FEDERAL COURT OF AUSTRALIA
Randwick City Council v Minister for the Environment [1999] FCA 1494
ADMINISTRATIVE LAW – judicial review – operating plan for Sydney airport – decision by Minister under Environment Protection (Impact of Proposals) Act 1974 (Cth) that neither an environmental impact statement nor a public environment report was required – status of ‘Administrative Procedures’ approved under legislation – whether having characteristics of delegated legislation or quasi-delegated legislation – whether imposing statutory or quasi-statutory duty – whether Minister for the Environment required to take into account all feasible and prudent alternatives – whether requirement upon proponent to supply the Minister for the Environment designated information ‘to the extent appropriate in the circumstances’ refers to objective or jurisdictional fact.
Air Services Act 1995 (Cth)
Environment Protection (Impact of Proposals) Act 1974 (Cth)
Federal Court Rules O 10 r 1(2)(j)
Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537 at 539-541 referred to
Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493, 496-512, 524, 525, 541, 544-7 and 556 referred to
Australian Conservation Foundation v Minister for Resources (1989) 76 LGRA 200 at 204 referred to
Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516 at 537-9 referred to
Australian Postal Corporation v Botany Municipal Council (1989) 69 LGRA 86 at 93 referred to
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 386ff referred to
RANDWICK CITY COUNCIL & ANOR v MINISTER FOR THE ENVIRONMENT & ANOR
NG 1281 of 1998
BLACK CJ, LEE and WEINBERG JJ
4 NOVEMBER 1999
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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NG 1281 OF 1998 |
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BETWEEN: |
RANDWICK CITY COUNCIL First Appellant
WOOLLAHRA MUNICIPAL COUNCIL Second Appellant
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AND: |
MINISTER FOR THE ENVIRONMENT First Respondent
MINISTER FOR TRANSPORT AND REGIONAL DEVELOPMENT Second Respondent
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
The appeal be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NG 1281 OF 1998 |
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BETWEEN: |
First Appellant
WOOLLAHRA MUNICIPAL COUNCIL Second Appellant
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AND: |
First Respondent
MINISTER FOR TRANSPORT AND REGIONAL DEVELOPMENT Second Respondent
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
THE COURT:
1 This is an appeal by two local government bodies, the Randwick City Council and the Woollahra Municipal Council, against a judgment of Finn J who, on 3 November 1998, dismissed their application for judicial review of various decisions of the Minister for the Environment and the Minister for Transport and Regional Development. Those decisions resulted in the implementation of the Sydney (Kingsford Smith) Airport Long Term Operating Plan (“the LTOP”) without an environmental impact statement or public environment report being first required.
Factual Background to the LTOP
2 The background to this appeal is complex. In November 1994 what is commonly known as “the third runway” was opened. That runway runs parallel with the airport’s main (and longer) north-south runway. After its construction, Sydney (Kingsford Smith) Airport had three runways:
(i) the main north-south runway;
(ii) the parallel runway on the eastern side of the north-south runway;
(iii) the east-west runway which runs approximately at right angles to the parallel runway.
3 Runway numbers refer to the magnetic direction of the runway rounded to the nearest 10 degrees and expressed as two numerals. The main north-south runway when used for take-offs to the north and landings from the south is runway 34L (ie approximately 340 degrees compass bearing). 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.
4 After November 1994, as a result of decisions made by the Commonwealth Government of that time, restrictions were placed upon the permitted use of the runway system. Departures to the north from the new runway (34R) were not allowed. The existing north-south runway (34L/16R) would continue to handle all classes of air traffic. The use of the east-west runway (07/25) was restricted to those circumstances in which adverse weather conditions precluded the use of other runways for safety reasons.
5 Thus from November 1994, use of the east-west runway substantially decreased to the point of its effective closure. This resulted in a concentration of aircraft movements and related noise impacts in certain suburbs immediately to the north of the airport.
6 The Senate subsequently established a Select Committee to report on various matters relating to noise created by aircraft using the airport. It handed down its report, Falling On Deaf Ears?, in November 1995. The Committee, which appears to have received evidence from a large number of bodies and individuals, concluded that the correct approach to the burden of noise was that it should be shared among a larger number of people so as to affect people more moderately than the existing concentration of flight paths. It recommended that the Minister for Transport and Regional Development direct the responsible authorities to develop a new air space management plan, and examine the best means of using all three runways.
7 On 29 January 1996 the Liberal/National Party Coalition, then in Opposition, issued a policy document entitled Putting People First – The Coalition’s Policy on Sydney Airport and Sydney West Airport. It stated that under a Coalition Government the airport would be operated to reduce the noise and pollution generated by aircraft movements and to share the noise burden in a safe and equitable way. All three runways at the airport would be used, to spread the noise generated by the airport equitably. The maximum possible use would be made of approaches and departures over water and non-residential areas.
8 With the Coalition securing government, Mr Sharp, the Minister for Transport and Regional Development, sought to increase the usage of runway 07/25 and develop a long term operating plan for KSA. He wrote to Senator Hill, the Minister for the Environment, on 19 March 1996 seeking exemption for these actions from the requirements of the “Administrative Procedures” approved under s 6 of the Environment Protection (Impact of Proposals) Act 1974 (Cth) (“the EP(IP) Act”). The following day Senator Hill granted an exemption under para 11 of the Administrative Procedures. On the same day Mr Sharp issued a direction to Airservices Australia, a statutory corporation created by the Air Services Act 1995 (Cth), in the following form:
“COMMONWEALTH OF AUSTRALIA
AIR SERVICES ACT 1995
DIRECTION
I, JOHN RANDALL SHARP, Minister for Transport and Regional Development, acting under section 16 of the Air Services Act 1995 (the Act), hereby direct Airservices Australia to:
1. take immediate steps, consistent with the requirements of the Act, to increase the usage of Runway 07/25 (known as the east-west runway) at Sydney (Kingsford Smith) Airport in order to distribute the noise generated at the Airport more fairly. Consistent with this, the east‑west runway is to operate in accordance with the following principles:
· 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.
Dated this twentieth day of March 1996
John Sharp"
9 In May 1996 Mr Sharp directed Airservices Australia to examine the feasibility of introducing aircraft take-offs from runway 34R in accordance with the principles specified in the earlier directive. Having been informed that the procedure was feasible, Mr Sharp gave a direction on 14 September 1996 requiring the introduction of take-offs on runway 34R “in order to distribute the noise generated at the airport more fairly”.
