Rudd and Minister for Transport and Regional Services and Brisbane Airport Corporation Ltd

[2001] AATA 719

DECISION AND REASONS FOR DECISION [2001] AATA 719

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2000/592

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re       KEVIN RUDD        
  Applicant
           And    MINISTER FOR TRANSPORT AND REGIONAL SERVICES           
  Respondent
           And    BRISBANE AIRPORT CORPORATION LIMITED  Party Joined           

DECISION

Tribunal        The Hon C R Wright QC., (Deputy President) 

Date 17 August 2001

Place Brisbane

Decision       It is declared that the applicant has locus standi to proceed with the application to review.          
  ..............................................
  Deputy President
CATCHWORDS
 Administrative Law – applicant for review to AAT – interest of applicant LOCUS STANDI – standing Minister's approval of Master Plan providing for new runway at Brisbane Airport – whether applicant had status to apply for review (a) as member of parliament (b) as representative of local group opposing airport extension (c) as individual owning and residing in house in Brisbane suburb.
Administrative Appeals Tribunal Act 1975 (C'th) – s.27(1)
Airport Act 1996 (C'th) – ss.70, 94(5), 242

REASONS FOR DECISION

17 August 2001     The Hon C R Wright QC., (Deputy President)   

1. On  10 August 2000 Deputy President Breen made an order, nunc pro tunc, granting the applicant an extension of time to apply for  review of a decision by the Minister for Transport and Regional Services made on 11 February 1999 whereby he approved a Master Plan for the Brisbane Airport.   The applicant is the duly elected Member of the House of Representatives in the Federal Parliament for the seat of Griffith which takes in the Brisbane airport and surrounding communities to the south and west.

2. On 15 June 2001, a question having arisen as to the locus standi of the applicant to institute and pursue the application for review, Deputy President Forgie directed that this matter be determined as a preliminary issue.   The hearing took place before me at Brisbane on Friday 13 July 2001.   After hearing evidence and considering submissions I indicated at the close of proceedings that I was of the opinion that neither the applicant's status as a member of parliament nor the representative capacity which he claimed on behalf of a community group known by the acronym BARB imbued him with the necessary locus standi to pursue the review application.  I reserved for further consideration an alternative ground which was advanced to support his claim for status viz. his part ownership and occupation of a dwelling house at 85 Norman Crescent, Norman Park approximately 3 kilometres east of the Brisbane CBD on the south side of the Brisbane river.

3. The Airport Act 1996 (C'th) ("the Act") Part 5, Division 3, section 70 provides that Brisbane Airport (and other major airports) must have a final master plan.   A draft plan is prepared initially and, once it has been exposed for public comment and consultation with relevant local and state government bodies and others, including airlines, it is submitted to the Minister for his approval.   If approved the plan becomes a final master plan.   If any major airport development is proposed thereafter, such as the construction of a new runway, that too must be approved, but the Minister may not approve such a development "unless it is consistent with the final master plan" (section 94(5)). Pursuant to s.242, decisions made by the Minister (with certain irrelevant exceptions) are subject to review by way of application to the AAT. Section 27(1) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") provides that where legislation enables an application for review to be made to the Tribunal "the application may be made by or on behalf of any person or persons … whose interests are affected by the decision".   Section 27(2) provides that "An organisation or association of persons, whether incorporated or not, shall be taken to have interests that are affected by a decision, if the decision relates to a matter included in the objects or purposes of the organisation or association".

4. The applicant argued that as a Member of Federal Parliament he had a duty to represent his constituents in respect of those matters which he saw as being in their best interests.   Accordingly, he said, as he perceived a wide resistance within his electorate to a proposal within the master plan as finally approved by the Minister that a new western runway be built at the Brisbane Airport, he had status on behalf of those persons to institute the present proceedings.  The applicant referred (inter alia) to an excerpt from the "House of Representatives Practice" (3rd Edition) entitled "The Member and the House in the Democratic Process" setting out the perceived duties and obligations of the Members, but with all respect, this document does not assist his argument.

