FEDERAL COURT OF AUSTRALIA

Canberra Trademen’s Union Club Inc v Commissioner for Land & Planning

[1999] FCA 262

ADMINISTRATIVE LAW – judicial review of decision of Commissioner for Land and Planning and of decision of Administrative Appeals Tribunal affirming decision of Commissioner for Land and Planning – prerogative relief in relation to decision of Commissioner for Land and Planning – decision of Commissioner to approve variation of Crown lease allowing certain premises to be used for “club” purposes – “preliminary assessment” – whether presence of preliminary assessment a “jurisdictional fact” in relation to decision of Commissioner – whether delegate of Minister wrong in deciding preliminary assessment not required – premises include site of Canberra Casino – use of “gaming machines” in Casino prohibited by Casino Control Act 1988 (ACT) – whether use of premises for “club” purposes unlawful – whether Commissioner took into account government policy on use of premises for “club” purposes – jurisdiction – whether decision of Commissioner excluded from review by Administrative Appeals Tribunal by Land (Planning and Environment) Regulations (ACT) reg 24 – standing of appellants before Administrative Appeals Tribunal to seek review of decision of Commissioner - whether “rights” or “interests” of appellants “substantially and adversely affected” – whether law of standingapplicable in relation to an administrative process is law prevailing at time decision is made

WORDS AND PHRASES – “jurisdictional fact” – “substantially and adversely affected”

Australian Heritage Commission Act 1975 (Cth) s 23

Administrative Decisions (Judicial Review) Act 1989 (ACT)

Casino Control Act 1988 (ACT) ss 3(1), 4(1), 71, 76

Gaming Machine Act 1987 (ACT) s 4, s 30B

Land (Planning and Environment) Act 1991 (ACT) ss 8, 111, 113, 114, 222, 231, 276, 282

Land Titles Act 1925 (ACT)

Liquor Act 1975 (ACT)

Land (Planning and Environment) Regulations (ACT) reg 24, Schedule 7, item 8

Gaming Machine (Amendment) Bill (No.2) 1997 (ACT)

The Territory Plan (ACT) Schedule II.1

Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297 distinguished

Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8 distinguished

Canberra Tradesmen’s Union Club Inc v Minister for the Environment, Land and Planning (Higgins, Heerey and Mansfield JJ, Federal Court of Australia, 18 September 1998, unreported)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited

Re Costello (1979) 2 ALD 934 cited

Esber v The Commonwealth (1992) 174 CLR 430 cited

CANBERRA TRADESMEN’S UNION CLUB INCORPORATED AND THE LICENSED CLUBS’ASSOCIATION v COMMISSIONER FOR LAND AND PLANNING AND CASINO CANBERRA LIMITED AND THE REGISTRAR GENERAL

AG 57 OF 1998

JUDGES: MILES, MATHEWS AND LEHANE JJ

DATE: 25 MARCH 1999

PLACE: CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

AG 57 OF 1998

On appeal from the Supreme Court of the Australian Capital Territory

BETWEEN:	CANBERRA TRADESMEN’S UNION CLUB INCORPORATED First Appellant
	THE LICENSED CLUBS’ ASSOCIATION Second Appellant
AND:	COMMISSIONER FOR LAND AND PLANNING First Respondent
	CASINO CANBERRA LIMITED Second Respondent
	THE REGISTRAR GENERAL Third Respondent
JUDGES:	MILES, MATHEWS AND LEHANE JJ
DATE OF ORDER:	25 MARCH 1999
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1. The appeal from the decision of the primary judge on each of the applications before him be dismissed.

2. The appellants pay the respondents’ costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

AG 57 OF 1998

On appeal from the Supreme Court of the Australian Capital Territory

BETWEEN:	CANBERRA TRADESMEN’S UNION CLUB INCORPORATED First Appellant
	THE LICENSED CLUBS’ ASSOCIATION Second Appellant
AND:	COMMISSIONER FOR LAND AND PLANNING First Respondent
	CASINO CANBERRA LIMITED Second Respondent
	THE REGISTRAR GENERAL Third Respondent
JUDGES:	MILES, MATHEWS AND LEHANE JJ
DATE OF ORDER:	25 MARCH 1999
WHERE MADE:	CANBERRA

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a decision of the Supreme Court of the Australian Capital Territory (Crispin J) in three proceedings brought by each of the appellants, all concerning a decision of the first respondent (the Commissioner) to vary the conditions of the Crown lease to the second respondent (Casino Canberra) of the land on which the Canberra Casino stands. His Honour dismissed an appeal by each appellant from a decision of the Administrative Appeals Tribunal (the Tribunal) that neither appellant had standing to challenge, in the Tribunal, the decision of the Commissioner. His Honour also dismissed applications for certiorari and mandamus in relation to the Commissioner’s decision and applications for review of that decision (including applications for an extension of time to lodge the applications for review) under the Administrative Decisions (Judicial Review) Act 1989(ACT) (the ADJR Act).