10 On 16 December 1996, in response to the direction of 20 March 1996, Airservices Australia provided a draft report of the LTOP (“the Draft LTOP”) to Mr Sharp. It was released for public comment on 5 February 1997. Mr Sharp appreciated that if its proposals were implemented by Airservices Australia, 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.
The statutory context
11 Senator Hill was responsible for administering the EP(IP) Act. Section 5(1) of that Act states its object:
“5. (1) The object of this Act is to ensure, to the greatest extent that is practicable, that matters affecting the environment to a significant extent are fully examined and taken into account in and in relation to:
(a) the formulation of proposals;
(b) the carrying out of works and other projects;
(c) the negotiation, operation and enforcement of agreements and arrangements (including agreements and arrangements with, and with authorities of, the States);
(d) the making of, or the participation in the making of, decisions and recommendations; and
(e) the incurring of expenditure;
by, or on behalf of, the Australian Government and authorities of Australia, either alone or in association with any other government, authority, body or person.”
12 Section 6 of the EP(IP) Act provides for the approval of administrative procedures. It is in the following terms:
6. (1) The Governor-General may, from time to time, by order, approve, and approve variations of, administrative procedures for the purpose of achieving the object of this Act, being procedures that are consistent with relevant laws, as affected by regulations under this Act.
(2) Without limiting the generality of subsection (1), the approved procedures may provide for:
(a) enabling the Minister to require the supply of information for the purpose of consideration, by or on behalf of the Minister, of the necessity for environmental impact statements or public environment reports;
(b) authorizing the Minister to direct the preparation or obtaining, and the submission to the Minister, of statements to be known as environmental impact statements;
(ba) authorizing the Minister to direct the preparation or obtaining, and the submission to the Minister, of reports to be known as public environment reports;
(c) defining, or authorizing the Minister to determine, the matters to be dealt with by, and the form of, those statements and reports;
(d) the making of those statements and public environment reports available, in cases or circumstances specified by or in accordance with the procedures, for public comment;
(e) inquiries in accordance with this Act, and action to be taken in respect of reports resulting from such inquiries;
(f) the revision of those statements and public environment reports;
(g) the examination of those statements and public environment reports by or on behalf of the Minister and the making by or on behalf of the Minister of comments, suggestions or recommendations concerning the matters to which those statements and public environment reports relate, including suggestions or recommendations concerning conditions to which approvals, agreements and other matters should be subject; and
(h) exemptions from all or any of the requirements of the procedures.”
13 It is now necessary to refer at some length to the Administrative Procedures, approved under s 6 of the EP(IP) Act. In broad terms, they apply to a proposed Commonwealth action that is an “environmentally significant action”, a term which is defined to include an action that will, or that is likely to, affect the environment to a significant extent or result in such an effect. The Administrative Procedures provide for the designation of a “proponent” in relation to an action to which they apply; the supply of information to the Minister for the Environment or his department; a determination whether an environmental impact statement or public environment report is required; and matters to be dealt with in such statements and reports – see generally Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537 at 539-541 per Lehane J.
14 Section 7 of the Act provides that notice is to be published in the Gazette of any order made by the Governor-General under s 6, and of the place where copies of the order can be purchased. Such orders are to be laid before each House of Parliament within fifteen sitting days after the making of the order, and are subject to disallowance by resolution of that House.
15 Section 8 of the Act provides in part:
“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;
…”
16 Section 9 of the Act provides that regulations made pursuant to s 25 of the Act may operate to modify existing laws. That section provides a rare example of what are sometimes described as “Henry VIII” clauses, ie a power conferred in an Act to amend either that Act or other Acts by regulation – see D Pearce and S Argument, Delegated Legislation in Australia 2nd ed 1999 at p 4. The term “Henry VIII” clauses was coined by reference to that particular monarch’s extensive use of such provisions during his reign, the most famous example of which was the Statute of Proclamations 1539.
The Administrative Procedures
17 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 that proposed action (in the present instance the Minister for Transport and Regional Development) 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 of the Administrative Procedures.
18 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 notify the Department of the Environment, Sport and Territories of the proposed action. Mr Sharp designated his own department, the Department of Transport and Regional Development, as the proponent. The proponent is required to do all things necessary to enable the Administrative Procedures to be complied with in relation to the proposed action.
19 The Administrative Procedures then provide for a process to be engaged in leading to a decision whether or not an environmental impact statement or a public environment report is required. The process to be followed is set out in full below:
“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 subparagraph 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.”
The decisions under review at first instance
20 On 5 February 1997 Mr Sharp released the Draft LTOP for public comment. The closing date for submissions was 7 March 1997. Over 7,500 people and organisations made submissions. As a result, amendments were made to several of the flight paths proposed in the Draft LTOP.
21 On 26 May 1997 Mr Sharp signed a departmental memorandum recommending 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. It stressed that the operational measures announced were proposals, and that it would not be possible to implement any of those measures until the proposals had been granted the necessary clearances under the EP(IP) Act.
22 That so-called “decision” (referred to in the proceedings before Finn J as “the third decision”) to implement the LTOP subject to environmental clearance was one of four decisions that were the subject of challenge. His Honour upheld an objection to competency in relation to it and that conclusion is not the subject of any of the grounds of appeal before this Court.
23 The Department of Transport and Regional Development submitted its proponent’s statement to the Department of Environment, Sport and Territories on 11 June 1997. That document ran to more than three hundred pages. It set out an account of community involvement in the process of developing the LTOP, an analysis of comment received on the LTOP in the February/March 1997 period, and an explanation of, and supplementation of information about, noise impacts considered in the LTOP. It also contained modifications to the LTOP made in consequence of the consultative process.
24 On 18 July 1997 the Department of Environment, Sport and Territories recommended that Senator Hill determine under para 3.1.1(b) of the Administrative Procedures that neither an environmental impact statement nor a public environment report was required before the LTOP was adopted.
25 On 22 July 1997 Senator Hill made his decision. 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.”
26 That decision (referred to in Finn J’s reasons for judgment as “the first decision”) was challenged before his Honour, and is the subject of a number of the grounds of appeal which have been pursued before us.
