which undoubtedly effects legal rights as to have that effect on or in the ultimate decision: Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159-160. In relation to injunctive relief all I need say is that even where a legal wrong has been made out, relief will not be granted where it would be futile so to do.
Turning now to the decisions impugned, the objection to competency in each case has properly been taken in each instance.
The Second Decision
This “decision” is alleged to have been taken by Senator Hill sometime between 18 July 1997 when he received Environment Australia’s recommendation and 22 July when he made the first decision. As pleaded, it was a decision not to consult with AsA, the Australian Heritage Commission or the applicants.
It is clear that the Minister for the Environment was under no duty so to consult when making a determination under para 3.1.1 of the Administrative Procedures. Paragraph 3.3 of those Procedures, insofar as presently relevant, provides:
“for the purpose of assisting in the making of a determination under paragraph 3.1.1, the Minister … may consult with any Department or authority of Australia … any local authority or any other person or body.”
The provisions of para 3.3 were drawn to the Minister’s attention in Environment Australia’s submission to him together with the following comments:
“47.… We understand that some local government authorities are of the view that direct consultations should be held and we have received oral requests to do so.
48.Having examined the written submissions received from local government bodies by the DoTRD, and representations that you have received from such bodies, we are of the opinion that direct consultations are not warranted. Some local government authorities have availed themselves of opportunities to convey their views and present information in writing. We would expect little more than a restatement of their views in direct consultations.”
The second decision, such as it was, amounted to no more than a choice by the Minister not to engage in further consultations. It was in other words a decision not to avail of a procedural step allowed to him by the Procedures. That decision may well have foreclosed an opportunity in the applicants and others (if selected for consultation) to further participate in the decision-making process. It did not for the purpose of prerogative relief have legal consequence or effect; it did not effect legal rights. It clearly is not the appropriate subject of injunctive relief having been overtaken by subsequent decisions in any event. And for the purposes of the ADJR Act, though it may have been a decision under an enactment, it was not a decision that was final or operative and determinative in relation to a substantive, as opposed to a procedural, matter. At best the second decision involved a choice as to the way forward to be taken in the making of the first decision.
I uphold the objection to competency in relation to it.
The third decision
This “decision” relates to Minister Sharp’s decision to announce – and then the later announcement of – his intention to implement the LTOP subject to environmental clearance from Senator Hill.
It is not at all apparent for ADJR Act purposes what is the Act under which this decision is made. The body which, for practical purposes, would be charged with the implementation of any decision to put the LTOP into effect was AsA and s 16 of the As Act provided the machinery (by way of direction) that Minister Sharp could avail of to cause the LTOP actually to be implemented. Leaving the required “environmental clearance” to one side, the giving of such a direction would presuppose, obviously enough, that the decision had been taken that the LTOP would be implemented. But that prior decision itself would not be made under the As Act. In this setting it would involve no more than an exercise of the executive power of the Commonwealth. I would note in passing that it has not been pleaded that the third decision was “conduct” engaged in for the purpose of making the fourth decision (ie the direction under s 16 of the As Act).
The above is sufficient to take this decision outside the scope of the ADJR Act. But there is another objection to it that takes it outside of both that Act and the Judiciary Act. The decision itself was not relevantly final or operative and determinative. It imposed no obligation on AsA. It did not in any way legally bind or fetter the Minister. It was a statement of intention - even if one from which the Minister had at the time no intention of resiling if the environmental clearance was forthcoming. But of itself it did not involve the exercise of a power that had legal consequence or effect, nor as a preliminary decision, did it relevantly have such an effect upon the exercise of the s 16 As Act power: cf Hot Holdings Pty Ltd v Creasy above, at 159-160. The administrative decision-making scheme within which the Minister was operating was one in which it was only possible to take a decision lawfully to implement the LTOP after the Minister for the Environment had taken his decision under the Administrative Procedures and in light of that decision. Unless and until that latter decision was taken Minister Sharp’s declared intentions in the matter had the status of an “in principle” or “policy” position: cf New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 59 FCR 369 at 381-382. It could not be otherwise. The Minister himself was aware of this. I earlier set out an extract from his press release of 29 May 1997 indicating this. I need not repeat it here.
I conclude then that the third decision was not, for ADJR Act purposes, either a “decision” or “under an enactment”. For Judiciary Act purposes it did not have legal consequence or effect.
I uphold the objection to competency in relation to the third decision.
A FURTHER STATEMENT OF REASONS
There is a further preliminary matter with which to deal. The applicants allege that the reasons statements provided both by Senator Hill and by Minister Sharp are inadequate in that:
(i)they fail to specify the geographical areas of Sydney likely to be affected by the LTOP and the degree of such affection;
(ii)the statements, while referring generally to other reports, recommendations and documents, do not specify the parts thereof considered relevant or material to the decision or what weight Senator Hill or Minister Sharp gave to those parts; and
(iii)the particulars in the statements do not relate in any meaningful way to the purpose for which reason statements are to be provided under the ADJR Act.