Background: statutory context

2 The Crown lease of the land on which the Canberra Casino has since been constructed was granted to Casino Canberra on 30 July 1992. It obliged Casino Canberra within twenty‑four months from the commencement of the lease to “commence to erect a building paving lighting and landscaping on the land at a cost not less than the sum of six million dollars” in accordance with approved plans and specifications and the applicable laws of the Territory. The building and associated works were to be completed within forty‑two months from commencement or such further time as might be approved by the Territory. By clause 2(e) Casino Canberra covenanted:

“To use the premises only for the purpose of a Casino and associated carparking bars cafes restaurants entertainment and personal services ancillary thereto …”

3 The capital C in the word “Casino” suggests a search for a definition, but there is none. The operations of the Casino are regulated by the Casino Control Act 1988 (ACT). That Act provides for the designation of areas to be an interim casino and, later, the Casino; it contemplates the conduct of “authorised games” in the Casino; it provides for the grant of casino licences; and it makes detailed provision for the regulation and supervision of the operations of the Casino. The Casino Control Act defines “Casino” only by reference to areas designated under s 4(1) of the Act: that is, an area designated to be the Casino or areas designated to be an interim casino. There is nothing surprising about that: the concern of the Act is not with definition but with authorising and then regulating the conduct, on particular premises, of activities otherwise unlawful.

4 By an instrument dated 5 July 1994 and notified in the Territory Gazette on 11 July 1994 the Chief Minister designated, as the area to be the Casino, a substantial portion of the area within the Crown lease: it appears to be the area on which the building, required by the lease, has been built; but nothing turns on the precise identification of the area designated. By a series of instruments under s 71(1) of the Casino Control Act a number of games have been declared to be “authorised games” which may be conducted in the Casino.

5 Importantly for present purposes, s 76 of the Casino Control Act provides that:

“A person shall not install, use or permit the installation or use of a gaming machine in the casino.”

6 “Gaming machine” is defined in s 3(1) by reference to the Gaming Machine Act 1987 (ACT). In s 4 of the Gaming Machine Act, “Gaming Machine” is defined as:

“… a machine –

(a) designed for playing a game of chance, or of mixed chance and skill;

(b) designed to be played (wholly or in part) –

(i) by the insertion of 1 or more coins or tokens; or

(ii) by the application of a monetary credit, registered on the machine; and

(c) which offers, or which appears to offer, persons a chance to win monetary or other valuable consideration by playing the machine ...”

7 It was accepted in argument before us that a “gaming machine” is a poker machine, as commonly understood. The importance of the Gaming Machine Act for present purposes is that the operation of gaming machines requires a licence under the Act and, under the Act, a licence may be issued only to an eligible club or a person holding a licence under the Liquor Act 1975 (ACT). A “club” is one established for “recreation, the promotion of social, religious, political, literary, scientific, artistic, sporting or athletic purposes or purposes approved by the Minister by instrument”: s 30B(1). Section 30C lists the conditions which a club is required to fulfil in order to be “eligible”. The first appellant is an eligible club; the second appellant is an association of clubs licensed under the Liquor Act, some at least of which are also eligible clubs under the Gaming Machine Act.

8 Development on land in the Territory is controlled under the Land (Planning and Environment) Act 1991 (ACT) (the Land Act) and by reference to an instrument known as the Territory Plan (referred to in the Land Act as the “Plan”). The decision of the Commissioner, with which this appeal is concerned, was one made under the Land Act on an application by Casino Canberra for approval to undertake a development. “Development” is defined, in s 222(1) of the Land Act, as including “a variation of a lease of the land”. Casino Canberra sought a variation of clause 2(e) of the Crown lease so that it would read as follows (we shall indicate in bold type the proposed additions to clause 2(e) in its original form):

“To use the premises only for the purpose of a Casino and associated carparking, bars, cafes, restaurants, entertainment, personal services and other shops ancillary thereto, or other indoor entertainment facilities, club, drink establishment or indoor recreational facility.”

Commissioner’s decision

9 The decision of the Commissioner, made on 21 July 1997, was that the application be approved in substance, subject to a number of conditions which for present purposes do not matter. The revised version of clause 2(e), as approved, differs in expression, but not in any respect that matters for the purposes of this appeal, from the form sought. The essential, and controversial, element of the approved amendment of clause 2(e) was that it would include, among the purposes for which the premises might be used, that of a “club”. That word was to be defined in the lease as meaning:

“the use of the premises as a meeting place for persons associated, or for a body incorporated, for social, sporting, athletic, literary, political or other like purpose, and which is a licensed premise under the Liquor Act 1975.”

10 An instrument varying the Crown lease in accordance with the approval has been registered under the Land Titles Act 1925 (ACT).

Grounds on which decision is impugned: decision of primary judge

11 The substantive grounds on which the appellants maintain their attack on the Commissioner’s decision are stated in their written submissions as follows:

“• the Assessment required by Land Act s.114 was never undertaken;

· the Assessment was not notified in the Gazette and newspaper so as to permit public inspection, as required by s.117;

· the Commissioner therefore did not consider the Assessment or public comment upon it before granting development approval, as required by s 231;

· the proposed use as a club was and is unlawful;

· the Commissioner failed to take into account the public interest, government policy, and the potential social and economic effects of the grant of approval.”