27 On 30 August 1997 Senator Hill provided a statement of reasons for his decision of 22 July 1997. It is necessary to set out some part of that statement of reasons in 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;
…”
28 The statement noted the obligations imposed by paras 2.1, 2.2 and 3.1.1 to 3.1.3 of the Administrative Procedures. Senator Hill stated that in regard to the matters that he was required to take into account in accordance with para 3.1.2(a) he found that there would be a substantial environmental effect upon some parts of the Sydney community through changes to the pattern of aircraft noise impacts if the Plan were implemented. Other areas could be expected to be affected less than at present by aircraft noise. It was stated that these effects had been taken into account in the proposal. It was also stated that, in general terms, while there could be a significant diminution of environmental qualities in some parts of the Sydney area, this had been taken into account in the proposal. Moreover, while there could be some adverse effects on areas of social significance, the intent of the proposal had been to minimise such effects. While there would be some degradation in the quality of the environment through increased exposure to aircraft noise in some areas, that too had been taken into account in the proposal.
29 Senator Hill’s statement included a part which was headed “Reasons for Decision”. Under that part the Minister commented:
“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.”
30 On 30 July 1997, after receiving Senator Hill’s letter informing him of the decision of 22 July 1997 that an environmental impact statement was not required, Mr Sharp gave a direction to Airservices Australia that it implement progressively the LTOP in accordance with a schedule to that direction. The direction, after reciting the history of the matter, was in the following terms:
“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.”
31 This direction, referred to by Finn J as “the fourth decision”, was the subject of challenge by the applicants before his Honour, and is also the subject of the grounds of appeal before this Court.
32 On 4 September 1997 Mr Sharp provided a statement of reasons for his direction of 30 July 1997. In that part of the statement headed “Reasons for Decision” Mr Sharp 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;
· 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.”
33 For the sake of completeness it should be noted that before Finn J a challenge was made to Senator Hill’s failure to consult with various interested parties between 18 July 1997, when he received his Department’s recommendation, and 22 July 1997, when he made what was described as “the first decision”. This failure by Senator Hill to consult was said to constitute a reviewable “decision”. It was referred to as “the second decision” in the proceedings below.
34 Finn J held that this failure to consult was neither reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth) nor under s 39B of the Judiciary Act 1903 (Cth). His Honour upheld an objection to competency in relation to that “decision”. His Honour’s decision in that regard has not been challenged in this appeal.
35 It follows that the issues raised on appeal before this Court are narrower in several respects than those agitated before Finn J. In substance the two decisions that are still the subject of challenge are (a) the decision of Senator Hill on 22 July 1997 that neither an environmental impact statement nor a public environmental report was required for the purpose of achieving the object of the EP(IP) Act in relation to the LTOP, and (b) the direction given by Mr Sharp on 30 July 1997 to Airservices Australia to implement progressively the LTOP in accordance with its terms.
36 The challenge to Mr Sharp’s direction is, however, based entirely upon the appellants’ being able to demonstrate that Senator Hill’s decision of 22 July 1997 was legally flawed. There is no separate basis in this appeal upon which Mr Sharp’s direction is said to be amenable to review.
The challenges to Senator Hill’s decision of 22 July 1997
37 Senator Hill’s decision was challenged before Finn J on eight separate grounds. These were:
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.
38 His Honour dealt with each of these challenges in turn. Before doing so, however, he commented generally upon his concerns with some of the evidence advanced on behalf of the applicant Councils. In particular, his Honour expressed dissatisfaction with the evidence led from the principal witness called on behalf of the applicants, their expert, Mr Williams. Extensive parts of his evidence were held to be inadmissible. Other parts of his evidence were received by way of submission, pursuant to O 10 r 1(2)(j) of the Federal Court Rules. Mr Williams, who described himself as an environmental consultant, was found by his Honour to profess to expertise in a range of matters that went beyond his qualifications and range of expertise. Plainly his Honour did not regard Mr Williams as an impressive witness.
39 Under the general heading “error of law”, the applicants submitted before Finn J that Senator Hill had misapprehended the obligations imposed on him by the Administrative Procedures and the EP(IP) Act, and that he had misapplied the Administrative Procedures. The errors alleged included having:
(i) failed to take into account to what extent the proposed implementation of the LTOP might 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;
(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.
40 Paras 4.1 and 4.2 of the Administrative Procedures specify the contents of an environmental impact statement and a public environment report respectively. It is unnecessary for present purposes to set out those paragraphs in this judgment.
41 Finn J observed that when the Department of Environment, Sport and Territories made its recommendation to Senator Hill on 18 July 1997 it had referred to the prior process of public consultation, and had made the following comment (at para 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.”
42 In addition, the Department’s background report, which formed an attachment to that recommendation, made reference to the “project alternatives” in the following terms:
“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-westrunway andfrom Runway 34R) but without the systematic applicationof the proposed modes of operation; or
(iii) adopt other combinations offlightpaths.
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 offlights 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 offlightpaths. Clearly, the number ofpossible combinations offlight paths which could be plottedover 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 makefurther representations regarding anyfuture change inflightpaths.
Re-routing offlight 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-offprocedures [the International Civil Aviation Organization’s procedures with respect to high power take-offs and climbs and low power climbs] and modifications to approach profiles (gradients) as well as the re-routing offlightpaths.
…”
43 It was in the context of having received this material that Senator Hill made the statement in his statement of reasons of 30 August 1997 that “all prudent and feasible alternatives appear to have been taken into account”.
44 It should also be noted that in his statement of reasons Senator Hill determined that an earlier environmental assessment which had been prepared in November 1991, and which had dealt with the implications of constructing a third, parallel, runway at Sydney Airport, was a “relevant environmental assessment action” for the purposes of para 3.1.2(b) of the Administrative Procedures.
45 Among the challenges made to Senator Hill’s decision of 22 July 1997 was one described as involving “procedural ultra vires” by which it was alleged that the Department of Transport and Regional Development had failed to supply him with the information required to be supplied by paras 2.1 and 2.2 of the Administrative Procedures. It was submitted that in consequence of that failure, the Minister lacked power to go on and make the first decision. Finn J dealt with that challenge together with the earlier challenge based on alleged error of law.
46 The findings made by his Honour in respect of these separate challenges to the first decision are the subject of a number of grounds of appeal to this Court.
