CATCHWORDS

Administrative Law - Judicial review - decision of Minister granting exemption from requirements of administrative procedures established under the Environment Protection (Impact of Proposals) Act 1974 - decision of Minister to direct an increase in use of the east‑west runway at Sydney (Kingsford Smith) Airport - declarations sought that each decision unlawful and void - it is not for the Court to study administrative decisions too finely or precisely - decisions to be regarded carefully and sensibly and not over zealously in the pursuit of error

Administrative Law - whether denial of natural justice or procedural fairness - whether legitimate expectation arising from a course of conduct that an opportunity to make submissions would be given - whether decision affects rights, interests and expectations in a sufficiently individual direct and immediate way - whether interests of individuals affected in a manner substantially different from the interests of the public at large - whether decision of a legislative character, or of an executive or administrative nature - whether absence of duty to accord natural justice or procedural fairness precludes judicial review

Administrative Law - whether improper exercise of power - whether Minister failed to take into account relevant considerations - determined by construction of statute conferring discretion - special considerations applicable to the exercise of a ministerial discretion - whether circumstances surrounding decision help establish that the Minister has only paid lip service to relevant considerations

Administrative Law - whether power exercised for an improper purpose - implementation of election promise

Administrative Law - whether exercise of power unreasonable - whether decision made reasonably open - relevance of previous events and decisions - whether decision restores the status quo ante or involves a substantial departure from any past practice

Administrative Law - whether decision involves an error of law - whether Minister misconstrued the expression "the public interest" - whether interest taken into account was not a true public interest but the interest only of a particular section of the public - whether expression classically imports a discretionary value judgment - special considerations applicable to the decision of a Minister as to what the public interest requires

Administrative Law - whether failure to observe proper procedures - whether failure to have regard or proper regard to applicable principles - whether exceptional circumstances which necessitate Minister exercising discretion to consult in favour of consultation - whether constructive failure to perform duty

Administrative Law - standing - whether applicants are persons aggrieved - tests applicable - nature of relationship between questions of standing and a right to be heard in the context of procedural fairness

Words and phrases - "the public interest"

 

 

Administrative Decisions (Judicial Review) Act 1977 s 3(1), s 5, s 13

Environment Protection (Impact of Proposals) Act 1974 s 3, s 5(1), s 6

Air Services Act 1995 s 8, s 9, s 16

Local Government Act 1993 (NSW) s 8

Environment Protection (Impact of Proposals) Administrative Procedures 1974 para 11

Annetts v McCann (1990) 170 CLR 596 at 598 applied

Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 653 applied

Kioa v West (1985) 159 CLR 550 at 584, 617, 618, 619, 620 applied

Salemi v MacKellar (No.2) (1977) 137 CLR 396 at 452 referred

Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 637 applied

Comptroller‑General of Customs v Kawasaki Motors Pty Ltd (No. 1) (1991) 32 FCR 219 at 238-241 referred

Council of Civil Service Unions v Minister for Civil Service [1985] 1 AC 374 at 401 referred

Attorney‑General (NSW) v Quin (1990) 170 CLR 1 at 36, 37, 40, 41 applied

Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 39, 40, 42 applied

Parramatta City Council v Pestell (1972) 128 CLR 305 at 323 applied

Luu v Renevier (1989) 91 ALR 39 at 50 considered

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 referred

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred

Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 considered

Director of Public Prosecutions v Smith [1991] 1 VR 63 at 75 referred

R v Mining Warden at Maryborough; Ex p Sinclair [1975] Qd R 235 referred

Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 480, 487 applied

Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (1981) 39 ALR 281 at 357, 358 referred

O'Sullivan v Farrer (1989) 168 CLR 210 at 216 applied

Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681 referred

Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 479 applied

Minister for Immigration and Ethnic Affairs v Maitan (1988) 78 ALR 419 at 429 considered

Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 128 ALR 238 at 251, 252 applied

North Coast Environment Council Inc v Minister for Resources [No 2] (1994) 55 FCR 492, 514, 515 applied

Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 referred

Big Country Developments Pty Ltd v Australian Community Pharmacy Authority (1995) 132 ALR 379 referred

Ogle v Strickland (1987) 13 FCR 306 referred

BOTANY BAY CITY COUNCIL & ORS v MINISTER OF STATE FOR TRANSPORT AND REGIONAL DEVELOPMENT & ORS

No. NG 251 of 1996

CORAM:       Lehane J

PLACE:          Sydney

DATE:            28 May 1996

 

IN THE FEDERAL COURT OF AUSTRALIA                               )

NEW SOUTH WALES DISTRICT REGISTRY                              )

GENERAL DIVISION                                                                    )             No. NG 251 of 1996

                      BETWEEN:          BOTANY BAY CITY COUNCIL

                                                     ROCKDALE CITY COUNCIL

                                                     RANDWICK CITY COUNCIL

                                                     HURSTVILLE CITY COUNCIL

                                                                                                                                       Applicants

                      AND:                     MINISTER OF STATE FOR TRANSPORT

                                                     AND REGIONAL DEVELOPMENT

                                                                                                                             First Respondent

                                                     MINISTER OF STATE FOR THE

                                                     ENVIRONMENT

                                                                                                                        Second Respondent

                                                     AIRSERVICES AUSTRALIA

                                                                                                                            Third Respondent

CORAM:     Lehane J

PLACE:        Sydney

DATE:          28 May 1996

                                                       MINUTE OF ORDERS

THE COURT ORDERS:

1.         THAT the application is dismissed with costs.

NOTE:            Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA                               )

NEW SOUTH WALES DISTRICT REGISTRY                              )

GENERAL DIVISION                                                                    )             No. NG 251 of 1996

                      BETWEEN:          BOTANY BAY CITY COUNCIL

                                                     ROCKDALE CITY COUNCIL

                                                     RANDWICK CITY COUNCIL

                                                     HURSTVILLE CITY COUNCIL

                                                                                                                                       Applicants

                      AND:                     MINISTER OF STATE FOR TRANSPORT

                                                     AND REGIONAL DEVELOPMENT

                                                                                                                             First Respondent

                                                     MINISTER OF STATE FOR THE

                                                     ENVIRONMENT

                                                                                                                        Second Respondent

                                                     AIRSERVICES AUSTRALIA

                                                                                                                            Third Respondent

CORAM:     Lehane J

PLACE:        Sydney

DATE:          28 May 1996

                                                  REASONS FOR JUDGMENT

LEHANE J:  This is an application under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) for review of two decisions.  One is a decision by the first respondent to exempt from the requirements of administrative procedures established under the Environment Protection (Impact of Proposals) Act 1974 certain proposed Commonwealth actions relating to the use of runways at Sydney (Kingsford Smith) Airport (the airport) and the flight paths of aircraft taking off from, or landing at, the airport.  The other decision of which review is sought is the first of the Commonwealth actions which the decision of the second respondent, if valid, would exempt from the
administrative procedures: a decision by the first respondent to direct the third respondent substantially to increase the use of runway 07/25 (known as the east‑west runway) by aircraft taking off from, or landing at, the airport.  I shall describe the decisions in more detail later in these reasons.

The statutory context

The first respondent is the Minister administering the Air Services Act 1995 (the AA Act).  The AA Act established the third respondent as a body corporate (to which the AA Act refers as "AA") with functions set out in s 8.  The first two functions of AA, set out in subs 8(1), are as follows:

            (a)         providing facilities to permit safe navigation of aircraft within Australian-administered airspace;

 

            (b)         providing the following services, for the purpose of giving effect to the Chicago Convention or otherwise for purposes relating to the safety, regularity or efficiency of air navigation:

 

                          (i)       air traffic services;

 

                          (ii)      an aeronautical information service;

 

                          (iii)     rescue and fire fighting services;

 

                          (iv)     a search and rescue service;

 

                          (v)      an aeronautical radio navigation service;

 

                          (vi)     an aeronautical telecommunications service.

Given the nature of the matters in controversy, I should note also that one of the functions assigned to the third respondent by subs 8(1) (in para (d) of that subsection) is the carrying out of activities to protect the environment from the effects of, and the effects associated with, the operation of what the AA Act describes as Commonwealth jurisdiction aircraft.

Section 9 deals with the way in which the third respondent is to perform its functions.  It provides:

            9 (1)      In exercising its powers and performing its functions, AA must regard the safety of air navigation as the most important consideration.

 

              (2)       Subject to subsection (1), AA must exercise its powers and perform its functions in a manner that ensures that, as far as is practicable, the environment is protected from:

 

                          (a)      the effects of the operation and use of aircraft; and

 

                          (b)      the effects associated with the operation and use of aircraft.

 

              (3)       AA must perform its functions in a manner that is consistent with Australia's obligations under:

 

                          (a)      the Chicago Convention; and

 

                          (b)      any other agreement between Australia and any other country or countries relating to the safety of air navigation.

The decision of the first respondent, challenged by the applicants, was made under s 16.  That section provides:

            16(1)     The Minister may give written directions to AA relating to the performance of its functions or the exercise of its powers.

 

              (2)       ...

 

              (3)       AA must comply with a direction given under subsection (1).

The second respondent administers the Environment Protection (Impact of Proposals) Act 1974 (the EPIP Act).  Subsection 5(1) of the EPIP Act states its object:

            5 (1)      The object of this Act is to ensure, to the greatest extent that is practicable, that matters affecting the environment to a significant extent are fully examined and taken into account in and in relation to:

 

                          (a)      the formulation of proposals;

 

                          (b)      the carrying out of works and other projects;

 

                          (c)      the negotiation, operation and enforcement of agreements and arrangements (including agreements and arrangements with, and with authorities of, the States);

 

                          (d)      the making of, or the participation in the making of, decisions and recommendations; and

 

                          (e)      the incurring of expenditure;

 

                          by, or on behalf of, the Australian Government and authorities of Australia, either alone or in association with any other government, authority, body or person.

