ADJR Act                    Administrative Decisions (Judicial Review) Act 1977 (Cth)

Administrative Procedures

                                    Subordinate legislation made under the Environment Protection (Impact of Proposals) Act 1974 (Cth)

AHC Act                     Australian Heritage Commission Act 1975 (Cth)

ANEC                         Australian Noise Exposure Concept:  a contour mapping system providing an estimate of levels of aircraft noise exposure for particular proposals.

ANEF                          Australian Noise Exposure Forecast:  a modelling system providing a forecast of average daily aircraft noise exposure.

ANEI                           Australian Noise Exposure Index:  the historical equivalent to the ANEF calculated from actual rather than forecast air traffic data.

AsA                             Airservices Australia:  a statutory corporation created by the Air Services Act 1995 (Cth).

As Act                         Air Services Act 1995 (Cth).

DoEST             Department of the Environment, Sport and Territories.

DoTRD                        Department of Transport and Regional Development.

Draft LTOP/LTOP       The Long Term Operating Plan for Sydney (Kingsford Smith) Airport and Associated Airspace prepared by AsA in 1996.

EIS                              Environmental impact statement within the meaning of the EP(IP) Act.

Environment Australia

                                    A program within DoEST.

EP(IP) Act                   Environment Protection (Impact of Proposals) Act 1974 (Cth).

FAC                            Federal Airports Corporation:  a statutory corporation created by the Federal Airports Corporation Act 1986 (Cth).

FAC Act                      Federal Airports Corporation Act 1986 (Cth).

KSA                            Kingsford Smith Airport.

Paddington Conservation Area 

            An area within the Woollahra municipality that was registered in the Register of the National Estate within the meaning of s 22 of the AHC Act.

PER                             Public environment report within the meaning of the EP(IP) Act.

Task Force                   Sydney Air Traffic Management Task Force formed by AsA with responsibility for formulating proposals for the LTOP.

With the opening of the “parallel runway” in 1994 the Kingsford Smith Airport (“KSA”) had three runways.  These were (and are) –

(i)                  the main north-south runway;

(ii)                the parallel runway on the eastern side of the north-south runway;  and

(iii)               the east-west runway which runs at approximately right angles to the parallel runways.

The main north-south runway when used for take-offs to the north and landings from the south is runway 34L.  The same runway when used for take-offs to the south and landings from the north is runway 16R.  The new parallel runway when used for take-offs to the north and landings from the south is Runway 34R.  The same runway when used for take-offs to the south and landings from the north is runway 16L.  The east-west runway when used for take-offs to the east and landings from the west is Runway 07.  The same runway when used for take-offs to the west and landings from the east is Runway 25.

As a result of decisions of the Government of the time, on the opening of the parallel runway restrictions were placed upon the permitted uses of the airport’s runway system.  Departures to the north from the parallel runway (34R) were not allowed.  The main north-south runway (34L/16R) continued to handle all classes of air traffic.  The use of the east-west runway (07/25) was restricted to when adverse weather conditions precluded the use of other runways.

In giving his reasons for one of the decisions challenged in this proceeding (the direction to Airservices Australia (“AsA”) of 30 July 1997), Mr Sharp was to make this comment on the limited use that could thus be made of the airport’s runways:

“The use of the parallel runways at the Airport together with the requirement to use legislated flight corridors, combined with the effective closure of the east-west runway other than in some limited weather conditions, resulted in a concentration of aircraft movements and related noise impacts in certain suburbs immediately to the north of the Airport.  I was of the opinion that this concentration of aircraft movements represented an inequitable distribution of aircraft noise impacts.”

On 8 March 1995 the Senate established a select committee to inquire into aircraft noise at Kingsford Smith Airport and to explore possible solutions to the problem.  There had been sharp public reaction following the opening of the third runway and the consequent use of the runways as described above.  The view favoured by the committee in its Report “Falling on Deaf Ears” of November 1995 was that of sharing the burden of noise in preference to concentrating flight paths (hence noise impact) into narrow bands.

In January 1996 the Liberal-National Party Coalition produced a policy document on Sydney Airport entitled “Putting People First”.  Its professed purpose was to –

“reduce the noise and pollution generated by the airport as much as possible and … share the noise burden in a safe and equitable way.”

It stated that under a Coalition Government:

“The airport will be operated subject to three principles:

·        all three runways at the airport will be used, to spread the noise generated by the airport equitably.  We will make the maximum possible use of approaches and departures over water and non-residential areas.  We will not use the east west runway as a stub runway for propeller aircraft.  The full length of the runway will be used by both jet and propeller planes.

·        the runway capacity of the airport will be maintained, however, we will not allow the hourly movement rate to exceed 80 movements per hour.

·        the safety of the airport will not be compromised.”

With the Coalition securing government, Mr Sharp as Minister for Transport and Regional Development issued a direction on 20 March 1996 to AsA under s 16 of the Air Services Act 1995 (Cth) (“As Act”).  This step put in train the process leading to the decisions under challenge in these proceedings.  This direction required AsA to:

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

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

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

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

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

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

·        maximum use is to be made of flightpaths over water and non-residential areas

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

·        the safety of aviation operations is not to be compromised.”

The Minister had previously sought from Senator Hill, and had been granted, an exemption of this action from the requirements of the Administrative Procedures made under the Environment Protection (Impact of Proposals) Act 1974 (Cth) (“EP(IP) Act”).

In May of 1996 Mr Sharp directed AsA to examine the feasibility of introducing aircraft take-offs from runway 34R in accordance with policy principles he had specified.  Having been informed that the procedure was feasible he gave a direction of 14 September 1996 requiring the introduction of take-offs on runway 34R “in order to distribute the noise generated at the Airport more fairly”.  Again Senator Hill had previously exempted the action proposed from the requirements of the Administrative Procedures.

The LTOP was provided to Mr Sharp on 16 December 1996.  It was released for public comment on 5 February 1997.  Were its proposals to be implemented by AsA, it was appreciated by Mr Sharp that the environment would, or would be likely to, be affected to a significant extent.  For this reason Mr Sharp then initiated the processes required by and under the EP(IP) Act.  Before outlining the steps taken, it is necessary to refer to the statutory setting in which they occurred.

The immediately relevant sections of this Act are s 5(1) and s 8(a).  Section 5(1) provides:

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

(a)               the formulation of proposals;

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

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

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

(e)                the incurring of expenditure;

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

Section 8(a) in turn requires:

“8.       Each Minister shall give all such directions and do all such things as, consistently with any relevant laws as affected by regulations under this Act, can be given or done by the Minister:

            (a)        for ensuring that procedures for the time being approved under this Act are given effect to in and in connexion with matters dealt with by the Department administered by the Minister and that any authority of Australia in relation to which the Minister has ministerial responsibilities observes, and assists in giving effect to, those procedures."

The Administrative Procedures

These need to be referred to at some length.  Where an action of a type mentioned in s 5(1) of the EP(IP) Act is proposed to be taken by the Commonwealth or a Commonwealth authority and where the minister who is responsible for it (in the present instance, Mr Sharp) is satisfied that that action is an environmentally significant one, then that minister must set in train the steps prescribed in the Administrative Procedures:  see para 1.2.1.

First, the minister (described in the Administrative Procedures as the “action Minister”) must designate an appropriate person or Department as “the proponent of the proposed action” and must, for present purposes, notify the Department of the Environment, Sport and Territories of the proposed action.  In the instant case Mr Sharp designated his own department – the Department of Transport and Regional Development (“DoTRD”) – as the proponent.  The proponent was required to do all things necessary to enable the Administrative Procedures to be complied with in relation to the proposed action.

Secondly, a process was then to be engaged in leading to a decision whether or not an environmental impact statement (“EIS”) or a public environment report (“PER”) was required.  This process, insofar as presently relevant, is set out in full below.  I would note that the references in the text of the clauses below to “the Minister” and “the Department” are in this matter, references to the Minister for the Environment and to the Department of Environment, Sport and Territories (“DoEST”).  I would also note that DoEST is colloquially referred to as Environment Australia in relation to its actions relevant to this matter.  That usage will be adhered to in these reasons.

“SUPPLYING OF INFORMATION

Proponent to supply information

2.1              As soon as possible after the Department has been informed of a proposed action under paragraph 1.2.1. or 1.2.4., the proponent shall supply to the Minister, or the Department, such information as is required by these procedures, or is otherwise necessary, for the purpose of consideration, by the Minister or on the Minister’s behalf, of the necessity for an environmental impact statement or a public environment report in relation to the proposed action.

Information required by procedures

2.2              For the purpose of paragraph 2.1, the information required by these procedures shall, to the extent appropriate in the circumstances of the case, be information –

(a)               summarizing any preliminary planning, consideration or work undertaken in relation to the proposed action and, in particular, describing any feasible and prudent alternative to the proposed action considered by the action Minister or the proponent;

(b)               describing the environment that is likely to be affected by the proposed action and by any feasible and prudent alternative to the proposed action;

(c)                indicating the potential impact on the environment of the proposed action and of any feasible and prudent alternative to the proposed action, including any enhancement of the environment;

(d)               describing any safeguards or standards for the protection of the environment intended to be adopted or applied in connection with the proposed action;  and

(e)                stating any investigations or studies intended to be made of the possible impact on the environment of the proposed action.

Requirement to provide information

2.3              For the purpose of consideration, by the Minister or on the Minister’s behalf, of the necessity for an environmental impact statement or a public environment report in relation to a proposed action, the Minister, or the Department on behalf of the Minister, may require the proponent to provide, within a reasonable period, such other information as is specified and is necessary for that purpose.

