Re TYGJ and Privacy Commissioner and Secretary, Department of Veterans' Affairs

[2015] AATA 112

[2015] AATA 112

Division:  GENERAL ADMINISTRATIVE DIVISION

File Number:  2014/6300

Re:TYGJ

APPLICANT

And:  Privacy Commissioner

RESPONDENT

And:  Secretary, Department of Veterans’ Affairs

PARTY JOINED

WRITTEN REASONS FOR DECISION

Tribunal:  Deputy President S A Forgie

Date:  27 February 2015

Place:  Melbourne

The Secretary, Department of Veterans’ Affairs was made a party to the proceeding on 23 February 2015.  These are the written reasons for that decision.

…[sgd] S A Forgie.….

Deputy President

CATCHWORDS

PRIVACY – decision under review is declaration by Privacy Commissioner that Department of Veterans’ Affairs had breached Information Privacy Principle 11.1 in disclosing applicant’s personal information – Secretary, Department of Veterans’ Affairs applied to be made a party to the proceeding – interests affected – exercise of discretion - party joined.

LEGISLATION
Administrative Appeals Tribunal Act 1975; sections 2A, 25, 27, 30, 30A, 33, 37, 43
Administrative Decisions (Judicial Review) Act 1977; section 5
Airports Act 1996; sections 71, 79
Australian Information Commissioner Act 2010; ss 6, 10, 12
Corporations Law
Development Allowance Authority Act 1992; sections 93A, 119
Environment Protection (Impact of Proposals) Act 1974
Freedom of Information Act 1983; sections 60
Income Tax Assessment Act 1936
Privacy Act 1988; sections 6, 10, 13, 14, 36, 37, 40, 42, 43, 44, 52, 58, 59, 60, 96, Schedule 1
Privacy Amendment (Enhancing Privacy Protection) Act 2012; sections 2, 3, Schedule 4 Item 200

Defence (General) Regulations 1939 (UK)

CASES
Allan v Transurban City Link Ltd [2001] HCA 58; (2001) 208 CLR 167; 183 ALR 380
Alphapharm Pty Limited v Smithkline Beecham (Australia) Pty Limited and Others (1994) 49 FCR 250; 121 ALR 373; 32 ALD 71
Botany Bay City Council v Minister for Transport [1996] FCA 1507; (1996) 66 FCR 537; 137 ALR 281; 41 ALD 84
Brisbane Airports Corporation Ltd v Wright [2002] FCA 359; (2002) 120 FCR 157; 77 ALD 411; 35 AAR 192
Bushell v Repatriation Commission (1992) 175 CLR 408; 109 ALR 30; 29 ALD 1
Comptroller-General of Customs v Members of the Administrative Appeals Tribunal (1994) 123 ALR 140; 32 ALD 463
‘DO’ and Department of Veterans’ Affairs [2014] AICmr 124
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577; 46 FLR 409
Edwards v Australian Securities Commission and Others (1997) 72 FCR 350; 142 ALR 455; 24 AAR 192
Kioa v West [1985] HCA 81; (1985) 159 CLR 550; 62 ALR 321
Marrickville Council v Minister for the Environment, Sport and Territories [1996] FCA 851
Minister for Immigration and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 21 FCR 193; 92 ALR 93
Minister of Agriculture and Fisheries v Matthews [1950] 1 KB 148
Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636; 290 ALR 616; 130 ALD 1
Re Boyd and Comcare (1991) 23 ALD 392
Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 1) [1980] AATA 78; (1980) 3 ALD 74; 50 FLR 1
Re Cryovac and Commissioner of Patents and American National Can Company [2001] AATA 23
Re Marine World Victoria Ltd and Minister for Arts, Heritage and Environment [1986] AATA 203; (1986) 10 ALD 262
Re Moorabbin Airport Corporation Pty Ltd and Minister for Infrastructure and Regional Development and Others [2014] AATA 101
Re Peters and Department of Health and Aged Care (1999) 56 ALD 561
Re Scott and Secretary, Department of Social Security (1996) 42 ALD 738
Re Secretary, Department of the Prime Minister and Cabinet and Treasurer of the Commonwealth of Australia and Combined Pensioners and Superannuants Association of New South Wales Incorporated [2014] AATA 485
Re Sleiman and Companies Auditors and Liquidators Disciplinary Board [2007] AATA 1892; (2007) 98 ALD 170; 46 AAR 374
Re The Australian and Department of Families, Community Services and Indigenous Affairs and Cape York Land Council [2006] AATA 755; 92 ALD 179; 43 AAR 505
Re VBN and Australian Prudential Regulation Authority [2005] AATA 861; (2005) 92 ALD 437; 44 AAR 192
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (Right to Life) [1995] FCA 1060; (1995) 56 FCR 50; 128 ALR 238; 37 ALD 357
United States Tobacco Company v Minister for Consumer Affairs and Others Unreported, 15 September 1988, No. G158 of 1988

REASONS FOR DECISION

1. On 29 January 2015, Mr Dillon made submissions on behalf of the Secretary of the Department of Veterans’ Affairs (Secretary) as to why he should be made a party to the proceedings for review of a decision made by the Privacy Commissioner (Commissioner).[1]  The Commissioner’s decision, made on 13 November 2014, had been to declare that the Department of Veterans’ Affairs (Department) had breached IPP 11.1[2] of the Privacy Act 1988 (Privacy Act) by disclosing TYGJ’s personal information.[3] The disclosure had been to the Australian Defence Force (ADF) Senior Medical Officer and the Head of Joint Health Command in the Department of Defence on 20 October 2011 as well as the Chief of Air Force on 28 October 2011. Under s 52(1)(b)(ii) of the Privacy Act, the Commissioner declared that:

   “·         The Department shall apologise in writing to the complainant within two weeks of this determination; and

   ·The Secretary will initiate a review of the management of privacy complaints within the Department and advise me of the results of the review no later than two months from the date of this determination.  In undertaking this review, particular consideration should be given to the steps undertaken by the Department in handling this matter.”[4]

   [1] There has been some doubt as to whether the Privacy Commissioner or the Information Commissioner should be named as the respondent.  Certainly, the Privacy Commissioner made the decision under review but the Privacy Act 1988 confers various functions, including the investigation of complaints on the Information Commissioner i.e. the Commissioner meaning the Information Commissioner within the meaning of the Australian Information Commissioner Act 2010 (AIC Act): Privacy Act; s 6(1). 

   Section 10 of the AIC Act confers “privacy functions” on the Information Commissioner: s 10(1)(c).  “Privacy functions” include those that are conferred on the Information Commissioner by an Act if the functions relate to the privacy of an individual and are not freedom of information functions: AIC Act; s 9. Section 12(1) of the AIC Act provides that the Privacy Commissioner has privacy functions and, subject to qualifications that do not apply to the investigation of complaints, the power to do all things necessary or convenient to be done for, or in connection with, the performance of those privacy functions: AIC Act; ss 12(3) and (4). It would seem to follow from s 12 of the AIC Act that the authority to investigate complaints under the Privacy Act is conferred upon the Privacy Commissioner by s 12(3) and he is not acting as the delegate of the Information Commissioner.

   Therefore, the Privacy Commissioner is the decision-maker with respect to the complaint made by TYGJ and so a party to the proceeding.  The decision-maker is not the Office of the Australian Information Commissioner as previously noted in the Tribunal’s records.

   [2] Information Privacy Principle 11.1. The Information Privacy Principles (IPPs) were formulated under s 14 of the Privacy Act before its amendment by the Privacy Amendment (Enhancing Privacy Protection) Act 2012. The IPPs are now known as the “Australian Privacy Principles” and are set out in Schedule 1: Privacy Act; s 14(1).

   [3] The respondent to the complaint is the principal executive of the agency and so the Secretary of the Department: Privacy Act; ss 36(6) and 37; Item 1

   [4] Re ‘DO’ and Department of Veterans’ Affairs [2014] AICmr 124 at [108]; TYGJ was known by the pseudonym “DO” in those proceedings.

1. The Secretary wrote to TYGJ on 21 November 2014 summarising the findings of the Commissioner and saying:

   “I advise that the Department will not be seeking a review of the Commissioner’s findings.  In accordance with the Commissioner’s determination, I apologise on behalf of the Department for any distress that these disclosures may have caused.

   I note you have discontinued your contact with the Department in relation to these issues and trust that this letter represents an end to the matter.”

2. Appearing on his own behalf, TYGJ opposed the Secretary’s application to be made a party to this proceeding for review of the Commissioner’s decision.  The Commissioner did not oppose the Secretary’s application.  As I was about to give oral reasons leading to my decision on the Secretary’s application, TYGJ stated that he wanted a written decision and written reasons for it.  I indicated that my decision would be to make the Secretary of the Department a party to the proceedings for review of the Commissioner’s decision but, as he wanted written reasons, I would place the matter on my reserved decision list to be written at a later time.  I ultimately made the decision to join the Secretary as a party to the proceedings on 23 February 2015 and now give my reasons for doing so.

THE SUBMISSIONS

1. On behalf of the Secretary, Mr Dillon submitted that the Secretary is a person whose interests are affected by the decision under review and that he should be joined as a party for two main reasons:

   (1)The Secretary is ultimately responsible to the Minister for Veterans’ Affairs for the conduct of employees of the Department and its operations. It is the Department, which is the agency for the purposes of the Privacy Act, that has been found to have interfered with TYGJ’s privacy and ordered to apologise.

   (2)The Secretary is the subject of the Commissioner’s direction to conduct a review of the management of privacy within the Department and could be the subject of other directions following the review.  Should the Tribunal decide that TYGJ is entitled to compensation, it is the Secretary who will be responsible for identifying funds to meet that obligation.