5. It will be noted that s.27(1) of the AAT Act permits an individual to make an application or someone else to make an application on his behalf. It will be noted that Mr Rudd has not named any "person" whom he seeks to represent, but in any event I do not read s.27(1) as permitting an individual making an application on behalf of another to thereby gain status for himself as a party to the proceedings. The applicant party can only be the individual on whose behalf the application is made. Solicitors make applications on behalf of their clients as part of their daily practice, but they do not thereby become parties to the relevant litigation.

6. Reference was made to Shire of Beechworth v the Attorney-General (1991) 1 VR 321, a decision of Vincent J in the Supreme Court of Victoria in which the question arose as to the locus standi of a Shire Council to challenge an order of the Governor in Council effectively closing down a local court house. Vincent J held that, in the circumstances, the plaintiff had a sufficient interest in the subject matter of the proceedings to maintain the proceedings. In the event, however, the action failed. (See also the obiter dictum of Lehane J in Botany Bay Council v Minister for Transport and Regional Development (1996) 137 ALR 281 @ 310.) It is not too difficult to accept that a duly elected council, having amongst its community obligations, the duty to implement and enforce (inter alia) planning and developmental decisions may have a "special interest" and consequently a "locus standi" in respect of such matters as were in question in Beechworth, but I am unable to see a close analogy between that case and the present circumstances.

7. A decision of more direct relevance and application is to be found in Robinson v South East Queensland Indigenous Regional Council of the Aboriginal and Torres Strait Islander Commission (1996) 140 ALR 641. In those proceedings Drummond J was dealing with the standing of a Commissioner of ATSIC who sought to review a decision of the respondent organisation under the Administrative Decisions (Judicial Review) Act 1977 (C'th). The applicant had several important positions of responsibility within the ATSIC organisation. At page 653 Drummond J said:

   "In Sutton v Warringah Shire Council (1985) 4 NSWLR 124, a councillor was held to have standing to challenge a decision of council passed by a majority of councillors providing for extensive delegation of the council's functions to the shire clerk.  As Young J observed, at 126, the decision infringed on the plaintiff's functions as an elected councillor: she was deprived by it of the opportunity to consider and vote upon matters that would otherwise have come before council for determination.   This provided the first ground upon which Young J held the plaintiff had standing to challenge the decision.   I respectfully agree with his Honour in so far as he held, at 130 and 131, that when what is sought to be done directly affects the way in which an elected councillor can participate as a member of council in carrying out the council's statutory function of the general control and administration of the local authority area for which it is responsible, an individual councillor has standing to challenge the decision.   This holding is supported by authority, including Ariansen v Bromfield (1957) ST (NSW) 24 at 28 and 29, and the cases there cited.   It is a conclusion which can readily be accommodated within the rule that standing depends upon the particular plaintiff showing a special interest in the subject matter of the litigation beyond that of an ordinary member of the public.   But beyond having a sufficient interest to challenge decisions that impede him in the performance of his own functions as a member of an elected council, I do not think a member of such a body has standing to challenge the decisions or proceedings of that body in a court, even if those decisions or proceedings are otherwise justiciable."

8. After distinguishing Cormack v Cope (1974) 131 CLR 432 and Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, Drummond J continued @ 654:

   "An elected representative, be he a member of parliament, a local councillor or an ATSIC Commissioner, is elected to represent in the parliament, the council or Commission the interests of those members of the public who make up his constituency.   None of those members of the public, in the absence of being able to show a special interest in a matter touching on the activities of the elected body, has standing to raise that matter in the court.   I do not think that a person can derive standing from being the elected representative of an aggregation of members of the public, none of whom individually has standing to sue.   The present state of the law, in my opinion, is that subject to a situation in which an elected representative can show a special interest of his own that has been affected by a decision or an activity of the elected body (or its delegate), the representative's membership of such a body is by itself insufficient to confer standing on him to challenge the actions of the body (or its delegate).    That was the opinion of the court in Lopez v City of Brighton [1982] VR 369 (decided in 1977) where it was held that a councillor had, by reason of her office as elected representative, no more interest than any other member of the public in the shire in an arguably unlawful majority decision of the council to sell certain council lands held for public trust purposes and thus lacked standing to challenge the decision.   I think Lopez v City of Brighton accurately represents the present state of the law, notwithstanding the dicta to the contrary effect in Sutton v Warringah Shire Council."

His Honour's reference to "members of the public, none of whom individually has standing to sue" is not an essential aspect of his reasoning.   I find His Honour's decision highly persuasive as to the status question now under consideration.