Grounds of appeal
47 The grounds of appeal that have been pressed are as follows:
“2. His Honour erred in finding (at about page 34 and 37 of the reasons for judgment) that the Administrative Procedures had the character of simple administrative procedures relating to governmental decision-making in the field of executive action generally which carried no statutory duty.
3. His Honour should have found that the Administrative Procedures had the character of delegated legislation or quasi-delegated legislation which carried a statutory duty or a quasi-statutory duty.
4. His Honour erred in finding that (at about page 37 and 51 of the reasons for judgment) the first respondent (the Minister for the Environment) was simply not required to take into account any or all feasible and prudent alternatives to the proposed action by para 3.1.1(b) of the Administrative Procedures or section 5(1) of the Environment Protection (Impact of Proposals) Act 1974 (Cth) [“the EP(IP) Act”] in the making of the first decision under review.
5. His Honour should have found that the first respondent was required to take into account any or all feasible and prudent alternatives to the proposed action by para 3.1.1(b) of the Administrative Procedures or section 5(1) of the Environment Protection (Impact of Proposals) Act 1974 (Cth) [“the EP(IP) Act”] in the making of the first decision under review.
6. His Honour erred in finding that (at about page 38 of the reasons for judgment) the first respondent did not commit 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.
7. His Honour should have found that the first respondent did commit 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.
8. His Honour erred in finding that (at about page 43-44 of the reasons for judgment) the only reasonable construction of sub-paragraphs (a), (b) and (c) of para 2.2 of the Administrative Procedures was that proposed by the first respondent.
9. His Honour should have found that the proper construction of sub-paragraphs (a), (b) and (c) of para 2.2 of the Administrative Procedures was that proposed by the applicants.
…
12. His Honour erred in finding that (at about page 45 of the reasons for judgment) the consideration of any feasible and prudent alternatives under para 2.2 of the Administrative Procedures was a matter of good public administration and not a matter of legal obligation.
13. His Honour should have found the consideration of any feasible and prudent alternatives under para 2.2 of the Administrative Procedures was a matter of legal obligation as well as a matter of good public administration.”
48 These grounds may be grouped, for convenience, in the following way:
Grounds 2-3 - The failure of his Honour to characterise correctly the general nature of the Administrative Procedures.
Grounds 4-7 - The failure of Senator Hill to have regard to, or deal properly with, the existence of feasible and prudent alternatives.
Grounds 8-9 - The failure of his Honour correctly to construe sub-paras 2.2(a), (b) and (c).
Grounds 12-13 - The failure of his Honour to accord to para 2.2 the status of legal obligation.
49 We shall deal with the issues raised by these grounds in this order.
The general nature of the Administrative Procedures – Grounds 2 and 3
50 Finn J commenced by referring to the general character and purpose of the EP(IP) Act and the Administrative Procedures. His Honour stated:
“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.”
51 It is clear that in rejecting the applicants’ contentions Finn J relied heavily upon the reasoning of Gibbs J (as his Honour then was) in Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493 at 524. The Australian Conservation Foundation case involved an appeal against a decision of Aickin J who had ordered that the plaintiff’s claim be struck out, and that the action be dismissed. Aickin J’s judgment is set out at 496-512. He observed at 510:
“I am unable to draw an inference from the provisions of the Act and the Administrative Procedures that they show a legislative intention that any private citizen may apply to the court to enforce compliance with their requirements by the executive government or by statutory authorities. It appears to me that the Act and the Procedures are directed towards the regulation of internal governmental procedures and the relations between different organs of government, whether exercising the executive power of the Commonwealth or performing functions as statutory authorities (as defined).
The procedures are entirely within the control of the executive government and the object of the Act as set out in s. 5 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 …” by the executive and by statutory authorities. By s. 8 each Minister is to give directions for ensuring that procedures are given effect to and that final environmental impact statements are taken into account. This demonstrates that “enforcement” of the Act and of the Administrative Procedures is placed primarily in the hands of the relevant Ministers and that the Act and the Procedures are concerned with the decision-making processes of government. Private citizens may be adversely affected by government decisions and in appropriate cases may resort to the Courts to challenge the power to make a particular decision having such an effect upon them, but that is a matter quite different from enforcement of these internal governmental procedures. If these are duties of an enforceable character placed on Ministers and others, they are enforceable only by the Attorney-General or by those who are themselves adversely affected more than or differently from the general public.”
52 Aickin J’s statement of principle regarding the nature of the Administrative Procedures did not foreclose the possibility that the Administrative Procedures could, in an appropriate case, create public duties capable of being enforced at the behest of private citizens with a sufficient interest in the matter in dispute to justify recourse to the courts.
53 The first issue in the Australian Conservation Foundation case was whether the Administrative Procedures under the EP(IP) Act created private rights giving the Australian Conservation Foundation Inc (“the Foundation”) standing to institute a private action to enforce them. That issue was determined against the Foundation.
54 The passage in the judgment of Gibbs J to which his Honour referred was part of an explanation by Gibbs J as to why, in that case, the Foundation was found to have had no standing to maintain a private action against the Commonwealth and some of Ministers of the Commonwealth for declaratory and other relief seeking to challenge the validity of decisions concerning a proposal by a company to establish and operate a resort and tourist area in Central Queensland.
55 The passage from the judgment of Gibbs J at 524 which was cited, and relied upon, by Finn J was preceded by the following passage, also at 524:
“It is clear that the provisions of the Act, with the possible exception of s. 10, do not create private rights. With that possible exception, the only effect of the provisions now relevant is to enable the Governor-General to approve of Administrative Procedures, and to require every Minister of State to do all he can to ensure that those procedures are given effect in matters dealt with by his department, and, in particular, to ensure that any final environmental impact statement, and any suggestions or recommendations made in accordance with the procedures, are taken into account, in matters to which they relate, in his department. In other words, the Act does not expressly create any rights, and the duty which it casts upon each Minister of State is one which is to be performed by him in the course of administering the affairs of his department. That is a public duty, and it is not owed to any particular person or persons.