2. TYGJ opposed the Secretary’s application on grounds that may be grouped into three broad categories:

   (1)The interests of the Commissioner and of the Secretary do not differ.  Joinder can only be justified if their interests are substantially and significantly different from those of other parties.  TYGJ relied on the decision of Senior Member Dwyer in Re Cryovac and Commissioner of Patents and American National Can Company[5] (Cryovac).

   [5] [2001] AATA 23

   (2)If he wishes, the Secretary may apply to the Tribunal for review of the Commissioner’s decision: 

   (a)the Secretary has allowed his right to apply for review to lapse;

   (b)it would be unethical to permit him to revive that right by “piggybacking” on his application;

   (c)the Secretary is estopped from taking part in the review of the decision; and

   (d)the Secretary has not provided any basis for an assertion that the Commissioner has erred in law or in fact in its determinations.

   (3)The Secretary could apply for review of the OAIC’s decision under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act).

   (4)If the Secretary is permitted to expand the grounds upon which the review is conducted, he will:

   (a)prevent a fair and expeditious hearing of the application; and

   (b)in doing so, he will significantly increase the costs to the Commissioner and to TYGJ himself. 

1. The Commissioner has not opposed the Secretary’s application to be made a party.  He resiled from his initial position that the Secretary should be permitted to participate in the proceedings only on that basis that he be heard on the issue of compensation.  On his behalf, Mr Holcombe submitted that the Secretary has the right to be heard on every issue raised by the review of the Commissioner’s decision. 

LEGISLATIVE PROVISIONS UNDER WHICH COMPLAINT MADE AND DETERMINED

1. In the form in which it was enacted in September and October 2011 when the Department was found to be in breach of certain IPPs, an agency that was in possession or control of a record of personal information was regarded as a record-keeper in relation to that record.  That was the effect of s 10(1) as it was then drafted.  It was subject to exceptions but they are not relevant in this case.  The Department was an “agency” as that term was defined in s 6(1).  “Personal information” means

   “… information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an
   individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”[6]

Section 13(1)(a), as it was then drafted, provided:

“For the purposes of this Act, an act or practice is an interference with the privacy of an individual if the act or practice:

(a) in the case of an act or practice engaged in by an agency (whether or not the agency is also a file number recipient, credit reporting agency or credit provider)—breaches an Information Privacy Principle in relation to personal information that relates to the individual”.

[6] Privacy Act; s 6(1)

1. Section 14 set out the IPPs. IPP 11.1 was drafted in these terms:

   “A record-keeper who has possession or control of a record that contains personal information shall not disclose the information to a person, body or agency (other than the individual concerned) unless:

   (a) the individual concerned is reasonably likely to have been aware, or made aware under Principle 2, that information of that kind is usually passed to that person, body or agency;

   (b) the individual concerned has consented to the disclosure;

   (c) the record-keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or of another person;

   (d) the disclosure is required or authorised by or under law; or

   (e) the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.”

1. Under s 36 of the Privacy Act, an individual may complain to the Commissioner[7] about an act or practice that may be an interference with the privacy of the individual.[8]  Subject to the qualification in s 40(1A) to the effect that, in most cases, an individual must first complain to the respondent (in this case the Secretary), the Commissioner is required to investigate that complaint.[9]  Under s 42, the Commissioner may decide to make inquiries of the respondent for the purpose of determining whether he (in this case) has power to investigate the matter to which the complaint relates or whether he should decide not to investigate the matter.  Before commencing an investigation into a matter to which a complaint relates, the Commissioner must inform the respondent that the matter is to be investigated.[10] 

   [7] The references in the Privacy Act to “Commissioner” are references to the Information Commissioner appointed under the AIC Act.  As I said in above, the Privacy Commissioner has been given the privacy functions by s 12 of that AIC Act.  For that reason, I have continued to refer simply to “Commissioner”, as does the Privacy Act, in referring to the relevant provisions.

   [8] Privacy Act; s 36(1)

   [9] Privacy Act; s 40(1)(b)

   [10] Privacy Act; s 43(1)

1. The Commissioner need not give either the complainant or the respondent an opportunity to appear before him in connection with the investigation unless he proposes to make a finding under s 52 that is adverse to that complainant or respondent.  He may not make such an adverse finding without first giving an:

   “… an opportunity to appear before the Commissioner and to make submissions, orally, in writing or both, in relation to the matter to which the investigation relates.”[11]

The Commissioner has power to obtain information and documents and to examine witnesses in the circumstances set out in ss 44 and 45.

[11] Privacy Act; s 43(5) and see also s 43(4)

1. After investigating a complaint, the Commissioner may exercise the powers set out in s 52.  I will set out its terms in so far as they may be relevant to this matter:

   “(1)     After investigating a complaint, the Commissioner may:

   (a)make a determination dismissing the complaint; or

   (b)find the complaint substantiated and make a determination that includes one or more of the following:

   (i)a declaration:

   (A)where the principal executive of an agency is the respondent – that the agency has engaged in conduct constituting an interference with the privacy of an individual and should not repeat or continue such conduct; or

   (b)…

   (ii)a declaration that the respondent should perform any reasonable act or course of conduct to redress any loss suffered by the complainant;

   (iii)a declaration that the complainant is entitled to a specified amount by way of compensation for any loss or damage suffered by reason of the act or practice the subject of the complaint;

   (iv)a declaration that it would be inappropriate for any further action to be taken in the matter.

   (1A)The loss or damage referred to in paragraph (1)(b) includes injury to the complainant’s feelings or humiliation suffered by the complainant.

   (1B)A determination of the Commissioner under subsection (1) is not binding or conclusive between any of the parties to the determination.

   (2)The Commissioner shall, in a determination, state any findings of fact upon which the determination is based.

   (3)In a determination under paragraph (1)(a) or (b) …, the Commissioner may include a declaration that the complainant is entitled to a specified amount to reimburse the complainant for expenses reasonably incurred by the complainant in connection with the making of the complaint and the investigation of the complaint.

   (3A)-(6)…”

2. If, as in this case, the respondent is the principal executive of the agency and the Commissioner makes a determination under s 52, s 59 comes into play to impose obligations upon that principal executive.  He or she:

   “… must take all such steps as are reasonably within his or her power to ensure:

   (a)that the terms of the determination are brought to the notice of all members, officers and employees of the agency whose duties are such that they may engage in conduct of the kind to which the determination relates; and

   (b)that no member, officer or employee of the agency repeats or continues conduct that is covered by a declaration included in the determination under subparagraph 52(1)(b)(i); and

   (c)the performance of any act or course of conduct that is covered by a declaration included in the determination under subparagraph 52(1)(b)(ii).”

3. Section 60 applies if the Commissioner’s determination includes a declaration of the kind referred to in subparagraph 52(1)(b)(iii) or subsection 52(3).  If that is the case, the complainant is entitled to be paid the amount specified in the declaration.[12]  Where, as here, the respondent is the principal executive of the agency, the amount is recoverable as a debt due to the Commonwealth under s 60(2).

   [12] Privacy Act; s 60(1)

   REVIEW OF COMMISSIONER’S DETERMINATIONS

4. Section 25(1) of the AAT Act provides that an enactment may provide that applications may be made to the Tribunal for review of, among others, decisions made in the exercise of powers conferred by that enactment.[13]  If an application is made under an enactment, the Tribunal has power to review the decision.[14] That means that I must look first to the Privacy Act to decide whether there is a provision in it providing for review of the decision in this case.

   [13] AAT Act; s 25(1)(a)

   [14] AAT Act; s 25(4)

   Provisions of the Privacy Act

5. Section 96 of the Privacy Act provides for review of certain decisions by the Tribunal. It specifies seven decisions but only that under s 96(1)(c) is relevant in this case:

   “An application may be made to the Administrative Appeals Tribunal for review of the following decisions of the Commissioner:

   (a)-(b)  …

   (c)a decision under subsection 52(1) or (1A) to make a determination;

   (d)-(g)…”

1. At the time that TYGJ made his complaint to the Department, s 96 did not permit an agency, and so the Department, to apply for review of a determination made by the Commissioner under ss 52(1) or (1A). Section 96(1)(c) was inserted by Item 200 of Schedule 4 of the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (PAEPP Act).[15]  The transitional provisions of that legislation provided that s 95(1)(c) that had been inserted applied in relation to a decision made after the commencement time.[16] The amendments effected by Schedule 4 commenced on 12 March 2014.[17]

   [15] See also PAEPP Act; s 3

   [16] PAEPP Act; s 3; Schedule 6, Part 5, Item 14

   [17] PAEPP Act; s 2 Items 2 and 19 respectively

Provisions of the AAT Act

1. The provisions of the AAT Act apply to every review of a decision unless they have been modified by the enactment that provides for review of the decision.[18] There have been no modifications made by the Privacy Act. Therefore, provisions such as s 33(1AA) of the AAT Act continue to apply. It sets out the general responsibility that every decision-maker carries that:

   “In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.”

   [18] AAT Act; s 25(6)

1. Consistent with its assisting the Tribunal, the decision-maker is required to lodge material required by s 37 of the AAT Act. Section 37(1) provides:

   “Subject to this section, a person who has made a decision that is the subject of an application for a review by the Tribunal must, within 28 days after receiving a notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal 2 copies of:

   (a)a statement 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; and

   (b)every other document or part of a document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.”

1. The role of the Tribunal is set out in Part IV of the AAT Act.  Putting aside its powers relating to preliminary matters and its powers to dismiss an application, its powers on review of a decision to which an application relates are set out in s 43.  Section 43(1) provides:

   “For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

   (a)affirming the decision under review;

   (b)varying the decision under review; or

   (c)setting aside the decision under review and:

   (i)making a decision in substitution for the decision so set aside; or

   (ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.”