REQUIREMENT FOR ENVIRONMENTAL IMPACT STATEMENTS AND PUBLIC ENVIRONMENT REPORTS

Requirement for environmental impact statement or public environment report

3.1.1    Subject to the Act and these procedures, the Department shall, as soon as possible after the information referred to in paragraph 2.1., and any further information required under paragraph 2.3., has been received in relation to a proposed action –

…

(b)               refer the question whether the preparation or obtaining, and submission to the Minister, of an environmental impact statement or a public environment report in relation to the proposed action is required for the purpose of achieving the object of the Act to the Minister who shall forthwith determine the question and shall make a direction accordingly.

3.1.2    The Department, or the Minister, as the case may be, in making a determination under paragraph 3.1.1, must take into account at least:

(a)               whether, and to what extent, the proposed action may result in –

(i)                 a substantial environmental effect on a community;

(ii)               the transformation of a substantial area;

(iii)             a substantial impact on the eco-systems of an area;

(iv)             a significant diminution of the aesthetic, recreational, scientific or other environmental quality, or value, of an area;

(v)               an adverse effect upon an area, or structure, that has an aesthetic, anthropologic, archaeologic, architectural, cultural, historical, scientific or social significance or other special value for the present or future generations;

(vi)             the endangering, or further endangering, of any species of fauna or flora;

(vii)           important long-term effects on the environment;

(viii)         the degradation of the quality of the environment;

(ix)             the curtailing of the range of beneficial uses of the environment;

(x)               the pollution of the environment;

(xi)             environmental problems associated with the disposal of waste;  or

(xii)           increased demands on natural resources which are, or are likely to be, in short supply;  and

(b)               any environmental assessment action taken, or being taken, in relation to the proposed action, that the Minister or the Department, as the case may be, considers relevant action, including action of that kind by a State or Territory or an authority of a State or Territory.

3.1.3    The Minister shall not make a determination under paragraph 3.1.1 that the preparation or obtaining, and submission to the Minister, of an environmental impact statement or a public environment report is required if the Minister is satisfied that to do so would be contrary to the public interest.

3.1.4    Where under subparagraphs 3.1.1(b) the Minister determines that the preparation or obtaining and submission to the Minister of an environmental impact statement or a public environment report is not required, the Minister may nevertheless make comments, suggestions or recommendations to the action Minister concerning the proposed action, including suggestions or recommendations concerning conditions to which the proposed action should be subject, that the Minister thinks necessary or desirable for the protection of the environment, and the Minister, or the Department on behalf of the Minister, shall inform the proponent accordingly.

3.1.5    The Minister shall make available to the public as soon as possible, but at the latest within 3 months after the date of receipt of a written request to do so, the reasons for an environmental impact statement or a public environment report not being directed, with the exception of such material of commercial confidence, having security implications or providing confidential advice to the Minister as would be exempt from disclosure under the Freedom of Information Act 1982.”

Finally, because of their relevance to particular submissions made by the applicant councils, I set out the provisions of para 4.1, 7.1, 7.2 and 10.1.1 of the Administrative Procedures.

“Contents of environmental impact statement

4.1              To the extent appropriate in the circumstances of the case, an environmental impact statement shall –

(a)               state the objectives of the proposed action;

(b)               analyse the need for the proposed action;

(c)               indicate the consequences of not taking the proposed action;

(d)               contain a description of the proposed action;

(e)               include information and technical data adequate to permit a careful assessment of the impact on the environment of the proposed action;

(f)                examine any feasible and prudent alternative to the proposed action;

(g)               describe the environment that is likely to be affected by the proposed action and by any feasible and prudent alternative to the proposed action;

(h)               assess the potential impact on the environment of the proposed action and of any feasible and prudent alternative to the proposed action, including, in particular, the primary, secondary, short-term, long-term, adverse and beneficial effects on the environment of the proposed action and of any feasible and prudent alternative to the proposed action;

(i)                 outline the reasons for the choice of the proposed action;

(j)                describe, and assess the effectiveness of, any safeguards or standards for the protection of the environment intended to be adopted or applied in respect of the proposed action, including the means of implementing, and the monitoring arrangements to be adopted in respect of, such safeguards or standards;  and

(k)               cite any sources of information relied upon in, and outline any consultations during, the preparation of the environmental impact statement.”

In this part of these reasons I will deal generally with both the decisions and the processes followed that have been called into question in this proceeding.  Factual matters which relate distinctively to a particular ground of review will be outlined separately when that ground is considered.

(1)        On 5 February of 1997 Mr Sharp released the LTOP for public comment.  The closing date for submissions was 7 March 1997.  Over 7,500 people and organisations in fact made submissions and in light of some of them amendments were made to several of the flight paths proposed in the LTOP.  On 26 May 1997 Mr Sharp signed a departmental memorandum recommending (inter alia) that he “announce [his] intention to implement the Plan, subject to environmental clearance from Senator Hill, through [a] media release …”.  That release was issued on 29 May 1997.  Importantly it embodied the following:

“I must stress that the operational measures I have announced today are proposals.  It will not be possible to implement any of the measures until these proposals have been granted the necessary clearances under the Environment Protection (Impact of Proposals) Act.”

This so-called “decision” to implement the LTOP subject to environmental clearance, is one of the four decisions challenged in this proceeding.  It is referred to as “the third decision” in the applicants’ statement of claim and for convenience I will retain that usage in these reasons.

(2)        DoTRD submitted its Proponent’s Statement to Environment Australia on 11 June 1997.  This document of more than 300 pages had as its principal burdens (a) an account of community involvement in the process of developing the LTOP and an analysis of comment received on it in the February-March 1997 public comment period;  and (b) an explanation of, and supplementation of information about, noise impacts considered in the LTOP.  It contained modifications to the LTOP made in consequence of the consultative process.

On 18 July 1997 Environment Australia sent a memorandum to Senator Hill containing a number of recommendations the principal of which being that the Minister determine under para 3.1.1(b) of the Administrative Procedures that neither an EIS nor a PER was required before the LTOP was adopted.

(3)               Senator Hill made his decision on 22 July 1997.  It was in the following terms:

“Pursuant to paragraph 3.1.1(b) of the Administrative Procedures of the Environment Protection (Impact of Proposals) Act 1974, I, Robert Murray Hill, Minister for the Environment, having taken into account the requirements of the Administrative Procedures, determine that neither an environmental impact statement nor a public environment report is required for the purpose of achieving the object of the Act in regard to the proposal by the Department of Transport and Regional Development to adopt a long-term operating plan for Sydney (Kingsford Smith) Airport aimed at putting in place, on a long term basis, new operating procedures designed to more equitably share noise generated by Sydney Airport.”

Additionally the Senator made seven recommendations under para 3.1.4 of the Administrative Procedures that related to the LTOP and its implementation.

This decision (referred to in the statement of claim and in these reasons as the first decision) is challenged in this proceeding.

(4)        0n 30 August 1997 Senator Hill provided a Statement of Reasons for his decision.  It is necessary to set out part of it in some detail.  The Statement, having noted matters of background, made a series of “findings on material questions of fact”.  These were that:

            “

·        all prudent and feasible alternatives appear to have been taken into account;

·        the impacts of aircraft movements around Sydney KSA have been previously studied, including in the Third Runway EIS and in all stages of the preparation of LTOP;

·        there are commitments and recommendations to monitor the LTOP and respond to changes identified as beneficial or necessary with experience and over time;

·        there are commitments and recommendations to inform the community, take account of community views and involve community representatives in future decision making;

·        there has been extensive consultation with members of the public and community representative organisations;

·        the LTOP will not affect the volume of air traffic using Sydney KSA (as future growth in air traffic will be mostly demand driven by factors other than the capacity of the airport or the nature of air traffic management).”

The Statement noted the obligations imposed by paras 2.1, 2.2 and 3.1.1 to 3.1.3 of the Administrative Procedures, and continued:

“8.       In regard to the matters that I was required to take into account in accordance with paragraph 3.1.2(a) (in italics below) I found as follows:

(i)                  a substantial environmental effect on a community

A substantial environmental effect upon some parts of the Sydney community, through changes to the pattern of aircraft noise impacts, can be expected if the Plan is implemented.  Other areas can be expected to be affected less than at present by aircraft noise.  These effects have been taken into account in the proposal and in responses to it.  The intent of the proposal is to more equitably share the noise generated by Sydney Airport.

(ii)                the transformation of a substantial area

There would be no transformation of a ‘substantial area’ in a physical sense.

(iii)               a substantial impact on the eco-systems of an area

There would be no substantial impacts upon ecosystems in the Sydney area.

(iv)              a significant diminution of the aesthetic, recreational, scientific or other environmental quality or value of an area

There could be a significant diminution of environmental qualities in some parts of the Sydney Basin.  This is taken into account in the proposal and in the responses to it.

(v)                an adverse effect upon an area, or structure, that has an aesthetic, anthropologic, archaeological, architectural, cultural, historical, scientific or social significance or other special value for the present or future generations

There could be some adverse effects on areas of social significance.  The intent of the proposal is to minimise such effects.  These effects have been taken into account in the proposal and in responses to it.

(vi)              the endangering, or further endangering, of any species of fauna or flora

There would be no effect upon any species of flora or fauna.

(vii)             important long-term effects on the environment

There would be long-term effects on the human environment in some parts of Sydney.  These have been taken into account in the proposal and in responses to it.

(viii)         the degradation of the quality of the environment

There would be some degradation in the quality of the environment through increased exposure to aircraft noise in some areas.  This is taken into account in the proposal and in responses to it.

(ix)              the curtailing of the range of beneficial uses of the environment

There might be some curtailment of beneficial uses of the environment.  This has taken (sic) into account in the proposal and in responses to it.

(x)                the pollution of the environment

Any changes to levels of air pollution from aircraft-related sources would be very small.  Changes to noise pollution will be significant and are taken into account in the proposal and in responses to it."