In my opinion, the Act does not have the effect that the administrative procedures create rights enforceable by private individuals.” [emphasis added]
After the passage cited by Finn J, Gibbs J continued (at 524):
“Moreover, the Minister is not bound absolutely to see that the procedures are observed. He is to “give all such directions and do all such things as … can be given or done by him” to achieve that result: s. 8. That means that the Minister has to do everything possible, consistently with the law, to ensure that his officers, in carrying out their administrative duties, give effect to the administrative directions. The Act may affect the performance of administrative functions in many fields of governmental activity – it is intended to ensure that matters affecting the environment to a significant extent are taken into account by Commonwealth authorities in relation to such matters as the carrying out of works, the enforcement of agreements, the making of decisions, and the incurring of expenditure. In the absence of clear words it is impossible to impute to the Parliament an intention to confer on any private citizen the right to enforce the observance of the proper procedures of administration in the conduct of governmental activities over so wide an area, and there is no hint in the provisions to which I have referred of any such intention.
If it were assumed, contrary to my opinion, that the Governor-General had power, by approving Administrative Procedures, to create legally enforceable rights, it does not appear to me that the Administrative Procedures which were approved have created such rights.”
56 Having dealt with the question of construction of the EP(IP) Act to determine that no private right was conferred on the Foundation to enforce a duty owed to it, Gibbs J turned to the question whether the Foundation had an interest different from that of an ordinary member of the public, sufficient to provide standing for the Foundation to bring an action to enforce the public duty, not owed to any particular person or persons to which his Honour had earlier referred. At 526 his Honour said:
“For the reasons I have given, the action was not brought by the Foundation to assert a private right. It is brought to prevent what is alleged to be a public wrong. The wrong is not one that causes, or threatens to cause, damage to the Foundation, or that affects, or threatens to affect, the interests of the Foundation in any material way. The Foundation seeks to enforce the public law as a matter of principle, as part of an endeavour to achieve its objects and to uphold the values which it was formed to promote. The question is whether, in these circumstances, it has standing to sue.
It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. There is no difference, in this respect, between the making of a declaration and the grant of an injunction. The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so.”
57 Gibbs J determined that, on the facts, the Foundation did not have such standing. His Honour did not determine that the Administrative Procedures and the EP(IP) Act did not establish a public duty to be performed by the Minister.
58 Stephen J referred at 541 to the operation of s 6 of the EP(IP) Act which he described as conferring “wide powers to create administrative procedures”. His Honour continued:
“I put aside for the moment the question of whether those Procedures are legislative in character and perhaps capable of conferring rights enforceable at law, or are merely administrative rules, laid down by the Executive to govern the conduct of officers in carrying out matters of administration. Instead I assume for the moment that the Procedures are of such a nature as to be inherently capable of containing provisions which may confer rights enforceable at law.”
59 His Honour later observed at 544-5:
“… the subject matter of the Procedures is such as to suggest that the appellant has no standing to enforce compliance with them. They are not a code of procedure, such as is familiar in town planning legislation, designed to ensure that those who are likely to be affected by the grant of some permit or the rezoning of some land are given a right to object and to have their objection heard and determined. On the contrary, s. 5(1) of the Act makes it quite clear what Parliament was about when it enacted this legislation …
As already noted, it is “for the purpose of achieving the object of this Act” that s. 6 provides for the approval of “administrative procedures” by order-in-council. The whole concept is, then, that “administrative procedures” should be established so as to achieve the object of ensuring, in relation to actions and decisions of government, as full an examination as is practicable by the Department and the Minister of matters affecting the environment. This is to be achieved with the aid of environmental impact statements. But the ultimate decision of the Minister or of his Department of Environment is not in any way shackled by the E.I.S. procedure, still less by such comments as others may contribute: on the contrary the E.I.S. is only an aid to decision-making. When a final E.I.S. emerges from the process prescribed by the Procedures there then follow Ministerial and Departmental “comments, suggestions and recommendations concerning the proposed action” – Procedures, par. 9.3; these may prove to be directly contrary either to the conclusion of the E.I.S. or of the comments of third parties. And in the upshot all that must occur is that all Government Ministers must ensure that the E.I.S. and any such Ministerial or Departmental suggestions or recommendations are “taken into account” – Procedures, par. 9.5 and s. 8. Environmental considerations are made of mandatory relevance to the decision-making process, but compliance with such conclusions concerning the environment as emerge from the process is not made a condition precedent to government action. The only role for members of the public who make comments on a draft E.I.S. is that of providing information and expressing views, the decision-making function remaining wholly that of government.”
60 His Honour concluded at 545-6:
“This legislation, and the role of the Minister under it, is, therefore, entirely different from legislation under which a Minister, or tribunals appointed by him, adjudicate as between parties, an applicant and objectors to that application, in town planning or local government matters or adjudicate as between a citizen and some government department which has denied him a benefit to which he lays claim. Here no quasi-judicial function is in question, nor any dispute involving a private individual and calling for resolution. The Minister is charged, rather, with wholly executive functions, in the performance of which he has the assistance thought to be provided by an E.I.S. If that E.I.S. is less informative than it should be, due either to its initial inadequacy or to its failure to reflect in its final form those comments critical of it which may have been made, it is the Minister who is to that extent the loser since the assistance he receives from the E.I.S. is the less.”
61 Finally at 546 his Honour dealt with the “juristic nature of the rules of conduct prescribed in the Procedures”. His Honour stated:
“To ask whether they are delegated legislation or only mere rules of executive conduct perhaps does not much advance matters: see Pearce, Delegated Legislation (1977), pp.1-2. The important question is whether breach of the rules which they prescribe results in a justiciable issue, in the sense of an issue which, given a plaintiff having locus standi, the courts will entertain.”
62 Mason J at 547 commenced his judgment by agreeing, for the reasons given by Gibbs J, that apart from s 10, on which ultimately the appellant placed no reliance, neither the EP(IP) Act nor the Administrative Procedures confers any rights on an individual or corporation which has furnished comments pursuant to para 6.3.1(d) of the Administrative Procedures and, therefore, the issue was whether the Foundation had standing to prevent a public wrong arising. His Honour agreed with Gibbs J that to seek a declaration or injunction to prevent the violation of a public right or to enforce the performance of a public duty, a special interest in the subject matter, over and above that enjoyed by the public generally, was required. Mason J agreed that the Foundation did not have such standing. He did not, however, suggest that the Administrative Procedures and the EP(IP) Act did not create a public right or expectation or a public duty.