1. Against this background, I note that, in Drake v Minister for Immigration and Ethnic Affairs,[19] Bowen CJ and Deane J explained that:

   “          The function of the Tribunal is ... an administrative one.  It is to review the administrative decision that is under attack before it.  In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. ...

   The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him.  The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. ...”[20]

   [19] (1979) 2 ALD 60; 24 ALR 577; 46 FLR 409

   [20] (1979) 2 ALD 60; 24 ALR 577; 46 FLR 409 at 68; 589; 419 per Bowen CJ and Deane J

2. In Re Secretary, Department of the Prime Minister and Cabinet and Treasurer of the Commonwealth of Australia and Combined Pensioners and Superannuants Association of New South Wales Incorporated,[21] I said:

   “The role that a decision-maker takes in a proceeding in the Tribunal is not limited to answering or making replies.  A decision-maker’s task is not to defend the particular decision that has been made but, like all parties, to put forward all relevant material to assist the Tribunal to come to the decision that is correct at law and on the evidentiary material and, if there is more than one decision that meets that description, to choose from those decisions that which is to be preferred.  Referring to a case in which the decision of the initial decision-maker, the Repatriation Commission, had been reviewed by the Veterans’ Review Board, before being reviewed by the Tribunal, Brennan J said in Bushell v Repatriation Commission:[22]

   ‘… Proceedings before the A.A.T. may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant’s case but in substance the review is inquisitorial.  Each of the Commission, the Board and the A.A.T. is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. …’[23]

   …”[24]

   [21] [2014] AATA 485

   [22] (1992) 175 CLR 408; 109 ALR 30; 29 ALD 1

   [23] (1992) 175 CLR 408; 109 ALR 30; 29 ALD 1 at 424-425; 43; 4-5

   [24] [2014] AATA 485 at [34]

   THE PARTIES TO A PROCEEDING FOR REVIEW OF A DECISION

1. As a general rule,[25] the parties to a proceeding for the review of a decision are the person who has applied for that review, the person who made the decision, the Attorney-General in those cases in which the Attorney-General intervenes in the proceeding under s 30A and any other person who has been made a party to that proceeding after making an application under s 30(1A) of the Administrative Appeals Tribunal Act 1975 (AAT Act).[26] 

[25] I say “as a general rule” for there are occasions on which Parliament prescribes who the parties to a proceeding will be. So, for example, the parties may be specified so that the decision-maker is not a party. Section 60(3) of the Freedom of Information Act 1982, for example, provides that the parties to a proceeding are the person who applied to the Tribunal for review, the person who made the request, the principal officer of the agency, or the Minister, to whom the request was made and any other person who is made a party to the proceeding under s 30(1A) of the AAT Act.

[26] AAT Act; s 30(1)

POWER TO MAKE A PERSON A PARTY TO A PROCEEDING

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

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

1. It is apparent from the terms of s 30(1A) that the power that is given to the Tribunal is a discretionary power.  That discretionary power only arises if three matters have been established:

   (1)an application has been made by a person to the Tribunal for review of a decision;

   (2)another person has made an application, in writing, to the Tribunal to be made a party; and

   (3)that other person has interests affected by the decision.

A.“interests are affected by a decision”

1. In the case of ReMoorabbin Airport Corporation Pty Ltd and Minister for Infrastructure and Regional Development and Others[27] (Moorabbin), I set out what is meant by the expression “interests are affected by a decision”.  At Attachment A, I repeat that section of my reasons in full for they inform the decision that I must make in this case.  I adopt them as part of my reasons in this case.

   [27] [2014] AATA 101

B.       Factors relevant in the consideration of the exercise of the discretion

1. Also in Moorabbin, I set out factors that are relevant in considering whether or not I should exercise the discretion in a particular case once I have decided that the person applying to be made a party is a person whose interests are affected by the decision under review.  I have repeated that section of my reasons at Attachment B and adopt them as part of my reasons in this case.

1. TYGJ cited Cryovac in support of his submission that the Secretary should not be joined as a party.  That was a decision made by Senior Member Dwyer in which she relied on the principles identified by Deputy President Thomson in Re Marine World Victoria Ltd and Minister for Arts, Heritage and Environment[28] (Marine World). I refer to them in Attachment B at [62]. In those paragraphs, I also give my reasons for thinking that Marine World should not be regarded as requiring that the interests of an applicant to be joined as a party need to be both substantial and significantly different from those of other parties.  The differences and similarities of their interests are factors to be taken into account but are not determinative of a person’s application to be joined as a party.

   [28] [1986] AATA 203; (1986) 10 ALD 262

CONSIDERATION

1. It is inherent in TYGJ’s submissions that he wants the Tribunal to confine itself to the question of whether or not he is entitled to compensation for the Department’s breach of IPP11.1. He does not want the Commissioner’s declaration that the Department is in breach of IPP11.1 disturbed. By seeking review of the Commissioner’s decision, however, TYGJ has put all of the issues relevant to the making of that decision potentially in issue. That is to say, he has put in issue both whether the Department is in breach of IPP11.1 and, if so, whether any or all of the declarations provided for in s 52(1)(b) of the Privacy Act should be made. Among the declarations that it might consider making will be a declaration that TYGJ is entitled to compensation. TYGJ cannot seek to limit the scope of the review to the issue of compensation. That follows from the fact that, unless limited by a provision in the enactment under which a decision was made, the Tribunal’s duty is to conduct a de novo review of that decision.  That is to say:

   “… The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made. …”[29]

   To repeat what Bowen CJ and Deane J said in Drake v Minister for Immigration and Ethnic Affairs:

   “          The question for determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him.  The question for determination of the Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal. …”[30]

   [29] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409 at 599; 77; 429-430 per Smithers J

   [30] (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409 at 589; 68, 419 per Bowen CJ and Deane J and see [20] above

2. At this stage, there is no scope for the Tribunal to use its power under s 25(4A) of the AAT Act to “… determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers.”  To do so would be to fail to undertake an assessment of the issues raised by the application for review and so fail to make a proper determination of the interests that the decision under review may affect.  As Senior Member Taylor SC said in Re Sleiman and Companies Auditors and Liquidators Disciplinary Board:[31]

   “The Tribunal’s mandatory objective under section 2A of the AAT Act, and its power under subsection 25(4A), permit the Tribunal to confine the issues and evidence it considers.  Those powers could not be used to justify orders precluding effective review of decisions falling within the Tribunal’s proper review jurisdiction. …”[32]

   [31] [2007] AATA 1892; (2007) 98 ALD 170; 46 AAR 374

   [32] [2007] AATA 1892; (2007) 98 ALD 170; 46 AAR 374 at [12]; 174; 379

1. The role of the decision-maker as a party to a proceeding for review of a decision is clear.  He or she has a duty to assist the Tribunal to carry out its duty to conduct a de novo review of the decision.[33] A decision-maker also has a specific statutory duty under s 37 of the AAT Act to lodge with the Tribunal a statement of reasons for making the decision and a copy of:

   “every other document or part of a document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.”[34]

   [33] See also s 33(1AA) requiring the decision-maker to use “… best endeavours to assist the Tribunal to make its decision in relation to the proceeding.”

   [34] AAT Act; s 37(1)(b)

2. Against this background, I turn to consider the interests of the Secretary and whether they are affected by the Commissioner’s decision.  I find that his interests are necessarily affected by the Commissioner’s decision.  It is his Department whose actions are the subject of the complaint made by TYGJ and whose actions have been found by the Commissioner to have breached IPP11.1.  It is his Department that will be obliged under s 58 not to repeat or continue the conduct that is the subject of the Commissioner’s declaration.  The Secretary is the person who has responsibility for ensuring that the obligation is complied with.  His interests are necessarily affected by the Commissioner’s decision under review.

3. TYGJ argued that the Secretary is estopped from seeking to be joined as a party because of his letter to him dated 21 November 2014. I have set out the relevant passage at [2] above and note that the Secretary’s seeking to be joined as a party to TYGJ’s application for review is not the same as his seeking review of the Commissioner’s findings. Had he sought review of the Commissioner’s findings, he would have lodged an application for review as he was entitled to do. This he has not done. Therefore, I do not consider that the Secretary has acted inconsistently with his letter dated 21 November 2014 by seeking to be joined as a party to these proceedings.

4. Turning to the principles of estoppel by representation, I note that those principles have largely been developed in the context of private law and not that of public law, of which administrative law and so the review of administrative decisions is a part.  The generally accepted proposition, Gummow J said in Minister for Immigration and Ethnic Affairs v Kurtovic[35] (Kurtovic) is that:

   “‘Estoppel cannot operate to prevent or hinder the performance of a positive statutory duty, or the exercise of a statutory discretion which is intended to be performed or exercised for the benefit of the public or a section of the public.’: Halsbury’s Laws of England, 4^th ed, vol 44, ‘Statutes’ para 949.”[36]

   [35] [1990] FCA 22; (1990) 21 FCR 193; 92 ALR 93; Neaves, Ryan and Gummow JJ

   [36] [1990] FCA 22; (1990) 21 FCR 193; 92 ALR 93 at 208; 109

5. Later in his reasons, Gummow J explored the foundations of this proposition.  One view is that the foundation lies in the proposition that executive action is subordinate to the terms of legislation.[37]  To put his Honour’s proposition another way, executive government can neither gain power beyond the limits given by the legislature nor deny the power to it by that legislature by reason of its own actions.  He referred to the case of Minister of Agriculture and Fisheries v Hulkin[38] in which the Defence (General) Regulations 1939 (UK) gave the Minister power to create a tenancy in respect of certain land.  A question arose over a certain document and it was submitted to Lord Greene MR that, even if the regulations gave no power to create the tenancy, the Minister was estopped from denying that the document in question did create a tenancy.  Lord Greene MR said:

   “          Accepting the view which Mr Baillieu (the defendant’s counsel) accepts, that the Minister had no power under the regulations to grant a tenancy, it is perfectly manifest to my mind that he could not by estoppel give himself such power.  The power given to an authority under a statute is limited to the four corners of the power given.  It would entirely destroy the whole doctrine of ultra vires if it was possible for the donee of a statutory power to extend his power by creating an estoppel.”