12 The consequence of those matters, it was said, was that it must be concluded that the decision maker (the Commissioner) misunderstood his jurisdiction; failed to comply with requirements essential for the valid and effectual performance of his duty; did not apply himself to the questions of law required to be determined in granting approval; and failed to take into account relevant considerations while taking into account irrelevant considerations.

13 Crispin J, though he proceeded to deal with the merits of the applications for review, accepted submissions by the respondents that the appellants lacked standing to seek review either by way of prerogative relief or under the ADJR Act. The respondents, on appeal, supported his Honour’s conclusions on standing; they submitted, however, that it was appropriate for the Court to deal with the substantive issues on the assumption that the appellants have standing, and as the substantive issues were fully argued we think it is appropriate to take that course. In considering the substantive issues, it is unnecessary to draw any distinction between the claims for prerogative relief and those under the ADJR Act. There is a separate question, to which we shall return, arising on the application to extend time under the ADJR Act. There is also the question, which we shall consider separately, of the standing of the appellants to invoke the jurisdiction of the Tribunal.

Judicial review: substantive issues

(a) Preliminary assessment

14 Section 113 and 114 of the Land Act provide:

“113. The relevant Minister in relation to a defined decision … may, by written notice to the relevant proponent within 28 days after the day on which the decision that a preliminary assessment be required is made, direct the proponent to prepare a preliminary assessment of the environmental impact of the relevant proposal.

114. Where a defined decision is of a class prescribed by the Plan, the relevant Minister shall, within the period referred to in section 113, issue a notice under that section in relation to the relevant proposal.”

15 It is common ground that the decision in this case sought from (and ultimately made by) the Commissioner was a “defined decision”: Land Act, s 111. The Plan, in Schedule II.1, prescribes a number of classes of defined decisions for the purposes of s 114; one of them is “Club: All proposals within 150 metres of a Residential Land Use Policy Area”. It is common ground that the Casino is within (though apparently only just within) such an area. The Plan, however, provides three exceptions, two of which, according to the respondents, are applicable. A proposal for a club (or a development within any of the other prescribed classes) is excepted from the classes of defined decisions if either:

“(a) the proposal is an alteration or addition to an existing situation which does not cause significant change in the scale, size or purpose of the existing situation; [or]

(b) the proposal represents a part or a whole of a proposal which has previously been the subject, directly or indirectly, of a previous assessment or has been the subject of another form of investigation which would satisfy the requirements of a preliminary assessment under the Land Act …”

16 Section 231(1) of the Land Act provides that before approving or refusing to approve an application the relevant authority (in this case the Commissioner):

“… shall –

(a) consider –

(i) any comments of a person or body to which the application has been referred for comment;

(ii) each objection or other submission the Minister has received in relation to the application which has not been withdrawn;

(iii) a preliminary assessment under Division 2 of Part IV … .”

17 No preliminary assessment was made in relation to Casino Canberra’s application. In those circumstances, the appellant’s submissions are simple. The proposal fell within one of the prescribed classes. On the facts, neither of the two exceptions applied. Consequently, a preliminary assessment was required by s 114 and the Commissioner was obliged to consider it under s 231. He did not do so. Furthermore, s 8 of the Land Act provides that:

“The Territory, the Executive, a Minister or a Territory authority shall not do any act, or approve the doing of any act, that is inconsistent with the Plan.”

18 The Commissioner is a Territory Authority; by approving the application in the absence of a preliminary assessment the Commissioner had done an act that was inconsistent with the Plan.

19 The reason why there was no preliminary assessment was that a delegate of the Minister had considered the question whether one was required and decided that it was not. Her minute dated 6 May 1997 dealt with the question as follows:

“The proposal also needs to be considered in the context of Appendix II.1(a), which exempts proposals from mandatory preliminary assessment if they do not cause a significant change in the scale, size or purpose of the existing situation.

Appendix II.1(b) of the Territory Plan is also relevant as it exempts proposals from mandatory preliminary assessment if they have been previously subject to an assessment which would satisfy the requirements of a preliminary assessment under the Land Act. The Casino has been the subject of a detailed Social Impact, dealing particularly with the social impact of gambling.

As the proposal does not constitute a significant change in scale, size or purpose of the existing situation, and as social impacts of the existing situation have already been addressed at length, the proposed lease variation for the Canberra Casino … will not require the preparation of a PA.”

20 Senior counsel for the appellants contended that the views formed by the Minister’s delegate were self‑evidently wrong and that the presence or absence of a preliminary assessment, where one was required under s 114, was a “jurisdictional fact”, so that if the Commissioner proceeded to grant an approval in circumstances where, as a matter of fact, a preliminary assessment was required but had not been obtained, he acted in excess of jurisdiction. It was not to the point that s 114 imposed a duty on the relevant Minister, not on the Commissioner. The absence of the required assessment necessarily had the consequence that the Commissioner, in approving the application, infringed both s 231(1) and s 8 of the Land Act. Particularly, senior counsel sought to distinguish Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297 on the basis that the provision there in question required the Heritage Commission to enter a place in the Register of the National Estate “where the Commission considers that a place that is not in the Register should be recorded as part of the national estate … [emphasis added]”: Australian Heritage Commission Act 1975 (Cth), s 23(1).