The Statement further noted that, for the purposes of para 3.1.2(b) of the Administrative Procedures, the EIS of the proposed Third Runway at KSA was a relevant environmental action taken.  It equally noted that the Minister’s decision was not based upon the public interest ground contained in para 3.1.3.

In that part of the Statement headed “Reasons for Decision”, the Minister made the comment:

“I was satisfied that the requirements of the Administrative Procedures had been met and that, to the greatest extent practicable, matters affecting the environment to a significant extent had been fully examined and taken into account.”

The Reasons Statement concluded by noting the evidence, etc on which the Minister’s findings were based.

“13.     In reaching this finding, I took into account the advice and recommendations on the long-term operating plan for Sydney Airport provided to me by my Department on 18 July 1997, including the attachments to my Department’s advice.  This advice took into account information contained in the documents referred to in paragraph 8 above and provided as Attachment G to my Department’s advice.  It also took into account the public submissions received on the Plan by DoTRD during 1997 and representations that I and Environment Australia had received from the public and community groups and institutions.

The advice contained the following attachments.

Attachment A              Issues for consideration

Attachment B              Draft advice and recommendations to the Minister for Transport and Regional Development

Attachment C             Matters relating to paragraph 3.1.2(a) of the Administrative Procedures

Attachment D             Draft letter to the Minister for Transport and Regional Development

Attachment E              Letter of designation from the Minister for Transport and Regional Development

Attachment F              Background Report prepared by Environment Australia

Attachment G             Documents provided by the Department of Transport and Regional Development as follows.

                        .           The Long-Term Operating Plan for Sydney (Kingsford Smith) Airport and Associated Airspace (Airservices Australia, December 1996)

                        .           The Long-Term Operating Plan for Sydney (Kingsford Smith) Airport and Associated Airspace – Report Summary (Airservices Australia, December 1996)

                        .           The Long-Term Operating Plan for Sydney (Kingsford Smith) Airport and Associated Airspace:  Proponent’s Statement (Department of Transport & Regional Development, June 1997)

Attachment H             Terms of Reference for, and Recommendations contained in The Long-Term Operating Plan for Sydney (Kingsford Smith) Airport and Associated Airspace (Airservices Australia, December 1996)

Attachment I               Proposed Third Runway, Sydney (Kingsford Smith) Airport, Environmental Assessment Report.”

(5)        On 30 July 1997, after receiving Senator Hill’s letter informing him that an EIS was not required, Mr Sharp gave a direction to AsA that it implement progressively the LTOP in accordance with a schedule to that direction.  The direction, after reciting the history of the matter, was as follows:

“I, John Randall Sharp, Minister for Transport and Regional Development, acting under subsection 16(1) of the Air Services Act 1996 (“the Act”), DIRECT Airservices Australia, consistent with the requirements of the Act, to implement progressively the Sydney Airport Long Term Operating Plan in accordance with the schedule.”

It is unnecessary to set out the terms of the schedule.  I would note, though, that (inter alia) it substantially embodied the recommendations made by Senator Hill.

This direction (the fourth decision as it has been referred to) is challenged by the applicant councils.

(6)        Mr Sharp provided a Statement of Reasons for his direction on 4 September 1997.  That Statement gave an historical narrative of the use of KSA’s runways from the opening of the parallel runway;  of the Minister’s concerns over the burden borne by suburbs to the north of the airport;  and of the various steps taken in relation to more fairly distributing aircraft noise.  The one matter in this that I would emphasise in the LTOP proposal he finally adopted was what he described as a “key element”.  This was the noise sharing targets proposed by AsA and their contrast with earlier runway usages.  Though only verbally described in the Statement and though not referring to the pre-1993 figures, these are most easily represented in the diagram used in the LTOP and the Proponent’s Statement.  The percentage figures given aggregate both landings and take-offs.

Pre Parallels (1993 ANEI)                                Parallels (1995 ANEI)

                                North                                                                                      North

             21%                                                                47%

West                East                                          West                East

 21%                16%                                           1%                   1%

            South                                                               South

             41%                                                                51%

Mar 1996-Mar 1997                                        LTOP-TARGET

                                North                                                                                      North

             39%                                                                17%

West                East                                          West                East

  6%                   6%                                         15%                13%

            South                                                               South

             49%                                                                55%

That part of the Statement entitled “Reasons for Decision” stated:

“19.     I considered that the Government’s election commitments to distribute the noise generated by the Airport in a fairer way and to rework flight paths for take-offs and landings at the Airport to minimise the impact on surrounding communities made it appropriate for me to consider the introduction of a long term operating plan for the Airport with targets directed at sharing the noise generated by the Airport.

20.              I considered that, notwithstanding the diversion of some overflights from areas to the north of the Airport to areas to the east and the west of the Airport pursuant to my directions of 20 March 1996 and 14 September 1996, people living to the north of the Airport were still unfairly bearing the burden of aircraft noise generated by the Airport.

21.              I considered that the proposal constituted a total package of measures for the Airport which built on, and superseded, the measures introduced pursuant to my directions of 20 March 1996 and 14 September 1996.  I formed the view that the proposal, if implemented, would result in a more equitable distribution of the noise generated by the Airport as follows:

.           the proposal would have the effect of spreading flight paths over residential areas more widely;

.           the proposal contains targets for patterns of runway use which are designed to achieve a more equitable distribution of aircraft noise than had been achieved to date as described in paragraph 15 of these reasons [ie, the distribution represented diagrammatically above];

.           the proposal would have the effect of placing more aircraft movements over areas of water;

.           no residential areas would receive the highest levels of noise exposure that communities to the north of the Airport had been subjected to under parallel runway operations;  and

.           fewer people would be likely to suffer the more severe levels of noise exposure but more people would be in areas of more moderate levels of exposure.

22.              I also formed the view that measures proposed by the Minister for the Environment would enhance progressive monitoring, public consultation and review of the effectiveness of the plan in achieving its targets and should therefore be adopted.

23.              I therefore directed AA, consistent with the requirements of the Air Services Act 1995, to implement progressively the Sydney Airport Long Term Operating Plan in accordance with the schedule to the direction.”

(7)        The final matter that should be noted in this general factual account is an omission of Senator Hill which is said to constitute a “decision” (referred to as the second decision) that had occurred sometime between 18 July 1997 when he received Environment Australia’s recommendation and 22 July 1997 when he made the first decision.  This was his failure to consult with (a) AsA;  (b) the Australian Heritage Commission(“AHC”);  and/or (c) the applicants.

The applicant councils claim that the four decisions challenged are “decisions” for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (“the ADJR Act”) and are decisions to which s 39B of the Judiciary Act 1903 (Cth) applies, both respondents being officers of the Commonwealth for the purposes of the latter section.  In their Defence, the respondents deny that the second and third decisions – ie Senator Hill’s failure to consult and Mr Sharp’s 26 May 1997 decision to implement the LTOP subject to environmental clearance –are decisions to which either the ADJR Act or s 39B apply.  An objection to competency has accordingly been made.

It is appropriate to resolve this dispute before considering the substance of the application itself.  The applicable principles are well settled.

First the ADJR Act, and it is sufficient for present purposes merely to state a number of propositions.

(i)                  To be reviewable the “decision” in question must first and foremost be one for which provision is made by or under a statute:  ADJR Act, s 3(1);  Salerno v National Crime Authority (1997) 75 FCR 133.  The decision itself must have the “quality of finality”.  Ordinarily it must be –

“final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration”:  Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337.

(ii)                A decision reached as a step along the way to an ultimate decision will, ordinarily, not be a reviewable one because it has no operative and determinative effect upon a person’s rights, interests, or expectations:  Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 68;  Kelson v Forward (1995) 60 FCR 39 at 61-62;  or because it is not invested by the statute in question with such character as a finding or ruling on the point in question that, though an intermediate decision, it might “accurately be described as a decision under an enactment”:  Bond’s case, at 337.

(iii)               The decision itself must involve a substantive, not merely a procedural, determination:  Bond’s case, at 337.

Secondly, the Judiciary Act,and I should note at the outset that the relevant relief sought in respect of the two impugned decisions would appear to be by way of prohibition and injunction.  For present purposes it is sufficient to say that for prerogative relief to lie the decisions in question must have legal consequences or legal effect:  Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 579-581.  A preliminary decision may have such effect or consequence provided it is sufficiently connected to an ultimate decision which undoubtedly effects legal rights as to have that effect on or in the ultimate decision:  Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159-160.  In relation to injunctive relief all I need say is that even where a legal wrong has been made out, relief will not be granted where it would be futile so to do.

Turning now to the decisions impugned, the objection to competency in each case has properly been taken in each instance.

This “decision” is alleged to have been taken by Senator Hill sometime between 18 July 1997 when he received Environment Australia’s recommendation and 22 July when he made the first decision.  As pleaded, it was a decision not to consult with AsA, the Australian Heritage Commission or the applicants.

It is clear that the Minister for the Environment was under no duty so to consult when making a determination under para 3.1.1 of the Administrative Procedures.  Paragraph 3.3 of those Procedures, insofar as presently relevant, provides:

“for the purpose of assisting in the making of a determination under paragraph 3.1.1, the Minister … may consult with any Department or authority of Australia … any local authority or any other person or body.”

The provisions of para 3.3 were drawn to the Minister’s attention in Environment Australia’s submission to him together with the following comments:

“47.     … We understand that some local government authorities are of the view that direct consultations should be held and we have received oral requests to do so.

48.            Having examined the written submissions received from local government bodies by the DoTRD, and representations that you have received from such bodies, we are of the opinion that direct consultations are not warranted.  Some local government authorities have availed themselves of opportunities to convey their views and present information in writing.  We would expect little more than a restatement of their views in direct consultations.”