Section 6 of the EPIP Act provides for the approval of administrative procedures.  It reads as follows:

            6 (1)      The Governor-General may, from time to time, by order, approve, and approve variations of, administrative procedures for the purpose of achieving the object of this Act, being procedures that are consistent with relevant laws, as affected by regulations under this Act.

 

              (2)       Without limiting the generality of subsection (1), the approved procedures may provide for:

 

                          (a)      enabling the Minister to require the supply of information for the purpose of consideration, by or on behalf of the Minister, of the necessity for environmental impact statements or public environment reports;

 

                          (b)      authorizing the Minister to direct the preparation or obtaining, and the submission to the Minister, of statements to be known as environmental impact statements;

 

                          (ba)    authorizing the Minister to direct the preparation or obtaining, and the submission to the Minister, of reports to be known as public environment reports;

 

                          (c)      defining, or authorizing the Minister to determine, the matters to be dealt with by, and the form of, those statements and reports;

 

                          (d)      the making of those statements and public environment reports available, in cases or circumstances specified by or in accordance with the procedures, for public comment;

 

                          (e)      inquiries in accordance with this Act, and action to be taken in respect of reports resulting from such inquiries;

 

                          (f)       the revision of those statements and public environment reports;

 

                          (g)      the examination of those statements and public environment reports by or on behalf of the Minister and the making by or on behalf of the Minister of comments, suggestions or recommendations concerning the matters to which those statements and public environment reports relate, including
suggestions or recommendations concerning conditions to which approvals, agreements and other matters should be subject; and

 

                          (h)      exemptions from all or any of the requirements of the procedures.

"Environment" is defined in s 3, in what are now familiar and wide terms: it "includes all aspects of the surroundings of human beings, whether affecting human beings as individuals or in social groupings".

Administrative procedures have been approved under s 6 (and I shall refer to them as the Administrative Procedures).  In broad terms, they apply to a proposed Commonwealth action which is an "environmentally significant action": that includes one that will, or is likely to, affect the environment to a significant extent or result in such an effect.  The Administrative Procedures provide for the designation of a "proponent" in relation to an action to which they apply; the supply of information to the second respondent or his department; a determination whether an environmental impact statement or public environment report is required; and matters to be dealt with in such statements and reports and their publication and availability for public comment.  Following that process, the Minister is required to make comments, suggestions or recommendations to the "action Minister" and other relevant Ministers concerning the proposed action.

Finally, as contemplated by para 6(2)(h) of the EPIP Act, there is provision for exemptions from the Administrative Procedures.  Paragraph 11 of the Administrative Procedures provides as follows:

            Requests for exemptions

 

            11.1       A Minister, Department or an authority of Australia may request the Minister to exempt a Commonwealth action, or a class of Commonwealth actions:

 

                          (a)      from all or any of the requirements of these procedures; or

 

                          (b)      from all or any of the requirements of these procedures for a specified period; or

 

                          (c)      from all or any of the requirements of these procedures until the occurrence of a special event.

 

            Consultation with Department, etc., concerning exemptions

 

            11.2       Subject to the requirements of paragraphs 12.1.1. and 12.1.2. concerning communications with the States or the Northern Territory and with authorities of the States or the Northern Territory, the Minister, or the Department on behalf of the Minister, may consult with any Department or authority of Australia, any State or authority of a State, the Northern Territory or an authority of the Northern Territory, any local authority or any other person or body concerning whether a Commonwealth action, or a class of Commonwealth actions, should be exempted from all or any of the requirements of these procedures.

 

            Matters to be taken into account

 

            11.3.1    Subject to paragraph 11.3.2., the Minister shall, in determining whether to exempt a Commonwealth action, or a class of Commonwealth actions, from all or any of the requirements of these procedures, take into account -

 

                          (a)      whether the application to the Commonwealth action, or the class of Commonwealth actions, of the requirements of these procedures from which exemption is sought would -

 

                                    (i)         be prejudicial to national security;

 

                                    (ii)        be prejudicial to the interests of Australia;

 

                                    (iii)       adversely affect commercial or other confidences; or

 

                                    (iv)       be otherwise contrary to the public interest; and

 

                          (b)      any views on a matter referred to in subparagraph 11.3.1.(a) expressed by the Minister, Department or authority of Australia making the request.

 

            11.3.2    The Minister shall, in determining whether to exempt a Commonwealth action, or a class of Commonwealth actions, from all or any of the requirements of these procedures, have regard to the general principle that it is desirable in the national interest that the requirements of these procedures should, as far as reasonably possible, apply to all Commonwealth actions.

 

            Exemptions

 

            11.4       If, following a request under paragraph 11.1 and having regard to the matters set out in paragraphs 11.3.1 and 11.3.2, the Minister thinks it appropriate to do so, he or she may exempt, in writing, a Commonwealth action, or a class of Commonwealth actions:

 

                          (a)      from all or any of the requirements of these procedures; or

 

                          (b)      from all or any of the requirements of these procedures for a specified period; or

 

                          (c)      from all or any of the requirements of these procedures until the occurrence of a specified event.

 

            Publication of exemptions, etc.

 

            11.5       Unless the Minister is satisfied that to do so would be contrary to the public interest, an exemption under paragraph 11.4., and a summary of the reasons for granting the exemption, shall be made public.

Finally, each of the applicants is a council for an area, and a body corporate, under the Local Government Act 1993 (NSW).  It has what are called service, regulatory and
ancillary functions, provided for in chapters 6, 7 and 8 of that Act.  It also has a charter, under s 8, which is a set of principles intended to guide a council in carrying out its functions.  One of the principles set out in subs 8(1) is "to properly manage, develop, protect, restore, enhance and conserve the environment of the area for which it is responsible".  Subsection (2) then provides:

            A council, in the exercise of its functions, must pursue its charter but nothing in the charter or this section gives rise to, or can be taken into account in, any civil cause of action.

Factual background

In November 1994 what is commonly known as the third runway was opened.  It runs parallel with the airport's main (and longer) north‑south runway.  Its construction was preceded by the preparation of a draft environmental impact statement, a copy of which is in evidence (and to which I shall refer as the draft EIS).  It is evident from the draft EIS and its supplement that its preparation followed substantial public consultation and the receipt of numerous submissions.  Three of the applicants were among those making submissions.  The statement was prepared on the basis of what it describes (at page 10‑1) as three stipulations by the Commonwealth Government.  Those stipulations were, in effect, assumptions on which the statement was required to be prepared, reflecting decisions already made by the Government.  They were:

                                  l         departures to the north from the new runway would not be allowed;

 

                                  l         the existing north‑south runway would continue to handle all classes of air traffic;

                                  l         the use of the east‑west runway would be restricted to those circumstances in which adverse weather conditions precluded use of other runways for safety reasons.

Those decisions were put into effect when the third runway was opened.  Thus from November 1994 use of the east‑west runway substantially decreased, to an extent described by the applicants' deponents as "effective closure".  There is no controversy as to the statistics given in a statement of reasons (to which I shall refer in more detail later) provided by the first respondent: in 1993, the last full calendar year of operation of the airport with intersecting runways (that is, the main north‑south runway and the east‑west runway) there were approximately 49,000 landings from the north or take‑offs to the north on the main north‑south runway; there were about 85,000 "movements" (i.e. take‑offs or landings) on the east‑west runway.  By contrast, during the first year of operation of the third runway the total number of take‑offs to the north and landings from the north (on the parallel north‑south runways) was about 116,000; the total number of movements on the east‑west runway fell to about 5,500.

The evidence is, and it is obvious, that as a result the level of noise in areas beneath flight paths to and from the east‑west runway was substantially reduced.  It is notorious that there ensued, on the other hand, substantial controversy about the levels of noise to the north of the airport.  The Senate established a select committee to report on various matters relating to noise created by aircraft using the airport; it reported in November
1995.  It appears to have received evidence from a large number of bodies and individuals.  Submissions were made to it on behalf of the first and second applicants and representatives of the first applicant also gave evidence to the committee on behalf of an organisation known as the Australian Mayoral Aviation Council (a body established in 1983 comprising local authorities which are, or may be, affected by aircraft operations over their areas).  It is, I think, unnecessary to describe the conclusions of the report (or of either of the two dissenting reports) or its recommendations, except to say that there was no direct recommendation as to the "reopening" of the east‑west runway.  On that subject, the committee (in the majority report) recommended (para 1.76):

            That the Minister for Transport direct the responsible authorities to develop a new air space management plan for Kingsford Smith Airport and, in conjunction, revise the airport's noise abatement procedures.  The new airspace management plan and noise abatement procedures should examine the best means of using all three runways at Kingsford Smith Airport to balance safety, capacity and environmental considerations; and ensure that standard arrival and departure corridors make maximum use of non‑residential land and water.

There is also, in the majority report, a series of paragraphs (1.44 to 1.50) which discuss in outline two policy approaches to dealing with the impact of aircraft noise in areas surrounding an airport, one being concentration (i.e. concentrating flight paths so that the resulting noise affects the smallest possible number of people), the other dispersal (so that the noise affects a larger number of people but to a lesser extent): the majority of the Committee concluded that "the correct approach is to share the burden of noise": i.e., dispersal rather than concentration.

On 29 January 1996, the then Opposition issued a policy document entitled "Putting People First - the Coalition's Policy on Sydney Airport and Sydney West Airport".  That document included the following statement:

            The next Coalition Government will reopen the east west runway to distribute the noise generated by the airport in a fair way.  Within ten working days of taking office, our Minister for Aviation will issue a direction to Airservices Australia to begin work on reopening the Runway.