   [37] [1990] FCA 22; (1990) 21 FCR 193; 92 ALR 93 at 209-210; 110

   [38] Unreported but referred to in Minister of Agriculture and Fisheries v Matthews [1950] 1 KB 148 at 153-154 per Cassels J

1. In his judgment in Kurtovic, Gummow J developed this principle:

   “          However, it would be taking too narrow a view of the authorities to say that the concerns which find expression in the limitation put upon the doctrine of estoppel are limited to ensuring the performance of a statutory duty.  The same limitation has been said by high authority to apply where there is no duty to act, but merely a discretionary power.  This has been put on the basis that in a case of a discretion, there is a duty under the statute to exercise a free and unhindered discretion and an estoppel cannot be raised (any more than a contract might be relied upon) to prevent or hinder the exercise of the discretion; the point is that the legislature intends the discretion to be exercised on the basis of a proper understanding of what is required by the statute, and that the repository of the discretion is not to be held to a decision which mistakes or forecloses that understanding; see N.S.W. Trotting Club Ltd. v Glebe Municipal Council [1937] NSWStRp 14; (1937) 37 SR (NSW) 288; Cudgen Rutile (No. 2) Pty. Ltd. v Chalk (1975) AC 520 at 533; Southend-on-Sea Corporation v Hodgson (Wickford) Ltd. (1962) 1 QB 416 at 423-425. Of the last mentioned decision, Sir Alexander Turner (‘The Law Relating to Estoppel by Representation’, 3rd Ed., 1977, p 150) said:

   ‘It has been authoritatively laid down (and it must inexorably follow from principle) that there is no logical distinction, as regards the point now under discussion, between a duty imposed, and a discretion conferred, by statute in the public interest; the fact that the duty is imposed or discretion given in the public interest should be sufficient, on the ground of public policy, to prevent any estoppel arising whereby the performance of the duty or the exercise of the discretion is frustrated.  If a public authority cannot by contract fetter the exercise of its discretion, it can hardly by the invocation of the doctrine of estoppel be brought to the same position. But it must appear that frustration of its duty or of its discretion will be the result of allowing the estoppel; anything less than this will be insufficient as an affirmative answer.’”[39]

   [39] [1990] FCA 22; (1990) 21 FCR 193; 92 ALR 93 at 210; 111

1. Applying these principles to this case, to find (which I do not) that the Secretary’s letter should be read as an undertaking not to apply to be joined as a party to an application lodged by TYGJ would be to fetter the discretion that is conferred upon him by s 30(1A) of the AAT Act.  That is a discretion that is given to any person who considers that his or her interests might be affected by the Tribunal’s review of a decision to apply to be joined as a party.  To find that a person, including a public authority, could fetter the discretion given by Parliament would be tantamount to permitting executive action to take away that which the Parliament has given.  That discretion has been conferred not only to enable a party whose interests are affected by the decision to put his or her own position to the Tribunal but to enable the Tribunal to hear from all such persons and to be fully informed so that it may carry out its function of reaching the correct or preferable decision in the case.  Therefore, on any view of the Secretary’s letter, I find that it does not prevent him from applying to be joined as a party to these proceedings.

1. That brings me to the discretionary aspect of the power to make a person a party to the proceeding. I begin by looking at the interests of those who are already parties. Clearly, the interests of TYGJ and of the Commissioner are different. TYGJ seeks a decision different from that which the Commissioner made. Turning now to the interests of the Secretary, his interests are different from those of TYGJ for he took the position before the Commissioner that its disclosures were not made in breach of IPP11.1 or of the Privacy Act generally.

1. The Secretary’s interests are different from those of the Commissioner for the latter is simply the person who has effectively adjudicated upon a dispute between TYGJ and the Secretary. For the reasons I have given earlier, it is not for the Commissioner to support one party or the other but to assist the Tribunal in its review of his decision. The assistance that he can give is necessarily limited by his role as an independent decision-maker. He must lodge documents as required by s 37 of the AAT Act but it is beyond his powers to provide any other documents or information that may become relevant in the review of his decision. This follows from the fact that his powers to obtain information and documents are limited to those situations in which “… the Commissioner has reason to believe that a person has information or a document relevant to an investigation under this Division …”[40] of Part V of the Privacy Act (emphasis added). An investigation does not extend to a review of a decision made by the Commissioner following his having investigated a complaint.

   [40] Privacy Act; ss 44(1) and see also s 44(3)

1. The only persons able to provide information relating to the breaches of IPP11.1 that have been alleged are TYGJ and the Secretary.  They are the persons who have the information and between whom the matters are in issue.  To join the Secretary as a party would not add to the costs of the existing parties or the public funds.  It is not likely to slow the resolution of the matter.  Rather, having the Secretary as a party is likely to expedite the resolution of the matter and enable the Tribunal to have ready access to all relevant material necessary for an adequate review of the Commissioner’s decision.

2. The person in whose power it will be to obtain information or a document relevant to the review of the Commissioner’s decision will be the Secretary.  That in itself is not enough to make him a party for I must first consider whether he is a person whose interests are affected by the decision under review and, if so, whether I should make him a party.  The answer to the first question is clear.  He is a person whose interests are affected by the decision as it is the actions of his Department that are under scrutiny in deciding whether it has breached IPP 11.1.  If the Department is in breach, it is the Secretary who will be required to comply with any declaration made under s 52.  In view of those matters, his interests are clearly affected by the Commissioner’s decision.

1. For these reasons, I have decided that the Secretary is a person whose interests are affected by the decision of the Commissioner and that I should join him as a party to the proceeding.

   WHEN ARE A PERSON’S INTERESTS AFFECTED BY A DECISION?

2. In Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 1)[41] (Control Investment), Davies J considered when a person’s “interests are affected” within the meaning of ss 27(2)[42] and 30(1)(c) of the AAT Act.  At the time, s 30(1)(c) provided that “… the parties to a proceeding are … any other person … whose interests are affected by the decision and who applied to the Tribunal to be made a party to the proceeding and was made such a party by an order of the Tribunal.”  Davies J said:

   “In their context in ss 27 and 30, the words ‘interests are affected’ denote interests which a person has other than as a member of the general public and other than as a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed.  The interest affected need not be a legal interest nor need the person seeking joinder establish legal ownership of the interest. ... However, a person seeking joinder must be able to identify a relevant interest which is his.  In other contexts, dicta in cases have used the adjectives ‘real’, ‘genuine’ and ‘direct’ to describe the relationship required between the decision and the interest. Sections 27(1) and 30(1) do not make use of adjectives but they do require that the applicant demonstrates genuine affection of an interest which attaches to him. The nature of the interest required in a particular case will be influenced by the subject matter and context of the decision under review.  As Brennan J said in McHattan’s case [Re McHattan and Collector of Customs (1977) 18 ALR 154 at 157]: ‘However, a decision which affects interests of one person directly may affect the interests of others indirectly. Across the pool of sundry interest, the ripples of affection may widely extend. The problem which is inherent in the language of the statute is the determination of the point beyond which the affection of interests by a decision should be regarded as too remote for the purposes of s 27(1). The character of the decision is relevant, for if the interests relied on are of such a kind that a decision of the given character could not affect them directly, there must be some evidence to show that the interests are in truth affected.’”[43]

This passage was approved by the Full Court in United States Tobacco Company v Minister for Consumer Affairs and Others[44] (US Tobacco), Alphapharm Pty Limited v Smithkline Beecham (Australia) Pty Limited and Others[45] (Alphapharm) and Comptroller-General of Customs v Members of the Administrative Appeals Tribunal.[46]  

[41] [1980] AATA 78; (1980) 3 ALD 74; 50 FLR 1

[42] Section 27 provides, in part, that a person whose interests are affected by a decision may apply for review.

[43] (1980) 3 ALD 74; 50 FLR 1 at 79-80, 8-9

[44] Unreported, 15 September 1988, No. G158 of 1988

[45] (1994) 49 FCR 250; 121 ALR 373; 32 ALD 71; Davies, Burchett and Gummow JJ

[46] (1994) 123 ALR 140; 32 ALD 463

1. I will summarise the principles that can be drawn from those cases and from subsequent cases.  Some were decided in the context of civil proceedings in the courts when the decision was whether an applicant for joinder was a person “aggrieved” by a decision.  The principles are, however, equally applicable in administrative proceedings for the review of decisions by a body, such as the Tribunal.