The second decision, such as it was, amounted to no more than a choice by the Minister not to engage in further consultations.  It was in other words a decision not to avail of a procedural step allowed to him by the Procedures.  That decision may well have foreclosed an opportunity in the applicants and others (if selected for consultation) to further participate in the decision-making process.  It did not for the purpose of prerogative relief have legal consequence or effect;  it did not effect legal rights.  It clearly is not the appropriate subject of injunctive relief having been overtaken by subsequent decisions in any event.  And for the purposes of the ADJR Act, though it may have been a decision under an enactment, it was not a decision that was final or operative and determinative in relation to a substantive, as opposed to a procedural, matter.  At best the second decision involved a choice as to the way forward to be taken in the making of the first decision. 

I uphold the objection to competency in relation to it.

There is a further preliminary matter with which to deal.  The applicants allege that the reasons statements provided both by Senator Hill and by Minister Sharp are inadequate in that:

(i)                  they fail to specify the geographical areas of Sydney likely to be affected by the LTOP and the degree of such affection;

(ii)                the statements, while referring generally to other reports, recommendations and documents, do not specify the parts thereof considered relevant or material to the decision or what weight Senator Hill or Minister Sharp gave to those parts;  and

(iii)               the particulars in the statements do not relate in any meaningful way to the purpose for which reason statements are to be provided under the ADJR Act.

The obligation s 13(1) of the ADJR imposes on a decision-maker is:

“to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.”

A like obligation is imposed by s 25D of the Acts Interpretation Act 1901 (Cth) given that, by para 3.1.5 of the Administrative Procedures, the Minister is required to make his “reasons” for decision publicly available where no EIS or PER is directed.  For present purposes, though, only the ADJR Act is relevant.  I should add I assume without deciding that the applicants were in fact entitled to invoke s 13(7) of that Act.

Section 13(7) provides:

“(7)  If the Court, upon application for an order under this subsection made to it by a person to whom a statement has been furnished in pursuance of a request under subsection (1), considers that the statement does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for the decision, the Court may order the person who furnished the statement to furnish to the person who made the request for the statement, within such time as is specified in the order, an additional statement or additional statements containing further and better particulars in relation to matters specified in the order with respect to those findings, that evidence or other material or those reasons.”

It is uncontroversial both that the jurisdiction this court has to compel the provision of an additional statement is discretionary and that an applicant’s need for such a statement can subsist notwithstanding that that person has initiated judicial review proceedings challenging the decision of which further reasons are sought:  United Airlines v Secretary, Department of Transport and Communications (1990) 26 FCR 598 at 606-607.

The objectives to be achieved by the obligation to give reasons are several.  Here I need only refer to the convenient summary provided by Finkelstein J in Comcare v Lees (1997) 151 ALR 647 at 656 in relation to the parallel obligation imposed by s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth):

“The imposition of an obligation upon the tribunal to provide reasons for a decision achieves a number of very important objectives.  It ensures that the person whose interests may be adversely affected by a decision is told why the decision has been made:  Re Poyser and Mills’ Arbitration [1964] 2 QB 467 at 478.  It enables the public to have confidence that the tribunal has gone about its task appropriately and fairly:  Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 at 88.  It allows a party who is dissatisfied with a decision to determine whether there has been some reviewable error made by the tribunal:  Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507.  It imposes an intellectual discipline on the tribunal making it more likely that its decisions will not be arbitrary or capricious.  Finally, the giving of reasons furthers judicial and quasi-judicial accountability:  see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279.”

Before giving my decision on this particular application I should make a number of comments on the setting in which the application is made.  First, Senator Hills’ Statement of Reasons was given as long ago as 30 August 1997;  Minister Sharp’s on 4 September 1997.  While the present application under s 13(7) was made simply as part of the principal application filed on 22 October 1997, no discrete application for further reasons was made or independently prosecuted.  Secondly, orders have been made and complied with in the principal proceedings that Senator Hill produce to the applicants -

“a copy of all documents being, evidencing or recording any information in relation to the Long Term Operating Plan for the Sydney (Kingsford-Smith) Airport to which the 1^st Respondent had regard in making his decision under para 3.1.1(b) of the Administrative Procedures.”

Thirdly, the application under s 13(7) is not made for the purpose of facilitating challenge to the decisions impugned in the principal proceedings.  Fourthly, a nine-day trial has been conducted in relation to the decisions impugned and a considerable body of material has been generated for, and in consequence of, the trial.

Whatever deficiencies there may have been in either Minister’s Statement – and I make no finding that they were deficient – the time has long since passed when it would have been appropriate to make an order under s 13(7).  The applicants have, by the further provision of information and otherwise, been provided with information sufficient to understand how and why the decisions were made and the Ministers’ reasons for them.  They have not suggested that their capacity to challenge the decisions has been thwarted or unfairly compromised by any inadequacy in the reasons themselves.  The multi-pronged attack they have made on the decisions strongly suggests the contrary.  And the objectives to be achieved by the imposition of the obligation to provide reasons have, in all the circumstances, been satisfied sufficiently.

I refuse the application for an order for the provision of additional statements of reasons under s 13(7) of the ADJR Act.

Senator Hill’s decision has been challenged on eight grounds.  These are (1) error of law;  (2) procedural ultra vires;  (3) uncertainty;  (4) improper purpose;  (5) no evidence;  (6) failure to take account of relevant considerations;  (7) taking account of irrelevant considerations;  and (8) Wednesbury unreasonableness.  It will be necessary to deal with each of these in turn and, in some instances given the matters raised, at some length.  I will reserve until later in these reasons more general comment on the challenges made, although I would say here that their aggregate burden appears to be little more than to invite a merits review of the decision.

Before considering the individual grounds, it is necessary to indicate the concerns I have had with, and the general character of the rulings I have made on, some of the evidence advanced by the applicants as expert evidence.

The principal witness of the applicants was their expert, Mr Williams.  I have ruled quite extensive parts of his affidavit evidence to be inadmissible and, as to other parts, I directed that they be received by way of written submission under O 10 r 1(2)(j) of the Federal Court Rules.  At the time of making these rulings and giving these directions I indicated piecemeal my reasons for so doing.  Nonetheless I have considered it appropriate to indicate more generally my reasons for taking the courses I did.  Without reiterating individually the reasons for each ruling given - there were over one hundred made in relation to Mr Williams’ affidavits - my reasons here will note the general character and bases of the rulings made and directions given.

Mr Williams, who describes himself as an environmental consultant, professes to expertise in the following:

            (a)        Assessment of the environmental impact of proposals for the planning, development and operation of Australian airports;

            (b)        Computer modelling of aircraft noise exposure utilising the Integrated Noise Model;  and

            (c)        Computerised information storage and retrieval procedures with particular application to major projects.

He swore four affidavits for this proceeding, one in particular being of broad compass in the matters upon which it ventured opinions.

The objections taken by the respondents to almost the entirety of his affidavits proceeded on three sometimes alternative, sometimes cumulative, bases.  These related (a) to relevance;  (b) to the appropriateness of Mr Williams’ expertise to the matters upon which he has expressed opinions and to the character of the opinions given;  and (c) to the court’s discretion to exclude evidence under s 135 of the Evidence Act 1995 (Cth).  That section provides:

“135.   The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

            (a)        be unfairly prejudicial to a party;  or

            (b)        be misleading or confusing;  or

            (c)        cause or result in undue waste of time.”

Evidence was excluded on all three bases.

(a)        Relevance

While some parts of the affidavits were ruled inadmissible as not being connected in any way to any fact in issue in the proceeding - Evidence Act, ss 55, 56 - a more particular objection was properly taken to some number of parts of Mr Williams’ evidence.  He clearly purported to give evidence of the meaning to be ascribed to what, on any view, can only be said to be words used in the Administrative Procedures that are to be given their ordinary meaning in their statutory setting.  The word “describing” as used in cl 2.2(a) of the Procedures is illustrative of this (that sub-clause refers to the provision of information “describing any feasible and prudent alternative”).  Evidence such as I have mentioned is plainly inadmissible:  see Pepsi Seven-Up Bottlers Perth Pty Ltd v Commission of Taxation (1995) 62 FCR 289.

(b)        Opinion Evidence

Well-founded objection was taken on a number of scores to opinions ventured purportedly as an expert.

            (i)         In significant respects Mr Williams presumed to venture opinions on how the provisions of the law - and of the ADJR Act in particular - applied to the facts as he opined them to be.  As well, he presumed to pass legal judgments upon the conduct of the respondents.  Whatever else may be said of this presumption, Mr Williams was not here even purporting to give opinion evidence of a fact or facts in issue:  cf Evidence Act, s 80.  He was purporting, quite impermissibly, to give opinion evidence of issues of law.  Such evidence is both irrelevant and is beyond the purview of s 80 of the Evidence Act:  see Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79 at 84-85.

            (ii)        More importantly, Mr Williams has sought to give opinion evidence upon a range of matters that undoubtedly are the subjects of “specialised knowledge”:  cf Evidence Act, s 79.  I give as one example that he provided a list of alternative flight paths/patterns (or proposals in relation thereto) to those referred to in the documentation provided to the Minister for the Environment.  I readily accept that, as the Minister’s Department put it:

“Air traffic management is a complex process involving the highly skilled analysis of many variables, some unpredictable, and safety.”

It is unnecessary for me here to attempt to describe the field(s) of knowledge that are required for that analysis:  cf Murphy v The Queen (1989) 167 CLR 94 at 120ff.  It is starkly apparent that Mr Williams’ professed expertise is at quite some distance from it:  Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 160.  While I am prepared to assume that he may properly be able to provide expert evidence on the environmental effects of any particular alternative that may be able to be advanced, I do not accept that his is the appropriate specialised knowledge to give evidence directed to the identification of such alternatives:  cf Clark v Ryan (1960) 103 CLR 486.  On the contrary.  A body of his evidence was ruled inadmissible on grounds of inappropriate expertise.