21 The submissions made on behalf of the appellants, in our view, should not be accepted. It is, of course, true that there are important differences between the provisions of the Land Act and those under consideration in Australian Heritage Commission. That case had to do with s 23 of the Australian Heritage Commission Act which provided that the Australian Heritage Commission was to enter in the Register of the National Estate a place not in the Register “where the Commission considers” that the place “should be recorded as part of the national estate”. The obligation of the Commission arose where it considered that, in relation to a particular place, certain statutory conditions were met. Here, the state of facts giving rise to the duty of the Minister under s 114 is stated in objective terms. In Australian Heritage Commission the decision of the Commission followed a process of public consultation; here, the preparation of a preliminary assessment initiates such a process. A feature this case has in common with Australian Heritage Commission is that here, as there, the factual question to be decided is one involving, if not necessarily “potentially difficult and complicated facts”, then certainly “assessments and value judgments”: see the dissenting judgment of Black CJ, approved on appeal, (1995) 60 FCR 456 at 466; (1997) 187 CLR 297 at 301.

22 Since the hearing of the appeal we have been referred to the decision of the New South Wales Court of Appeal in Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8. That case concerned s 77(3)(d1) of the Environmental Planning and Assessment Act 1979 (NSW). That provision required an applicant for development consent to lodge a Species Impact Statement with the consent authority:

“if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats …”

23 The Court of Appeal concluded that the impact on threatened species or habitat was a “jurisdictional fact” which the Court, upon review, would consider for itself on the basis of admissible evidence. In a number of respects Timbarra is similar to this case: particularly, the question of fact to be determined was stated in terms which required assessments and value judgments and the preparation of a species impact statement was one which, as here, initiated a process of public consultation. The Court of Appeal regarded the former of those matters as relevant. Spigelman CJ, with whom Mason P and Meagher JA agreed, said at [89]:

“The fact that a matter of judgment of this character is involved does suggest that it is less likely to be intended by Parliament to be an objective fact, because it is, characteristically, a matter on which reasonable minds may differ. Nevertheless, the proper construction of the statute may be that Parliament did so intend.”

24 The fact that the impact statement initiated a process of public consultation was regarded as significant. Spigelman CJ said at [76]:

“It can readily be seen that an SIS, when required, plays a critical role in the quality of the decision making process, by ensuring that detailed information is available to primary decision makers in a systematic and ordered way. This, in my opinion, makes it more likely that the legislature intended the circumstances which lead to the requirement to prepare an SIS, to be both objectively ascertained and essential.”

25 His Honour added, at [81]:

“The purpose of an SIS in the legislative scheme strongly suggests that the occasion for its creation is a jurisdictional fact. The consent authority’s opinion as to the existence of that occasion is not determinative, because an SIS is not only directed to informing a consent authority. It is also directed at informing both those who may make submissions and the Director General of National Parks and Wildlife.”

26 Two other factors were regarded as significant, neither having a counterpart in this case. One was that the legislation placed on the applicant the onus of lodging a species impact statement with the consent authority, as one of the documents necessary (where the legislation required it) to initiate the consideration by the consent authority of the matter to be decided (at [48] – [53]). The other factor was that the “likely effect” was one of two matters, either of which gave rise to a requirement that a species impact statement be prepared and lodged. The second matter was that the land sought to be developed “is, or is a part of, critical habitat”. Whether land comprised “critical habitat” was not, in any sense, a question involving assessment or opinion. If, under other legislation, land had been declared to be “critical habitat” then it was necessarily “critical habitat” for the purposes of the Environmental Planning and Assessment Act; if it had not been so declared, it was not. Spigelman CJ said, at [62] – [64]:

“No issue of ‘appearance’ or ‘opinion’ or ‘satisfaction’ can arise in this respect. Whether or not a development is proposed to occur on critical habitat is entirely a matter of objective fact. … In all relevant respects the formulation ‘likely to significantly affect’ is equated to ‘critical habitat’ in s 77(3)(d1) and other sections. … It is unlikely that Parliament intended any significant difference in the statutory treatment between the two cases. Such would arise if the Respondent’s submissions are correct.”