The decisions

On 19 March 1996 the first respondent wrote to the second respondent seeking exemption under the Administrative Procedures for certain actions proposed by the first respondent.  The following day, 20 March 1996, the second respondent granted an exemption substantially in the form sought by the first respondent.  The terms of the exemption are as follows:

                                                               EXEMPTION

 

            I, ROBERT HILL, Minister for the Environment, hereby exempt, pursuant to paragraph 11 of the Administrative Procedures made under the Environment Protection (Impact of Proposals) Act 1974, the Commonwealth actions listed below from all of the requirements of the Administrative Procedures.

 

            (a)         the proposed direction by the Minister for Transport and Regional Development under section 16 of the Air Services Act 1995 to Airservices Australia (a copy of which is attached).

 

            (b)         any proposed amendment to the Air Navigation (Aerodrome Flight Corridors) Regulations so as to remove the requirement for aircraft to use the presently prescribed corridors to the north of the airport;

 

            (c)         any Commonwealth action in relation to or connected in any way with actions (a) or (b) (including, without limiting the generality thereof, action by Airservices Australia).

 

            (d)         any Commonwealth action (including but without limiting the generality thereof, action by Airservices Australia) in consequence of (a), (b) and (c) above.

 

            Dated this 20th day of March 1996

                                                                                                Robert Hill

                                                                                                Minister for the Environment

Then, on the same day, the second respondent gave to the third respondent the direction contemplated by paragraph (a) of the exemption.  The direction is in the following form:

                                           COMMONWEALTH OF AUSTRALIA

                                                     AIR SERVICES ACT 1995

 

                                                                DIRECTION

 

            I, JOHN RANDALL SHARP, Minister for Transport and Regional Development, acting under section 16 of the Air Services Act 1995 (the Act), hereby direct Airservices Australia to:

 

            1.           take immediate steps, consistent with the requirements of the Act, to increase the usage of Runway 07/25 (known as the east‑west runway) at Sydney (Kingsford Smith) Airport in order to distribute the noise generated at the Airport more fairly.  Consistent with this, the east‑west runway is to operate in accordance with the following principles:

 

                                  l         the full length of the runway is to be available for use by both jet and propeller aircraft

 

                                  l         procedures involving independent use of the intersecting runways (such as the procedures known as SIMOPS) are not to be adopted

 

                                  l         usage of the runway should be directed, consistent with safety and efficiency of airport operations, towards achieving the earliest and maximum
practicable reduction in the number of aircraft taking‑off and landing over areas to the north of the Airport

 

            2.           report to me by 16 December 1996 on a proposed long term operating plan for the Airport and associated airspace based on the following principles:

 

                                  l         all three runways at the Airport, including the full length of the east‑west runway, are to be available for use by jet and propeller aircraft

 

                                  l         maximum use is to be made of flightpaths over water and non‑residential areas

 

                                  l         the capacity of the Airport is to be maintained to the maximum practicable extent but the programmed movement rate is not to exceed 80 movements per hour

 

                                  l         the safety of aviation operations is not to be compromised.

 

            Dated this twentieth day of March 1996

 

                                                                                                                                    John Sharp

The decisions of which a review is sought are those of the second respondent to make the exemption and of the first respondent to give the direction.

The Respondents' Reasons

The applicants sought, under s 13 of the ADJR Act, reasons for each decision.  Neither the first nor the second respondent appears to have challenged the applicants' entitlement to reasons and both provided them. Despite their length, I think it is appropriate to set them out in full.  The reasons provided by the second respondent were those stated by
him in accordance with paragraph 11 of the Administrative Procedures and were provided on the footing that they met the requirements of a statement under s 13 of the ADJR Act.  They are as follows:

            STATEMENT OF REASONS FOR EXEMPTION UNDER PARAGRAPH 11 OF THE ADMINISTRATIVE PROCEDURES

 

            These are the reasons relied on by me for the grant of the exemption from the Administrative Procedures that I have given on 20 March 1996 concerning certain actions involving Sydney airport.

 

            2.           I am satisfied that the residents of some communities in Sydney are suffering grievous hardship because of the existing arrangements at Sydney (Kingsford‑Smith) Airport ('Sydney Airport').  In particular, the use of the parallel runways and the requirement to use legislated flight corridors, combined with the effective closure of the east‑west runway other than in some limited weather conditions, has resulted in a concentration of aircraft movements and related noise impacts in certain suburbs.  This concentration of aircraft overflights represents, in my view, an inequitable distribution of aircraft noise impacts.

 

            3.           I am informed that in the last full year for which data is readily available for the Airport operating with intersecting runways (1993), there were approximately 49,000 landings from the north or take‑offs to the north on the main north‑south runway.  During the first year with the parallel runways this number (take‑offs to the north on the old north‑south runway and landings from the north on the parallel runways) more than doubled to around 116,000 while the total number of movements on the east‑west runway fell to approximately 5,500.  In 1993 there were about 85,000 movements on the east‑west runway.

 

            4.           Introduction of the flight corridors to the north of the Airport has resulted in all jet aircraft overflights being concentrated over the suburbs which fall along the extended centre‑lines of the north‑south runways.  Abolition of the northern corridors and increased use of the east‑west runway will significantly reduce the number of aircraft movements over these suburbs.

 

            5.           The Commonwealth actions in respect of which an exemption is sought were set out in a draft exemption from the Minister for
Transport attached to his letter to me of 19 March 1996.  In addition, I have subsequently been provided with a draft direction to Air Services Australia that the Minister proposes to issue if an exemption is granted.

 

            6.           I will refer to these actions as 'the proposed Commonwealth actions'.

 

            7.           The proposed Commonwealth actions will, if taken, have the effect of providing significant and immediate relief to the residents of those communities in Sydney which are at present most affected by the existing arrangements at Sydney Airport.  In particular, increasing the use of the east‑west runway will help ensure a more equitable distribution of the noise impacts associated with Sydney Airport.

 

            8.           Details of the operating procedures for the east‑west runway have yet to be worked out.  I am informed, however, by way of example, that if the number of annual operations on the northerly runways were cut by 50% and these movements transferred to the east‑west runway, take‑offs to the north and landings from the north would be reduced to around 58,000.  The total number of movements on the east‑west runway would increase to about 63,500.

 

            9.           In determining whether to exempt the proposed Commonwealth actions from all of the requirements of the Administrative Procedures, I am required to take into account whether the application of the requirements of the Administrative Procedures to the proposed Commonwealth actions would be contrary to the public interest (see paragraph 11.3.1.(a)).

 

            10.         I accept that the application of the Administrative Procedures to the proposed Commonwealth actions would delay the taking of these actions.  Accordingly, the application of the Administrative Procedures would delay the provision of immediate relief to the communities who, under the current arrangements at Sydney Airport, are exposed to the greatest number of aircraft overflights.  In particular, it would delay an increase in the use of the east‑west runway and so would delay the redistribution of the impacts, which is required to achieve a more equitable outcome.  In my view, it is contrary to the public interest for there to be any delay in the provision of immediate relief to the communities who are suffering most from the adverse noise impacts associated with Sydney Airport.

 

            11.         Accordingly, I believe that the application of the Administrative Procedures to the proposed Commonwealth actions would be contrary to the public interest.  (I note that the issue I must consider is not whether an increase in the use of the east‑west runway is in the public interest).

 

            12.         I note that in considering how the application of the Administrative Procedures will affect the 'public interest' there may possibly be competing 'public interests'.  In this regard, I have had regard to the following:

 

                                  l         An increase in the use of the east‑west runway and the repeal of flight corridors to the north of the airport will have an adverse effect on some communities in that it will increase the impact of aircraft noise on residents in those communities.  In this respect, the fact that, if I grant an exemption, the Administrative Procedures will not be complied with in relation to the proposed Commonwealth actions means that:

 

                                                l          the adverse effect on these communities will occur without relevant decision makers having had the benefit of any environmental impact assessment that may have occurred under the EPIP Act;

 

                                                l          the adverse effect on the communities will occur earlier than it might have occurred if the Administrative Procedures were complied with; and

 

                                                l          these communities will not have the opportunity of participating in any assessment that may have occurred under the EPIP Act.

 

            13.         Nevertheless, any public interest in having an environmental assessment of the impact of aircraft noise in these communities is in my view outweighed by the need for the immediate relief of those most directly affected by aircraft noise as a result of current arrangements.

 

                                  l         While not directly relevant, I have noted the public commitment of government to implement noise amelioration measures in areas affected by changes
to runway usage on the same terms as provided to those presently affected.

 

            14.         A number of assessments or inquiries have examined issues associated with runway usage at Sydney Airport.  In addition, I am informed that it is intended that a review be conducted by Airservices Australia with the assistance of the Civil Aviation Safety Authority leading to a long term operating plan for the Airport and associated airspace.  The existence of the assessments and inquiries which have already been conducted and of the proposed review - combined with the obvious need for a more equitable distribution of aircraft movements associated with Sydney Airport - reduces the need (from a public interest perspective) for compliance with the Administrative Procedures.

 

            15.         I have also had regard to the general principle that it is desirable in the national interest that the requirements of the Administrative Procedures should, as far as reasonably possible, apply to all Commonwealth actions.  See paragraph 11.3.2 of the Procedures.  However, this principle is overridden in this case by the public interest I have identified above.

 

            16.         I have also had regard, as required by paragraph 11.3.1(b) of the Procedures, to the views expressed by the Minister for Transport as to the public interest reasons he sees as justifying an exemption.  I consider that these reasons, in all the circumstances, generally further support an exemption on public interest grounds.  In particular, I note his view that the availability of existing material and evidence as to the relevant environmental effects suggest the application of the Administrative Procedures would represent an unnecessary use of public resources.

