Austin BMI Pty Ltd v Deputy Premier

In this case, Wanless Recycling Park Pty Ltd, made a development application to the Ipswich City Council. The Deputy Premier, under s 103 Planning Act 2016, exercised his power to “call-in” the application, such that a final determination on the application could be made by the Deputy Premier instead of the local council. Various parties, including various Ipswich residents and three competitors of Wanless sought judicial review of the decision to call-in the application. They alleged that the Deputy Premier fell into error on the basis of apprehended bias, failure to take into account a relevant consideration, unreasonableness, a failure to give reasons and a breach of the Human Rights Act 2019. Justice Freeburn dismissed the applications, holding that the Deputy Premier’s decision was not affected by error.

Freeburn J

5 May 2023

The second respondent, Wanless Recycling Park Pty Ltd (“Wanless”), made a development application to the Ipswich City Council (“ICC”) to establish a new resource recovery and landfill facility at Ebenezer, west of Ipswich. [2]. The ICC approved the resource recovery aspect of the application but rejected the landfill component. [2]. Wanless appealed the partial refusal to the Planning and Environment Court (“P&E Court”). [2]. However, before the appeal could be determined, on 27 January 2022, the Deputy Premier exercised his power under s 103 Planning Act 2016 (“Planning Act”) to “call-in” the application. [2]. The applicants, made up of various Ipswich residents (“the Ashworth Parties”) and three competitors of Wanless applied to have the call-in decision set aside on five grounds, four of which are considered below.

Legislative Context

Before turning to the substantive issues raised by the application, Freeburn J considered the legislative context in which the call-in decision was made. Under s 91 Planning Act, the relevant Minister may exercise the call-in power only if the application “involves, or is likely to involve, a State interest”. [31]. “State interest” is defined to mean “an interest that the Minister considers” affects, inter alia, an economic or environmental interest of the State. [31]. His Honour noted that this definition “imposes little by way of practical restraint on the Minister’s powers”. [31]. There is a strong subjective element present in s 91. [32]. In addition, when the Minister chooses to call-in an application, they are not bound by relevant planning codes or standards. [32]. Accordingly, in relation to the call-in power, the “intention of the legislation is to confer the discretion on the Minister who is responsible to Parliament”. [32].

In terms of the procedural aspects of the call-in power, His Honour summarised the key features of the statutory framework at [57].

His Honour held that the legislation makes it “irresistibly clear” that the legislative regime is inconsistent with the Minister having a “wide obligation to afford procedural fairness to those that might be” affected by the call-in decision. [58]. The Planning Act closely limits the right to receive notice of and make representations about a proposed call-in. [59]. Therefore, “it would make no sense to engraft” a broad right to make submissions and be heard onto the legislative regime. [60]. His Honour held that there was no broad right to be heard about a call-in decision. [60].

Apprehended Bias

Despite finding that there was no general right to be heard, His Honour found that the legislative framework, did not give rise to an inference that Parliament intended to exclude the operation of the bias rule. [66].

The applicants alleged apprehended bias on various grounds. [82]. In general, these allegations fell into three categories. First, that the Deputy Premier had called in the Wanless application, despite not calling-in other “materially indistinguishable” applications. [82(a)]. Second, that the Deputy Premier’s political party, the Australian Labor Party (“ALP”), had received donations from Anacta, a lobbying firm, retained by Wanless. Third, that Anacta had engaged in “dual hatting”, a practice which was subsequently banned by the Deputy Premier’s government after receipt of the Coaldrake Report.

The applicants also argued that two phone calls and two emails between representatives of Wanless and the Deputy Premier’s Chief of Staff gave rise to apprehended bias. [82(a)], [82(c)]–[82(e)]. However, His Honour was not satisfied that any of those communications gave rise to apprehended bias. [131], [141], [155], [183].

As to the first category of allegations, His Honour noted that issues of apprehended bias must be considered in light of the relevant legislative framework, and the particular circumstances of the exercise of power. [71]. In this context, the relevant Minister must, on their own motion, propose to call-in the application and receive representations about the call-in, before making a call-in decision. [72]. As such, before representations are received, the Minister must already be inclined to call-in the decision. [72]. The call-in decision is also discretionary and will not involve a balanced consideration of the issues in the way that a judge might approach an adversarial dispute. [75].

In light of that statutory context, His Honour held that the Deputy Premier’s decision, under the Act, is not confined or restricted by previous decisions. [99]. Ultimately, His Honour was also not satisfied that there existed any “materially indistinguishable” development applications that had not been called-in. [120]. Therefore, His Honour did not find apprehended bias made out on this ground.

As to the second category of allegations, His Honour noted that the fair-minded observer would accept that the decision of a Minister is made in the context of active involvement of political affairs. [160]. Donations and lobbying are part of the political process. [167].

His Honour also noted that Anacta had various clients, only one of which was Wanless. [169]. Anacta had a long history of making donations to the ALP and the applicants could not point to any donation outside of this usual practice that could be connected with the Wanless application. [171]. In addition, there was no evidence that the Deputy Premier knew of any donations made by Anacta. [173]. Finally, as noted above, there was no finding of actual lobbying by Anacta in favour of Wanless’ application. [174]. Therefore, His Honour did not find apprehended bias made out on this ground.