The obligation s 13(1) of the ADJR imposes on a decision-maker is:
“to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.”
A like obligation is imposed by s 25D of the Acts Interpretation Act 1901 (Cth) given that, by para 3.1.5 of the Administrative Procedures, the Minister is required to make his “reasons” for decision publicly available where no EIS or PER is directed. For present purposes, though, only the ADJR Act is relevant. I should add I assume without deciding that the applicants were in fact entitled to invoke s 13(7) of that Act.
Section 13(7) provides:
“(7) If the Court, upon application for an order under this subsection made to it by a person to whom a statement has been furnished in pursuance of a request under subsection (1), considers that the statement does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for the decision, the Court may order the person who furnished the statement to furnish to the person who made the request for the statement, within such time as is specified in the order, an additional statement or additional statements containing further and better particulars in relation to matters specified in the order with respect to those findings, that evidence or other material or those reasons.”
It is uncontroversial both that the jurisdiction this court has to compel the provision of an additional statement is discretionary and that an applicant’s need for such a statement can subsist notwithstanding that that person has initiated judicial review proceedings challenging the decision of which further reasons are sought: United Airlines v Secretary, Department of Transport and Communications (1990) 26 FCR 598 at 606-607.
The objectives to be achieved by the obligation to give reasons are several. Here I need only refer to the convenient summary provided by Finkelstein J in Comcare v Lees (1997) 151 ALR 647 at 656 in relation to the parallel obligation imposed by s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth):
“The imposition of an obligation upon the tribunal to provide reasons for a decision achieves a number of very important objectives. It ensures that the person whose interests may be adversely affected by a decision is told why the decision has been made: Re Poyser and Mills’ Arbitration [1964] 2 QB 467 at 478. It enables the public to have confidence that the tribunal has gone about its task appropriately and fairly: Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 at 88. It allows a party who is dissatisfied with a decision to determine whether there has been some reviewable error made by the tribunal: Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507. It imposes an intellectual discipline on the tribunal making it more likely that its decisions will not be arbitrary or capricious. Finally, the giving of reasons furthers judicial and quasi-judicial accountability: see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279.”
Before giving my decision on this particular application I should make a number of comments on the setting in which the application is made. First, Senator Hills’ Statement of Reasons was given as long ago as 30 August 1997; Minister Sharp’s on 4 September 1997. While the present application under s 13(7) was made simply as part of the principal application filed on 22 October 1997, no discrete application for further reasons was made or independently prosecuted. Secondly, orders have been made and complied with in the principal proceedings that Senator Hill produce to the applicants -
“a copy of all documents being, evidencing or recording any information in relation to the Long Term Operating Plan for the Sydney (Kingsford-Smith) Airport to which the 1st Respondent had regard in making his decision under para 3.1.1(b) of the Administrative Procedures.”
Thirdly, the application under s 13(7) is not made for the purpose of facilitating challenge to the decisions impugned in the principal proceedings. Fourthly, a nine-day trial has been conducted in relation to the decisions impugned and a considerable body of material has been generated for, and in consequence of, the trial.
Whatever deficiencies there may have been in either Minister’s Statement – and I make no finding that they were deficient – the time has long since passed when it would have been appropriate to make an order under s 13(7). The applicants have, by the further provision of information and otherwise, been provided with information sufficient to understand how and why the decisions were made and the Ministers’ reasons for them. They have not suggested that their capacity to challenge the decisions has been thwarted or unfairly compromised by any inadequacy in the reasons themselves. The multi-pronged attack they have made on the decisions strongly suggests the contrary. And the objectives to be achieved by the imposition of the obligation to provide reasons have, in all the circumstances, been satisfied sufficiently.
I refuse the application for an order for the provision of additional statements of reasons under s 13(7) of the ADJR Act.
THE CHALLENGES TO THE FIRST DECISION
Senator Hill’s decision has been challenged on eight grounds. These are (1) error of law; (2) procedural ultra vires; (3) uncertainty; (4) improper purpose; (5) no evidence; (6) failure to take account of relevant considerations; (7) taking account of irrelevant considerations; and (8) Wednesbury unreasonableness. It will be necessary to deal with each of these in turn and, in some instances given the matters raised, at some length. I will reserve until later in these reasons more general comment on the challenges made, although I would say here that their aggregate burden appears to be little more than to invite a merits review of the decision.
Before considering the individual grounds, it is necessary to indicate the concerns I have had with, and the general character of the rulings I have made on, some of the evidence advanced by the applicants as expert evidence.
Expert Evidence
The principal witness of the applicants was their expert, Mr Williams. I have ruled quite extensive parts of his affidavit evidence to be inadmissible and, as to other parts, I directed that they be received by way of written submission under O 10 r 1(2)(j) of the Federal Court Rules. At the time of making these rulings and giving these directions I indicated piecemeal my reasons for so doing. Nonetheless I have considered it appropriate to indicate more generally my reasons for taking the courses I did. Without reiterating individually the reasons for each ruling given - there were over one hundred made in relation to Mr Williams’ affidavits - my reasons here will note the general character and bases of the rulings made and directions given.