   No technical rules apply to determine when person’s interests affected

   (1)“… The meaning … is not encased in any technical rules; much depends upon the nature of the particular decision and the extent to which the interest of the applicant rises above that of an ordinary member of the public.”[47]

   [47] Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (Right to Life) [1995] FCA 1060; (1995) 56 FCR 50; 128 ALR 238; 37 ALD 357; Lockhart, Beaumont and Gummow JJ at [65]; 65; 251; 370 per Lockhart J

   Relevant interests determined by relevant enactment and each decision

   (2)The relevant interests must be determined by reference to the terms of the particular decision that has been made and the enactment under which that decision was made:[48]

   [48] Alphapharm (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71 at 260; 383; 80 per Davies J citing US Tobacco at 529

   (a)“          The expression ‘affected by’ and cognate terms appear in a range of laws of the Commonwealth.  … It is necessary to answer the questions posed … in respect of s 119(1) of the Authority Act by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as ‘standing’.  …

   … A particular statute may establish a regime which specifically provides for its own measure of judicial review on the application of persons meeting criteria specified in that statute. … The starting point, as indicated by several authorities in the Full Court of the Federal Court …, is the construction of the Authority Act with regard to its subject, scope and purpose. …

   … What serves to identify a person as one affected by a reviewable decision will vary having regard to the nature of the reviewable decision itself. …”[49]

   [49] [2001] HCA 58; (2001) 208 CLR 167; 183 ALR 380 at [15]-[17]; 174, 384per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ

   (i)“… In such event, the review, which forms part of the process of administrative decision-making, is provided to promote the achievement of the objects of the statute. …”.[50]

   [50] (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71 at 260; 383; 80

   (3)Where more than one decision can be made under an enactment, interests that are relevant in relation to one decision may not be in relation to another.  Therefore, what are relevant interests must be determined by reference to each decision and the legislative context in which it is made:

   (a)“… The denotation of the phrase ‘whose interests are affected’ … should not be assumed to be the same across this spectrum of decision making.  It has a series of distinct operations and, in this sense, is of an ambulatory nature.  … it cannot be correct that … the class of persons whose interests are affected by an initial decision is limited to disaffected applicants.  Persons whose existing situation under the legislation is changed by operation of the initial decision, which was not sought but was imposed upon them, must be persons whose interests are affected by the initial decision.”[51]

   [51] (1994) 49 FCR 250; 121 ALR 373; 32 ALD 71 at 273, 396, 91-92

   (4)What may amount to relevant interests must be determined afresh in relation to each applicant, whether for review or joinder, in relation to each decision under each enactment:

   “… it is important not to draw from what was said in any particular decision by way of identification of that which did or did not amount to a sufficient affectation of an interest any general proposition which may be translated to … [a particular] dispute.  In each case, the content of the terms ‘affect’ and ‘interest’ are to be seen in the light of the scope and purpose of the particular statute in issue.”[52]

   [52] (1994) 49 FCR 250; 121 ALR 373; 32 ALD 71 at 272, 395, 91 per Gummow J

The person’s interests must be more than those of a concerned member of the public

(5)The effect on a person’s rights or interests must be something more than the effect on that person as a member of the public:

(a)“The question whether the Council qualified as an applicant … involves an assessment of the importance of the concern which an applicant has with respect to the particular subject matter of the decision and the closeness of the applicant’s relationship to that matter …”[53]

[53] Marrickville Council v Minister for the Environment, Sport and Territories [1996] FCA 851 per Kiefel J

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

“… which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public.  An executive or administrative decision of the latter kind is truly a ‘policy’ or ‘political’ decision and not subject to judicial review.”

(Salemi v MacKellar (No 2) (1977) 137 CLR 396 at 452, per Jacobs J.)’”[54]

[54] Alphapharm (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71 at 260; 383-384; 80-81 per Davies J

(c)“          The applicant’s interest must not be remote, indirect or fanciful.  The interest must be above that of an ordinary member of the public and must be above that of a mere intermeddler or busybody. …

Plainly the applicant need not have a legal, financial or proprietary interest in the subject matter of the proceeding.  The applicant must establish that he is a person who has a complaint or grievance which he will suffer as a consequence of the decision beyond that of an ordinary member of the public. …”[55]

[55] Right to Life [1995] FCA 1060; (1995) 56 FCR 50; 128 ALR 238; 37 ALD 357 at [66]; 65; 252; 370 per Lockhart J

(6)A person’s interests are not assessed by reference to the effect of a decision on other persons but by reference to the effect on him or her:

(a)“          If a decision concerns the affairs of one person alone, other persons may not institute or join in the proceedings merely because it would be to their commercial advantage that the person should not receive a benefit or should suffer a disadvantage. …”[56]

[56] Alphapharm (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71 at 261-262; 385; 82 per Davies J

Decision-maker’s obligation to accord procedural fairness relevant

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

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

…’”[57]

[57] Alphapharm (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71 at 260; 383; 80

(8)A person who has a right to be heard in the decision-making process leading to the decision under review may be regarded as a person whose interests are affected by it whether or not that person exercised that right to be heard at the earlier time.[58]

[58] Alphapharm (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71 at 260-261; 384; 81 per Davies J

(9)Where an enactment has not expressly conferred upon a person a right to be heard during the decision-making process or on review, the enactment must be examined to determine whether that right is implicit having regard to its object or objects.

(a)This is illustrated in the case of Alphapharm, which considered a decision made under the Therapeutic Goods Act 1989:

“          The Act is dominated by public interest concerns.  An object is to ensure that drugs which are imported are suitable for use in humans in Australia.  Another object is to ensure that drugs which are suitable are registered or listed and become available in Australia for public use as soon as is practicable: see ss 4 and 17 of the Act.  The Regulations specify times within which certain evaluations must be made and certain applications decided and a remedy in the nature of damages is provided for failure to make certain decisions within the specified time.  And, as I have pointed out, the Act and the Regulations set up a structure, including the Australian Drug Evaluation Committee, for the carrying out of the necessary inquiries and for the making of skilled judgments as to the suitability or otherwise of a drug.

In this context, it is difficult to see that the Act would recognise the interest which a competitor may have in delaying or hindering the introduction of the drug onto the market.  Such an interest is not relevant to the process which the Act establishes or to any decisions made under the Act.  Such an interest is indeed in conflict with interests which the Act promotes.”[59]

[59] Alphapharm (1994) 49 FCR 250, 121 ALR 373, 32 ALD 71 at 261; 385; 81-82 per Davies J

Decision-maker’s lack of obligation to consult not necessarily definitive

(10)“…[I]t is appropriate briefly to return to the comments of Mason J in Kioa, particularly his reliance on the observations of Jacobs J, to which I have referred. Where, as I think is the case here, a decision which does not attract requirements of procedural fairness is administrative in nature, rather than legislative, it does not follow from those comments, in my view (given the provisions of the ADJR Act, if no other reason) that the decision is not amenable to judicial review. It is by no means inconsistent with a decision that there is no duty to hear persons in relation to a proposed decision to hold also that there are persons ‘aggrieved’ by such a decision who have standing to impugn it, under the ADJR Act, on other grounds. It is therefore necessary to turn to the other grounds on which the applicants rely.”[60]

No requirement that effect on interests be adverse

(11)“… It was submitted that the persons seeking to be joined in these proceedings should not be joined for their interests are not adversely affected by the decision under review.  However, interests may be affected by a decision either adversely or beneficially and they may be so affected whether the decision was right or wrong.  A person whose interests are affected by a decision is entitled to be joined as a party to proceedings reviewing that decision so as to put forward a view that the decision should not be set aside or changed.”[61]

[60] Botany Bay City Council v Minister for Transport [1996] FCA 1507; (1996) 66 FCR 537; 137 ALR 281; 41 ALD 84 at 556; 299; 100 per Lehane J. See [128]-[129] below

[61] Control Investment [1980] AATA 78; (1980) 3 ALD 74; 50 FLR 1 at 81; 10

Applying the principles

1. In this section of my reasons, I have summarised the way in which the principles have been applied in four cases to illustrate their practical application.

A.       Control Investment

1. The News Group of companies applied to the Tribunal for review of a decision of the Australian Broadcasting Tribunal (ABT) refusing to approve certain transactions relating to a television licence.  Applications to be joined as parties were made by the Australian Labor Party (ALP), members of its Victorian Executive and its State and Federal Branches as well as by an unincorporated association, Justice in Broadcasting, the Australian Journalists Association (AJA) and Rupert Public Interest Movement Incorporated (Rupert).  The ALP had been represented and taken part in the proceedings before the ABT but the others had not.

1. In finding that the ALP, Justice in Broadcasting and AJA had interests affected by the decision under review, Davies J gave the following reasons:

   (1)“          In my opinion, the interests of the Australian Labor Party are affected by the decisions under review by reason of its contention that the control of media interests has a potential and actual effect upon political processes in Australia and the welfare of the Australian Labor Party, by reason of the part the Party played in the proceedings before the Australian Broadcasting Tribunal and because the decisions under review relate to matters included within the objects of the Party.  I shall therefore order that the Australian Labor Party be a party to these proceedings.”[62]

   (2)The substance of the grounds on which Justice in Broadcasting claimed its interests were affected was that its aim, as an association, is to obtain public input into aspects of public broadcasting including programming and the responsiveness of broadcasting stations to public needs.

   “          In my opinion, the decisions under review relate to a specific matter included in the objects or purposes of Justice in Broadcasting, namely, its aim of ‘obtaining effective public access to the process of broadcasting’. It follows from s27(2) of the Administrative Appeals Tribunal Act that the association has interests which are affected by the decisions under review. I shall therefore order that Justice in Broadcasting be joined as a party in these proceedings. Mr Masterman also put his submission on the basis that it is an aim of Justice in Broadcasting to represent the public interest, that the public interest is multi-faceted and, it was submitted, not sufficiently represented by the Australian Broadcasting Tribunal. I would not be prepared to order joinder on that ground. The public interest does not belong to Justice in Broadcasting, it is the interest of the public generally.”[63]

   (2)“        Having regard to the interest which the Australian Journalists Association has as representative of its members, particularly those engaged in the news and current affairs programmes of Channel 10, and having regard to its interest in maintaining ethical standards in television, I am of the view that it has interests which are affected by the decisions under review.  In addition, the decisions relate to matters within its objects or purposes.  For these reasons, I am of the view that it has interests which are affected by the decisions under review. I shall order that it be joined as a party in these proceedings.”[64]

   [62] [1980] AATA 78; (1980) 3 ALD 74; 50 FLR 1 at 81-82; 11

   [63] [1980] AATA 78; (1980) 3 ALD 74; 50 FLR 1 at 83; 12-13

   [64] [1980] AATA 78; (1980) 3 ALD 74; 50 FLR 1 at 83; 13

1. In rejecting the remaining applicants as having interests affected by the decision under review, Davies J came to the following conclusions:

   (1)Rupert’s then public officer, Mr McMillan, submitted that it had an interest in the decision under review because its rules authorised it to appear in proceedings and because that appearance would tend to further the objects of the association.  After analysing Rupert’s objects and Mr McMillans’ submissions, Davies J decided that the relationship between Rupert’s objects or purposes and the decision under review were too tenuous.  It is not sufficient that the objects or purposes of Rupert Public Interest Movement Incorporated permit the association to concern itself with the decisions under review; rather, it is required that the decisions under review concern themselves with a matter that is an object or purpose of the association. That, I think, they did not do.