 

            17.         After considering all of the above matters, I am satisfied that the application to the proposed Commonwealth actions of the Administrative Procedures would be contrary to the public interest.  In the circumstances, the need to avoid any delay in providing immediate relief to the communities most affected by aircraft overflights and to ensure that, as soon as possible, there is a re‑distribution of aircraft noise across Sydney outweighs the fact that, as a result of my granting an exemption, some other communities in Sydney will be adversely affected by the increase in the use of the east‑west runway and there will be no assessment under the EPIP Act of these impacts.

                                                                                                Robert Hill

                                                                                                Minister for the Environment

                                                                                                20 March 1996

The statement of reasons provided by the first respondent is dated 28 March 1995.  It refers to various attachments which I shall not transcribe: I have already referred, in sufficient detail I think, to several of them.

            STATEMENT OF REASONS PURSUANT TO SECTION 13 OF THE ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977

 

            I, John Randall Sharp, Minister for Transport and Regional Development, having been requested to provide a statement of reasons pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977 for my decision on 20 March 1996 to issue a direction to Airservices Australia (AA) under section 16 of the Air Services Act 1995 hereby state:

 

            FINDINGS ON MATERIAL QUESTIONS OF FACT AND EVIDENCE ON WHICH THOSE FINDINGS WERE BASED

 

            1.           The use of the parallel runways at Sydney (Kingsford Smith) Airport and the requirement to use legislated flight corridors, combined with the effective closure of the east‑west runway other than in some limited weather conditions, resulted in a concentration of aircraft movements and related noise impacts in certain suburbs immediately to the north of the Airport.  This concentration of aircraft movements, in my opinion, represented an inequitable distribution of aircraft noise impacts.

 

            2.           In 1993, the last full calendar year of operations of the Airport with intersecting runways, there were approximately 49,000 landings from the north or take‑offs to the north on the main north‑south runway.  There were about 85,000 movements on the east‑west runway.  During the first year of operations with the parallel runways the total number of take‑offs to the north (on the old north‑south runway) and landings from the north (on the parallel runways) more than doubled to around 116,000 while the total number of movements on the east‑west runway fell to approximately 5,500.  The data for 1993 was extracted from the published Australian Noise Exposure Index for that year.  The data for the first year with the parallel runways was derived from information provided by AA to the Sydney Airport Community Consultative Committee.

 

            3.           During 1995, a Senate Select Committee on Aircraft Noise in Sydney received over 5,200 submissions and held public hearings
over 14 days.  The Committee handed down its report "Falling on Deaf Ears?" in November 1995.  The Committee considered the present policy of concentrating aircraft flightpaths into narrow bands north of the airport to be a form of discrimination.  The Committee noted that while fewer people were seriously affected they were affected much more severely whereas sharing that noise over a larger number of people would affect more people more moderately.  The Committee considered the correct approach is to share the burden of noise.  Relevant extracts from "Falling on Deaf Ears?" are at Attachment A.

 

            4.           On 29 January 1996 the then shadow Minister for Tourism, Aviation and Customs, Senator Warwick Parer, released the Coalition policy on Sydney Airport and Sydney West Airport, "Putting People First".  That policy contained a commitment that the Coalition Government would, within 10 working days of taking office, issue a direction to AA to begin work on reopening the east‑west runway to distribute the noise generated by the Airport in a fair way.  A copy of "Putting People First" is at Attachment B.

 

            5.           On 13 March 1996 the Director of Aviation Safety wrote to me setting out the views of the Civil Aviation Safety Authority on the safety aspects of using the east‑west runway.  A copy of that letter is at Attachment C.

 

            6.           On 18 March 1996 I was briefed by AA on the short term measures to increase the use of the east‑west runway.  I was subsequently provided with a brief setting out short term measures to increase the use of the east‑west runway.  A copy of that brief is at Attachment D.

 

            7.           I formed the view that it was possible for AA to implement changes in a short period of time which would have the effect of diverting immediately some flights from the north to the east‑west runway.  I formed the view that it was possible for AA to progressively bring into operation procedures which would achieve the objective of a more equitable distribution of aircraft flights over affected communities in Sydney by increasing the use of the east‑west runway.  I also formed the view that it was important for AA to undertake a wider review of airspace management at Sydney to enable permanent, equitable, efficient operating procedures to be put in place at the Airport.

 

            8.           Against the possibility that my actions might otherwise be within the Environment Protection (Impact of Proposals) Act 1974 and the Administrative Procedures made thereunder, I decided to request
the Minister for the Environment to grant an exemption under paragraph 11 of the Administrative Procedures.  A copy of my letter of 19 March 1996 to the Minister for the Environment is at Attachment E.

 

            9.           On 20 March 1996 the Minister for the Environment granted an exemption from the Administrative Procedures for, amongst other things, the issuing of a direction to AA.  A copy of the letter from the Minister for the Environment enclosing the exemption is at Attachment F.

 

            10.         On 20 March 1996, after receiving the Minister for the Environment's letter, I wrote to the Chairperson of AA attaching a copy of my direction.  A copy of my letter, together with the direction, is at Attachment G.

 

            REASONS FOR DECISION

 

            11.         I considered that people living to the north of the Airport were unfairly bearing the burden of aircraft noise generated at the Airport.

 

            12.         The Government gave an election commitment to issue a direction to AA to begin work on re‑opening the east‑west runway so as to equitably distribute the noise generated by the Airport.

 

            13.         I considered that the level of hardship in the worst affected communities to the north of the Airport required that immediate relief be provided.

 

            14.         I considered that AA was able progressively to implement increased usage of the east‑west runway without compromising the safe operations of the Airport.

 

            15.         I therefore directed AA to take the immediate steps set out in clause 1 of my Direction.

 

            16.         I also considered that AA should develop longer term operational arrangements for the airport subject to certain policy principles.

 

            17.         I therefore directed AA to report to me by 16 December 1996 on a longer term operating plan as set out in clause 2 of my Direction.

 

            Dated this twenty eighth day of March 1996.

            John Sharp

            Minister for Transport and Regional Development

Issues and claims for relief

First, there is a question of standing.  Each applicant claims to be a person who is aggrieved by each of the decisions, as the necessary foundation of a claim for relief under the ADJR Act.  The respondents deny that the applicants are, in the relevant sense, persons aggrieved and say, therefore, that the applicants lack standing.  The respondents did not, however, suggest that I should decide this case simply on the question of standing; indeed, they strongly urged that I should not do so.  I shall deal with the question of standing at the conclusion of these reasons.

The applicants seek declarations that the exemption granted by the second respondent and the direction given by the first respondent to the third respondent are unlawful and void.  By their amended application, they also sought a declaration that the applicants were entitled to request a statement of findings of fact, evidence and reasons, under s 13 of the ADJR Act, for the decisions of the first respondent to apply to the second respondent for an exemption and to give the direction to the third respondent.  That was not pursued at the hearing, no doubt on the basis that the first respondent had in the meantime delivered the statement of reasons which I have already set out.  Finally, the applicants seek an order restraining the third respondent from complying with, implementing or acting upon or in accordance with the first respondent's direction.

The applicants seek that relief on a number of the grounds provided for in subs 5(1) of the ADJR Act.  It is said that each of the first and second respondents denied to the
applicants natural justice or procedural fairness in connection with the making of his decision.  It is then said that the making of each decision was an improper exercise of power: disregarding matters which the applicants elected not to press, that was put on the basis that each of the first two respondents failed to take relevant considerations into account, exercised his power for a purpose other than one for which it was conferred and exercised it in a way that was so unreasonable that no reasonable person could have so exercised the power.

The applicants claim against the second respondent, additionally, that procedures that were required by law to be observed in connection with the decision to grant the exemption were not observed and that the decision to grant it involved an error of law.

I shall consider each of those grounds in turn.

Natural justice or procedural fairness

The claim that each of the first two respondents denied the applicants natural justice or procedural fairness was based on an assertion that each applicant had a reasonable or legitimate expectation that the respondent concerned would give it notice of, and an opportunity to consider and make submissions in respect of, any decision or proposal to grant the exemption (in the case of the second respondent) or give the direction (in the case of the first respondent) before making a decision.  In the case of the granting of the
exemption, the reasonable or legitimate expectation was said to arise as a result of each of the following:

            (i)          The exemption and the implementation of the proposed direction are likely to have significant and detrimental effects on the environment of the Applicants' local government areas.

 

            (ii)         The exemption and the proposed direction are likely to have significant and detrimental effects on the health, comfort, amenity, convenience, safety, well being and property values of the residents and ratepayers of the Applicants' local government areas.

 

            (iii)        The extensive and comprehensive environmental impact assessment process in respect of the proposed Third Runway at Sydney (Kingsford Smith) Airport, which resulted in the effective closure of the east west runway at Sydney (Kingsford Smith) Airport in November 1994, and the active participation of each of the Applicants in that environmental impact assessment process, including continuing liaison with Kinhill Engineers Pty Limited.

 

            (iv)        Detailed written submissions by three of the Applicants and by numerous individuals and associations from each of the Applicants' local government areas in respect of the Draft Environmental Impact Statement in relation of the proposed Third Runway at Sydney (Kingsford Smith) Airport.

 

            (v)         The decision to effectively close the east west runway which was put into effect in November 1994.

 

            (vi)        Paragraph 11.2 of the Administrative Procedures.

In the case of the direction by the first respondent, the reasonable or legitimate expectation was said to arise out of the matters stated in paragraphs (i) to (v); paragraph (vi) is, of course, irrelevant to the direction.