Mr Williams, who describes himself as an environmental consultant, professes to expertise in the following:
(a)Assessment of the environmental impact of proposals for the planning, development and operation of Australian airports;
(b)Computer modelling of aircraft noise exposure utilising the Integrated Noise Model; and
(c)Computerised information storage and retrieval procedures with particular application to major projects.
He swore four affidavits for this proceeding, one in particular being of broad compass in the matters upon which it ventured opinions.
The objections taken by the respondents to almost the entirety of his affidavits proceeded on three sometimes alternative, sometimes cumulative, bases. These related (a) to relevance; (b) to the appropriateness of Mr Williams’ expertise to the matters upon which he has expressed opinions and to the character of the opinions given; and (c) to the court’s discretion to exclude evidence under s 135 of the Evidence Act 1995 (Cth). That section provides:
“135. The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.”
Evidence was excluded on all three bases.
(a) Relevance
While some parts of the affidavits were ruled inadmissible as not being connected in any way to any fact in issue in the proceeding - Evidence Act, ss 55, 56 - a more particular objection was properly taken to some number of parts of Mr Williams’ evidence. He clearly purported to give evidence of the meaning to be ascribed to what, on any view, can only be said to be words used in the Administrative Procedures that are to be given their ordinary meaning in their statutory setting. The word “describing” as used in cl 2.2(a) of the Procedures is illustrative of this (that sub-clause refers to the provision of information “describing any feasible and prudent alternative”). Evidence such as I have mentioned is plainly inadmissible: see Pepsi Seven-Up Bottlers Perth Pty Ltd v Commission of Taxation (1995) 62 FCR 289.
(b) Opinion Evidence
Well-founded objection was taken on a number of scores to opinions ventured purportedly as an expert.
(i) In significant respects Mr Williams presumed to venture opinions on how the provisions of the law - and of the ADJR Act in particular - applied to the facts as he opined them to be. As well, he presumed to pass legal judgments upon the conduct of the respondents. Whatever else may be said of this presumption, Mr Williams was not here even purporting to give opinion evidence of a fact or facts in issue: cf Evidence Act, s 80. He was purporting, quite impermissibly, to give opinion evidence of issues of law. Such evidence is both irrelevant and is beyond the purview of s 80 of the Evidence Act: see Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79 at 84-85.
(ii) More importantly, Mr Williams has sought to give opinion evidence upon a range of matters that undoubtedly are the subjects of “specialised knowledge”: cf Evidence Act, s 79. I give as one example that he provided a list of alternative flight paths/patterns (or proposals in relation thereto) to those referred to in the documentation provided to the Minister for the Environment. I readily accept that, as the Minister’s Department put it:
“Air traffic management is a complex process involving the highly skilled analysis of many variables, some unpredictable, and safety.”
It is unnecessary for me here to attempt to describe the field(s) of knowledge that are required for that analysis: cf Murphy v The Queen (1989) 167 CLR 94 at 120ff. It is starkly apparent that Mr Williams’ professed expertise is at quite some distance from it: Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 160. While I am prepared to assume that he may properly be able to provide expert evidence on the environmental effects of any particular alternative that may be able to be advanced, I do not accept that his is the appropriate specialised knowledge to give evidence directed to the identification of such alternatives: cf Clark v Ryan (1960) 103 CLR 486. On the contrary. A body of his evidence was ruled inadmissible on grounds of inappropriate expertise.
(iii) The respondents questioned whether Mr Williams has satisfactorily discharged his duties and responsibilities as an expert witness. Such of these as are relevant for present purposes are conveniently mentioned in the list formulated by Cresswell J in The “Ikarian Reefer” [1993] 2 Lloyd’s Rep 68 at 81:
“1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation (Whitehouse v Jordan, [1981] 1 WLR 246 at p 256, per Lord Wilberforce).
2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise (see Polivitte Ltd v Commercial Union Assurance Co Plc, [1987] 1 Lloyd’s Rep 379 at p 386 per Mr Justice Garland and Re J, [1990] FCR 193 per Mr Justice Cazalet). An expert witness in the High Court should never assume the role of an advocate.”
I would emphasise in relation to the first of these that in Whitehouse v Jordan at 257, Lord Wilberforce noted that to the extent that expert evidence was not uninfluenced by the exigencies of litigation that evidence “is likely to be not only incorrect but self defeating”: see also the Hon Justice Cooper, “Federal Court Expert Usage Guidelines”, (1998) 16 A Bar Rev 203.
In some number of respects there is reason for pause in relation to Mr Williams’ evidence. I need only refer to two matters in this regard. First, most obviously, in significant respects his affidavits merely replicated often extensively the terms of the statement of claim verbatim and without further elaboration of the matters pleaded. Indeed the facts informing his opinions were in large measure unidentified. His “evidence” was often no more than “advocacy”: cf Arnotts Ltd v Trade Practices Commission (1990) 97 ALR 555 at 596; see also Quick v Stoland Pty Ltd, unreported, FCA, Full Court, 25 September 1998 per Branson J. Secondly, Mr Williams acted as consultant to resident action groups set up to protest against the adoption of the LTOP. I need not labour the appearance so created for present purposes.