27 In each case the question is one of construction of the legislation. Here, we think it is significant that not only is the question one of opinion or assessment, upon which reasonable minds might differ, but also that the initiator of the process is not the applicant for consent or the consent authority, but the relevant Minister. Secondly, it is relevant that the cases where a preliminary assessment is required are not defined in the Land Act itself but are left to be “prescribed” in the Plan, an instrument of a kind likely to set standards in terms requiring the formation of opinion and the exercise of discretion. It is particularly significant, in our view, that the legislature has chosen to separate, in principle (no doubt in some circumstances the relevant Minister may also be the consent authority, though that is not the case here), the functions of the relevant Minister and consent authority. Where the duty cast on the consent authority by s 231(1) of the Land Act is to consider “a preliminary assessment …” the authority is not required, in our view, to do anything more than consider such an assessment if there is one: in other words it is not for the authority to consider whether a preliminary assessment is required, that obligation being cast not on the authority but on the Minister. That being so, in our view the satisfaction of the criteria set by the Plan is not a jurisdictional fact in relation to the decision to be made by the authority. The proper construction of the provisions, we think, is that the relevant Minister must determine (as the Minister’s delegate did in this case) whether according to the criteria in the Plan, a preliminary assessment is required. If the relevant Minister concludes that, applying par (a) or one of the other exceptions, a preliminary assessment is not required, that decision, in our view, cannot be attacked collaterally in an application for prerogative relief or under the ADJR Act to which the relevant Minister is not a party.

28 In the circumstances of Canberra Tradesmen’s Union Club Inc v Minister for the Environment, Land and Planning (Higgins, Heerey and Mansfield JJ, Federal Court of Australia, 18 September 1998, unreported) it was held that a similar decision of the relevant Minister was not open to review, since it was a mere “step along the way” (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321); and that may particularly be so in circumstances where the relevant Minister is also the decision maker in respect of an application under s 230(1) of the Land Act. It by no means necessarily follows that such a decision is never reviewable – the Full Court in Canberra Tradesmen’s Union Club left open the possibility that in some circumstances it might be – or, particularly, that in the present case the decision of the delegate would not be, or might not have been, reviewable in proceedings to which the Minister was a party. It is, however, unnecessary to pursue that issue. Nor is it necessary for us to consider the scope or limits of any such review. The view we take, however, has the consequence that the Commissioner’s decision to approve the application cannot be attacked, in these proceedings, on the ground that a jurisdictional fact did not exist. If there is a preliminary assessment, the relevant authority (here, the Commissioner) is bound by s 231(1) to consider it before approving any application; but if there is no preliminary assessment because the Minister has determined that one is not required and has not elected, under s 113, to require one, the relevant authority does not infringe s 231(1) by approving an application without considering “a preliminary assessment”, nor by so doing does it infringe s 8.

29 Secondly, we agree with the trial judge that it was not established, in any event, that the delegate was wrong in relation to par (a). As will appear, the mere variation of the lease did not itself authorise the use of any part of the Casino premises as a club. Let it be assumed, however, that it was appropriate to proceed on the basis that the “change in the existing situation” effected by the approval involved the use of part of the Casino premises as a “club” as defined in the amended lease, which was authorised to operate, and in fact operated, gaming machines. The evidence indicated that Casino Canberra had in mind that it would, in due course and if it obtained the necessary approvals, sublease part of the premises to a club, for a substantial rental, and that the club would operate gaming machines. But there was a dearth of evidence before the Court relevant to the extent or significance of the changes to the existing situation. Particularly, so far as we can discern from the material before us, the Court simply did not have before it evidence to enable it to form a view as to what precisely the “existing situation” was or what precise difference – other than the assumed presence of gaming machines – the operation of the club on part of the premises might make. Certainly it was not suggested that there would be any change in the size or scale of the building. There is a slight clue, perhaps, in an affidavit of the financial controller of Casino Canberra, to which we were referred, in which he said that he considered that:

“… the establishment of a club adjacent to the Casino will provide the following benefits to the Casino:

· provide sub‑lease payments of approximately $1,100,000.00 per annum,

· enhance the capacity to provide services to the community, tourist visitors to Canberra and other Casino patrons,

· provide a broader revenue base due to the additional services provided,

· will address the fact that many potential patrons are diverted by the lack of poker machines within the Casino,

· the activities associated with a licensed club will be complimentary [sic] to the activities of the Casino.”

30 But on the basis only of that information, and whatever precise content one gives to the word “significant”, the Court was, and is, in no position to hold that the delegate was not justified in deciding as she did in relation to par (a).

31 That being so, it is unnecessary to consider par (b). We observe only that it may be that the “Social Impact, dealing particularly with the social impact of gambling” referred to by the delegate of the Minister, conducted before the Casino was built, might well not qualify as an “investigation which would satisfy the requirements of a preliminary assessment under the Land Act”; but the “Social Impact” is not before us, and we are in no position to do more than speculate.

Authorisation of unlawful activity? Government policy, public interest

32 There is no doubt – it was made perfectly clear in submissions – that the principal concern of the appellants is the possibility that gaming machines will be installed in the Casino premises. The attack on the Commissioner’s decision was based, in part, on the proposition that to allow a “club” as defined was, in substance, to authorise a use of part of the premises which would involve the installation and operation of gaming machines, in circumstances where the Casino Control Act specifically forbids the use of gaming machines in the Casino. But, though undoubtedly the respondents contemplate a sublease to a club which will operate gaming machines, the mere authority to use the premises, among other things, as a “club” does not involve any illegality. Although it may be very likely that the respondents would not contemplate any use of the premises, or part of them, by a club which did not have gaming machines, a club (as defined in the lease) is not necessarily a body which operates gaming machines. There would, for all that appears, be nothing necessarily unlawful about the mere use of part of the premises as a club. Undoubtedly, if they are to be used in that way and if gaming machines are to be installed, then other things will have to happen. One possibility, perhaps, is an amendment of the Casino Control Act. Another is that the Minister may, in place of the existing designation, designate as the Casino only that part of the premises not occupied by a club. In either case, it would then be necessary for the club to obtain a licence under the Gaming Machine Act; but it could not do so unless one or other of the earlier steps had been taken. In those circumstances, in our view, it is impossible to hold that the decision should be quashed or set aside on the ground that it authorises unlawful acts.