63 All of the foregoing judgments in the Australian Conservation Foundation case were concerned with the question of standing, not with the nature of any public duty arising out of the Administrative Procedures and the EP(IP) Act. A similar view on standing at an earlier time was taken by Plowman J in Essex County Council v Ministry of Housing and Local Government (1967) 66 LGR 23 at 31. His Lordship held that a local authority which wished to dispute the siting of runways at Stansted Airport which the government had determined to authorise by a special development order, thus avoiding the procedure of an ordinary application for planning permission, had no right to be heard in opposition to the making of such an order. The power to make such an order was “a purely administrative or legislative power fully exercisable discretionarily” for which the Minister was responsible only to Parliament. See H W R Wade and C F Forsyth, Administrative Law, 7th ed 1994 at 570-1.
64 As their Honours noted, the Administrative Procedures, though similar in many respects to regulations (including the requirement of gazettal, tabling and possible disallowance) are not declared by the EP(IP) Act to have the force of law. On the contrary, they must be “consistent with relevant laws” pursuant to s 6. They differ significantly, in that respect, from regulations under the Act which, according to s 9, “have effect notwithstanding any other law”. If the Administrative Procedures do have some of the characteristics of delegated legislation, they certainly do not have the same force, or operate in precisely the same manner, as regulations, whether under the Act, or otherwise.
65 In de Smith, Woolf and Jowell, Judicial Review of Administrative Action 5th ed 1995, the learned authors discuss the distinction between legislative and administrative acts and comment at p 1006-8:
“Other criteria for distinguishing legislative from administrative acts appear in ordinary linguistic usage. In the first place, every measure duly enacted by Parliament is regarded as legislation. If land is compulsorily acquired by means of a Private Act of Parliament or a Provisional Order Confirmation Act, the acquisition is deemed to be a legislative act; though if the acquisition is effected by means of a compulsory purchase order made under enabling legislation, it will usually be classified as an administrative act. Secondly, departmental instruments or announcements which, although general in application, normally neither create legally enforceable rights nor impose legally enforceable obligations since they are not made pursuant to express statutory authority. Rules of this kind are usually referred to as examples of “administrative action.” Circulars issued by the Department of the Environment to local planning authorities on the manner in which they should exercise their statutory powers fall into this category, as do the rules formulated by the Foreign and Commonwealth Office to govern the exercise of the prerogative power over the issue and withdrawal of passports. And the same is true of an announced amnesty for illegal immigrants who satisfy certain criteria. Just as the Crown is without authority to alter the general law of the land by prerogative, so are its servants and other public authorities without inherent authority to impose legal duties or liabilities or to confer legally enforceable rights, privileges or immunities on the subject. Hence, the extra-statutory concessions to taxpayers that the Inland Revenue and Customs and Excise authorities announce from time to time cannot be relied upon in any court of law, although they have been styled “administrative quasi-legislation.” It must not be assumed, however, that departmental communications issued in the form of circulars, notes for guidance or letters to local and regional authorities, or press notices, are necessarily destitute of legal effect. It is possible that in some circumstances, at least, the promulgation of informal rules or the announcement of a policy must give rise to procedural obligations, or be used as evidence of the matters that may legitimately be considered in the exercise of discretion or even create a form of estoppel. And it may not be totally fanciful to imagine that a public authority may be held to have abused its discretion by clearly misinterpreting its own rules that it purported to apply.” [footnotes omitted]
66 In Pearce and Argument, Delegated Legislation in Australia 2nd ed 1999, the concept of “legislation” is distinguished from executive activity by reference to the test propounded by the Donoughmore Committee of the United Kingdom Parliament (Report, 1932, Cmd 4060). That Committee distinguished legislative and executive authority by adopting the approach that legislative activity involves the process of formulating general rules of conduct without reference to particular cases while executive action involves the process of performing particular acts, issuing particular orders or making decisions that apply general rules to particular cases. That approach accords with relevant High Court authority – see for example, Minister for Industry and Commerce v Tooheys Ltd (1982) 42 ALR 260 at 265.
67 The distinction is not always easy to make. In arriving at a decision in a particular case, for example, an administrator will often formulate a general principle that will be applied to the determination of such cases in the future. Conversely, even an Act of Parliament may sometimes be seen as executive or administrative in character because of its application to a particular fact situation or to a named individual.
68 Outside the established categories of delegated legislation – regulations, rules, by-laws and ordinances – there is a proliferation of instruments that find their source of authority in statute but which do not necessarily fit within the established categories of delegated legislation. In its report, Rule Making By Commonwealth Agencies (Parliamentary Paper No 93 of 92), the Commonwealth Administrative Review Council referred to these instruments as “rules”. They are also sometimes described as “quasi-legislation”, on the basis that they are almost laws – see R E Megarry, Administrative Quasi-Legislation (1944) 60 LQR 125. They include codes of practice, guidance notes and guidelines. They may even be contained in statutory instruments – see generally Pearce and Argument, supra at 7-14.
69 The Administrative Procedures may be viewed as a form of quasi-legislation, albeit one which is not attended with some of the problems of inaccessibility associated with other such instruments. While they are not included in the published Statutory Rules, their existence is notified in the Gazette and they are subject to disallowance by either House of Parliament.
70 As against these considerations, the approach which Aickin J took to the Administrative Procedures when considering the question of standing in the Australian Conservation Foundation case, and which Gibbs J also took on appeal, must now be recognised as having dealt only with one of a number of considerations in determining whether the Foundation had the requisite degree of interest in the subject matter of the litigation to give it standing. Whether such a special interest is held by a person in any given case is now regarded as involving questions of fact and degree: Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 per Brennan J at 75. Since these cases were decided there has been considerable development in this branch of the law. There has been an increased public perception of the need for bodies established to protect public interests to be able to have access to the courts to act pursuant to their charters. See for example United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520; Botany Bay City Council v Minister of State for Transport and Regional Development (supra) and Marrickville Council v Minister for the Environment, Sport and Territories (1996) 45 ALD 39.
71 In addition, since 1 October 1980, a statutory right to seek review of administrative decisions has been available under the Administrative Decisions (Judicial Review) Act, a right which is based on qualifications for standing that are wide and flexible. See Australian Conservation Foundation v Minister for Resources (1989) 76 LGRA 200 at 204 per Davies J.
72 No doubt, as a result of these developments, the standing of the local authorities to be applicants in this proceeding was not challenged. It followed that it was not relevant whether the Administrative Procedures had the character of legislation that provided a right for a private citizen to take action to have a private right enforced. The admission of standing meant that the applicant councils were litigants able to seek orders to prevent the violation of a public right or to enforce the performance of a public duty.