It is difficult to avoid the conclusion that Mr Williams may, or may appear to, be partisan in the matter. The circumspection that I have considered necessary to bring to bear in evaluating his evidence clearly affected directly the weight I was prepared to give it. One clear manifestation of that circumspection was that I have directed under O 10 r 1(2)(j) that some number of paragraphs of his affidavits be received as submission and not evidence.
I now turn to consider individually the eight challenges to the first decision.
Error of Law
The applicants submit that the Minister for the Environment committed some number of errors of law these resulting both from his misapprehending the obligations imposed on him by the Administrative Procedures and the EP(IP) Act, and from his misapplying the Administrative Procedures. The errors alleged are that the Minister:
(i)failed to take into account to what extent the proposed implementing of the LTOP may result in the matters specified in para 3.1.2(a) of the Administrative Procedures;
(ii)failed to take into account the existence of any other environmental assessments as specified in para 3.1.2(b) of the Administrative Procedures;
(iii)failed to make his decision under para 3.1.1 by reference to the standard specified in paras 4.1 and 4.2 of the Administrative Procedures for an EIS or a PER;
(iv)found that all prudent and feasible alternatives “appear” to have been taken into account as opposed to finding that such alternatives were in fact taken into account; and
(v)failed to consider whether all prudent and feasible alternatives were taken into account.
As these errors interrelate they will be considered en bloc.
Additional evidentiary material
Some additional evidentiary foundation is required in relation to two matters. The first concerns the matter of “feasible and prudent alternatives”; the second, the third runway EIS.
(1) When Environment Australia made its recommendation to Senator Hill on 18 July 1997, accompanying that memorandum was a number of attachments. Attachment A (Issues for Consideration), in referring to the prior process of public consultation, made the following comment:
“Failure to take alternatives into account
46.There were many claims that the LTOP had not taken into account all of the possible alternatives and proposals for alternative flight paths. The evidence is that DoTRD and AsA have considered many alternatives, adopted sophisticated computer modelling and amended the original plan where practicable and safe to take account of the many public representations received. It is reasonable to conclude that feasible and prudent alternatives have been taken into account in developing the modified LTOP proposal.”
Attachment F (Background Report prepared by Environment Australia) – a forty-two page document – made reference to the “project alternatives” in the following way:
“3.4 Project alternatives
The principal alternatives in this case are to:
(i)return to the parallel runway scenario prevailing immediately after the opening of the third runway (with minimal use of the east-west runway);
(ii)maintain the status quo; (with aircraft operating from the east-west runway and from Runway 34R) but without the systematic application of the proposed modes of operation; or
(iii)adopt other combinations of flight paths.
A return to parallel operations only would not deliver the Government’s policy objectives and undertakings to the community.
The second alternative can be continued with the operation of the east-west runway and take-offs to the north on the third runway, but this would not result in the best systematic distribution of aircraft noise, including the maximisation of flights over water and non-residential areas. Nor would it respond to views expressed by the community.
This status quo situation has achieved a substantial part of the Government’s objectives, but not the undertaking to review and reduce noise impacts.
The third alternative involves other combinations of flight paths. Clearly, the number of possible combinations of flight paths which could be plotted over the Sydney area, taking into account both aircraft tracks and altitudes, is almost limitless.
The proposed Implementation and Monitoring Committee (see Recommendation 9 at Attachment H) would, among other matters, be able to make further representations regarding any future change in flight paths.
Re-routing of flight paths remains an ongoing option, within the parameters of runway direction, aircraft performance and the lead times involved. However, in considering alternatives, it must be recognised that airport operations are, to a large extent, dictated by weather conditions, traffic volume and safety considerations and the alternative modes proposed were decided upon only after extensive consideration of the many variables.
There is little doubt that feasible and prudent alternatives to and within the proposed action were taken into account. For instance there were several proposed modes which were considered and rejected.
Nevertheless, there are clearly ongoing options for change to the LTOP if it were to be implemented and these would be dependent upon the results of future monitoring. Such options include the introduction of ICAO ‘A’ and/or ‘B’ take-off procedures (see * below) and modifications to approach profiles (gradients) as well as the re-routing of flightpaths.
…”
As noted in the “General Factual Setting” earlier, in his Statement of Reasons of 30 August 1997 Senator Hill “found that … all prudent and feasible alternatives appear to have been taken into account”.
(2) In November 1991 the Environmental Assessment Report, Proposed Third Runway: Sydney (Kingsford Smith) Airport was submitted to the then Minister for the Environment. As its title suggested, that report related to the implications of constructing a third, medium spaced, parallel runway at KSA. Further -
“[t]he preparation of the EIS was to take into account the proposed mode of operation which would not allow departures to the north from the new runway and would confine use of the east-west runway to those circumstances when adverse weather conditions precluded use of the other runways for safety reasons.”