I admitted evidence to the effect that the effective closure of the east‑west runway resulted in a substantial diminution of noise from aircraft in the areas for which each applicant is responsible: indeed, it is obvious that that would have been so and it is equally obvious that the reopening of that runway to regular use by large aircraft will result in a significant increase of noise from aircraft in those areas; that - and there was no dispute about this - is likely in turn to result in significant detrimental effects on the environment of those areas.  It follows that it makes no difference to the outcome of the case that no evidence was admitted in support of para (ii).  As for para (iii), the draft EIS (at page 2‑7) refers to "continuing liaison on technical matters" with a number of local councils, including the four applicants.  As to para (iv), a supplement to the draft EIS indicates that among those who made the submissions were the first, second and fourth applicants.  There is no material before me, other than that supplement, as to the contents of those submissions: the supplement indicates that the submission of the first applicant canvassed a considerable number of matters dealt with in the draft EIS, that of the second applicant with a substantially smaller, though still significant, number of issues and that of the fourth respondent with a small number of issues only.  An inspection of the supplement suggests that it is likely that among the individuals and bodies making submissions were a number living, working or carrying on business within the applicants' areas: there is, in fact, no evidence that that is so but, again, I doubt that in the end it much matters.  No particular comment is required in relation to para (v).  As for para (vi), it will be recalled that para 11.2 of the Administrative Procedures empowers the second respondent to consult with governmental and local authorities "or any other person or body" in relation to proposed exemptions from the Administrative Procedures.

Counsel for the applicants relied particularly on statements of principle in two recent judgments of the High Court.  In Annetts v McCann (1990) 170 CLR 596, Mason CJ, Deane J and McHugh J said at 598:

            It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.

In Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 Deane J said at 653:

            Indeed, the law seems to me to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision‑making ... and where the question whether the particular decision affects the rights, interests, status or legitimate expectations of a person in his or her individual capacity is relevant to the ascertainment of the practical content, if any, of those requirements in the circumstances of a particular case and of the standing of a particular individual to attack the validity of the particular decision in those circumstances.

That was by no means an entirely novel principle.  In Kioa v West (1985) 159 CLR 550, at 584, Mason J referred to its antecedents and said:

            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.

Certainly it cannot be said of the AA Act or the Administrative Procedures that there is any express manifestation of a contrary statutory intention.  That, however, is not the end of the matter.  The cases to which counsel referred all concerned administrative decisions directly affecting the interests of particular individuals.  Annetts v McCann concerned a coronial inquiry into the deaths of two boys: the question was whether the coroner was justified in denying to counsel for the boys' parents the right to make a closing address on the evidence.  Kioa and Haoucher both concerned deportation orders.  There is a clear distinction, and authorities binding on me treat it as an important distinction for these purposes, between decisions affecting the rights or interests of particular individuals and those affecting the interests, indiscriminately, of the members of the public at large or of the members of a section of the public.  Thus in Kioa at 584, immediately following the passage to which I have already referred Mason J said:

            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.

His Honour explained, citing the judgment of Jacobs J in Salemi v MacKellar (No.2) (1977) 137 CLR 396 at 452, that this was so because an executive or administrative decision affecting a person or corporation as a member of the public, or a class of the public, as opposed to affecting the person or corporation individually is truly a "policy" or "political" decision and not subject to judicial review.  That explanation raises issues
which are relevant to this and other aspects of these proceedings, and I shall return to it.  Meantime, there is an extended discussion of the same distinction by Brennan J in Kioa, commencing at p 619.  That discussion includes (at 620) the following passage:

            The legislature is not likely to intend that a statutory power of a strictly legislative nature be conditioned on the observance of the principles of natural justice for the interests of all members of the public are affected in the same way by the exercise of such a power ...   But the legislature is more likely to intend the exercise of a statutory power of an executive, administrative or quasi‑judicial nature to be so conditioned if an exercise of the power singles out individuals by affecting their interests in a manner substantially different from the manner in which the interests of the public at large are affected.

Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 concerned, among other things, decisions to make recommendations as to the replacement of the schedule of fees payable under the Health Insurance Act 1973 for various services provided by pathologists.  Gummow J pointed out, at 637, that the replacement of the fees schedule, in accordance with a recommendation, affected the interests of the Australian public at large and also those of certain classes or groups of the public (eg, obviously enough, pathologists and patients).  His Honour continued:

            It affected the interests of those providing the pathology services, of the patients and their medical advisors for whom the services are provided and of government (that is to say of the Australian community as a whole) in efficient administration of the law and proper disbursement of public moneys.  I believe there is much to be said for the view that the making of a recommendation by the committee and the decision of the Minister to make a determination in accordance with the recommendation of the committee, did not affect the rights, interests and expectations of pathologists, other medical practitioners and patients in a sufficiently
individual direct and immediate way as to attract with regard to persons in these groups the duty to act fairly ...

Exactly the same principles were discussed and applied by the Full Court of this Court in Comptroller‑General of Customs v Kawasaki Motors Pty Ltd (No. 1) (1991) 32 FCR 219: see the judgment of Hill and Heerey JJ at 238‑241.

Several discussions of the distinction are complicated by consideration of a related issue, at least hinted at in the explanation given by Jacobs J cited by Mason J in Kioa.  That related issue is the distinction between decisions, on the one hand, having a legislative character and those, on the other hand, of an executive or administrative nature.  That further distinction is discussed, for instance, by Brennan J in Kioa, by Gummow J in Queensland Medical Laboratory and by Hill and Heerey JJ in Kawasaki, in each case in or immediately following the passage to which I have referred.  In this case, I think it is clear - certainly the contrary was not argued - that each decision is, within the terminology of subs 3(1) of the ADJR Act, a decision of an administrative character made under an enactment.  All of the authorities to which I have referred, however, make it clear that though a decision for which an Act or delegated legislation provides is to be characterised as administrative rather than legislative, nevertheless if it affects the interests of the public, or a section of the public, at large rather than the interests of particular individuals it will, usually at least, be a decision in relation to which no particular individual or body can claim an entitlement to procedural fairness: particularly, an entitlement to be heard, in relation to a proposed decision, before it is made.

Counsel for the applicants argued that the decisions of the first and second respondents (and in this respect there is no relevant distinction between them) are not decisions of general application: they are decisions which have application in respect of the residents of areas surrounding the airport, particularly to the east and west; the applicants, in effect, represent the rate payers and residents of their areas, whose interests are affected by the decisions and are not those of the public at large.  Attractively as that submission was put, I cannot accept it.  It is, I think, contrary to the authorities to which I have referred.  No doubt it is possible to say that each person living or working under a flight path within an area for which one of the applicants is responsible is affected in a way which differs from the way "the public at large" - including not just those who live to the north of the airport but also those out of earshot of any conceivable flight path - are affected.  But that is clearly not the distinction to which the authorities refer.  Each applicant represents the interests of a section, or perhaps several sections, of the public; and, within each section, individuals are affected indiscriminately.

It remains to consider whether there are any particular circumstances relating to the decisions which should be held to have imposed on the decision‑maker an obligation which might not otherwise exist.  The effect of the decisions on the environment within the applicants' areas or, for that matter, their effect on "the health, comfort, amenity, convenience, safety, well‑being or property values" of people within the areas, cannot make a difference: as I have held, people within the applicants' areas are not affected, in the terminology used in the authorities, in an individual capacity.  The applicants argued also that they had a legitimate or reasonable expectation that they would be consulted, and
given an opportunity to make submissions, before any decision was made to reopen (or to remove an obstacle to the reopening of) the east‑west runway.  That expectation was said to arise from the fact that a detailed environmental study preceded the construction and opening of the third runway (and the closure of the east‑west runway) in the course of which the applicants were consulted and three of them (as well as individuals within their areas) made submissions.  It was said that in those circumstances I should infer a representation that the decisions which the applicants impugn would not be made without further consultation; it was also put to me that I should find an established course of practice, arising from the process of deliberation which preceded the construction of the third runway, leading to the opening of that runway and the closure of the east‑west runway, the practice being one of consultation in relation to the level of use of the east‑west runway.

There is, however, no evidence of an express representation nor, I think, is there a basis on which I should infer one, particularly one binding on the first or second respondent.   The consultation which occurred related to an environmental study (leading to the preparation of the draft EIS) in relation to a proposal to construct a third runway, and in circumstances where a decision had already been made that if the third runway was built and opened a policy of concentration would be applied and the east‑west runway substantially closed.  The process of consultation related to that particular matter and occurred, of course, several years ago.  The process leading to the construction of the third runway cannot, I think, be seen as establishing a course of conduct giving rise to legitimate expectations as to consultation concerning any future use which might be made
of the east‑west runway: a runway which had been in existence, and in substantial use, for many years before construction of the third runway was proposed.  The leading case on a course of conduct of this kind is Council of Civil Service Unions v Minister for Civil Service [1985] 1 AC 374: that case had to do with circumstances entirely different from these: see, for example, the speech of Lord Fraser of Tullybelton at 401.

I have dealt with the particular circumstances as I have out of deference to counsel's arguments and, of course, because the matter may go further.  It may well be, however, that such a consideration of those circumstances is (given my earlier conclusion) beside the point: legitimate expectations are not relevant to the true construction of a statutory provision under which a decision is made - the question of construction being whether, in relation to such a decision, an obligation to afford natural justice applies: see Kioa at 617, 618 per Brennan J; see also his Honour's observations in Attorney‑General (NSW) v Quin (1990) 170 CLR 1 at 40, 41.

There is one final consideration relevant to the decision of the second respondent to grant the exemption under the Administrative Procedures, though not to the decision of the first respondent to give the direction to the third respondent.  Paragraph 11.2 of the Administrative Procedures provides that the Minister "may consult with any Department or authority of Australia, any State or authority of a State, the Northern Territory or an authority of the Northern Territory, any local authority or any other person or body concerning whether a Commonwealth action, or a class of Commonwealth actions, should be exempted from all or any of the requirements of these procedures".  It was said that
this provision, while not imposing in all cases a duty to consult all or any of the persons mentioned (obviously, it could not do so given the virtually unlimited class of persons who might be consulted), taken together with the surrounding circumstances gave rise in this case to a legitimate expectation and therefore a duty of consultation with the applicants.  Once, however, other bases of legitimate expectation are excluded, I cannot see how a discretion to consult can give rise to a legitimate expectation or to a duty on any other basis.