1. I can readily accept that many constituents of the Griffith electorate are apprehensive as to noise and other potential negative effects from the proposed new runway if and when it is built, but there may well be, and probably are, many other residents who are entirely in favour of the proposal.   Mr Rudd does not claim to represent their point of view.   Although Federal Parliament has single member electorates for the House of Representatives, there may well be members of the State House of Parliament who could seek to represent a diametrically opposed view to that espoused by Mr  Rudd and claim to do so as a true reflection of the interests of the voters of Griffith.   Although Mr Rudd may well seek to represent a particular view if he adopts an advocacy role, this does not confer locus standi on him as a party.

2. This opinion gains support, I think, from the provisions of s.27(1). It is not quite a case of "expressio unius est exclusio alterius" but parliament has obviously directed its attention to the limited circumstances in which the attainment of representative party status may be achieved before the Tribunal.

3. As I have already mentioned, Mr Rudd also sought status on the alternative basis that he represented BARB. Evidence was given by Ms Jacqueline Cann that she is president of an unincorporated association known as Ban Aircraft over Residential Brisbane (BARB). No evidence was given as to whether the association was registered or not. Ms Cann's evidence was contained in a statutory declaration (Exhibit "A1") and she also gave viva voce evidence in the course of which she said that Mr Rudd had not been on the committee of the organisation, but the committee had agreed to support Mr Rudd in his present application and also in ancillary proceedings in the Federal Court as a result of which he became exposed to an order for costs. She agreed that the committee's decision was to assist fund raising to help Mr Rudd with costs and that members of the BARB committee had no intent to expose themselves personally to any costs order by their participation. She agreed that when she had stated the committee "endorsed" Mr Rudd, she meant the committee supported his personal application and it had not been intended that BARB itself would apply. She also agreed that the present application was not BARB's application, but the committee thought it appropriate that he "represent us". I cannot regard this evidence as lending support to the proposition that Mr Rudd has status because of BARB's involvement. No evidence was given as to any formal document or declaration relating to the objects or purposes of BARB from which it could be inferred that the requirements of s.27(2) of the AAT Act have been satisfied, although the general thrust of BARB's raison d'étre may be deduced from its very name. More importantly however, it must be remembered that neither BARB nor its individual members have ever sought to be joined as parties and the time limit for making a separate application to review the Minister's decision has long since expired. Mr Rudd had to seek and obtain an order giving leave before his application was legitimated. In this process his delay and his reasons for delay were scrutinised by Deputy President Breen. Although his reasons satisfied the Deputy President that his application should be permitted to proceed, it could not be assumed that a similar application by other individuals, or BARB as an organisation, would be successful. In my view the applicant does not derive locus standi from his involvement with or support by BARB.

4. This leaves for consideration the question whether Mr Rudd has the relevant status by reason of his residence's proximity to the Brisbane Airport.   It was the contention of the  Party Joined that: (1) the applicant's objection against the proposed construction of the western runway was, and still is, premature, because no such construction can or will be undertaken unless and until the Minister takes the further step of approving a major development plan.   Reliance was placed upon the approach of the Full Federal Court to a similar issue in Transurban City Link Ltd v Allan (1999) 168 ALR 687. (2) The applicant's residence lies outside the area which may suffer adverse interference from unacceptable aircraft noise and thus neither he nor his family can be said to have "interests" which are "affected" by the Minister's approval within the meaning of s.27(2) of the AAT Act.
   I will deal with each of these contentions in turn.

5. In Transurban the Full Federal Court (specially constituted by 5 Judges) had occasion to consider whether an individual living in close proximity to a proposed infrastructure construction site had status to challenge a decision of the Development Allowance Authority to issue certificates relating to infrastructure borrowings by Transurban  to finance the project which would have had the effect of exempting infrastructure borrowings from income tax.   The Federal Court unanimously held that the applicant who claimed he would suffer financial loss and loss of amenity if the project went ahead, had no locus standi to pursue a challenge to the granting of a certificate on the basis that he was not a "person affected" by the Authority's decision.