I note in passing that this would involve a quite different runway usage to that upon which the LTOP was premised.
In his Statement of Reasons, Senator Hill determined that this environmental assessment was a “relevant environmental assessment action” for the purposes of para 3.1.2(b) of the Administrative Procedures.
Submissions and Conclusions
In the section immediately following – “Procedural Ultra Vires” – one ground of challenge made is that DoTRD failed to supply Senator Hill with the information required to be supplied by paras 2.1 and 2.2 and, in consequence of that failure, the Minister lacked power to go on to make the first decision. Because of the interrelationship of that ground with the present, it is convenient to deal with at least aspects of both together.
The construction (and consequential effect) the applicants seek to give the EP(IP) Act and the Administrative Procedures is a distinctive one. Before outlining it I should by way of preface refer to the general character and purpose of the Act and the Administrative Procedures.
Together the Act and the Procedures are directed towards the regulation of internal governmental decision-making and the relations between different organs of government: Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 at 510. They are aimed at “executive action generally”: ibid, 545; and in consequence “may affect the performance of administrative functions in many fields of governmental activity”: ibid, 524-525. They are, in short, concerned with, and can operate generally upon, government’s own decision making processes in the practical conduct of public administration. It is important that sight is not lost of this rather limited and specific, albeit important function.
Section 5(1) of the Act states the Act’s object in respect of designated governmental actions. This is “to ensure, to the greatest extent that is practicable, that matters affecting the environment to a significant extent are fully examined and taken into account”. In a constitutional sense, responsibility for that object can properly be said to reside in the Minister for the Environment in the first instance, as the minister administering that Act. The actual duties the Act itself imposes on the Minister – or for that matter any other minister – to effectuate that object are, though, quite circumscribed. The Minister is obliged to “give all such directions and do all such things as … can be given or done” by him to see that the Administrative Procedures are observed: EP(IP) Act s 8. And the Minister as well has a particular obligation to provide information under s 10 of the Act. But it is administrative procedure not statutory duty that carries forward the object of the Act.
Section 6 of the Act empowers the Governor-General by order to approve administrative procedures “for the purpose of achieving the object of [the EP(IP) Act]”. As Gibbs J observed in the Australian Conservation Foundation case, above, at 524:
“The Administrative Procedures [so made] are exactly what their name suggests – rules which lay down the procedure to be followed by persons seeking, considering or taking administrative action. They are not declared by the Act to have the force of law; on the contrary, they must be ‘consistent with relevant laws’ (s. 6), and in this respect they differ from regulations which, according to s. 9, ‘have effect notwithstanding any other law’.”
Additionally, because of the s 16(3) obligation imposed on it, it probably is the case (for reasons relating to the priority given the minister in determining how AsA’s functions are to be performed) that AsA would in any event be obliged to seek clarification from a minister of a direction to which it was unable to attribute meaning. That responsibility, in my view, would flow from the system of responsible government that legislative provisions such as s 16 of the As Act presuppose.
It is important to emphasise the above. One is concerned after all with the practical conduct of public administration in a particular arena and the respective responsibilities of minister and agency therefor. It is in this infra-governmental setting that the certainty question is to be considered. It is one significantly removed from that in which an organ of the State gives what purports to be a binding direction to the citizen in relation to the conduct of his or her affairs.
Conclusion
Council for both the applicants and the respondents have referred me to that body of case law (concerned primarily with delegated legislation) that has considered the circumstances in which uncertainty can result in invalidity: see King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184 at 194-196; Pyneboard Pty Ltd v Trade Practices Commission (1982) 39 ALR 565 at 568-569; Tefonu Pty Ltd v Insurance and Superannuation Commissioner (1993) 44 FCR 361 at 370-371; Conley v Deputy Commissioner of Taxation (1998) 152 ALR 467; see also Aronson and Dyer, above, at 358-361; Sykes et al, above, para 1201ff.
At least for the purposes of the ADJR Act, I am not here concerned with the common law but with a matter of statutory construction. Section 5(2)(h) deems an exercise of power to be improper if it has been –
“exercise[d] … in such a way that the result of the exercise of the power is uncertain”.
For reasons which I will give below it is unnecessary for me to explore in any detail what the reach of this provision might be. Insofar as Minister Sharp’s direction is concerned the result of its exercise at one level can admit of no doubt: AsA, “consistent with the requirements of the [As] Act, [is] to implement progressively the [LTOP] in accordance with the Schedule”. There can be no question but that a direction is being given. And the obligation it purports on its face to impose on AsA is certain and unequivocal. But is the “result of the exercise of the power” nonetheless uncertain?