For those reasons, the applicants in my view must fail on the question of natural justice or procedural fairness.  But before leaving this aspect of the case, it 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.

Improper exercise of power

(i)         Relevant considerations

Under this general head, the applicants submitted that each of the first two respondents had, in making his decision, failed to take into account relevant considerations: i.e. failed to take into account matters which, in coming to his decision, he was bound to take into account (Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J). 

The necessary starting point is, therefore, the statute or delegated legislation under which each decision was made.  Section 16(1) of the AA Act confers on the first respondent a discretion which is in terms unlimited: it provides simply that the first respondent "may give written directions to AA relating to the performance of its functions or the exercise of its powers".  It does not specify any particular matters which the first respondent is obliged to take into account.  The position of the second respondent, under para 11 of the Administrative Procedures, is different.  I have already set out the terms of that paragraph.  Relevantly for present purposes, subpara 11.3.1(a)(iv) required the second respondent to consider whether the application of the Administrative Procedures to the Commonwealth actions, for which exemption was proposed, would be contrary to the public interest; subpara 11.3.1(b) required him to take into account views expressed by the first respondent; and subpara 11.3.2 required him to "have regard to the general principle that it is desirable in the national interest that the requirements of these
procedures should, as far as reasonably possible, apply to all Commonwealth actions".  In his statement of reasons the second respondent claims to have taken account of each of those matters and explains (paras 9‑14, 15 and 16 respectively) the basis on which he claims to have done so.

Two passages in the judgment of Mason J in Peko are a convenient starting point.  First, at 39, 40 his Honour said this:

            What factors a decision‑maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion.  If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive.  If the relevant factors - and in this context I use this expression to refer to the factors which the decision‑maker is bound to consider - are not expressly stated, they must be determined by implication from the subject‑matter, scope and purpose of the Act.  In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject‑matter, scope and purpose of the statute some implied limitation on the factors to which the decision‑maker may legitimately have regard ... By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision‑maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject‑matter, scope and purpose of the Act.

Then, at 42, Mason J said:

            The principles stated above apply to an administrative decision made by a Minister of the Crown ... However, in conformity with the principle expressed in [the passage quoted] above, namely that relevant
considerations may be gleaned from the subject‑matter, scope and purpose of the Act, where the decision is made by a Minister of the Crown, due allowance may have to be made for the taking into account of broader policy considerations which may be relevant to the exercise of a ministerial discretion.

The considerations which the applicants say were relevant to the second respondent's decision, and which they say he failed to take into account, are the following:

            (i)          The actual amount of air traffic which would be diverted from the parallel runways to the east west runway upon the implementation of the proposed direction.

 

            (ii)         The actual amount of air traffic which would be diverted from flying through air corridors to the north and south of the Airport to flying through air corridors to the east and west of the Airport upon the implementation of the proposed direction.

 

            (iii)        The likely effect of the proposed direction on the health, comfort, amenity, convenience, safety, well being and property values of the residents and ratepayers of the Applicants' local government areas.

 

            (iv)        The absence of operating procedures for the significant use of the east west runway in conjunction with the parallel runways.

 

            (v)         Whether the Commonwealth actions should be exempted from only some, rather than all, of the requirements of the Administrative Procedures.

 

            (vi)        The relative safety of the operation of intersecting as opposed to parallel runways.

 

            (vii)       The views of the Applicants and of the residents and ratepayers of the Applicants as to the exemption and as to the proposed direction.

 

            (viii)      Whether an increase in the use of the east west runway is in the public interest.

 

            (ix)        The general principle that it is desirable in the national interest that the requirements of the Administrative Procedures should, as far as reasonably possible, apply to all Commonwealth actions.

 

            (x)         Whether the application to the Commonwealth action of the requirements of the Administrative Procedures from which exemption was sought would be contrary to the public interest.

I do not think there is any substance in (i) or (ii).  Certainly the second respondent did not know the precise amount of the traffic concerned.  But he took into account a substantial diversion, the stated order of magnitude of which, taking into account what happened before the third runway was opened and considering the first respondent's proposed direction as a whole (a topic to which I shall return), there is no apparent reason to question.  As for (iii), the second respondent's reasons in para 12 explicitly contemplate such an effect and refer, in para 10, to a "redistribution of the impacts" which clearly enough, in context, is a reference to a diversion to areas at each end of the east‑west runway of some of the noise and other inconvenience considered by the second respondent to be borne, under the arrangements then in force, to an unfair extent by people in areas to the north of the airport.  The essence of the proposal was, after all, a "redistribution": that is necessarily a process by which some will be affected beneficially, other detrimentally.

I can see no basis on which a process of statutory construction would require an implication that (iv) is a matter which the second respondent must take into account, and none was pressed in argument.  As for (v), no basis was suggested on which it might have been appropriate, in this case, to consider whether the actions should have been exempted from some only of the requirements.  Given the reasons expressed by the second respondent, and particularly his emphasis on the desirability of action being taken
quickly, it is a little difficult to see why it might be thought that a partial exemption would suffice.

It is not easy to see, and again I think no substantial argument was addressed to this, why (vi) is a matter which particularly the second respondent is required to take into account.  Paragraph (vii) is a reiteration, in a different form, of the contention about procedural fairness.

Paragraph (viii) is, no doubt, a reference to the note in parenthesis in para 11 of the second respondent's reasons.  I can see no error in what is said para 11: it is concerned merely to state precisely what is the issue which the second respondent has to consider.  Of course the implementation of the first respondent's direction is likely to result in an increase in the use of the east‑west runway; that is acknowledged in the second respondent's reasons.

Paragraphs (ix) and (x) raise a slightly more difficult issue.  As I have said, these are both matters which the second respondent was required, by the express terms of the Administrative Procedures, to take into account.  The second respondent claims to have taken them into account.  The applicants say that in the circumstances the statements as to these matters in the second respondent's reasons must be taken to be lip service only or, in the case of para (x), to be vitiated by a misunderstanding of what in the context is meant by the "public interest".  I shall deal with the question of "public interest" later in these reasons; for the present it is sufficient to say that I do not accept the applicants'
submissions on that subject.  The "lip service" point comes, I think, to this: the Coalition made a commitment, before the election, to reopen the east‑west runway and, in particular, to give the appropriate direction to the third respondent within ten working days of assuming office.  In that context, and particularly given the very short time which was taken in considering the application for an exemption, I should infer that the second respondent in reality did not take account of the national interest to which para 11.3.2 of the Administrative Procedures refers.

Again, however, my conclusion is that that submission should not succeed.  The second respondent says, in para 15 of his reasons, that he has considered the national interest referred to in para 11.3.2 of the Administrative Procedures; he says that in his view it is outweighed by the public interest in "redistributing" aircraft noise.  The applicants say that that conclusion of the second respondent was so unreasonable that no reasonable person could have reached it: I disagree, for reasons which will appear.  That aside, the applicants' submission must be either that I should simply disbelieve the statement and the reasons (and I can see no reason to do so) or that it is wrong on the merits: but the merits, as the applicants necessarily concede, are not a matter for the Court.

The matters which the first respondent is said to have been required to take into account, but not to have taken into account, are the first seven of those alleged in relation to the second respondent's decision: that is, all but those relating to the public and national interests.  The task of the applicants is, of course, if anything a more difficult one in a case where, as here, the statute contains no express statement of matters which the
Minister is required to take into account.  As to the "actual amount of air traffic which would be diverted", however, what I have already said in relation to the decision of the second respondent is, I think, equally applicable to that of the first respondent.  As to paragraph (iii) (the likely effect of the direction on the health etc of residents and ratepayers in the applicants' areas), if the first respondent was required to take it into account, I think it is clear from paragraph 3 of the first respondent's reasons that he did take account of it.

Paragraph (iv) relates to the absence of operating procedures for the significant use of the east‑west runway in conjunction with the parallel runways.  There is not in fact any evidence directly relating to this.  It is, however, to be noted that the direction to take immediate steps to increase the usage of the east‑west runway is expressed to be, as it must be, subject to the requirements of the AA Act: I have already referred to s 9.  Additionally, paragraph 2 of the direction requires a report on a "proposed long term operating plan for the Airport and associated airspace".

Paragraph (v) refers to the relative safety of the operation of intersecting as opposed to parallel runways.  Apart from matters to which I have already referred, in fact the first respondent clearly did take this matter into account: see paragraphs 5 and 6 of his reasons.  Paragraph (vii) relates to the views of the applicants and of residents and ratepayers in their areas: this, again, is repeating the natural justice submissions under another guise.

Thus, in my view the argument that either or the first two respondents failed to take relevant considerations into account is not made out.

(ii)        Purpose of exercise of power

The second basis on which it was said that each decision was an improper exercise of power was that each of the first two respondents exercised his power for a purpose other than that for which it was conferred.  In the case of each respondent, that was put on the basis that the power was exercised for the purpose of implementing an election promise, which is not, it was said, a purpose for which the power was conferred.  In the case of the second respondent, it was put on the additional basis that the second respondent misunderstood and misapplied the term "public interest" in subpara 11.3.1(a)(iv) of the Administrative Procedures: as I have said, I do not accept that submission; I deal with the question separately below.

It is clear that each respondent took account of the election promise.  It is not now suggested that the promise should have been excluded from consideration as irrelevant, and in my view such a suggestion, if made, would not have been successful.  The argument of counsel for the applicants was expressed (at page 45 of the transcript) as follows:

            We say ... the inference that is to be drawn from the timing from the decision‑making process, is that there was an imperative in terms of time to do the deed within a limited time and that that was the real purpose giving effect to the promise and that therefore the proper evaluation of both the
application for exemption and the giving of the direction in the context of the requirements under the procedures, miscarried.

