Rudd and Minister for Transport and Regional Services

[2000] AATA 765

DECISION AND REASONS FOR DECISION [2000] AATA 765

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q00/592

GENERAL ADMINISTRATIVE  DIVISION       )       
           Re      KEVIN RUDD         
  Applicant
           And    MINISTER FOR TRANSPORT AND REGIONAL SERVICES          
  Respondent

DECISION

Tribunal       Deputy President DP Breen, Presidential Member      

Date10 August 2000

PlaceBrisbane

Decision      The Tribunal extends the time for the making of the application to and including 3 July 2000 being the date the Application for Review was lodged with the Tribunal.      

(Sgd)          DP BREEN  
  PRESIDENTIAL MEMBER
CATCHWORDS
PROCEDURE – extension of time – matter of public interest – whether the applicant rested on his rights – prejudice to respondent.

REASONS FOR DECISION

10 August 2000      Deputy President DP Breen, Presidential Member                  

1. This was an application for an extension of time to review a decision by the Minister for Transport and Regional Services made on 11 February 1999 to approve the Master Plan for the Brisbane Airport.  The application was brought by Mr Kevin Rudd MP.  He is the Member of parliament for the seat of Griffith, which takes in the Brisbane airport and the affected communities.

2. The application was heard by me on 10 August 2000 and I gave an oral decision at the completion of the hearing. Pursuant to subsection 13(1) of the Administrative Decisions (Judicial Review) Act 1977 the respondent has requested written reasons for that decision.

3. At the hearing Mr K Rudd MP represented himself while, Ms E Ford of Counsel instructed by the Legal Branch of the Department of Transport and Regional Services represented the respondent.

4. The Minister approved the Master Plan for the Brisbane Airport in February 1999. The Master Plan endorsed the proposal of building a parallel runway at the airport in the future. The Master Plan has a lifespan of five years and can be amended at any time by the Minister or the Brisbane Airport Corporation. The second stage in the process is the formulation of a Major Development Plan which looks in greater detail at various proposals. However, the Minister cannot approve a Major Development Plan which is in conflict with the Master Plan (see subsection 94(5) of the Airports Act 1996).

5. Mr Rudd told the Tribunal that, although he was generally aware that he had rights of review through the Administrative Appeals Tribunal, he was keen on pursuing an avenue of review through the Senate and did not know that they could be run in tandem.  Mr Rudd sought to have a Senate Inquiry established in April 1999 but this was defeated.  He began his second attempt in July 1999 after a change in representatives in the Senate and was successful in August 1999.  That report was handed down on 1 July 2000 and was ultimately adverse to Mr Rudd's position, although it did make some findings against the Minister and the Brisbane Airport Corporation.  Three days after the report was tabled, Mr Rudd brought his application to the Tribunal, over 15 months out of time.

6. The respondent opposed the granting of the extension of time on the following grounds.  Firstly, Ms Ford submitted that the length of the delay in bringing the application was far too long and that there was an inadequate explanation for the delay.  Secondly, that an appeal was more appropriately heard in relation to a Major Development Plan where all of the details and the impact on surrounding communities are canvassed.   Finally, as the Minister only had power to approve or reject the Master Plan, he could not impose greater requirements on the Brisbane Airport Corporation than the legislation did.  The Senate Inquiry found that the Brisbane Airport Corporation had complied with the relevant legislation.  Further, the Tribunal would not have any power to require the Brisbane Airport Corporation to engage in consultation in excess of the legislative requirements either, so there could be no remedy for Mr Rudd's main complaints with the decision-making process.

7. Mr Rudd submitted that the extension of time should be allowed for the following reasons.  Firstly, this was not a case of an applicant resting on his rights.  Mr Rudd had been actively pursuing the matter through other means and, these now being exhausted, he was lodging his application.  If he had known that lodging with the Tribunal would not have precluded his seeking review through these other channels, he would have done so within time.  Secondly, this is a matter of great public interest and importance.  Finally, that it was more effective to appeal the Master Plan rather than to wait another two or three years and appeal the Major Development Plan.  At that time millions of dollars would have been expended on the project and there would be a very pressing need for a solution to increase air traffic in Brisbane.  Further, there would be a legitimate expectation on the part of the Minister and the Brisbane Airport Corporation that the proposal would go ahead given that there had been no appeal of it in the initial Master Plan.  He submitted that it was fairer to all parties involved if the matter were resolved finally as early as possible.

8. It is the Tribunal's decision that the extension of time should be granted.  Had Mr Rudd brought his application within time, the matter would have been delisted until he exhausted all extra-curial methods of appeal.  Although the case may have been relisted some time after the failed April bid, given its complexity, it would not have progressed to hearing by the time of the successful bid to set up a Senate Inquiry in August of last year, particularly if Mr Rudd had notified the Tribunal of his intention to pursue this in July.  As such, the case is at about the same state of progression it would have been at had the application been lodged in time.

9. This is clearly a matter of great public interest and concern and one which should be dealt with before large quantities of time and money are expended on developing a project whose Master Plan may or may not have been legitimately approved.  A fifteen month delay in lodging the appeal is not fatal in this case, given the applicant's concerted efforts to overturn the decision by other means during that time.

10. Although the Tribunal's powers in terms of outcome may be limited, as were the Minister's, it is imperative that in cases where the decision under review has such wide-reaching ramifications that transparency in Government decision-making is maintained.  This Tribunal is a part of that process and seeks to increase public confidence in governmental accountability.

11. Finally, no argument of hardship can be advanced on the part of the respondent or the Brisbane Airport Corporation.  There has been an ongoing Senate Inquiry into the Master Plan since August 1999 and if people have been proceeding on the basis of that Plan, then the risk that its approval might be invalidated was one they knowingly took.

12. For these reasons, the Tribunal grants the extension of time sought.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member

Signed:         Emma Oettinger
  Associate

Date/s of Hearing  10.8.00
Date of Decision  10.8.00
Rep. for the Applicant              Applicant appeared in person
Counsel for the Respondent    Ms E Ford

Solicitor for the Respondent    Department of Transport and Regional Services Legal Branch