33 The argument concerning policy was based upon the proposition that the policy of the Territory government, reflected in Territory legislation, was one of restricting gaming machines to licensed clubs and, more generally, of support for such clubs having regard particularly to the contributions made by clubs to charitable causes. As a matter of fact, the legislation to which we have referred does restrict gaming machines to licensed clubs; and there was some evidence before his Honour of statements on behalf of the government as to its policy. We were referred to a speech by the Chief Minister in the Assembly in relation to the Gaming Machine (Amendment) Bill (No. 2) 1997 (ACT). The Chief Minister said:

“In conclusion, the measures contained in this Bill will assist the Government in developing appropriate policies and guidelines relating to the club industry and further demonstrate the Government’s commitment to greater efficiency and timeliness in the process of regulation and approval of gaming machines. A lot of the work that comes together in this Bill came out of the Joint Government‑industry working party. I would certainly like to thank all of those people involved in the working party. I think that this is a good Bill. It makes clear to the community just what the clubs are contributing and just why their monopoly on poker machines is in the community’s best interest.”

34 On the other hand, counsel for the Commissioner drew our attention to some remarks made by the Chief Minister at the Licensed Clubs Association President’s Dinner on 15 May 1998:

“The previous Government honoured its undertaking that gaming machines in the Casino and a wider access of machines to hotels and taverns would not occur in the life of the previous Assembly. However, one of its commitments under the national competition policy agreement is the review of all Gambling legislation. The review will examine the case for reform of legislative restrictions on competition. … The review of the Territory’s gambling legislation is expected to be completed by early June 1998. As a stakeholder, the LCA has been invited to make a submission. … In view of this situation, the Government will not be making any changes between now and when the review is completed and that changes to legislation, if any, will be made following Government consideration of the recommendations of the review.”

35 It was submitted that the Commissioner should, in making his decision, have had regard to Government policy on these matters, the perceived public interest in maintaining the ability of registered clubs to make contributions to the general community and the likely effect on that ability of the particular form of competition which would result from the installation of gaming machines in the Casino.

36 The reasons given by the Commissioner for his decision included the following observations on particular comments and objections which had been received:

“The issues raised related mainly to:

(a) suggested inconsistency with Government policy on gaming machines;

Comment: approval of the application would not in itself confer gaming machine rights on the lessee or an occupier of the premises and it is noted that in order for a club to operate gaming machines, that club would need to meet the requirements of the Gaming Machine Act 1987 which does not constitute an element of this application.

(b) unfair advantage of operator over licensed clubs if application approved;

Comment: the prospect of either fair or unfair competition with other established licensed clubs should the application be approved is a marketplace issue and is not a legitimate planning consideration in this particular context.”

37 It is significant also that the reasons conclude with the following:

“The application was approved with conditions after consideration of all the issues, and taking into account public comment received.

It was considered that the application could be approved because:

(a) it is not inconsistent [with] the Territory Plan principles;

(b) it is not inconsistent with the objectives and controls for the Entertainment, Accommodation and Leisure Land Use Policies … subject to the imposed conditions;

(c) the issues raised by the objectors were not considered to be of sufficient relevance or significance to warrant refusal of the application or the imposition of conditions; and

(d) neither the Minister [nor] the ACT Planning Authority as ‘Concurring Authorities’ under the former legislation objected to the proposal.”

38 Those passages in the Commissioner’s reasons reveal that the Commissioner took account of the matters raised but dismissed one as properly arising at a later stage, should the matter proceed beyond a mere variation of the terms of the lease, and treated the other as of no particular weight in relation to the particular decision under consideration (which was a planning decision, relating only to the conditions of the lease and which could not proceed further without the approval of authorities presumably more intimately concerned with the particular issues). Certainly, in our view, the Commissioner was entitled to have regard, in the context of government policy and the public interest, to the fact that the responsible Minister did not object to the proposal. Our conclusion, in agreement with the trial judge, is that the Commissioner did not fail to have regard to relevant considerations or take account of irrelevant matters.

Conclusion as to prerogative and ADJR relief; standing; extension of time

39 For those reasons we agree with Crispin J that the claims for prerogative relief and the applications under the ADJR Act must fail. That being so, we need not consider the question of standing or the discretionary matters which his Honour took into account. Crispin J held that neither appellant had standing to claim prerogative relief or relief under the ADJR Act. Although we have dealt with the matter on the assumption that the appellants had standing, we should not be taken to disagree with his Honour’s conclusions or reasons; we have simply not considered the matter for ourselves. The trial judge held also that the time for lodgment of the applications under the ADJR Act should not be extended. This, again, is a matter on which we need express no opinion. Since the appeals from his Honour’s decisions on the applications for review will in any event be dismissed, no purpose would be served in setting aside his Honour’s decision not to extend time even if – and we express no view about this – we might otherwise have thought it appropriate to do so.