            (iii)       The respondents questioned whether Mr Williams has satisfactorily discharged his duties and responsibilities as an expert witness.  Such of these as are relevant for present purposes are conveniently mentioned in the list formulated by Cresswell J in The “Ikarian Reefer” [1993] 2 Lloyd’s Rep 68 at 81:

“1.       Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation (Whitehouse v Jordan, [1981] 1 WLR 246 at p 256, per Lord Wilberforce).

 2.        An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise (see Polivitte Ltd v Commercial Union Assurance Co Plc, [1987] 1 Lloyd’s Rep 379 at p 386 per Mr Justice Garland and Re J, [1990] FCR 193 per Mr Justice Cazalet).  An expert witness in the High Court should never assume the role of an advocate.”

I would emphasise in relation to the first of these that in Whitehouse v Jordan at 257, Lord Wilberforce noted that to the extent that expert evidence was not uninfluenced by the exigencies of litigation that evidence “is likely to be not only incorrect but self defeating”:  see also the Hon Justice Cooper, “Federal Court Expert Usage Guidelines”, (1998) 16 A Bar Rev 203.

In some number of respects there is reason for pause in relation to Mr Williams’ evidence.  I need only refer to two matters in this regard.  First, most obviously, in significant respects his affidavits merely replicated often extensively the terms of the statement of claim verbatim and without further elaboration of the matters pleaded.  Indeed the facts informing his opinions were in large measure unidentified.  His “evidence” was often no more than “advocacy”:  cf Arnotts Ltd v Trade Practices Commission (1990) 97 ALR 555 at 596;  see also Quick v Stoland Pty Ltd, unreported, FCA, Full Court, 25 September 1998 per Branson J.  Secondly, Mr Williams acted as consultant to resident action groups set up to protest against the adoption of the LTOP.  I need not labour the appearance so created for present purposes.

It is difficult to avoid the conclusion that Mr Williams may, or may appear to, be partisan in the matter.  The circumspection that I have considered necessary to bring to bear in evaluating his evidence clearly affected directly the weight I was prepared to give it.  One clear manifestation of that circumspection was that I have directed under O 10 r 1(2)(j) that some number of paragraphs of his affidavits be received as submission and not evidence.

I now turn to consider individually the eight challenges to the first decision.

The applicants submit that the Minister for the Environment committed some number of errors of law these resulting both from his misapprehending the obligations imposed on him by the Administrative Procedures and the EP(IP) Act, and from his misapplying the Administrative Procedures.  The errors alleged are that the Minister:

(i)                  failed to take into account to what extent the proposed implementing of the LTOP may result in the matters specified in para 3.1.2(a) of the Administrative Procedures;

(ii)                failed to take into account the existence of any other environmental assessments as specified in para 3.1.2(b) of the Administrative Procedures;

(iii)               failed to make his decision under para 3.1.1 by reference to the standard specified in paras 4.1 and 4.2 of the Administrative Procedures for an EIS or a PER;

(iv)              found that all prudent and feasible alternatives “appear” to have been taken into account as opposed to finding that such alternatives were in fact taken into account;  and

(v)                failed to consider whether all prudent and feasible alternatives were taken into account.

As these errors interrelate they will be considered en bloc.

Some additional evidentiary foundation is required in relation to two matters.  The first concerns the matter of “feasible and prudent alternatives”;  the second, the third runway EIS.

(1)        When Environment Australia made its recommendation to Senator Hill on 18 July 1997, accompanying that memorandum was a number of attachments.  Attachment A (Issues for Consideration), in referring to the prior process of public consultation, made the following comment:

“Failure to take alternatives into account

46.              There were many claims that the LTOP had not taken into account all of the possible alternatives and proposals for alternative flight paths.  The evidence is that DoTRD and AsA have considered many alternatives, adopted sophisticated computer modelling and amended the original plan where practicable and safe to take account of the many public representations received.  It is reasonable to conclude that feasible and prudent alternatives have been taken into account in developing the modified LTOP proposal.”

Attachment F (Background Report prepared by Environment Australia) – a forty-two page document – made reference to the “project alternatives” in the following way:

“3.4     Project alternatives

The principal alternatives in this case are to:

(i)                 return to the parallel runway scenario prevailing immediately after the opening of the third runway (with minimal use of the east-west runway);

(ii)               maintain the status quo;  (with aircraft operating from the east-west runway and from Runway 34R) but without the systematic application of the proposed modes of operation;  or

(iii)             adopt other combinations of flight paths.

A return to parallel operations only would not deliver the Government’s policy objectives and undertakings to the community.

The second alternative can be continued with the operation of the east-west runway and take-offs to the north on the third runway, but this would not result in the best systematic distribution of aircraft noise, including the maximisation of flights over water and non-residential areas.  Nor would it respond to views expressed by the community.

This status quo situation has achieved a substantial part of the Government’s objectives, but not the undertaking to review and reduce noise impacts.

The third alternative involves other combinations of flight paths.  Clearly, the number of possible combinations of flight paths which could be plotted over the Sydney area, taking into account both aircraft tracks and altitudes, is almost limitless.

The proposed Implementation and Monitoring Committee (see Recommendation 9 at Attachment H) would, among other matters, be able to make further representations regarding any future change in flight paths.

Re-routing of flight paths remains an ongoing option, within the parameters of runway direction, aircraft performance and the lead times involved.  However, in considering alternatives, it must be recognised that airport operations are, to a large extent, dictated by weather conditions, traffic volume and safety considerations and the alternative modes proposed were decided upon only after extensive consideration of the many variables.

There is little doubt that feasible and prudent alternatives to and within the proposed action were taken into account.  For instance there were several proposed modes which were considered and rejected.

Nevertheless, there are clearly ongoing options for change to the LTOP if it were to be implemented and these would be dependent upon the results of future monitoring.  Such options include the introduction of ICAO ‘A’ and/or ‘B’ take-off procedures (see * below) and modifications to approach profiles (gradients) as well as the re-routing of flightpaths.

…”

As noted in the “General Factual Setting” earlier, in his Statement of Reasons of 30 August 1997 Senator Hill “found that … all prudent and feasible alternatives appear to have been taken into account”.

(2)        In November 1991 the Environmental Assessment Report, Proposed Third Runway:  Sydney (Kingsford Smith) Airport was submitted to the then Minister for the Environment.  As its title suggested, that report related to the implications of constructing a third, medium spaced, parallel runway at KSA.  Further -

“[t]he preparation of the EIS was to take into account the proposed mode of operation which would not allow departures to the north from the new runway and would confine use of the east-west runway to those circumstances when adverse weather conditions precluded use of the other runways for safety reasons.”

I note in passing that this would involve a quite different runway usage to that upon which the LTOP was premised.

In his Statement of Reasons, Senator Hill determined that this environmental assessment was a “relevant environmental assessment action” for the purposes of para 3.1.2(b) of the Administrative Procedures.

In the section immediately following – “Procedural Ultra Vires” – one ground of challenge made is that DoTRD failed to supply Senator Hill with the information required to be supplied by paras 2.1 and 2.2 and, in consequence of that failure, the Minister lacked power to go on to make the first decision.  Because of the interrelationship of that ground with the present, it is convenient to deal with at least aspects of both together.

The construction (and consequential effect) the applicants seek to give the EP(IP) Act and the Administrative Procedures is a distinctive one.  Before outlining it I should by way of preface refer to the general character and purpose of the Act and the Administrative Procedures.

Together the Act and the Procedures are directed towards the regulation of internal governmental decision-making and the relations between different organs of government:  Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 at 510.  They are aimed at “executive action generally”:  ibid, 545;  and in consequence “may affect the performance of administrative functions in many fields of governmental activity”:  ibid, 524-525.  They are, in short, concerned with, and can operate generally upon, government’s own decision making processes in the practical conduct of public administration.  It is important that sight is not lost of this rather limited and specific, albeit important function.

Section 5(1) of the Act states the Act’s object in respect of designated governmental actions.  This is “to ensure, to the greatest extent that is practicable, that matters affecting the environment to a significant extent are fully examined and taken into account”.  In a constitutional sense, responsibility for that object can properly be said to reside in the Minister for the Environment in the first instance, as the minister administering that Act.  The actual duties the Act itself imposes on the Minister – or for that matter any other minister – to effectuate that object are, though, quite circumscribed.  The Minister is obliged to “give all such directions and do all such things as … can be given or done” by him to see that the Administrative Procedures are observed:  EP(IP) Act s 8.  And the Minister as well has a particular obligation to provide information under s 10 of the Act.  But it is administrative procedure not statutory duty that carries forward the object of the Act.

Section 6 of the Act empowers the Governor-General by order to approve administrative procedures “for the purpose of achieving the object of [the EP(IP) Act]”.  As Gibbs J observed in the Australian Conservation Foundation case, above, at 524:

“The Administrative Procedures [so made] are exactly what their name suggests – rules which lay down the procedure to be followed by persons seeking, considering or taking administrative action.  They are not declared by the Act to have the force of law;  on the contrary, they must be ‘consistent with relevant laws’ (s. 6), and in this respect they differ from regulations which, according to s. 9, ‘have effect notwithstanding any other law’.”

While they are designed to ensure that an important value is taken into account in governmental decision-making, they do so only by engrafting procedural requirements onto the general decision-making processes of the executive government.  And in this I would again emphasise the “wide arena” of governmental decision-making in which the Procedures can be brought into play:  cf Australian Conservation Foundation case, above, at 525.

The final general comment I would make on the Administrative Procedures is that they are so structured as to allow the Minister or his Department to revisit a “proposed action” over time notwithstanding that a decision has been taken requiring/not requiring an EIS or PER in respect of that action:  see paras 3.2.1 ff, 7.1 and 10.1.1.  In other words a para 3.1.1(b) decision is not necessarily a once-and-for-all determination for environmental impact assessment purposes, for a proposed action that is environmentally significant.