   “… Certainly, the statement lodged on behalf of the association refers to the ‘responsiveness to the public of a private institution or corporation’, namely the company, applying to the Tribunal for approval to acquire certain shares. However, the objects of the association are concerned with education and research directed to achieving responsiveness to the public interest, representation of the public and consideration of views of the public in the decision-making process, whereas the decisions under review are concerned with the shareholding interests and network arrangements of the News Group.  I think that the connection between the two is too tenuous to say that the decisions relate to a matter within the objects of the association. The relationship must be a real or genuine one.  It is not sufficient that some points of correlation can be found.

   For these reasons, I am of the opinion that the interests of Rupert Public Interest Movement Incorporated are not affected nor deemed to be affected by the decisions under review.  I shall therefore dismiss its application to be joined as a party in these proceedings.”[65]

   [65] [1980] AATA 78; (1980) 3 ALD 74; 50 FLR 1 at 87; 16

   B.Allan

2. The case of Allan v Transurban City Link Ltd[66] (Allan) illustrates the way in which the principles find practical application in determining whether a person may apply for review of a particular decision.  In that case, the High Court considered whether Mr Allan, whose property was close to a proposed toll road, was a person affected by a decision of the Development Allowance Authority (DAA) to issue a certificate to Transurban City Link Limited (Transurban) in relation to borrowing it intended to undertake.  A certificate would entitle any entity lending funds to Transurban to concessional tax treatment under the Income Tax Assessment Act 1936 (ITAA36). Transurban would be denied deductions under ITAA36 for interest payments on its borrowings but would benefit because lenders would have an incentive to offer it funds at a lower interest rate than would otherwise be the case.

[66] [2011] HCA 58; (2001) 208 CLR 167; 183 ALR 380

1. Section 119(1)(a) of the Development Allowance Authority Act 1992 (DAA Act) provided that a person who was “affected by a reviewable decision”, which included a decision to issue a certificate, and who was dissatisfied with that decision could request the DAA to reconsider it.  Mr Allan applied for review of the DAA’s decision to grant Transurban a certificate on the basis of the impact that the proposed toll road would have on his property and, more generally, with the environmental impact of the proposed project as a whole.

1. The majority of the High Court referred to the objects of the DAA Act.  Among them was the provision of tax incentives.  What was at stake in the issue of certificates to Transurban, the majority said, was the tax benefit that those lending funds to Transurban would obtain from them.  In turn, Transurban would obtain a commercial advantage in obtaining cheaper finance.  Section 93A of the DAA Act described the tax incentives as available for “genuine private secure investment” and what was “genuine” was to be identified by reference to the requirements of Chapter 3. Were a certificate to be refused, the majority found, the would be borrower applying for the certificate and the would be lender would each be a person aggrieved for the purposes of s 119(1)(a). Once a certificate has been granted, the applicant for the certificate may apply to have the conditions on which it was issued varied. That would mean that a dissatisfied applicant for variation would be a person dissatisfied with a decision to refuse to vary those conditions. The DAA may cancel a certificate if certain situations arise. Until it is cancelled, a certificate remains in force.

1. Section 119 provides that a person affected by a reviewable decision may, with reasons, apply to the DAA for review of a reviewable decision within 21 days after the decision first comes to the person’s attention.  That time may be extended by the DAA.  The majority of the High Court in Allan first considered whether s 119 permits review of a decision favourable to the applicant for a certificate.  They decided that it did not.  There were four strands to their reasons. 

1. At the basis of their first reason was the DAA’s obligation to give written notice of its decision to each applicant.  Its obligation to give reasons was limited to occasions on which it decided to refuse an application.  They continued:

   “          Notice of a refusal, not of a grant, must set out the reasons for the decision.  This suggests that where, as here, the decision is one to grant, the legislation treats that as an end of the matter, save for the potential operation of the variation and cancellation provisions. …

   Further, there is no provision for the giving of notice to the public or to any person other than the applicant. This, in turn, throws light upon the apparently unfixed operation of the temporal requirement of s 119(1)(a). This requires that the person affected by a reviewable decision make the request for reconsideration within the period of twenty-one days after the date on which the decision first comes to the attention of that person. Paragraph (a) has a sensible operation if, with respect to decisions under Ch 3, the person affected by the decision are those to whom the written notice must be given.”[67]

   [67] [2001] HCA 58; (2001) 208 CLR 167; 183 ALR 380 at [31]-[32]; 178-179, 388

1. The second line of reasoning in the majority’s judgment begins with reference to the fact that the DAA Act does not make provision for public inquiries or for public participation in the process of consideration of the applications:

   “          The absence of provisions for public inquiries or for public participation in the process of consideration of applications is not surprising given that the system for the provision of certificates is concerned with the provision of certain financial incentives. The legislation is not concerned with broader public interests such as those relating to the environmental, engineering, social or other aspects of the proposed infrastructure project. If the position were that a member of the public could seek reconsideration of a decision to issue a certificate within 21 days of that person becoming aware of the decision, there would be a potential for reconsideration at a delayed time of a decision to issue a certificate. This might even be later than the completion of the infrastructure project.”[68]

   [68] [2001] HCA 58; (2001) 208 CLR 167; 183 ALR 380 at [34]; 179; 388

1. The third matter that swayed the majority was the provision that had been made in the Regulations made under the DAA Act for an annual cap on the amount that the certificates would cost the Commonwealth.  The majority observed:

   “…Transurban correctly submitted that the legislation would establish a curious regime if, whilst it stipulated for caps, the effect of the reconsideration provisions of s 119 was to permit late intervention by third parties so that it would not be known by the Revenue with certainty whether or not the cap had or had not been met in any particular year.”[69]

That element of certainty is also inherent in the fact that the certificates remain in force until cancelled under the DAA Act.

[69] [2001] HCA 58; (2001) 208 CLR 167; 183 ALR 380 at [35]; 179; 388

1. Finally, the majority noted, the applicant for the certificate is the borrower.  It is not the lender who ultimately derives the taxation advantage but who does so after coming to a commercial arrangement with the borrower on the faith that the certificate will bring those tax advantages:

   “… It would be an odd result if accommodation could be provided on the faith of the certificate and a third party in the position of Mr Allan was empowered by s 119(1) to apply for reconsideration of the decision to issue the certificate, in circumstances where the lender itself, the party immediately affected by the decision, had not been a party to the original application. The legislation is designed to achieve confidence in the outcomes for which it provides so as to encourage the financing of the facilities with which it deals.”[70]

   [70] [2001] HCA 58; (2001) 208 CLR 167; 183 ALR 380 at [36]; 179-180; 389

C.Wright

1. The case of Brisbane Airports Corporation Ltd v Wright[71] (Wright) was concerned with an application that had been made by the former Federal Member for Griffith, Mr Kevin Rudd, for review of a decision made by the Minister to approve a Master Plan for the Brisbane Airport.  Initially, Mr Rudd had based his claim to be entitled to apply for review on three bases: his being a Member of Parliament; his representing a community group known as “BARB”; and his owning, together with his wife, a residential property approximately nine to ten kilometres from the southern end of the existing runway of the airport.  The Tribunal had rejected the first two grounds and accepted the third as establishing his interest. 

   [71] [2002] FCA 359; (2002) 120 FCR 157 157; 77 ALD 411; 35 AAR 192

1. After analysing Allan, Dowsett J analysed those provisions of the Airports Act 1996 (Airports Act) relating to noise exposure levels for noise was at the heart of the issues raised by Mr Rudd.  Section 71(2)(e) required the airport-lessee company to forecast areas that would be subject to aircraft noise above 30 ANEF levels, consult with user airlines and relevant local authorities and develop a plan for managing aircraft noise intrusion in those areas.  In concluding that Mr Rudd was not a person aggrieved by the decision, Dowsett J made the following points:

   (1)The Airports Act does not require that a lessee consult with occupiers of properties  which, it is forecast, will be so affected.  Their interests are presumably to be protected by the relevant local authorities.  In those circumstances it seems unlikely that Parliament intended that they should be able to commence proceedings for review of a decision to approve a master plan.  It is even less likely that occupiers likely to be exposed to lower levels of noise intrusion should be able to do so.  To paraphrase the words of Davies J, their relevant ‘ripple of affectation’ is insufficient to constitute an affected interest for present purposes.  In the present case, the second respondent challenges the reliability of the forecast that his property will be exposed to noise intrusion at levels below 20 ANEF levels, but there is no evidence suggesting that such intrusion would reach 30 ANEF levels.”[72]

   [72] [2002] FCA 359; (2002) 120 FCR 157; 77 ALD 411; 35 AAR 192 at [31]; 166; 201

   (2)“        Section 81 requires the Minister to take into account, in considering whether to approve a master plan, the effect that ‘carrying out the plan’ would be likely to have on the use of land, both within the airport site and in areas surrounding it.  Significantly, the focus is on the use of land, not amenity or value.  There is no suggestion that the use of the second respondent's land would be so affected, even if its amenity were reduced.  It is also relevant that although public comment is to be invited, the Minister is not obliged to take it into account, although, as I have pointed out, the lessee must summarize such comment in the draft plan and certify that it has had due regard to it. …”[73]