In answering this question it is, in my view, essential to appreciate the infra-governmental setting in which the question is to be considered. I have already indicated that it is properly open to AsA to supplement and complement a direction provided it acts consistently with the direction in so doing. There is then no requirement that the direction be comprehensive in its scope or exhaustive in its particularity in the obligation it imposes,. Section 16(1) is a power sharing provision as between the Minister and AsA that gives primacy to the Minister in that power sharing scheme. Beyond the Minister’s direction, AsA’s power and responsibility persist. For this reason there is no objection properly to be taken to the Minister’s direction simply on the score that it requires or allows AsA in implementing the LTOP to determine in matters (general or specific) what is to be the actual content of the LTOP, or to vary what has previously been specified. A plan in such a setting is not uncertain because it is evolutionary with responsibility for parts of that evolution being shared. I would add to this - again to emphasise the infra-governmental character of the matter – that the Minister has a right to be informed about the manner in which AsA actually carries the direction into effect and the later changes made, and the later decisions made in relation to, the LTOP: see Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 245-246. And in his s 16 power to direct he has the capacity to vary or veto such changes or decisions.
It may well be the case that formidable difficulties may be confronted in actually implementing the LTOP. Mr Brown in his evidence did not shy away from acknowledging that the task was a complex one. But difficulty – or for that matter impossibility – in implementation is not of itself a hallmark of uncertainty in the result of the exercise of the power. It may merely signify that what the AsA is being asked to do may not actually be able to be done for technical or other reasons.
As earlier indicated, the LTOP was not intended to be static and unalterable. Change was anticipated. Senator Hill acknowledged as much in his Statement of Reasons. I can see no vice in AsA being the instrument of that change. When so acting, it would be doing no more than performing the functions, subject to the Minister, that the As Act entrusted it with. Much in the applicants’ submission to the contrary would seem to necessitate the concept of uncertainty being used as a fetter upon the capacity of a government responsibly and responsively to develop, implement and adjust long-term projects.
Finally, I am not at all satisfied on the evidence that the LTOP is so unintelligible in content that, when given a direction by the Minister to implement it, AsA would be unable to ascertain what it was directed to do: cf Ballarat Broadcasting Pty Ltd v Australian Broadcasting Tribunal, above, at 63. On the contrary. Mr Brown’s evidence leaves little room for doubt that AsA fully understood what was asked of it. Further, as I indicated above, if AsA experienced any difficulty in comprehending what was being asked of it – and there is no evidence to suggest that it did – its constitutionally appropriate response as an agency of government with a s 16 type relationship with a minister would have been to seek clarification of the direction.
I reject the uncertainty alleged here.
Improper Purpose
The improper purposes alleged against Mr Sharp parallel those considered in relation to Senator Hill.
Additional Factual Material
It is the case that Mr Sharp was overtly sensitive to government policy in taking the actions that he did.
(i) In his letter accompanying the direction to AsA of 20 March 1996, the Minister not only expressly located his direction in the context of his Government’s prior election commitments, he indicated as well that:
“I would expect that Airservices Australia, in developing appropriate procedures, will take account of the undertaking given by the Prime Minister prior to the election that there should be no new flightpaths over Ashfield, Burwood, Concord, Concord West, Homebush, Mortlake, North Strathfield, Rhodes, Strathfield, Strathfield South or Strathfield West.”
(ii) In the historical narrative part of his Statement of Reasons of 4 September 1997, he made direct reference to the Coalition’s policy document “Putting People First” and its commitment (in his words) to distribute noise “in a fairer way”.
(iii) The relationship of a long term operating plan for KSA to the Government’s election commitments was itself made plain in his Statement of Reasons:
“19. I considered that the Government’s election commitments to distribute the noise generated by the Airport in a fairer way and to rework flight paths for take-offs and landings at the Airport to minimise the impact on surrounding communities made it appropriate for me to consider the introduction of a long term operating plan for the Airport with targets directed at sharing the noise generated by the Airport.”
(iv) Various of the Minister’s media statements referred in passing to the Government’s election commitments.
(v) As I indicated earlier in these reasons, the applicants put into evidence a map of federal electorates for the Sydney region on which were superimposed departure flight path maps. Presented in that form they suggest a concentration of flight paths away from the core of Liberal-held seats north of Sydney Harbour. They do recognise, though, that some Liberal held seats remained affected and some significantly so.
(vi) Several letters written by either AsA officers or ministerial advisers demonstrate an awareness that particular proposals could have “political” consequences. For example, a letter of 20 December 1996 to Minister Sharp from a ministerial adviser commented:
“The biggest question marks hangs over the so-called Vaucluse track, which is a new jet track off 34R and 07 departures. If it is found, after legal advice, that an EIS is required for this track, then politically, it would be seen as the Government looking after its own voters and trampling over Labor voters in Botany, the west and inner west by not doing an EIS on the wider plan.”
Submissions and Conclusions
The alleged improper purpose of Minister Sharp is that he acted for “political purposes” and not “proper purposes”. Unless “political purposes” here is meant to signify bare party political purposes alone, it is difficult to comprehend the burden of this submission.