The manner in which the applicants seek to have the Administrative Procedures interpreted involves a distinctive interplay of the Act and the Procedures, at least vis-à-vis the Minister’s decision-making under para 3.1.1(b).  As I understand their argument, it is as follows.

(i)                  Assuming, as with the LTOP, that an environmentally significant action is proposed and that a proponent in consequence is required under paras 2.1 and 2.2 to supply the Minister or his Department with information, the nature of the information to be supplied is itself affected by both the purpose of, and the purpose the information serves in, the decision to be made by the Minister under para 3.1.1(b).

(ii)                That decision is to determine whether, in relation to the proposed action, an EIS or PER is required “for the purpose of achieving the object of the Act” – ie for ensuring to the greatest extent that is practicable, that matters affecting the environment to a significant extent are fully examined and taken into account.

(iii)       When para 2.2 requires the proponent to supply designated information “to the extent appropriate in the circumstances”, the satisfaction of that “appropriateness requirement” falls to be gauged both by the purpose of the decision to be taken by the Minister under para 3.1.1(b) and by whether or not the ultimate decision does or does not require an EIS or PER.  If it does, less information is required because the EIS or PER then assumes the informing role envisaged by s 5(1) of the EP(IP) Act.  If it does not, then the information requirement is the greater because the s 5(1) object is being achieved without an EIS or PER.  For these reasons, the “to the extent appropriate in the circumstances of the case” is not a matter of subjective judgment for the proponent.  Rather it refers to an “objective” or “jurisdictional fact” to be satisfied in the particular circumstances of the case having regard to whether the Minister does or does not proceed to recommend an EIS or PER.  Unless and until the Minister has the required information appropriate to determine not to direct an EIS or PER, he is not empowered to make such a determination.  (I here note that it is this particular proposition that founds the claim to “Procedural Ultra Vires” considered next in these reasons.)

(iv)       Because of (a) the duty of the Proponent under para 2.2 to provide designated information concerning feasible and prudent alternatives, (b) the nature of the Minister’s para 3.1.1(b) decision and (c) his information requirement (consistent with s 5(1) of the EP(IP) Act) when determining not to direct an EIS or PER, the Minister himself was required to see if all prudent and feasible alternatives to the LTOP had been taken into account.  It was insufficient for him to be satisfied that such alternatives “appeared” to have been taken into account.  An error of law is alleged for this reason.

(v)        Alternatively, because of the s 5(1) object, when determining not to direct an EIS or PER under para 3.1.1(b), the Minister was required to put himself in the position as if he had an EIS or PER at least to the extent of satisfying himself in relation to the matters required by paras 4.1 and 4.2 to be dealt with in an EIS or PER.  Again an error of law is alleged against Senator Hill on this account.

Distinct from the above, errors of law are assigned (a) to the manner in which the Minister treated the Proposed Third Runway Report as a “relevant action” for the purposes of para 3.1.2(b) of the Procedures;  and (b) to the Minister’s alleged failure in not taking into account “to what extent” the LTOP may result in the twelve effects referred to in para 3.1.2(a).

For the purposes of dealing with the alleged errors of law I simply note here that I reject later in these reasons that para 2.2 of the Administrative Procedures creates a jurisdictional fact such as the applicants allege.  I also reject the construction the applicants seek to place on para 2.2 in relation to the obligation to provide information relating to “feasible and prudent alternatives”.  And I need not repeat my views on the character of the Administrative Procedures, though I would emphasise again that they are simply procedures to be applied in the processes of governmental decision-making across the field of executive action generally.

Turning first to the Minister’s alleged duty to consider all prudent and feasible alternatives, the following in my view is clear.  First, notwithstanding the purposive character of the question posed by para 3.1.1(b) and its link to the object of the Act, the determination to be made itself requires the Minister to make some number of value judgements – judgments relating to the sufficiency of the information provided to him;  to what the object of the Act would warrant in the circumstances (the “practicability” question);  and to how in the circumstances that object should be achieved.

Secondly, whatever the obligations imposed by para 2.2(a), (b) and (c) on a proponent, the matters that the Minister is required to take into account for the purposes of his determination are those specified in para 3.1.2.  These all relate to the “proposed action” alone.  While a Minister may wish to take account of, or to comment in some way on, alternatives (whether provided to him or her for consideration or considered by the Proponent), para 3.1.2 does not oblige him or her so to do.  And it is that paragraph that prescribes the process of deliberation in which the Minister must engage in making a 3.1.1(b) determination.

Whatever the deficiencies (if any) in information relating to feasible and prudent alternatives provided to the Minister by a Proponent, that insufficiency, while possibly diminishing to that extent the overall “assistance” provided to the Minister in arriving at a para 3.1.1(b) determination, cannot of itself found an error of law of the type advanced by the applicant.  In the judgmental process in which he was engaged, the Minister simply was not required by para 3.1.1(b) or s 5(1) of the EP(IP) Act to take any or all such alternatives into account.

I reject the submission that the Minister committed errors of law either by noting that prudent and feasible alternatives “appeared” to have been taken into account, or by failing to consider whether all such alternatives were taken into account.

The submission that the Minister should in any event in making his para 3.1.1(b) determination have applied the para 4.1 and 4.2 standards simply reads the Procedures the wrong way around.  Whatever para 4 might have to say about the contents of an EIS or PER, it bears in no way either upon the matters the Minister is required to address for para 3.1.1(b) purposes or upon the information a proponent is required to supply to the Minister.  The Procedures (in paras 2.1 and 2.2, and 3.1.1 and 3.1.2) make distinct provision for both of these matters.

The error said to have been made in treating the Proposed Third Runway Report as a relevant environmental assessment action taken ( para 3.1.2(b)), is difficult to comprehend.  That Report, though dealing with the implications of the third runway proposal and on the basis of a runway usage quite different from that on which the LTOP was premised, was nonetheless an assessment that had a relation to the LTOP.  It dealt in its own way and for its own purposes with environmental effects of particular uses of runways at KSA.  It was for the Minister to “consider” whether as such it constituted “relevant action” for para 3.1.2(b) purposes.  And this Senator Hill did.  For the reasons I gave above, the Minister was not obliged to apply the “standard” of para 4.1 and 4.2 in taking this Report into account.  His obligation was no more than to take it into account once he considered it to be “relevant action”.  I would add that nowhere in his Reasons is it suggested that the Minister treated that Report as if it was, or sufficed as, an assessment of the LTOP.

Finally the alleged error in not taking into account “to what extent” the LTOP may result in the twelve effects referred to in para 3.1.2(a).  Each of those effects is referred to specifically in Senator Hill’s Statement of Reasons (set out earlier in these reasons).  In those references attempts were made to quantify the “extent” of these effects:  “substantial”, “no transformation”, “significant”, “some adverse effect” etc.  I am here being asked to scrutinise the reasons for an administrative decision for the purpose of discerning error.  That task must be approached with appropriate restraint:  cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272.  I can only say that the allegation of error made is a quite unreasonable one in the circumstances.  The Reasons adequately reflect what para 3.1.2(a) required of Senator Hill. 

I reject then all of the errors of law alleged.  I would only add that the length of my treatment of these has resulted from the difficulties I have experienced in discerning the precise bases for the errors alleged in the pleadings.

Two distinct claims are made under this head.  The first is that the Minister failed to comply with s 30(1) and s 30(3) of the Australian Heritage Commission Act 1975 (Cth) (“the AHC Act”) in relation to the Paddington Conservation Area – an area that had been entered on the Register of the National Estate:  see AHC Act, s 22 and s 23.  All that now is sought by way of relief for this alleged failure is a declaration that the Minister has not complied with the Act.

The second claim I have already foreshadowed.  It is that the Minister was not provided with the information required to be provided by paras 2.1 and 2.2 of the Administrative Procedures.  In consequence of that failure it is claimed the Minister was not empowered to go on to make the first decision. 

These two need to be considered separately and the first requires reference be made to additional factual and other material.

On the material before me there is simply no adequate evidentiary basis to justify the conclusion that the implementation of the LTOP attracted the operation of s 30(1) or (3) of the AHC Act.  There is nothing in the material – other than Mr Williams’ assertion – to suggest that the characteristics that led to the Area being registered as part of the National Estate (a) would be likely to be adversely affected or (b) might be affected to a significant extent, by exposure to aircraft noise and at the levels forecast in the Proponents’ Statement.  The opportunity to elaborate upon the assumptions informing and the reasons for Mr Williams’ assertion not having been taken, I give no weight to his assertion.  It is unilluminating:  see Arnotts Ltd v Trade Practices Commission, above.

It is unnecessary for me in these circumstances to express a view upon whether Senator Hill’s action (in taking the decision he did) could itself have attracted the operation of s 30 even assuming that implementation of the LTOP had the requisite effects.  I simply note that counsel for the Minister has submitted that it could not, the decision being too remote from those effects:  see Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1 at 15 and the cases there referred to.

Finally, it is clear that even had s 30 been breached by the Minister that would not have invalidated his decision:  see Yates Security Services Pty Ltd v Keating, above, at 24-28;  Friends of Hinchinbrook Society Inc v Minister for Environment (No 2) (1997) 69 FCR 28 at 73;  Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 at 513 ff.  It seems to have been for this reason that the applicants ultimately limited their claim at the hearing to one for a declaration that s 30 of the AHC Act had been breached.  Though again it is unnecessary for me to express a view on the matter, I rather doubt that, for reasons of inutility, a declaratory order would be appropriate in the circumstances of this matter assuming a breach of s 30 had been made out:  cf Ainsworth v Criminal Justice Commission, above,at 581-582. 