73
The Administrative Procedures may
not, create
legal rights and duties in quite the same way as do regulations under the EP(IP) Act, or under other legislation
for the reasons given by Finn J. Those
Procedures are, in our opinion, a hybrid between legislative and executive
acts. We are not, however, persuaded
that the Administrative Procedures, in combination with the Act, do not impose
upon the relevant Minister a duty to ensure that the decision-making processes
under the Act are properly administered.
74 The duty to be performed by the Minister is to ensure, within the relatively minor limitations provided for by s 8, that procedures approved under the Act are given effect. This emerges from a combination of ss 5, 6, and 8 of the EP(IP) Act. Section 8 is explicit in its imposition of a duty to give directions for ensuring that procedures are given effect to, while s 5 contains a powerful statement of the object of the Act.
75 There may be circumstances in which it might be said that the Minister had failed to perform such a duty. That might be so if, for example, he had purported to make a determination under Administrative Procedure 3.1.1(b) cognisant of a failure by a proponent to comply with the requirements of paras 2.1 and 2.2. It might be open to a party aggrieved to complain that the Minister had ignored non-compliance with the Administrative Procedures by a proponent when those paragraphs were plainly included in order to ensure that the Minister was properly instructed on relevant matters before making a determination under para 3.1.1(b).
76 Thus, if to the Minister’s knowledge, the requirements of para 2 have not been met it may follow, in an appropriate case, that a determination made by the Minister thereafter would be reviewable, being a decision that did not conform with the requirement that the Minister perform his or her duty, and being a decision not made in accordance with the processes and procedures required by and under the EP(IP) Act.
77 Finn J found that when the Minister noted that all reasonable and prudent alternatives appeared to have been taken into account, no error of law in the Minister’s decision was manifested. That is, by so acting the Minister had not failed to perform a duty arising out of the EP(IP) Act. In our view, his Honour was correct in so finding. It was unnecessary under the Administrative Procedures, and the EP(IP) Act, for the Minister for the Environment to record his satisfaction that the requirements of para 2.2 had been met. In making his determination under para 3.1.1(b) the Minister was not required under para 3.1.2 to undertake his own examination of reasonable and prudent alternatives and it followed that there was no duty to be enforced in that regard.
78 Although, therefore, we would take a somewhat different approach to the Administrative Procedures to that taken by Finn J, we are not persuaded that the approach that his Honour took led to any error in the result. In particular, we do not consider that the differences between the way in which we would approach the Administrative Procedures and the way in which Finn J approached them, leads to any difference, for present purposes, in the interpretation of the provisions that were in issue on this appeal. We would therefore not allow the appeal on grounds 2 and 3 of the amended notice of appeal.
Feasible and prudent alternatives – Grounds 4-7
79 Finn J summarised the contentions advanced on behalf of the applicants as follows (at 35 – 36):
“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.”
80 His Honour dealt with these contentions in the following way (at 37 – 38):
“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 judgments – 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.”
81 When para 2.2 of the Administrative Procedures requires the proponent to supply designated information “to the extent appropriate in the circumstances” it does not refer to an “objective” or “jurisdictional” fact which must exist (and not merely determined by the Minister to exist) before the Minister can proceed lawfully to decide whether or not an environmental impact statement or public environment report is required. A similar contention was rejected by Sackville J in Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516 at 537-9. See also Australian Postal Corporation v Botany Municipal Council (1989) 69 LGRA 86 at 93 and Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297.
82 We do not accept the submission that before the Minister could make a determination under para 3.1.1(b) he was himself to see if all prudent and feasible alternatives to the LTOP had been taken into account. Whatever be the obligations imposed on a proponent by sub-paras 2.2(a), (b) and (c), the matters that the Minister is required to take into account for the purposes of his determination under para 3.1.1(b) are those specified in para 3.1.2, and not those set out in the earlier subparagraphs.
83 In making a determination under para 3.1.1 the Department or the Minister must take into account at least whether, and to what extent, the proposed action may result in one or more of twelve separate and carefully designated effects upon the environment. In addition the Department or the Minister must take into account any environmental assessment action taken, or being taken, in relation to the proposed action that the Minister or the Department considers relevant action.
84 Save in the limited circumstances previously identified when dealing with grounds 2 and 3, the Minister is not required when making a determination under para 3.1.1(b) to consider whether or not the proponent of the proposed action has complied with the requirements of paras 2.1, 2.2 and 2.3 of the Administrative Procedures. It follows that, as a general rule, the Minister is not required to be satisfied that all “feasible and prudent alternatives” to the proposed action have been considered and properly evaluated.
85 While a Minister may wish to take account of, or to comment in some way on, any such feasible and prudent alternatives, whether these have been provided to the Minister for consideration or simply considered by the proponent, para 3.1.2 does not in any general sense oblige the Minister to do so. As Finn J correctly noted, it is para 3.1.2 that prescribes the process of deliberation in which the Minister must engage in making a 3.1.1(b) determination, and not any other part of the procedures.
86 It follows that we agree with Finn J that whatever deficiencies there might be in the provision of information to the Minister relating to feasible and prudent alternatives those deficiencies cannot, of themselves, found an error of law of the type contended for by the appellants. In the decision-making process in which he was engaged, at least in the particular circumstances of this case, the Minister for the Environment was not required by para 3.1.1(b) of the Administrative Procedures or s 5(1) of the EP(IP) Act to give consideration to any or all such alternatives.
87 It follows also that the Minister for the Environment did not in any relevant sense err in 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 had been taken into account. We would reject grounds 4 to 7 of the amended notice of appeal.
The construction of sub-paragraphs 2.2(a), (b) and (c) of the Administrative Procedures – Grounds 8 and 9
88 These grounds were dealt with by Finn J under the general rubric of procedural ultra vires. In essence the claim 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 was submitted, the Minister was not empowered to go on to make the first decision.
89 Paragraph 2.1 of the Administrative Procedures obliges a proponent to supply the Minister or the Department with the information required to be provided by para 2.2. Paragraph 2.2 describes the information required to be so provided, but qualifies the requirement by noting that such information is to be provided “to the extent appropriate in the circumstances of the case”.
90 It is useful to set out again para 2.2 of the Administrative Procedures:
“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,
…”
91 We have already indicated that we reject the contention advanced by the appellants that, upon its proper construction, para 2.2 makes the categories of information set out therein objective or jurisdictional facts.