The decisions were, of course, made within a very short period - indeed, within the period to which the Coalition, by its election promise, had committed itself.  Undoubtedly the Coalition had, before the election, formed the view that the decisions, which have been made, should be made and particularly formed the view, as a matter of policy, that aircraft noise should be "redistributed" on the basis that it would be dispersed rather than concentrated; and the Coalition promised to make those decisions within a short time after the election.  But, in my view, it cannot be the case that a Minister whose political party seeks election on the basis of a promise to make certain decisions which, under the relevant legislation, can properly be made is necessarily to be stigmatised as acting for an improper purpose when, having been successful in the election, he makes the decisions which had been foreshadowed.  The question must be whether, taking account of matters which must be taken into account, the decisions concerned are decisions which the makers of them can properly make.  If they are, I do not think that they are open to attack simply on the basis that they are decisions which, before an election, an incoming government had promised to make.

Thus, in my view, the attacks on the basis of improper purpose fail also.

(iii)       Unreasonableness

That brings me to the third basis on which both decisions were attacked as improper exercises of power.  It was said that the exercise of power by each of the first two respondents was so unreasonable that no reasonable person could so exercise it.

The fundamental distinction in this area of the law was pithily drawn by Menzies J in Parramatta City Council v Pestell (1972) 128 CLR 305 at 323:

            There is ... a world of difference between justifiable opinion and sound opinion.  The former is one open to a reasonable man; the latter is one that is not merely defensible - it is right.  The validity of a local rule does not depend upon the soundness of a council's opinion; it is sufficient if the opinion expressed is one reasonably open to a council.  Whether it is sound or not is not a question for decision by a court.

Similarly, in Quin Brennan J said at 36, 37:

            Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action.  The limitation is extremely confined. ... If it be right to say that the court's jurisdiction in judicial review goes no further than declaring and enforcing the law prescribing the limits and governing the exercise of power, the next question immediately arises: what is the law?  And that question, of course, must be answered by the court itself.  In giving its answer, the court needs to remember that the judicature is but one of the three coordinate branches of government and that the authority of the judicature is not derived from a superior capacity to balance the interests of the community against the interests of an individual.  The repository of administrative power must often balance the interests of the public at large and the interests of minority groups or individuals.  The courts are not equipped to evaluate the policy
considerations which properly bear on such decisions, nor is the adversary system ideally suited to the doing of administrative justice: interests which are not represented as well as interests which are represented must often be considered.  Moreover, if the courts were permitted to review the merits of administrative action whenever interested parties were prepared to risk the costs of litigation, the exercise of administrative power might be skewed in favour of the rich, the powerful, or the simply litigious.

A consideration of reported cases in which decisions have been held so unreasonable that no reasonable person could have made them offers no comfort to a suggestion that the principle is any less confined than those statements suggest.  In Luu v Renevier (1989) 91 ALR 39 at 50 it was held, relying on Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 and Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 that "a decision is unreasonably made where, to the knowledge of the decision‑maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained": there, the material in question was psychiatric evidence bearing on the likelihood that the applicant, challenging a decision to deport him, would commit further offences.  In Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515, another deportation case, it was held that the Minister's delegate had acted unreasonably in brushing aside clear and cogent medical evidence in favour of a theory or "feeling" of his own.  Cases of that kind are some distance from the present case.

Once again, I think it is desirable to set out the particulars relied on by the applicants in support of their submission that the decisions were unreasonable in the sense I have described.  Those relating to the second respondent's decision are as follows:

            (i)          The decisions made in 1994 to almost exclusively use the north south runways for aircraft landings at and takeoffs from Sydney (Kingsford Smith) Airport, to concentrate flight paths along the air corridors leading to and away from the north south runways, and to significantly limit the use of the east west runway, resulted from and were based upon considerable and scientifically based environmental impact assessment.  In stark contrast, the Second Respondent purported to grant the exemption in the absence of environmental impact assessment of the consequences of the proposed direction.

 

            (ii)         At the time when he purported to grant the exemption, the Second Respondent was unaware of the actual amount of air traffic which would be diverted from the parallel runways to the east west runway upon the implementation of the proposed direction, and the actual amount of air traffic which would be diverted from flying through air corridors to the north and south of the Airport to flying through air corridors to the east and west of the Airport upon the implementation of the proposed direction, and was thus unaware of the actual consequences of the exemption.

 

            (iii)        The likely effect of the proposed direction on the health, comfort, amenity, convenience, safety, well being and property values of the residents and ratepayers of the Applicants' local government areas.

 

            (iv)        The absence of operating procedures for the significant use of the east west runway in conjunction with the parallel runways.

 

            (v)         The Second Respondent failed, in determining whether to grant the exemption, to have regard or proper regard to the general principle that it is desirable in the national interest that the requirements of the Administrative Procedures should, as far as reasonably possible, apply to all Commonwealth actions.

 

            (vii)       The Second Respondent misunderstood and misapplied the term "the public interest" in paragraph 11.3.1(a)(iv) of the Administrative Procedures.

The particulars in relation to the first respondent's decision are substantially the same as (i) to (iv) inclusive; (v) and (vii) (there is no (vi)) are of course omitted.

Paragraph (i) raises a matter which has not been considered under other heads.  The proposition put by the applicants was that the exhaustive process of environmental assessment and consultation which occurred in relation to the construction and opening of the third runway, and the effective closure of the east‑west runway, demonstrates that it cannot be a reasonable decision substantially to reverse the outcome of that process without a similar investigation and similar consultation.  The applicants also say that the second respondent's reliance, in paragraph 14 of his reasons, on earlier assessments is misplaced because those assessments - the draft EIS in particular - proceeded on the footing that almost all air traffic to and from the airport would use the parallel runways and that, correspondingly, almost none would use the east‑west runway (though it might be said in passing that this is not true of the report of the Senate select committee).  There was, thus, nothing in the earlier assessments or inquiries which offered any help in relation to the decision of the second respondent.

As counsel for the respondents pointed out, however, the earlier environmental inquiry proceeded on the basis of a decision already made that if the third runway was built and opened the policy of concentration would be applied and the east‑west runway used as little as practicable.  That was an assumption underlying the draft EIS (and the inquiries leading up to it): it was not a recommendation that resulted from it.  Secondly, it is clear that the action taken following the exemption granted by the second respondent has the
effect of restoring, to some extent, what might be described as the status quo ante, a rather different matter than the construction of a new runway followed by a substantial departure from any past practice.  These matters were not very fully explored in argument, but perhaps further exploration would not have helped much: the differences between the circumstances in which the draft EIS was prepared and those surrounding the decisions now in question seem to me sufficient, particularly when combined with the other matters referred to in the second respondent's reasons, to negate the suggestion that to dispense with compliance with the Administrative Procedures can be demonstrated to be unreasonable (in the relevant sense) simply by pointing to events which preceded the building of the third runway.

So far as the first respondent is concerned, I think it must follow that if the decision of the second respondent was not, by reason of what is stated in particular (i) objectionable, that must be so a fortiori in relation to the first respondent's decision to give the direction.

So far as paragraphs (ii), (iii) and (iv) are concerned, I do not think there is anything I need add to my comments in relation to the submission about failure to take relevant matters into account.  That applies equally to paragraph (v); and the issue of "the public interest" referred to in paragraph (vii) remains to be considered in detail, though as I have indicated I do not accept the applicants' submissions.

Accordingly, the attack based on unreasonableness fails also and with it the claim that either decision is void on the footing that it was an improper exercise of power.

Failure to observe proper procedures; error of law; the "public interest"

It is convenient to deal together with two matters which affect only the decision of the second respondent to grant the exemption from the Administrative Procedures.  One is that the second respondent failed to observe procedures required by law to be observed.  The other is that the decision involved an error of law.

The error of law involved in the decision was said to be that the second respondent misconstrued the expression "the public interest" in paragraph 11.3.1(a)(iv) of the Administrative Procedures.  One of the bases - perhaps the principal basis - on which the second respondent is said not to have followed procedures required by law is that the second respondent failed to take into account, or properly take into account, whether the application to the proposed Commonwealth actions of the requirements of the Administrative Procedures would be contrary to the public interest.  The point in each case is substantially the same; it is that what the second respondent took into account as the relevant "public interest", as evidenced by his reasons, was not a true public interest at all but the interest only of a particular section of the public.  The applicants relied on a number of statements in the second respondent's reasons which refer to "grievous hardship" suffered under present arrangements by those to the north of the airport, a need for "immediate relief to the communities who are suffering most from the adverse noise
impacts associated with" the airport, "the need for the immediate relief of those most directly affected by aircraft noise as a result of current arrangements" and "the need to avoid any delay in providing immediate relief to the communities most affected by aircraft overflights."

Those passages in the reasons, the applicants said, made it clear that the "interests" which the second respondent had in mind were those of a distinct section of the public only: those in areas affected by the flight paths, to the north of the airport, to and from the parallel runways.  Even if one regarded the overall objective as an equitable distribution of the effects of noise associated with the airport, it was clear, the applicants contended, that the particular urgency identified by the second respondent, and therefore the particular reason justifying exemption from the Administrative Procedures, was the need to alleviate what was seen as the extreme hardship suffered by that section of the public, not a matter related to the public interest generally.

Counsel for the applicants referred to authorities in which distinctions are drawn between the public interest on the one hand and individual interests on the other, or between the public interest and matters of public interest in the sense of those which attract the attention or concern of members of the public.  Thus, counsel referred to Director of Public Prosecutions v Smith [1991] 1 VR 63, particularly the following passage at 75:

            The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members.  The interest is
therefore the interest of the public as distinct from the interest of an individual or individuals ... There are ... several and different features and facets of interest which form the public interest.  On the other hand, in the daily affairs of the community events occur which attract public attention.  Such events of interest to the public may or may not be ones which are for the benefit of the public; it follows that such form of interest per se is not a facet of the public interest.