Appeal to the Tribunal: standing

40 On 22 August 1997 the appellants applied to the ACT Administrative Appeals Tribunal for review of the Commissioner’s decision. The enabling provision was s 276 of the Land Act. The respondents disputed the appellants’ standing to seek AAT review under that section. The AAT, over the objection of the appellants, proceeded to deal with this issue on a preliminary basis and determined that the appellants lacked standing. The appellants appealed to the Supreme Court against this decision and the matter was heard together with their application for prerogative relief and relief under the ADJR Act. The primary judge upheld the AAT’s finding that the appellants lacked standing under s 276.

41 After completion of the hearing before the Supreme Court, and before the delivery of his Honour’s judgment, the court was alerted to the provisions of reg 24 of the Land (Planning and Environment) Regulations (ACT) which raised an issue as to the AAT’s jurisdiction to review the Commissioner’s decision. The appellants objected to the raising of this issue at such a late stage. However, as the primary judge observed, the reg 24 issue could be determined without reopening the proceedings, for the application of the regulation depended upon the proof of one factual matter only, as to which there was already evidence before the court. His Honour thus dealt with this issue in his judgment and determined that reg 24 excluded the Commissioner’s decision from the operation of s 276 of the Land Act, thereby depriving the appellants of any right to apply to the AAT.

42 There are thus two bases upon which the appellants’ entitlement to AAT relief has been challenged in these proceedings. There is a question, first, as to whether the Commissioner’s decision was susceptible of AAT review (the reg 24 issue); and secondly, if it was, as to whether the appellants had standing to seek such review.

43 Section 276 of the Land Act is pivotal to both these issues. It was this section which gave the Tribunal jurisdiction to review the Commissioner’s decisions, and which regulated the persons who had standing to seek such review.

44 The Commissioner’s decision was made on 21 July 1997 and the AAT applications were lodged approximately one month later, on 22 August. On both dates s 276, as relevant here, provided as follows:

“Review – objectors, third parties

276.(1) A person may apply to the Administrative Appeals Tribunal for a review of a decision of the relevant authority to approve an application under section 230 or 245 if –

(a) the person making the application is –

(i) a person who objected under section 237; or

(ii) a person who the Administrative Appeals Tribunal has reasonable grounds for believing was, in the circumstances, unable to object within the prescribed period;

(b) the rights of the person are substantially and adversely affected by the decision; and

45 Section 282(da) of the Land Act provided for the making of regulations to exempt a development from any of the provisions of that Part of the Act (which included s 276). On 24 June 1997, less than one month before the Commissioner’s decision, reg 24 came into operation. Regulation 24(1) provided as follows:

“Exclusion of appeals by objectors – s. 276

24.(1) For the purposes of paragraph 282 (da) of the Act, section 276 of the Act does not apply in relation to a decision of the relevant authority about a development listed in Schedule 7 to these regulations.”

46 It is common ground that the Casino is in an “Entertainment, Accommodation and Leisure” area and thus potentially falls within item 8 of Schedule 7. Item 8 is in the following terms:

“8. Development on land within an Entertainment, Accommodation and Leisure Area –

(a) where, if the development is approved, the land would be no less than 50 metres away from any Residential Area at its nearest point;

(b) if the land has been previously developed – where the development would not increase the total gross floor area of all buildings on the land by more than 50%;

(c) if at the time of the application the lease permits a community use, or a use including a community use – where the development would not have the effect of prohibiting a community use of the land;

(d) if there is no building or structure on the land at the time of the application that has more than 2 storeys – where the development would not result in any building or structure on the land having more than 2 storeys; and

(e) if there is a building or structure on the land at the time of the application that has more than 2 storeys ‑ where the development would not result in any increase in the height of such a building or structure, or in any other building or structure on the land having more than 2 storeys; …”

47 The amendment to the lease which was approved by the Commissioner involved an amendment only to the purpose to which the land was to be put. It involved no physical alteration either to the existing building or to the land itself. Accordingly the respondents urged before the primary judge, and again before us, that pars (b) to (e) of Item 8 were applicable to this development. As to par (a), there was evidence before the trial judge that the distance between the Casino and the closest residential area was “marginally less than 150 metres”. Accordingly his Honour held that reg 24 exempted the Commissioner’s decision from AAT review under s 276.

48 Senior counsel for the appellants conceded on appeal that pars (a), (b) and (c) of Item 8 applied to the development in this case. However he submitted that par (d) and par (e) did not necessarily apply. He urged that it is for the respondents, who rely on reg 24, to bring themselves within its terms. This they have failed to do, he said, as further evidence would be required to satisfy par (d) and par (e).