6. The Federal Court's decision has gone on appeal to the High Court of Australia but unless and until it is overturned it is binding upon this Tribunal (see Heydon v NRMA Ltd (2000) 36 ACSR 462 @ 578). At pp.696-698 the Federal Court said:

   "In the Australian Conservation case in which it had been held that the appellant had no interest to challenge a decision made under regulations affecting foreign exchange, Gibbs J explained what was meant by "special interest".   His Honour said at CLR 530; ALR 270:

   '… an interest, for present purposes, does not mean a mere intellectual or emotional concern.  A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs if his action fails.'

   The fact that in the Conservation case the conservation body opposed a resort development which depended upon the outcome of an application for exchange control approval did not suffice to give it standing to oppose the grant of approval.  No doubt, had the body sought to challenge a decision more directly related to the development as, for example, happened in some later cases, such as North Coast Environment Council Inc v Minister for Natural Resources (1994) 55 FCR 492; 127 ALR 617, the outcome may have been different.
   Importantly for the present appeal, Aickin J expressed the view that the question of special interest was to be answered by reference to the relationship between the interest claimed by the plaintiff and the relief the plaintiff sought.   His Honour said at CLR 511:

   'The "interest" of a plaintiff in the subject matter of an action must be such as to warrant the grant of the relief claimed … [T] he plaintiff's interest should be one related to the relief claimed in the statement of claim.'

   It is inherent in the submissions on behalf of Mr Allan that, contrary to the view of Aickin J, the question of special interest is to be determined without reference to the relationship between the interest of the applicant on the one hand and  the relief which review of the decision complained of would, if successful, afford on the other.   It would, to say the least, be somewhat strange if this were the case.   If the relief sought could never further the interest of an applicant or the failure to grant it harm him or her, common sense would suggest that the applicant for judicial review would lack standing.
   If there be support at all for such a submission it may, perhaps, be found in the emphasis placed in a number of the cases upon the relationship between the applicant and the "subject matter of the proceedings", rather than the outcome of the proceedings: see, for example, per Stephen J at CLR 42 in Onus.   However, there is nothing in these cases which suggests that outcome is irrelevant.   The only place where at first sight the submission appears to find support is in a passage in the judgment of Brennan J in Re McHattan and Collector of Customs (1977) 18 ALR 154 at 157, cited by the learned primary judge in the judgment now appealed from, where his Honour, then President of the Tribunal, said:

   'The interest of which s.27(1) speaks is an interest which is affected by the decisions to be reviewed, not by the review.   The outcome or possible outcome of the proceedings is not the criterion for determining whether the proceedings have been duly instituted, and the relevant interest must be one which is affected by the [decision] whatever the outcome of a review might be.'

   But what his Honour there said has to be understood by reference to the context in which the case arose.   The applicant to the tribunal was a customs agent.   The decision of which review was sought was the classification of certain goods for customs purposes.    The applicant had advised an importer about the rate of duty payable.   As a result of the decision he was potentially liable to the importer for negligent advice.   Apart from an alleged injury to his reputation for having given wrong advice, he clearly had no interest at all in the subject matter of the decision.  His Honour held that the applicant was not a person who had standing to apply to the tribunal just because the outcome of the review would either leave him liable to be sued or alternatively free him from the possibility of suit.   The case does not stand for the contrary proposition that a person totally unaffected by the outcome of the review can have standing.   It stands only for the proposition that the mere outcome of the review may not suffice to give standing.
   The case is also significant for the passage at 157 where his Honour referred to the "ripples of affection" which may widely extend in respect of a particular decision.  As his Honour then observed, and it is the problem with which this appeal is concerned:

   '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).'

   In summary, the question of standing to review an administrative decision is to be determined by reference to the interest which the applicant has in the decision which is under review.   It is to be determined by reference to the nature and subject matter of the review and the relationship which the applicant individually or a representative body may have to it.   An interest in the outcome of the review may give standing.  But there will be no standing where the actual outcome of the review will not affect the applicant.   There will be a question of degree involved in many cases."

1. In Transurban there were several additional stages of review and approval which were necessary before the infrastructure project could actually commence whereas, in the circumstances now in question, it is suggested that the only additional hurdle which the Brisbane Airport Corporation needs to surmount is approval for the major airport development proposal before runway construction can proceed.