Similarly, counsel referred to passages in the judgment of the Full Court of the Supreme Court of Queensland in R v Mining Warden at Maryborough; Ex p Sinclair [1975] Qd R 235 and the judgments of the members of the High Court on appeal, reversing the decision of the Full Court: Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473.  In relation to the phrase "the public interest" Barwick CJ (with whom Murphy J agreed) said at 480:

            The interest, of course, must be the interest of the public and not mere individual interest which does not involve a public interest.

I was referred to the following passage in the judgment of Jacobs J at 487:

            The warden appears not to have given weight to the fact that the evidence produced by the objectors should be regarded as evidence on the public interest generally and needed to be weighed in all the circumstances of the public interest whether or not the evidence and the views therein were put forward by a large or a small section of the public.

Counsel referred also to a passage in the judgment of Morling J in Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (1981) 39 ALR 281 at 357, 358.

A number of comments may be made about this.  First, to insist upon differentiating between the public interest and the interests of a section of the public may be to draw what is, at least in some contexts, a false distinction: see, for example, passages in the judgments of Barwick CJ and Jacobs J in Sinclair immediately following and preceding, respectively, the brief passages which I have already quoted.  Secondly, there is the principle described by Mason CJ, Brennan J, Dawson J and Gaudron J in O'Sullivan v Farrer (1989) 168 CLR 210 at 216:

            Indeed, the expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view": Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR at 505 per Dixon J.

See also Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681.  I have already referred to the comment of Mason J in Peko at 42 that "where the decision is made by a Minister of the Crown, due allowance may have to be made for the taking into account of broader policy considerations which may be relevant to the exercise of a ministerial discretion".  Considerations of that kind emphasise, if it needs emphasis, that the Court should be slow indeed to find reviewable error in a Minister's decision as to what the public interest requires.

Thirdly, I can in any event see no reason to conclude that the second respondent misconstrued the term "public interest" so as to fail to observe proper procedures or to
make an error of law.  The reasons stated by the second respondent must be read as a whole.  They must also, I think, be read having regard to the terms of the direction, which was the first of the actions proposed to be exempted from the operation of the Administrative Procedures.  And they are to be read bearing in mind "the caution that it is not for the Court to study administrative decisions too finely or precisely and that they are to be regarded carefully but sensibly and not over zealously in the pursuit of error": Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 479, per Gummow J.  I think it is clear that the principal public interest to which the second respondent was giving expression was an interest in - as he regarded it - the equitable or fair distribution of the noise necessarily associated with an airport close to the centre of a large city; and his view was that that public interest required dispersal of that noise rather than its concentration in a narrow corridor.  Accepting that, it then followed that what was seen as a significant inequity should be redressed without delay.  Others might, of course, take a different view of what the public interest required.  A decision between competing views is not, however, a matter for the Court.  What the Court has to decide is whether is the second respondent's reasons disclose reviewable error: particularly, a misconstruction on his part of the expression "the public interest".  In my view they do not.

As I have mentioned, the applicants claim that the second respondent failed in two other ways to observe the procedures which the law required to be observed.  One is that, as it was said, the second respondent failed to have regard or proper regard (as required by subpara 11.3.2 of the Administrative Procedures) to the general principle that it is
desirable in the national interest that the requirements of the Administrative Procedures should, as far as reasonably possible, apply to all Commonwealth actions.  The difficulty is, of course, that the second respondent, in his reasons, explicitly says that he has had regard to that general principle but considers that the public interest which he has identified outweighs it.  The applicants criticised the balancing described particularly in paras 12, 13, 14 and 15 of the reasons.  In addition to matters I have already dealt with, it was said, particularly, that the assessments referred to in the first sentence of paragraph 14 do not deal with the impact of substantial use of the east‑west runway.  That, so far as it goes, no doubt is true.  As counsel for the respondents pointed out, it may equally be said that the statements in para 14 are, so far as they go, correct statements.  I have already discussed this aspect of the reasons.  Once, however, it is concluded that the second respondent's identification of a public interest cannot be impugned in these proceedings, the balancing process is preeminently a matter for the second respondent's discretion.  The reasons show that the second respondent has had regard to the national interest to which the Administrative Procedures refer; I think it is impossible to conclude that he has not had "proper regard" to it.

The other remaining basis on which it is said that the second respondent did not follow the procedures required to be observed is that he failed to consider whether, in accordance with subpara 11.2 of the Administrative Procedures, to consult with any Department or authority of Australia, the State of New South Wales or any authority of that State, the applicants, or any other person or body, concerning whether to grant the exemption.  Subparagraph 11.2, it will be recalled, provides that the second respondent
"may consult" with the authorities, bodies and persons mentioned concerning whether a Commonwealth action, or a class of Commonwealth actions, should be exempted from all or any of the requirements of the Administrative Procedures.  Counsel for the applicants did not suggest that this were a case where "may" is to be construed as "must"; he relied, however, on observations of Beaumont and Gummow JJ in Minister for Immigration and Ethnic Affairs v Maitan (1988) 78 ALR 419 at 429:

            However, the learned judge appears to have assumed that because an authority to work in Australia is mentioned in s 6A(1)(d), "occupational grounds" are a matter which a decision‑maker is bound to take into account in deciding whether to grant a temporary entry permit.  With all respect, we cannot agree.  Whilst the decision‑maker was entitled to take such a consideration into account, the only matter which [the decision‑maker] was bound to take into account in this connection was the public interest.  As has been said, how the national interest would best be served was essentially a matter for the judgment of the Minister or his delegate considered in the light of the circumstances of the particular case.

 

            This is not to say that a decision made without reference to the skills of an applicant for an entry permit may not be invalid.  In an extreme case, it may amount to a failure to address the real question required by the legislation to be addressed ... This would be a constructive failure to perform his duty.

It is easy to see the relevance of those observations to matters considered earlier in these reasons; it is not, with respect, easy to see how exactly they assist the applicants in relation to subpara 11.2 of the Administrative Procedures.  If it is said that this is an extreme case, requiring consultation, the response must be that there is no apparent reason why that is so.  The second respondent had a discretion to consult; he chose not to exercise it.  I cannot see that in the circumstances that choice amounted to reviewable error.

It follows, in my view, that the attack on the decision of the second respondent, based on failure to observe the procedures required by law, fails also, as do the other substantive bases on which each decision is attacked.

Standing

Although my conclusions on the substantive issues necessarily result in the dismissal of the application, the question of standing was argued and it is appropriate to consider it briefly.

The question is, of course, whether the applicants fall within the terms used in subs 5(1) of the ADJR Act: that is, whether they are persons who are aggrieved by either or both of the decisions made by the first and second respondents.  As Lockhart J pointed out in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 128 ALR 238 at 251, "courts have shown an increasing tendency, not always consistent, to construe expressions such as 'persons aggrieved' liberally".  Lockhart J continued (at 251, 252):

            The meaning of "a person aggrieved" 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.

 

            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 not be 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.

In relation to the decision of the second respondent to grant an exemption from the Administrative Procedures, I think the applicants have standing.  They are local councils responsible for areas whose environment may well suffer, at least as an indirect consequence of the decision.  Each has a statutory charter, which it is obliged to pursue, which includes, as one of the principles intended to guide it in carrying out its functions, the enhancement and conservation of the environment of its area.  It has thus, I think, an interest considerably greater than that of an ordinary member of the public and one at least as substantial as that of the successful applicant in North Coast Environment Council Inc v Minister for Resources [No 2] (1994) 55 FCR 492.  There is nothing in the statutory context or purposes of the EPIP Act, the Administrative Procedures or, for that matter, the ADJR Act itself (see North Coast Environment Council at 514, 515) which might suggest that the interest of the applicants is not one which is relevant in the statutory context or to the statutory purpose (cf Right to Life Association; Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250; Big Country Developments Pty Ltd v Australian Community Pharmacy Authority (1995) 132 ALR 379).

I think the same conclusion follows in relation to the decision of the first respondent.  The relevance of the interest of the applicants to the statutory purpose is, in this case,
somewhat less obvious than it is in the case of the EPIP Act and the Administrative Procedures.  However, subs 9(2) of the AA Act (which I have set out in full earlier in these reasons) requires the third respondent to exercise its powers and perform its functions in a manner that ensures that, as far as practicable, the environment is protected from the effects of and associated with the operation and use of aircraft; and para 8(1)(d) gives the third respondent the specific function, among others, of carrying out activities aimed at protecting the environment.  In the face of that, and given the liberal attitude which the courts now take to standing, I do not think it can be said that the interest of the applicants is foreign to the statutory purpose.  The direction itself explicitly contemplates that the steps to be taken in accordance with it must be taken consistently with the requirements of the AA Act.

There is one further matter relating to standing.  The argument, as I think is not uncommon, proceeded on the basis that there was a relationship between the questions of standing and, in the context of procedural fairness, of a right to be heard.  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 may well have been a third.  In realty, 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.

Conclusion

For the reasons I have given, in my view the applicants have standing, but the application must be dismissed with costs.

                                                     I certify that this and the preceding 57 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane.

                                                     Associate: 

                                                     Dated:  28 May 1996

Heard:                                          16 April 1996

Place:                                            Sydney

Decision:                                       28 May 1996

Appearances:Messrs W R Davison SC and D R Parry of counsel instructed by Houston Dearn O'Connor appeared for the applicants.

                                                            Messrs A Robertson SC and S J Gageler of counsel instructed by the Australian Government Solicitor appeared for the first and second respondents.

                                                            Messrs A Robertson SC and S J Gageler of counsel instructed by Freehill Hollingdale & Page appeared for the third respondent.