   (3)“        Pursuant to subs 81(6), the Minister must notify the lessee of any decision as to the master plan and, pursuant to subs 81(7), if he or she refuses to approve it, give reasons.  In this respect the legislation appears to be similar to that considered in Allan and Alphapharm. The lessee is clearly a person whose interests are affected by such a decision within the meaning of subs 242(3), and so the Minister would have to give notice of the right to apply for review pursuant to the AAT Act.  The absence of any requirement for notice to other persons or for reasons in case of approval might well suggest that where the decision is to approve, the matter is at an end as was the case in Allan.  See [31] of that decision.”[74]

   (4)This case, Dowsett J considered, differed from Allan, Alphapharm and Edwards v Australian Securities Commission and Others[75] (Edwards) in that, unlike them, s 79 of the Airports Act required public notification of a draft plan and a notice inviting the public to comment. He continued:

   “… It might therefore be thought that the presence of such provisions in this legislation is to contrary effect. However s 79 requires notice to ‘members of the public’. It is most unlikely that it was intended that any member of the public might seek review of a decision to approve a master plan. Further, although the lessee must have due regard to public comment, that is part of the formulation of the draft master plan and not necessarily part of the Minister’s decision-making process. As I have said, s 81 does not compel consideration of such comments by the Minister.

   As to s 86, it appears to be designed to advise members of the public as to how they can inform themselves of the content of the master plan during its currency.  The notice must appear within ninety days after approval.  That means that for a period of up to three months, the plan may be in force and action taken pursuant to it without public notification of its approval.  Further, the plan must be available for inspection throughout the period of its currency.  It cannot have been intended that a person becoming aware of the content of a plan at any time during its five year term should be able to seek review of the decision to approve it.  Yet no other time frame is prescribed other than that which appears in subss 29(2) and 29(4) of the AAT Act.  There are obvious difficulties in applying those provisions to a decision of this kind.  Further, there is no requirement that a s 86 notice should contain any reference to the AAT Act procedure.  In this respect it is to be contrasted with the provisions of subs 242(3).

   The difficulty inherent in relying upon ss 79 and 86 as justifying a wide approach to the question of entitlement to seek review is that those sections offer no guidance in that respect. The requirement is for notice to the general public, but it is most unlikely that Parliament intended that any member of the public could seek review. Nonetheless, it is difficult to see how these sections can be read so as to narrow the relevant range of affected interests if it be conceded that they are designed to facilitate the review process. The better view is that while s 79 is intended to invite comment from the general public, s 86 is designed to inform the general public of the content of the approved plan. They are not relevant to the review process. Any public comment concerning a draft master plan must be considered by the lessee and summarized in a report to the Minister, but there is no intention that any member of the public be heard in connection with the Minister’s decision-making process, nor may such a person seek review of the Minister’s decision.”[76]

   [73] [2002] FCA 359; (2002) 120 FCR 157; 77 ALD 411; 35 AAR 192 at [32]; 166; 201

   [74] [2002] FCA 359; (2002) 120 FCR 157; 77 ALD 411; 35 AAR 192 at [33]; 166; 201

   [75] (1997) 72 FCR 350; 142 ALR 455; 24 AAR 192; Lee, Carr and RD Nicholson JJ

   [76] [2002] FCA 359; (2002) 120 FCR 157; 77 ALD 411; 35 AAR 192 at [34]-[36]; 166-167; 201-202

   D.Edwards

2. Mr Edwards, a partner of Coopers and Lybrand, had applied to the Tribunal for review of a decision by the then Australian Securities Commission (ASC) to register Bell Group NV as a foreign corporation under s 344 of the then Corporations Law.  The Tribunal had decided that Mr Edwards could not make the application as his interests were not affected by the ASC’s decision.  RD Nicholson J, with whom Lee and Carr JJ agreed said:

   (1)The similarities between the statutory regime in Alphapharm and in Edwards bore many similarities in that it did not require third parties to be heard, there was no requirement to give reasons in relation to the particular decisions that were made and there was no requirement to publish the decision generally.  Only the applicants for registration have interests affected if their applications are refused.[77]

   (2)“          It is also the case that an interpretation of legislation which treated a third party as a person interested in, in the sense of opposed to, a grant of registration, would not sit at all with the object of Div 2 to bring about registration of any foreign corporation carrying on business in the jurisdiction. …”[78]

   (3)“ There remains the additional contention made for the appellant that no one would have standing to challenge the registration if it does not do so, with the consequence there could not be supervision of compliance with the requirements for registration. … In my opinion that contention is not open on an analysis of the purposes of registration under s 344. …”[79]

PRINCIPLES GUIDING THE EXERCISE OF THE DISCRETION

[77] (1997) 72 FCR 350; 142 ALR 455; 24 AAR 192 at 368; 471; 210

[78] (1997) 72 FCR 350; 142 ALR 455; 24 AAR 192 at 368; 472; 210

[79] (1997) 72 FCR 350; 142 ALR 455; 24 AAR 192 at 369; 472; 211

A.Previous authorities

1. Section 33(1)(b) of the AAT Act requires that:

   “the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; …”

1. This provision was referred to by Davies J in Control Investment, to which I have referred above.  He then continued by saying that the Tribunal “… may not, in a proper case, refuse to make an order joining a person whose interests are affected by the decision under review.”[80]  His Honour gave an example of the circumstances in which making a person a party to a proceeding might not be “a proper case”.  They:

   “… may occur where the person applying to be made a party has not applied within a reasonable time and his joinder at a late stage would unduly impede the expeditious conclusion of the proceedings or where, although an organisation has an object or purpose to which the decision relates, joinder is sought not for the purpose of protecting or supporting that interest but with some other end view. … While it will ordinarily be the duty of the Tribunal to make an order joining a party whose interests are affected by the decision under review, that duty is limited by the function which the Tribunal performs and by its duty to provide a fair hearing and to deal with the matter as expeditiously as the subject matter of the review permits.”[81]

   [80] (1980) 50 FLR 1; 3 ALD 74 at 10; 80

   [81] Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 1) [1980] AATA 78; (1980) 50 FLR 1; 3 ALD 74 at 10; 80-81 per Davies J

1. As for the three parties whom his Honour had decided had interests affected by the decision, he decided:

   “          There are no grounds on which it would be proper to refuse to join the Australian Labor Party, Justice in Broadcasting or the Australian Journalists Association.  They have interests which are affected by the decisions under review and their respective interests are different from each other.  It is proper that they be made parties.  There has been no undue delay in the making of their applications for joinder.”[82]

   [82] [1980] AATA 78; (1980) 50 FLR 1; 3 ALD 74 at 13; 83-84

1. In Marine World Deputy President Thompson adopted the principles in Control Investment and added that:

   “… That discretion must, of course, be exercised rationally with regard paid to all of the circumstances of the proceeding and the nature of the interest of each of the persons applying to be made a party.  It is necessary to have regard to the nature of review proceedings before the Administrative Appeals Tribunal.  As was pointed out in Re Control Investments [sic] Pty Ltd,^[[83]] the Tribunal is required by the AAT Act to provide a fair hearing and to carry out the review as expeditiously as the subject matter of the review permits … The increased cost of the proceeding to the applicant and the respondent which will result from the joinder of additional parties in the proceeding is a factor to be taken into account … I am unable to accept that the Tribunal should allow Marine World to be subjected to greater expense than is necessary for the proper review of the Minister’s decision.  Further, the Tribunal must be concerned with the cost not only to Marine World but also to public funds and endeavour to contain it to what is sufficient to enable it to undertake a proper review.

   (33)   There is also the requirement that the matter be dealt with expeditiously.  That, and the need to keep the cost within proper bounds, make it undesirable that there should be a multiplicity of different parties each separately represented and presenting a separate case. …”[84]

   [83] Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 1) [1980] AATA 78; (1980) 50 FLR 1; 3 ALD 74; Davies J, President

   [84] (1986) 10 ALD 262 at 271-272, [32]-[33]. Deputy President Thompson went on to direct that parties whose interests were substantially the same should be represented by a common representative. In Re Peters and Department of Health and Aged Care (1999) 56 ALD 561 at 577, Senior Member Bayne directed that the joined parties be limited in their participation to making written submissions in relation to one issue.

1. Some cases have sought to introduce a requirement that the interests of the person applying to be made a party must be substantially and significantly different from those who are already parties to the proceeding.[85]  For the reasons I have previously given in Re VBN and Australian Prudential Regulation Authority,[86] I am of the view that Deputy President Thompson’s statement on this issue has been misunderstood.  He was considering separate applications by a number of people to be joined to an application for review of a decision refusing a permit to take cetaceans in Commonwealth waters for live display and educational purposes.  He took into account that the costs to the applicant and respondent would be greater than were necessary for the proper review of the application were he to grant each application.  He also looked to the cost to public funds in containing the hearing to that which was sufficient to enable the Tribunal to undertake a proper review.   It was in that context that he thought that an application should only be granted if that person had interests substantially and significantly different from others applying to be made parties.  The decision cannot be read as supporting a more general proposition that a person applying to be made a party must have interests substantially and significantly different from those of one or other of the parties.

B.The place of procedural fairness in the balance of interests

[85] See, for example, Re Peters and Department of Health and Aged Care (1999) 56 ALD 561 in which Senior Member Bayne referred to Re Boyd and Comcare (1991) 23 ALD 392 at 394; O’Connor J, President and Re Scott and Secretary, Department of Social Security (1996) 42 ALD 738 at 741; Senior Member Dwyer in support of the proposition.