The system of representative democracy practised in this country and the discipline exacted by political parties have given party policy a central place in our elections and in the consequential actions to be expected of elected governments. Though their submissions on this are by no means unambiguous I do not understand that the applicants here are intending to attack longstanding characteristics of the Australian system of representative democracy as such. It is, of course, a fine question as to how far we expect or else condone action in our elected officials that has elements of partisanship in it. The use of the “pork barrel” in election promises has been with us since the colonial period: cf Loveday and Martin, Parliament, Factions and Parties, MUP, Melbourne, 1966. These large questions of official propriety and practice are, though, not ones with which I need be presently concerned: cf P D Finn, “Integrity in Government” (1992) 3 Pub Law Rev 243; McCormick v United States 500 US 257 (1991) esp at 272.
The discretion given Minister Sharp by s 16(1) of the AsAct is, as was submitted on his behalf –
“unconfined except in so far as the subject matter and the scope and purpose of the [Act] may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view.”
- Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505.
The Act clearly does not preclude the giving of directions that are informed by the electoral commitments made by the party to which the minister belongs. And if the direction itself relates to action which itself is a permissible subject of direction under the Act, it cannot be said to be made for an improper purpose where, as here, its provenance lies in electoral commitments previously made: see Botany Bay City Council v Minister for Transport, above, at 560-561. Section 16(1), as I earlier noted, must be seen in the setting of representative government. Likewise any s 16 direction is something for which a minister is politically responsible to Parliament under our system of responsible government. To the extent that “political purposes” reflected in electoral commitments are said to have informed a direction, the Parliament not the court is prima facie the appropriate forum in which to call the direction into question on that score.
Insofar as the political purpose is said to lie simply in insulating Liberal electorates from flight paths or significant noise, it may well be that a direction having that purpose would be held improper. But it is not shown to have been the case with the direction here. No less than in Senator Hill’s case, I am unprepared to infer that a covert purpose of the direction was to insulate Liberal electorates from aircraft noise. An overt purpose of the Minister evidenced in his 20 March 1996 letter to AsA, related to an electoral promise. It was to protect certain suburbs from new flightpaths. So doing, as I noted earlier, was not impermissible. But those suburbs apart, an LTOP which achieved the Minister’s noise-sharing purpose but which also had effects favourable to Liberal electorates, may well have been an outcome welcomed by the Minister – if indeed there were such effects and he was aware of them and I make no finding that either was the case. What I am unprepared to infer on the evidence before me is that the or a purpose of the Minister was to procure such effects. The superimposed maps may well invite some speculation. Given what is known of the evolution of the LTOP and of AsA’s role in it, the maps provide no proper basis for the inference suggested. I likewise do not consider references made by officials and advisers to apprehended local “political” consequences of choices made as of particular significance. In the climate of the LTOP they amount to no more than a statement of the obvious.
I reject the claims of improper purpose.
No Evidence
The challenge here, if I might say so, is arresting. It is put in the following way. The Draft LTOP describes in Chapter 2 the “Review and Planning Process” in which it engaged. A critical element in the organisational structure adopted was the Sydney Air Traffic Management Task Force (“the Task Force”). The Chapter described the role and function of the Task Force. It indicated that there was to be “[i]nvolvement and active participation of community representatives in the work of the Task Force”. Significantly it stated (LTOP p 21):
“Community Representatives Participation in the Task Force
The ‘umbrella’ nature of the CAAG [ie Coalition of Airport Action Groups] group was seen by the Task Force as representative of community interest and a group which could provide the level of feedback required throughout the project.
CAAG accepted an invitation to participate and CAAG members participated in all formal meetings held under the Task Force auspices and in a number of informal meetings. The CAAG Chairperson was the official CAAG representative on the Policy Group.
Due to the frequency of Task Force meetings CAAG representation varied according to the issues being considered and availability (sic) CAAG representatives."
Even Mr Williams in his fourth affidavit has provided clear documentary evidence of the existence and meetings of the Task Force.
Nonetheless it is pleaded that:
“No Evidence
89.The third decision was based upon the existence of a particular fact, namely the membership and involvement of a community representative on the entity responsible for the development of the LTOP styled ‘Sydney Air Traffic Management Task Force’ or ‘the Task Force’ and that fact did not exist.
90.The Task Force never met as an identifiable entity.
91.If the Task Force did meet, it never met with a member present who was a community representative.
92.The Task Force never resolved anything.
93.If the Task Force did resolve anything, it never did so with a member present who was a community representative.
94.The development of many of the principal components of the draft LTOP were specifically attributed to the Task Force.
95.There is no evidence that the Task Force in fact existed.”
By the time of submissions the applicants ceased to press para 95. On the state of the evidence before me (I note Mr Williams’ fourth affidavit was admitted only for limited purposes), I could not possibly conclude that the claims asserted in paras 90-93 were made out. On the contrary. More importantly there is simply no reason to conclude that Minister Sharp’s decision was based on the particular fact referred to in para 89 above. As Counsel for the Minister correctly noted the alleged fact was a “minor” one and “not surprisingly, there is no mention of it in his Statement of Reasons”.