92 Grounds 8 and 9 of the amended notice of appeal arise out of the following findings made by Finn J (at 43 – 44):
“The applicants, as well, seek to place a distinctive construction upon sub-paragraphs (a), (b) and (c) of para 2.2. It is perhaps, best understood, by reference to the contrasting construction advanced on behalf of Senator Hill. That contrasting construction is as follows:
(i) Sub-para (a) makes reference to “any feasible and prudent alternative to the proposed action considered by the action Minister or the proponent” (emphasis added).
(ii) When sub-paras (b) and (c) refer to “any feasible and prudent alternative to the proposed action” this should be construed subject to sub-para (a) and as if (as in sub para (a)) those words were qualified by the words “considered by the action Minister or the proponent”.
The applicants for their part submit that the reference in sub-para (a) to alternatives “considered by the action Minister or the proponent” relates only to those that were considered in relation to “any preliminary planning, consideration or work undertaken in relation to the proposed action”, whereas the alternatives referred to in sub-paras (b) and (c) are those which, in fact, are feasible and prudent alternatives. Support for this differentiation in meaning is sought in the proposition that where the same formula could have been used consistently but was not, it is to be assumed that different uses give rise to different meanings: Pearce and Geddes, Statutory Interpretation in Australia, para 4.4 (4th ed).
The burden of the applicants’ construction would seem to be that the Proponent, for the purposes of (b) and (c), is obliged to provide the required information in relation to any (by which seemingly is meant “all”) alternatives to the proposed action that are feasible and prudent. In consequence the applicants sought, primarily through Mr Williams, to put into evidence a body of opinion and information (ruled inadmissible for the most part) as to the possible existence of such alternatives, as also alternatives considered subsequent to the implementation of the LTOP on 31 July 1997.
For my own part, I consider the only reasonable construction to give the sub-paragraphs is that proposed on behalf of Senator Hill. The information to be supplied under each sub-paragraph in relation to feasible and prudent alternatives is of such alternatives as have been considered by the action Minister or the proponent. I do not consider that the reference to the alternatives considered in sub-paragraph (a) is limited in the way the applicants contend. That paragraph I would construe as requiring the proponent to describe such feasible and prudent alternatives as have been considered when the Proponent’s Statement is supplied to the Minister of the Environment or to DoEST. The subsequent references to alternatives is likewise to those that have been so considered. It is in my view improbable that sub-paras (b) and (c) were intended to impose a general obligation on the Proponent to describe all feasible and prudent alternatives - cf Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516 at 537-539 - an obligation which in many instances could be both exceptionally onerous and inimical to reasonable and practical decision-making. An objective criteria of the type proposed is made the more improbable when, for the purposes of making a para 3.1.1(b) decision, the matters alone that the Minister is required to take into account under para 3.1.2 all relate to the “proposed action”. No level of satisfaction is required to be achieved in relation to feasible and prudent alternatives. In this the provisions both of the EP(IP) Act and of the Administrative Procedures stand in sharp contrast, for example, to the provisions of s 30(1) of the AHC Act (set out above): see for example, Australian Conservation Foundation v Minister for Resources (1989) 76 LGRA 200.”
93 We can see no error in his Honour’s approach to the proper construction of para 2.2 of the Administrative Procedures. We agree with his Honour that the only reasonable construction to give the sub-paragraphs is that proposed on behalf of Senator Hill. The information to be supplied under sub-paras (b) and (c) in relation to feasible and prudent alternatives is of such alternatives to the proposed action as have been considered by the action Minister or the proponent. When Finn J expressed the view that it was improbable that sub-paras (b) and (c) were intended to impose a general obligation on the proponent to describe all feasible and prudent alternatives – an obligation which in many instances could be exceptionally onerous and inimicable to reasonable and practical decision-making – his Honour was doing no more than giving to these sub-paragraphs a purposive construction, in accord with accepted canons of construction. We can discern no error in his Honour’s approach.
94 Grounds 8 and 9 should be rejected.
The status of paragraph 2.2 – Grounds 12 and 13
95 Finn J was fortified in his conclusion that the construction favoured by the applicants should be rejected by noting that while, as a matter of responsible public administration, a proponent would consider alternatives (feasible and otherwise) in many instances, and that the Minister for the Environment might well wish to be satisfied that alternatives had been considered where any environmentally significant action was proposed, these were matters of “good administration” and not, for that reason alone, matters of legal obligation. His Honour also noted, in passing, that the LTOP indicated the complexity of the assessment criteria that needed to be applied in considering possible runway operation modes, and that three principal project alternatives had been taken into account in the preparation of the LTOP.
96 His Honour concluded (at 45):
“It is not my function to pass judgment on whether the deliberations and actions of DoTRD, Environment Australia and Senator Hill in this matter should properly be characterised as typifying good administration as such. What I would say is that DoTRD, as the Proponent, was not guilty of the failure alleged in supplying para 2.2 information to the Minister. Neither was the Minister precluded from making his determination because of the state of the information on feasible and prudent alternatives that he was provided with.”
97 We agree with that observation.
98 We also agree with his Honour’s additional observation that even if the proponent had failed in some respect to supply adequate information to the Minister, Senator Hill’s decision would not for that reason be invalidated as a matter of course. We rather doubt that it was the purpose of the EP(IP) Act and the Administrative Procedures to render invalid acts done consequent upon a breach of para 2.1 – see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 386ff.
99 These last two conclusions deal with grounds 12 and 13, which were the final grounds in the amended notice of appeal to be argued. Grounds 10 and 11 were expressly abandoned.
100 It follows that no ground has been made out for disturbing the order dismissing the application for judicial review of the decisions made by Senator Hill. As we have noted, it was not suggested that there were any separate grounds upon which the order with respect to Mr Sharp’s decision should be set aside. Accordingly, the appeal must be dismissed, with costs.
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I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. |
Associate:
Dated: 4 November 1999
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Counsel for the Appellants: |
C J Stevens QC with M A Robinson |
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Solicitors for the Appellants: |
Eakin McCaffery Cox |
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Counsel for the Respondents: |
A Robertson SC with S J Gageler |
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Solicitor for the Respondents: |
Australian Government Solicitor |
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Date of Hearing: |
18, 19 February 1999 |
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Date of Judgment: |
4 November 1999 |