The essence of the complaint here as I understand it results from what are alleged to be a host of uncertainties in the LTOP itself.  Over twenty different causes of uncertainty have been pleaded.  These range from attacks on matters of relative abstraction such as the lack of an objective for the LTOP, through the capacity for it to be changed significantly, to matters of minute detail such as the failure to address the procedures to be followed at meetings of the proposed Implementation and Monitoring Committee.

As a ground of review under the ADJR Act, uncertainty gives rise to an improper exercise of a power for the purposes of s 5(1)(e) of that Act, when a power has been exercised in such a way “that the result of the exercise of the power is uncertain”:  ADJR Act, s 5(2)(h).

It is appropriate to set out again the terms of the determination (the exercise of the para 3.1.1(b) power) that is so said to be uncertain.  That determination is that:

“Pursuant to paragraph 3.1.1(b) of the Administrative Procedures of the Environment Protection (Impact of Proposals) Act 1974, I, Robert Murray Hill, Minister for the Environment, having taken into account the requirements of the Administrative Procedures, determine that neither an environmental impact statement nor a public environment report is required for the purpose of achieving the object of the Act in regard to the proposal by the Department of Transport and Regional Development to adopt a long-term operating plan for Sydney (Kingsford Smith) Airport aimed at putting in place, on a long term basis, new operating procedures designed to more equitably share noise generated by Sydney Airport.”

It is, in my view, frankly astonishing that this decision is said to be uncertain in its result.  It would seem to say clearly and unequivocally that no EIS or PER is required for para 3.1.1(b) purposes in relation to the proposed adoption of the LTOP.  I would have thought that there was not the slightest ground for doubt by DoTRD, Minister Sharp or anyone else as to what had been decided:  there was to be no EIS or PER for the LTOP.  It is in these circumstances unnecessary to set out the relevant principles to be applied where uncertainty is alleged:  see Aronson and Dyer, Judicial Review of Administrative Action, 358-361;  see also Ballarat Broadcasting Pty Ltd v Australian Broadcasting Tribunal (1988) 3 BR 56.  This decision is far removed from their province.

A like claim of uncertainty has been made in relation to Minister Sharp’s decision to implement the LTOP.  I will defer outlining the argument relied upon by the applicants for uncertainty in both Minister’s decisions until I consider the various claims involving Minister Sharp.  It could be of no avail here.

The improper purposes alleged against Senator Hill in taking his para 3.1.1(b) decision are that he acted for various inadmissible party political purposes, ie (as pleaded):

(i)                  “to assist the second respondent in connection with the making and implementation of the third decision to remove significant aircraft noise from most Coalition-held federal electorates to the north of Sydney Airport in Sydney having regard to the location of the federal electoral boundaries as they pertain to the Sydney basin without the need for an EIS to be conducted;”

(ii)                “to implement without an EIS being conducted the Coalition policy on Sydney Airport published on or about 29 January 1996 titled ‘Putting People First’ (‘the Coalition policy’).  The first respondent was a member of a political coalition group of parties (‘the Coalition’) and/or;”

(iii)               “To assist without an EIS being conducted in the overall increase of air noise over residential areas in the Sydney basin.”

There is not, in the actual reasons given by Senator Hill, anything that would betray even a suggestion that he had in mind any of the purposes outlined above.  I should say in passing that counsel for Senator Hill with some justice described alleged purpose (iii) above as “absurd” on the evidence.  I note that the applicants have not sought to point to any evidence to support that pleading.  I will not consider it further.

As to the other claims of improper party political purposes, I am being asked to draw inferences adverse to the Minister essentially from the pattern of flight path concentrations that emerges when jet departure flight path maps are superimposed upon a map of Sydney on which federal electorates are marked.  The applicants, predictably, invoke the Jones v Dunkel (1959) 101 CLR 298 inference discussed by Black CJ in Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40 at 61-62.

The inferences are not ones I am prepared to draw.  Even assuming that Minister Sharp was improperly motivated in relation to the formulation of the LTOP – and I make no finding to that effect – there is no basis in the evidence for inferring that Senator Hill as well should be fixed with participation with knowledge in, or complicity in, the effectuation of such improper purposes.  I am not here being asked to draw inferences.  I am being asked to speculate.

I reject this ground of challenge.  I should add I will return to the question of political purposes in ministerial decision-making when I consider Minister Sharp’s decision.

A decision is reviewable under the ADJR Act where there was no evidence or other material to justify the making of the decision:  s 5(1)(h).  This ground of review, though, will not be taken to be made out unless:

“the person who made the decision based the decision on the basis of the existence of a particular fact, and that fact does not exist”:  ADJR Act, s 5(3)(b).

For present purposes there can be little controversy as to the requirements of this ground:  see generally Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-224;  Adams v Minister for Immigration and Multicultural Affairs (1997) 70 FCR 591 at 595-596.  The applicants have to show that (i) the decision was “based on” the existence of a “particular fact” in the sense that that fact was “critical to the making of the decision”:  Australian Broadcasting Tribunal v Bond (1990), above, at 368;  (ii) there was no evidence or other material to support the finding of that particular fact;  and (iii) the particular fact did not exist.

The applicants seek in two ways to make out their claim.  First, they refer to the finding made in Senator Hill’s Statement of Reasons (para 5) that:

“all prudent and feasible alternatives appear to have been taken into account.”

They then go on to allege that there was no evidence upon which he could so conclude.  Secondly, the applicants rely upon the observation in the Statement of Reasons (para 12) that:

“I was satisfied that the requirements of the Administrative Procedures had been met and that, to the greatest extent practicable, matters affecting the environment to a significant extent had been fully examined and taken into account.”

They then assert that Senator Hill relied upon and accepted the following advice contained in para 4.6.3 of the Background Report prepared by Environment Australia that had been supplied to him.  That paragraph, insofar as presently relevant, stated:

“4.6.3  Need for an EIS on the LTOP

Further assessment, preferably in the form of an environmental impact statement (EIS), was suggested in the submissions of 1704 respondents, including those of several Councils (eg Ashfield, Marrickville, Waverley, Woollahra, and the Australian Mayoral Aviation Council (AMAC), the last chaired by the Botany Council Mayor).  This indicates a large body of opinion that an EIS is for whatever reason necessary or desirable.  The AMAC submission goes so far as to threaten legal action if an EIS is not carried out.

The issue comes to the crux of the matter as to whether further assessment is justified and, if so, in what form.  To address the issue, the question must by (sic) asked as to whether a further assessment would yield significantly more data on which the Minister for the Environment could call to form a view as to what his advice would be (under the APs of the EPIP Act) to the Action Minister.

The case for requiring an EIS has been put in some Councils’ and individuals’ submissions during the consultation periods and in Ministerial representations.  Predominant among the arguments are that too little is known about the (principally noise) impacts of implementing the LTOP and that there has been too little opportunity for public comment on it.

Considerable data have been gathered during the formulation of the LTOP, both by measurement and modelling.  Equal-energy noise (ANEC) contours and single-event (>70 dB(A)) data, although flawed in presentation in the LTOP Document (see below) have been refined in the Proponent’s Statement and it is difficult to see how further data collection would significantly improve the knowledge base for noise impacts.  Any significant refinement of such data is likely to have to await implementation of the LTOP if and when it occurs.

Similarly, any further study of air quality, based as it is likely to be on the previously quoted studies, is unlikely to give a conclusion other than that reached in this report.  It is also difficult to see how much more information on risk and aircraft safety issues could be unearthed by an EIS process.

In each of the above cases, and in consideration of other issues pertinent to this report, it would need to be demonstrated that significantly updated data or different findings would be likely to result from any exercise the magnitude of an EIS.

…

Although an EIS may give the opportunity for further public comment, such an opportunity would not justify the time and expenditure of resources that it would entail.  Further, it is the Department’s view that an EIS would not add significantly to the data available to the relevant Ministers on which to base their respective decisions.”

The applicants go on to plead that there was no evidence upon which Senator Hill could make the finding that an EIS would not yield significantly more data on which he could call to form a view as to what his advice would be to Minister Sharp in the making of his (Senator Hill’s) decision.

It is appropriate to deal with the two claims separately.  I would note, though, that despite their persistence in these claims, the applicants’ submissions on them have been particularly parsimonious.

First, the feasible and prudent alternative “finding”.  The short answer to this claim is that the finding made and attacked was not of a “particular fact” at all.  Neither was it an assumption made that a particular fact existed.  It was a statement of opinion concerning, or of impression of, a matter that was itself one of judgment.  Senator Hill had been provided with advice (in para 46 of the document “Issues for Consideration” prepared by Environment Australia:  set out earlier in these reasons) that it was reasonable to conclude that feasible and prudent alternatives had been taken into account.  Read against that advice the use of the term “all” in the “finding” is unfortunate.  But at best it does no more than show that the Senator’s impression was inaccurate.

I am in any event unsatisfied that this “finding” was critical to the Senator’s para 3.1.1(b) decision.  He was informed that alternatives were taken into account and his finding suggests that such was of significance as a circumstantial matter.  It was not, though, a matter he was required to take into account under para 3.1.2.  And I do not consider that this finding ( even if of fact) was so integral to the structure of his decision that his decision could reasonably be said to be based on his error – if it should so be properly described:  Minister for Immigration and Ethnic Affairs v Wu Shan Liang, above, 271-272.

Secondly, the alleged “finding” concerning EIS data yield.  At best I am being asked to infer that Senator Hill accepted the statement contained in para 4.6.3 that an EIS would “not add significantly to the data available to the relevant Ministers on which to base their respective decisions”.

Even if there was such an “acceptance” I again do not consider that it was of a “particular” fact.  Para 4.6.3 contains a process of reasoning concerning matters known, projected, and predicted, leading to a value judgment about the possible benefit of an EIS.  That judgment may or may not be contestable – though I should add I do not think it proper to equate the word “data” in it with “information”.  But it ought not be characterised as a finding of fact.