This claim is misconceived. It is unnecessary to repeat here the principles to be applied to a “no evidence” claim.
Relevant Considerations
I am confronted here with what for practical purposes is the almost wholesale attribution to Minister Sharp’s decision of the same omissions as Senator Hill was alleged – in the event unavailingly – to have made. Such support for this as has been proffered by the applicants seems to be the submission made by Mr Williams that those same matters (with one exception) “should” have been taken into account and the delphic assertion in the applicants’ sparse written submissions that “[t]he relevant considerations are those derived from the [EP(IP) Act s 8 and the As Act s 16(1)]”.
Insofar as I have been able to discern the basis for the applicants’ contentions in relation to Senator Hill, I have rejected them. I do likewise here and for similar reasons, having being provided with no adequate basis to support the contention that Mr Sharp was bound to take into account any of the matters pleaded. I merely note that the Minister’s decision was taken under s 16(1) of the As Act which allows the Minister to give written directions to AsA “relating to the performance of its functions”. The section does not expressly state what are “relevant factors” the Minister is bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd, above, 39-40. I am unprepared to speculate as to why I should find by way of implication from the “subject-matter, scope and purpose of the Act” that the Minister was bound to take any particular matters into account.
I reject this claim.
Irrelevant Considerations
Three of the four so-called irrelevant considerations have been considered in other contexts already. They are (i) the federal electoral boundaries; (ii) the process of public consultation; and (iii) the community membership of the Task Force. Little point would be served in dealing again with them in this context given that I have already rejected the alleged vice in the three matters referred to. Furthermore, and bearing in mind the “unconfined discretion” given the Minister under s 16(1) of the As Act (save as to the subject matter of directions given), I would have needed to be satisfied that there was “some implied limitation on the factors to which the decision-maker may legitimately have regard”: Minister for Aboriginal Affairs v Peko-Wallsend Ltd, above at 40. The applicants have not suggested what that limitation might be.
The fourth “irrelevant consideration” alleged was that the Minister did not need to wait for the receipt and consideration by him of a report concerning the affect of aircraft noise and movements on safety and property values before making his decision. As to this matter, and bearing in mind my previous comments on s 16(1) of the As Act, I agree entirely with the second respondents’ submission that what is being attempted is merits review.
I reject the “irrelevant considerations” claims.
Wednesbury Unreasonableness
The claim here is similar in kind to that made against Senator Hill. It seeks to use cumulatively all the individual complaints made against Mr Sharp’s decision to the end of claiming that his decision was so unreasonable that no reasonable decision-maker could have made it. When dealing with the like challenge to Senator Hill’s decision I outlined the burden assumed by an applicant invoking this ground. Here it suffices to say that, for like reasons to those given in relation to Senator Hill, I reject this ground of complaint.
Other Matters
Having found that none of the claims made against either respondent has been made out, it is unnecessary for me to consider the matters raised by the respondents by way of defence. I refrain from doing so. I merely note for the sake of completeness the submission that, if Senator Hill’s decision was found to be invalid, Mr Sharp’s would not in consequence be invalid for that reason alone. The burden of this submission is that a legislative purpose cannot be discerned in the scheme of the EP(IP) Act that an executive act done in breach of the Administrative Procedures was to be invalidated: Project Blue Sky Inc v Australian Broadcasting Authority, above, 516. The respondents additionally have submitted that even if a ground of review has been made out that could result in the setting aside of Minister Sharp’s direction, such relief ought not be granted as a discretionary matter given the character of the decisions challenged, the action taken so far in implementation of them and the consequences of granting the relief sought by the applicants.
Concluding Observations
It is unfortunate but necessary that I register a note of dissatisfaction with this proceeding. The technique of using pleadings as, in effect, shrapnel is a practice to be deprecated. The Further Amended Statement of Claim is not immune from this criticism. It betrays more of a hope that some argument on one or other of the “decisions” might prove attractive, than an expression of confidence that there was a particular case to be advanced. The essentially “boiler-plate” character of the challenges made to the four decisions merely exacerbates the criticism to be made.
Finally, there is a large body of evidence concerning both flight paths and noise impacts, and alleged changes to and departures from the LTOP, to which I have found it unnecessary to refer, notwithstanding the attention given it by the applicants. It may well have been of some significance had I been engaged in merits review. As has been necessary to emphasise on a number of occasions, such is not my function.
I dismiss the application.
I certify that this and the preceding seventy-nine (79) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn
Associate:
Dated: 3 November 1998
Counsel for the Applicant: Mr C J Stevens QC
Mr M RobinsonSolicitor for the Applicant: Eakin McCaffery Cox Counsel for the Respondent: Mr A Robertson SC
Mr S GagelerSolicitor for the Respondent: Australian Government Solicitor Date of Hearing: 25-29 May, 3-4 August, 6-7 August 1998 Date of Judgment: 3 November 1998
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Judicial Review
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Wednesbury Unreasonableness
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