2. It is to be noted  that as yet there has been no proposal submitted for such a development.   However, I appreciate the applicant's point that the development if and when it proceeds must be in accordance with the final master plan, and I am of opinion that the Federal Court's line of reasoning does not preclude me from finding that he has interests which are affected by the Minister's decision.   It cannot be said that the applicant has been immediately affected by the Minister's decision but the outcome of any review of that decision may well improve his position.   If the Minister's decision is invalidated, the siting of any new runway will again be open to scrutiny.   It is not appropriate for this Tribunal to forecast what the outcome of that process may be.    If the applicant or his supporters can persuade the Minister to jettison the second runway from the master plan his goal will be achieved.

3. I turn therefore to consider the second contention relied upon by the Party Joined.    It is plain enough from the locality map annexed to Cameron Francis Spencer's affidavit (CFS3) containing a superimposed plan indicating the assumed boundaries of areas which will be adversely affected by aircraft noise to be generated by the new runway if and when constructed, that the applicant's house is located well outside that area in which unacceptable noise (assessed in terms of current Australian Standards) is likely to be experienced.

4. However I am reluctant to reach a conclusion adverse to the applicant's assertion of status to pursue this application based upon such material.   In a sense every member of the Australian public has a real, or at least a potential, interest in resisting noise generation which will interfere with the comfort and amenity of his or her residential neighbourhood or place of work.   The extent and duration of that interest may vary from time to time and from place to place because both the geographical location of the potential applicant and the proximity of the noise generating source may change significantly from day to day or week to week.   An interest of this kind may therefore be contrasted with an interest in real or moveable property which may be identified and, if necessary, circumscribed by discreet evidentiary processes, proving or disproving legal or equitable interests in the property.

5. To acknowledge, and then confine, an interest in maintaining an environment free of excessive noise is an altogether more challenging task.   Quite apart from the problem involved in delineating the boundaries of noise, there is the superimposed difficulty of assessing the degree of individual susceptibility to discomfiture caused by noise.  Some people will be driven to distraction by the low frequency thud thud thud emanating from some forms of modern music.   Others are more readily upset by the random cacophony of heavy traffic.   Many will be deeply intolerant to the sudden whistling roar of jet engines overhead.

6. For these reasons I find it difficult to resolve the question of the applicant's status to maintain these proceedings as a preliminary issue upon the basis that he is not sufficiently proximate in a geographical sense to a potential source of unacceptable noise, even allowing for the fact that the applicant has adduced no evidence as to likely level of noise generation in the vicinity of his home, and also giving full and appropriate weight to the noise generation evidence adduced by the first respondent.

7. Additionally to those variables which I have already mentioned above, there are further variables introduced when one considers that the number of aircraft which will use the runway if and when it is built is open to a certain amount of conjecture and the extent of noise emanating from each aircraft in several years time is also a matter of some speculation.   It is common knowledge that aircraft designers are fully aware of noise problems arising in populated areas adjacent to airports, but on the other hand larger aircraft are being touted as necessary to achieve operational economy and passenger safety, and there seem to be an ever increasing number of daily flights scheduled in most major airports.   Nonetheless the preponderance of existing evidence suggests that aircraft noise generated by use of a new runway at Brisbane is unlikely to be a problem for the great majority of residents in Mr Rudd's area.   His home appears to be 9 to 10 kilometres away from the southern end of the existing runway.

8. If and when the extent of the applicant's prospective discomfiture is litigated as a substantive issue in future a firmer determination of this issue may be possible.  Until then it does not seem reasonable to me to conclude that his home environment is so remote from prospective flight paths that his enjoyment of the property cannot be adversely affected by the proposed usage of a new second runway.

9. In my opinion the preliminary issue must be resolved in favour of the applicant who, in my judgment has status to proceed with the review application.

I certify that the  23  preceding paragraphs are a true copy of the reasons for the decision herein of  The Hon C R Wright QC (Deputy President)

Signed:         ..........K L Miller..........................................
  Personal Assistant

Date/s of Hearing  13 July 2001
Date of Decision  17 August 2001
Counsel for the Applicant        Mr Rudd appeared in person.
Solicitor for the Applicant          
Counsel for the Respondent    Mr Bishop
Solicitor for the Respondent    Australian Government Solicitor
Counsel for BAC  Mr Sullivan
  Mallesons Stephen Jacques