As to the third category of allegations, the applicants alleged Anacta had engaged in “dual hatting”, a process whereby lobbyists would work on a party’s political campaign around election time, and then lobby that party during their term. [191]. On that basis, the applicants argued that the Coaldrake Report and the subsequent ban contained an admission that Anacta’s dual hatting would give rise to apprehended bias. [192]. His Honour rejected that argument. [193]. The fair-minded observer is not required to “be so industrious” as to take into account concessions made long after the decision. [198]. In any event, His Honour was also not convinced that Parliament’s banning of dual hatting on the basis of the report was an admission about apprehended bias. [196].

Therefore, His Honour held that apprehended bias was not established. [203].

Relevant Considerations

The applicants contended that the Deputy Premier fell into error by failing to have regard to representations made during the representation period. [210]. The Deputy Premier received 61 representations which ran to 738 pages. [217]. The Minister was provided with a briefing note which summarised, in seven and a half pages, the representations received. [218]. In the Deputy Premier’s briefly stated reasons why the call-in decision was made he stated that he had considered the representations, without going into detail about each representation. [219]. The call-in notice issued by the Deputy Premier was identical to a draft call-in notice produced by the relevant department. [244].

The applicants argued that the Minister’s decision did not suggest any kind of “identification, understanding or evaluation of substantial” arguments raised in the representations and on that basis, it should be inferred that the Minister did not consider them. [216]. The applicants also argued that the briefing note omitted important details and context, and that the Minister was required to read and grapple with the representations. [217]–[218].

The court rejected these arguments. His Honour noted that the level of consideration that the decision maker must give to relevant considerations is limited by the bounds of rationality and reasonableness. [227]. Here, the decision of the Minister must be made within 20 days from the end of the representation period. [228]. The Minister only needs to decide whether a State interest is involved in the development application, and whether they should exercise their discretion to call-in the application. [228]. The Minister, in giving reasons, is not required to “grapple with or evaluate” all of the representations. [229]. They merely need to give reasons explaining the decision made in the legislative context. [229]. In light of this statutory context, the failure to refer, in detail, to the representations did not give rise to an inference that the Minister had failed to consider the representations. [233].

Further, the court rejected the proposition that the briefing note was inadequate. [241]. The Minister, acting in the bounds of rationality and reasonableness, was not required to read all of the representations, and was entitled to obtain the assistance of departmental officers. [241]. No specific inadequacies were identified in the briefing note. [243].

Finally, the fact that the Deputy Premier merely adopted the draft call-in notice produced by the relevant department did not show that he did not consider the representations. [244].

His Honour found the Deputy Premier did consider the representations.

Reasons Given

The applicants also argued that the Minister had failed to give reasons for the call-in decision. [283]. They argued that the call-in notice merely listed “a number of anodyne matters” which described the Wanless project. [283]. Justice Freeburn rejected that proposition, noting two key points.

First, the legislative framework merely requires that the Minister give reasons for the call-in notice. [293]. The decision must be made only 20 business days after representations close. [293]. In that context it would be wrong to read the statute as requiring the Minister to give a high level of detail in their reasons. [293]. Second, the reasons should be read in a “practical and common-sense manner and not with an eye keenly attuned to the perception of error”. [299].

The Minister’s reasons were considered sufficient, and this ground was also rejected. [300].

Human Rights Issues

The Ashworth parties argued that the Deputy Premier had fallen into error by failing to comply with s 58 Human Rights Act 2019 (“HRA”). [301]. They alleged breaches of the right to participate in public life, the right to property and the right to a fair hearing. [308].

As to the first, they argued that Wanless, through its lobbying activities, was able to gain more favourable access to the Deputy Premier and on that basis, they did not have an “opportunity, without discrimination… to have access, on general terms of equality, to the public service and to public office” under s 23 of the HRA. [311], [314]. As noted above, His Honour was not satisfied that any lobbying had occurred. [314]. However, even if lobbying had occurred, lobbying by Anacta may increase Wanless’ prospects on the application, but it would not limit the Ashworth parties’ opportunity to access the public service. [314]. On that factual basis, His Honour rejected this aspect of the Ashworth parties’ case.

As to the second alleged human rights breach, the Ashworth Parties alleged that their right to property was violated on the basis that the call-in decision prevented them from appealing a decision of the local council under the Planning Act. [326]. They contended that the right to an appeal was a chose in action, and therefore, a property right. [326]. His Honour rejected that proposition, finding that the right to appeal created by the Planning Act was not a property interest. [332].

As to the third alleged human rights breach, the Ashworth Parties contended that the call-in decision had prevented the usual appeal process in respect of the development application, and on that basis, their right to a fair trial was breached. [335]. His Honour reasoned that the right to a fair trial did not require that all decision be made through court processes, and in any event, the Ashworth parties may have a right to judicial review in respect of the Deputy Premier’s ultimate decision on the called-in application. [337], [338].

Although, it was not necessary to decide the issue, His Honour also referred to s 58(6) HRA, which “makes it clear that a breach of s 58(1) amounts to a non-jurisdictional error”. [375]. His Honour noted s 231 Planning Act, makes it such that the Deputy Premier’s call-in decision could not be set aside for a non-jurisdictional error. [376]. That issue would cause the Ashworth parties’ human rights arguments to fail even if the relevant breaches were made out. [376].

L Inglis