Further, it is improbable that the Minister’s “acceptance” of the judgment in para 4.6.3 was critical to his decision.  That acceptance is not referred to in the Statement of Reasons.  And whether or not an EIS would or would not add significantly to the data was merely one of the factors to which the Senator may have given weight in expressing the “satisfaction” he had as to the s 5(1) objects being achieved.  Without any indication as to the weight if any he gave that factor I cannot say his decision was based on it.

I reject both “no evidence” claims.

A matter which seems to have been responsible for some confusion and no little heat in relation to the LTOP was the varying expectations seemingly entertained of it in consequence of the varying language used concerning aircraft noise distribution.  On occasions -–and most commonly in the statements and directions of Mr Sharp – the language used was that of change relative to a previous situation:  ie noise will be distributed “more equitably”, “more fairly”, etc.  In other instances language less suggestive of relativity was employed:  eg the distribution would be “equitable”, “fair”, etc.  It is, perhaps, not surprising that differing expectations may have been entertained in the community of what the LTOP was to achieve and how its achievement should be measured.  A new noise distribution, for example, might be fairer or more equitable than was previously so though still not meeting some objectively created or absolute criteria of fairness or equity.  Similarly while a new pattern of noise distribution may be fairer in that it alleviated the large burden of some by imposing a new burden on others, it may not still be seen to be fair by those others given alternatives they consider to be available to better distribute the noise with less impact on people.

One effect of this variability in language – and hence of expectation – can be seen in the applicant’s challenges on the ground of procedural fairness.  Nonetheless, I do not consider that the varying usages are of particular moment to the legal issues I have to address in this proceeding.  Mr Sharp’s direction to AsA on 20 March 1996 to prepare the LTOP, his media statement on the release of the LTOP for public comment in February 1997 and his Statement of Reasons for his 30 July 1997 direction to AsA to implement the LTOP were uniformly in the language of relativity.  His declared objective was to distribute noise “more fairly”, “more equitably”.

I should add that I do not consider that, even where apparently absolute language was used (eg fair, equitable, etc), it could reasonably or properly be interpreted as intended to attract an absolute as opposed to a relative measure to which all proposals had to conform.  The subject matter of the decision itself – noise distribution – the runway configuration of KSA and a multiplicity of variables affecting air traffic management together render such an intention improbable.  At best such language could be taken to propound a public policy goal and no more.

The challenge here, though directed to a different decision and a different Minister, is otherwise in identical terms to that made to Senator Hill’s decision insofar as it related to the Paddington Conservation Area.  I have already rejected that challenge.  I reject the present one for the same reasons.  It is unnecessary to repeat what I earlier said on this matter.

The uncertainty claim would appear to have two distinct bases.  The first is that the LTOP is rendered uncertain by s 5 of the EP(IP) Act and para 1.1 of the Administrative Procedures.  The second is that, because of intrinsic uncertainty in the LTOP itself, the result of the direction is in turn uncertain.

The improper purposes alleged against Mr Sharp parallel those considered in relation to Senator Hill. 

The challenge here, if I might say so, is arresting.  It is put in the following way.  The Draft LTOP describes in Chapter 2 the “Review and Planning Process” in which it engaged.  A critical element in the organisational structure adopted was the Sydney Air Traffic Management Task Force (“the Task Force”).  The Chapter described the role and function of the Task Force.  It indicated that there was to be “[i]nvolvement and active participation of community representatives in the work of the Task Force”.  Significantly it stated (LTOP p 21):

“Community Representatives Participation in the Task Force

The ‘umbrella’ nature of the CAAG [ie Coalition of Airport Action Groups] group was seen by the Task Force as representative of community interest and a group which could provide the level of feedback required throughout the project.

CAAG accepted an invitation to participate and CAAG members participated in all formal meetings held under the Task Force auspices and in a number of informal meetings.  The CAAG Chairperson was the official CAAG representative on the Policy Group.

Due to the frequency of Task Force meetings CAAG representation varied according to the issues being considered and availability (sic) CAAG representatives."

Even Mr Williams in his fourth affidavit has provided clear documentary evidence of the existence and meetings of the Task Force.

Nonetheless it is pleaded that:

“No Evidence

89.              The third decision was based upon the existence of a particular fact, namely the membership and involvement of a community representative on the entity responsible for the development of the LTOP styled ‘Sydney Air Traffic Management Task Force’ or ‘the Task Force’ and that fact did not exist.

90.              The Task Force never met as an identifiable entity.

91.              If the Task Force did meet, it never met with a member present who was a community representative.

92.              The Task Force never resolved anything.

93.              If the Task Force did resolve anything, it never did so with a member present who was a community representative.

94.              The development of many of the principal components of the draft LTOP were specifically attributed to the Task Force.

95.              There is no evidence that the Task Force in fact existed.”

By the time of submissions the applicants ceased to press para 95.  On the state of the evidence before me (I note Mr Williams’ fourth affidavit was admitted only for limited purposes), I could not possibly conclude that the claims asserted in paras 90-93 were made out.  On the contrary.  More importantly there is simply no reason to conclude that Minister Sharp’s decision was based on the particular fact referred to in para 89 above.  As Counsel for the Minister correctly noted the alleged fact was a “minor” one and “not surprisingly, there is no mention of it in his Statement of Reasons”.

This claim is misconceived.  It is unnecessary to repeat here the principles to be applied to a “no evidence” claim.

I am confronted here with what for practical purposes is the almost wholesale attribution to Minister Sharp’s decision of the same omissions as Senator Hill was alleged – in the event unavailingly – to have made.  Such support for this as has been proffered by the applicants seems to be the submission made by Mr Williams that those same matters (with one exception) “should” have been taken into account and the delphic assertion in the applicants’ sparse written submissions that “[t]he relevant considerations are those derived from the [EP(IP) Act s 8 and the As Act s 16(1)]”.

Insofar as I have been able to discern the basis for the applicants’ contentions in relation to Senator Hill, I have rejected them.  I do likewise here and for similar reasons, having being provided with no adequate basis to support the contention that Mr Sharp was bound to take into account any of the matters pleaded.  I merely note that the Minister’s decision was taken under s 16(1) of the As Act which allows the Minister to give written directions to AsA “relating to the performance of its functions”.  The section does not expressly state what are “relevant factors” the Minister is bound to take into account:  Minister for Aboriginal Affairs v Peko-Wallsend Ltd, above, 39-40.  I am unprepared to speculate as to why I should find by way of implication from the “subject-matter, scope and purpose of the Act” that the Minister was bound to take any particular matters into account.

I reject this claim.

Three of the four so-called irrelevant considerations have been considered in other contexts already.  They are (i) the federal electoral boundaries;  (ii) the process of public consultation;  and (iii) the community membership of the Task Force.  Little point would be served in dealing again with them in this context given that I have already rejected the alleged vice in the three matters referred to.  Furthermore, and bearing in mind the “unconfined discretion” given the Minister under s 16(1) of the As Act (save as to the subject matter of directions given), I would have needed to be satisfied that there was “some implied limitation on the factors to which the decision-maker may legitimately have regard”:  Minister for Aboriginal Affairs v Peko-Wallsend Ltd, above at 40.  The applicants have not suggested what that limitation might be.

The fourth “irrelevant consideration” alleged was that the Minister did not need to wait for the receipt and consideration by him of a report concerning the affect of aircraft noise and movements on safety and property values before making his decision.  As to this matter, and bearing in mind my previous comments on s 16(1) of the As Act, I agree entirely with the second respondents’ submission that what is being attempted is merits review.

I reject the “irrelevant considerations” claims.

The claim here is similar in kind to that made against Senator Hill.  It seeks to use cumulatively all the individual complaints made against Mr Sharp’s decision to the end of claiming that his decision was so unreasonable that no reasonable decision-maker could have made it.  When dealing with the like challenge to Senator Hill’s decision I outlined the burden assumed by an applicant invoking this ground.  Here it suffices to say that, for like reasons to those given in relation to Senator Hill, I reject this ground of complaint.

Having found that none of the claims made against either respondent has been made out, it is unnecessary for me to consider the matters raised by the respondents by way of defence.  I refrain from doing so.  I merely note for the sake of completeness the submission that, if Senator Hill’s decision was found to be invalid, Mr Sharp’s would not in consequence be invalid for that reason alone.  The burden of this submission is that a legislative purpose cannot be discerned in the scheme of the EP(IP) Act that an executive act done in breach of the Administrative Procedures was to be invalidated:  Project Blue Sky Inc v Australian Broadcasting Authority, above, 516.  The respondents additionally have submitted that even if a ground of review has been made out that could result in the setting aside of Minister Sharp’s direction, such relief ought not be granted as a discretionary matter given the character of the decisions challenged, the action taken so far in implementation of them and the consequences of granting the relief sought by the applicants.

It is unfortunate but necessary that I register a note of dissatisfaction with this proceeding.  The technique of using pleadings as, in effect, shrapnel is a practice to be deprecated.  The Further Amended Statement of Claim is not immune from this criticism.  It betrays more of a hope that some argument on one or other of the “decisions” might prove attractive, than an expression of confidence that there was a particular case to be advanced.  The essentially “boiler-plate” character of the challenges made to the four decisions merely exacerbates the criticism to be made.

Finally, there is a large body of evidence concerning both flight paths and noise impacts, and alleged changes to and departures from the LTOP, to which I have found it unnecessary to refer, notwithstanding the attention given it by the applicants.  It may well have been of some significance had I been engaged in merits review.  As has been necessary to emphasise on a number of occasions, such is not my function.

I dismiss the application.

Associate:

Dated:              3 November 1998