49 This submission is based upon the words, in par (d) and par (e), that the development “would not result in [emphasis added]” a particular change to the height of the building. The appellants conceded that this development, on its own, could not do so. But, they urged, it might well be the first step in a process which will ultimately result in such a change, thereby bringing the development outside the terms of these provisions. In the absence of any evidence on the matter, it was submitted, it is not open to us to find that the development falls within item 8 of Schedule 7.

50 We cannot accede to this proposition. Both reg 24 and item 8 of Schedule 7 refer to a “development”. It is clear that pars (b) to (e) of item 8 relate to the consequences of that development. It is irrelevant that the long term consequences of further developments might be to increase the height of a building in a manner envisaged by those paragraphs. If that were to be the case, then further development applications would need to be made in order to have the further changes approved. Any development which led directly to an increase in the height of the building, as envisaged by par (d) or par (e), would, by virtue of those paragraphs, fall outside the ambit of item 8, thus leaving intact the right to seek AAT review under s 276.

51 Our finding therefore is that par (d) and par (e) of item 8 refer to the immediate effects of the development in question. Accordingly, reg 24 excluded the Commissioner’s decision from AAT review under s 276.

52 In the light of this finding, there is little to be gained by entering into a detailed discussion as to whether the applicants had standing under that section. Nevertheless, for the sake of completeness, we shall briefly advert to that issue.

53 Section 276(1) of the Land Act, as applicable in July and August 1997, has already been quoted. That provision was inserted into the Land Act by Act No. 85 of 1996. The explanatory memorandum which accompanied the Bill for that Act referred to a requirement that the “interests” (rather than the “rights”) of a person should be substantially and adversely affected by the decision in question. Moreover, as we shall describe shortly, s 276 was later amended so as to delete the word “rights” and substitute the word “interests” in par (1)(b). The appellants therefore submitted that the use of the words “rights” in par (1)(b) was an error which we should rectify by giving the word an expansive construction, so as to equate it with the concept of “interests”.

54 We agree that it is appropriate to interpret the word “rights” in par 276(1)(b) in a broad manner. But we cannot, on the basis of the matters raised by the appellants, construe it as if it related to “interests”. These concepts, whilst similar, involve different considerations – a distinction which is important to maintain. But even if we were to accede to this submission, it would matter little. For we agree with both the Tribunal and the primary judge that the fact that the Commissioner’s decision might have adverse financial consequences for existing clubs by increasing their competition does not mean that either the “rights” or “interests” of those clubs were “substantially and adversely affected” by the development.

55 The matter does not end there. For after the hearing before the Tribunal, but before its decision was given, s 276 was amended. As relevant here, the word “interests” was substituted for the word “rights” in par (1)(b). In addition, subss (8) and (9) were added, in the following terms:

“(8) In this section –

‘person’ includes an unincorporated association.

(9) For the purposes of this section, an organisation or association of persons, whether incorporated or not, shall be taken to have interests that are substantially and adversely affected by a decision if the decision relates to a matter included in the objects or purposes of the organisation or association.”

56 Had the section, as thus amended, been applicable to the appellants’ application, then it is very likely that, in the absence of reg 24, the appellants would have had standing under s 276. But both the Tribunal and the primary judge found that the amendments lacked retrospective effect and did not apply to applications previously made to the Tribunal. The appellant urged that, this being an administrative process, the applicable law was that which prevailed at the time the Tribunal made its decision, not that which applied when the applications were made (Re Costello (1979) 2 ALD 934 at 943‑944, Esber v The Commonwealth (1992) 174 CLR 430 at 448). These authorities make it clear that, in the absence of any question of accrued rights, the applicable law in the administrative process will normally be the law which applies when a decision is made. But in our view this principle cannot, unless statute otherwise provides, apply in relation to laws which regulate standing. Section 276 (assuming its applicability) stipulated the category of people who could apply to the Tribunal for review of the Commissioner’s decisions. Any application made outside the terms of that provision had no legal effect. There was thus no legislative basis upon which the Tribunal could proceed with its review. A subsequent change in the law could not retrospectively endow the proceeding with legal validity unless there was an express provision to that effect.

57 It follows that, were it necessary to do so, we would have upheld the primary judge’s findings that, assuming the applicability of s 276 to the Commissioner’s decision, the appellants acquired no standing under that section.

Conclusion

58 For those reasons the appeal from the decision of the primary judge on each of the applications before him is dismissed with costs.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 25 March 1999

Counsel for the First Appellant:	Mr M L D Einfeld QC with Mr I M Neil

Solicitor for the First Appellant:	Gary Robb & Associates

Counsel for the Second Appellant:	Mr M L D Einfeld QC with Mr I M Neil

Solicitor for the Second Appellant:	Clayton Utz

Counsel for the First and Third Respondents:	Mr P Walker

Solicitor for the First and Third Respondent:	ACT Government Solicitor

Counsel for the Second Respondent:	Mr B W Rayment QC with Mr R J H Darke

Solicitor for the Second Respondent:	Gardini & Co

Date of Hearing:	22 and 23 February 1999

Date of Judgment:	25 March 1999

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