[86] [2005] AATA 861; (2005) 92 ALD 437; 44 AAR 192 at [26]-[31]; 450-452; 206-209

B.1     Statutory requirements: sections 2A and 33(1)(b)

1. Since Control Investment and Marine World were decided, s 33(1)(b) has been complemented by s 2A of the AAT Act.  It provides that:

   “In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”

1. Provisions of this sort have been described as “general exhortatory provisions”.[87]  They are intended to be facultative and not restrictive.[88]  Section 2A, I respectfully suggest is expressing nothing more than is said in s 33(1)(b) and the principles in Control Investment do not require adjustment as a result of the subsequent addition of s 2A.  I will explain why I have reached that conclusion.

[87] Sun v Minister for Immigration and Ethnic Affairs [1997] FCA 324 per Lindgren J

[88] Minister for Immigration and Multicultural Affairs v Eshutu (1999) 197 CLR 611; 162 ALR 577 at 628; 588 per Gleeson CJ and McHugh J and 659; 613 per Hayne J and see also similar views expressed by Gaudron and Kirby JJ at 635; 592-594

1. Certainly, no reference is made in s 33(1)(b) to a proceeding’s being conducted economically but I would have thought that inherent in the nature of merits review of administrative decisions and woven into the fabric and structure of the Tribunal itself.  No express reference is made in s 2A, as it is in s 33(1)(b), to the need to have regard to the requirements of the AAT Act and of the enactment under which the decision is made as well as the need to engage in a proper consideration of the matters raised by the review of a particular decision.  That must, however, be taken to be inherent in the recognition in the opening words of s 2A when it specifies the qualities that the Tribunal must pursue in “carrying out its functions”.  Those functions must be to resolve applications for review lodged with it either by means of processes that may generally be described as those of alternative dispute resolution or by means of a formal review.  In either case, in giving proper consideration to the matters before it regard must be had to the requirements of the AAT Act and of the enactment under which the decision under review was made as well as to the general law and the evidentiary material.  Except for the reference to the general law, those are matters specifically addressed in s 33(1)(b).  I will return to the general law below. 

1. A mechanism of review leading to a “just” outcome, as required by s 2A, must be one that has regard to the requirements of the law and the evidentiary material as required by
   s 33(1)(b).  Finally, the requirement in s 33(1)(b) that the “… proceeding shall be conducted with as little formality and technicality, and with as much expedition, as …” the legislative requirements permit equates with the exhortation in s 2A that, in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is “economical, informal and quick”. 

1. In the case of Re Coonan and Commissioner of Taxation.[89]  Mr and Mrs Coonan had applied under the Freedom of Information Act 1982 (FOI Act) for access to documents relating to the valuation of certain properties.  The Australian Capital Territory Planning and Land Authority (Authority) and a corporate body applied to be joined as parties to the application the Coonans made to the Tribunal for review of a decision refusing them access.  Both parties for joinder asserted that their interests would be affected by access being given under the FOI Act.  The Authority argued that access would release trade secrets, diminish the value of information and have an adverse effect on its business, commercial or financial interests.  The corporate body asserted that intellectual property it owned in information in the documents would be adversely affected were access to be given to those documents. 
   

   [89] [2006] AATA 329; (2006) 90 ALD 472; 43 AAR 29

   Mr Webb, Member, decided that both the Authority and the corporate body had interests affected by the decision.

1. In asking himself whether there were sufficient grounds to exercise the discretion under s 30(1A) of the AAT Act in relation to either or both of the Authority and the corporate body, Mr Webb weighed the matter in terms of s 2A:

   “          In the circumstances if standing is granted delay and additional costs will result.  That is the basis of the applicant’s stated objection to the joinder applications.  However, the increase in costs and delay that will ensue from the grant of standing must be weighed against the particular interests pressed by those seeking standing.

   … In performing its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s2A, AAT Act).  Those values stand in relation to each other.  No one stated objective is to be advanced without reference to and consideration of the other stated objectives. Economy and quickness, however desirable, do not outweigh fairness, but are measured in relation to it.  In the circumstances it is proper and fair to permit those seeking standing in these proceedings, whose interests are affected by the decision under review, to present their cases and be heard.  It is also proper and fair to bring these proceedings to conclusion without undue delay or any unreasonable increase in costs to the existing parties.”[90]

   [90] [2006] AATA 329; (2006) 90 ALD 472; 43 AAR 29 at [20]-[21]; 473; 33

1. In deciding to join the Authority and the corporate body as parties to the proceeding,
   Mr Webb balanced these competing interests by setting a tight timetable for them to lodge and serve affidavits setting out the evidence on which they wished to rely in support of the claimed exemptions and by accepting an undertaking on behalf of the Commissioner of Taxation that the number of witnesses called would remain the same.

B.2     Common law requirements

1. Unless contrary to an enactment, there is a requirement under the general law that the Tribunal act with procedural fairness.  This is clear from the judgment of Mason J in Kioa
   v West:

   “          The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations subject only to the clear manifestation of a contrary statutory intention.  … But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way.  Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly.  This is because the act or decision which attracts the duty is an act or decision:

   ‘...which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a `policy' or `political' decision and is not subject to judicial review.’

   (Salemi [No 2] (99), per Jacobs J).”[91]

[91] Kioa v West [1985] HCA 81; (1985) 159 CLR 550; 62 ALR 321 at 583-585; 346 per Mason J

1. This was cited with approval in the majority judgment of Gummow, Hayne, Crennan and Bell JJ in Plaintiff S10/2011 v Minister for Immigration and Citizenship.[92]  Later in their judgment, they returned to this:

   “          The principles and presumptions of statutory construction which are applied by the Australian courts to the extent to which they are not qualified or displaced by an applicable interpretation Act, are part of the common law. … [O]ne may state that ‘the common law’ usually will imply, as a matter of statutory interpretation, a condition that a power conferred by statute upon the executive branch be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power …”[93]

   [92] [2012] HCA 31; (2012) 246 CLR 636; 290 ALR 616; 130 ALD 1 at [68]; 659; 633-634; 18-19

   [93] [2012] HCA 31; (2012) 246 CLR 636; 290 ALR 616; 130 ALD 1 at [97]; 666; 639-640; 24-25

   B.3     Procedural fairness and s 30(1A)

1. On a plain reading of s 30(1A) it appears that Parliament has qualified the operation of the general law in so far as it would require me to accord procedural fairness to every person whose interests are affected by the decision under review.  If it were otherwise, it would have provided that, if a person applies to be joined as a party to a proceeding and if the Tribunal is satisfied that the person is a person whose interests are affected by the decision under review, the Tribunal must join the person as a party.  The only task for the Tribunal to undertake would have been to decide that the person was a person whose interests are so affected.  As it is, s 30(1A) requires the Tribunal to undertake that task and then provides that it “… may, in its discretion, … make that person a party to the proceeding.”  Although
   s 2A is exhortatory, the qualities that it encourages the Tribunal to incorporate in the mechanisms of review it provides in carrying out its functions of resolving applications for review and that are inherent also in s 33(1)(b) must be relevant in guiding the exercise of that discretion. 

1. While there is a relationship between principles of procedural fairness and a person’s interests affected by the decision, both are but considerations to be weighed in the balance.  Where that balance lies will not always be the same for the nature of the person’s interests affected and the extent to which they are affected will differ as will the context in which principles of procedural fairness are to be applied.  Lehane J explained how factors of this sort lead to distinct and different sets of principles:

   “…Where, of course, a decision affects an individual interest it is highly likely that a conclusion on one matter will dictate a conclusion on the other: it is of course inconceivable that someone entitled to a hearing in relation to a proposed deportation order would not, if denied a hearing, be entitled to challenge the order once made.  It is, however, different I think in what may be described loosely as a public interest case, such as the present.  In such a case it would not be at all unusual, I think, to find that a person with standing to challenge a decision once made had, nevertheless, no right to be heard in relation to its making: as will be apparent, I think this is such a case.  Ogle v Strickland (1987) 13 FCR 306 was, I should think, another; and North Coast Environment Council [North Coast Environment Council Inc v Minister for Resources (No 2) (1994) 55 FCR 492] may well have been a third.  In reality, they are in my view separate questions, in relation to each of which there is a distinct set of principles, emerging from strikingly separate lines of authority.”[94]

   [94] Botany Bay City Council v Minister for Transport [1996] FCA 1507; (1996) 66 FCR 537; 137 ALR 281; 41 ALD 84 at 568; 310-311

1. The case with which Lehane J was concerned was an application made under the Administrative Decisions (Judicial Review) Act 1977.  The Botany Bay City Council had applied for review of the Minister’s decision to exempt certain Commonwealth actions at the Sydney Airport from complying with certain administrative procedures established under the Environment Protection (Impact of Proposals) Act 1974.  The actions related to the use of runways and the flight paths of aircraft using the airport.   His Honour found that the councils had standing as they were local councils responsible for areas whose environment might well suffer at least as an indirect consequence of the Minister’s decision.  Each had a statutory charter obliging it to, among other things, to enhance and conserve the environment of its area.  That interest was considerably greater than that of an ordinary member of the public.  Despite that, and a conclusion that the councils had standing,
   Lehane J decided that there was no basis on which the Minister’s decision could be challenged under the ADJR Act.

I certify that the seventy five preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed:            ……[sgd]..........................................

Associate

Date of Hearing  29 January 2015

Date of Decision  27 February 2015

Self-represented Applicant                   TYGJ

Solicitor for the Respondent                 Mr Lex Holcombe

HWL Ebsworth Lawyers

Solicitor for applicant to be joined        Mr Andrew Dillon

Australian Government Solicitor