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[2014] QSC 196
Jackson J
21 August 2014
The issue raised in this recent action before the Supreme Court was the reviewability of a decision made by the Treasurer and Attorney-General (the “QCAA Ministers”) under the auspices of the Queensland Competition Authority Act (the “QCAA”). This matter arose out of a report and recommendations made by the Queensland Competition Authority (the “Authority”), and subsequently accepted by the QCAA Ministers regarding water allocations and irrigation pricing. Pursuant to the QCAA, the Authority undertook to investigate irrigation prices and subsequently provided a report, including recommendations, to the QCAA Ministers. [2]–[4] Pursuant to s 36 the QCAA Ministers were then required to either accept or reject those recommendations and then to refer it to the “relevant minister” pursuant to s 37. It was this decision of the QCAA Ministers, to accept the Authority’s recommendations, which the Mid Brisbane River Irrigators Inc (the “applicant”) sought to have reviewed. The principle issue before the Court was whether there were circumstances which enlivened the Court’s power under s 20 of the Judicial Review Act (the “JRA”), namely that: the decision was “a decision to which this act applies”; the applicant was “aggrieved by” the decision and that the application was made upon one or more of the grounds outlined in s 20(2). [19].
His Honour first considered whether the decision was one to which the JRA applied, namely whether it was “made . . . under an enactment.” The respondents alleged that the QCAA Ministers decision did not “confer, alter or otherwise affect legal rights or obligations” and thus did not meet this requirement as it was explained in Tang. [21]–[22]. His Honour did not agree. He concluded that the QCA Act required the making of a decision by the QCAA Ministers on the basis that if the QCAA Ministers accepted the QCAA’s recommendation they were then obliged to then refer this recommendation to the relevant minister pursuant to s 37. [23]–[24]. It followed that the making of the identified “decision” resulted in the creation of a relevant obligation which was sufficient for the Tang principles. Also, albeit more briefly, considered was whether the decision was both sufficiently final and determinative and whether or not subsequent actions taken by the relevant minister operated to render the decision at issue a “spent force”. In both instances the Court held this was not the case – the decision was not a “step along the way in the course of reasoning to an ultimate decision, see [25], nor was it spent given that any decision made by the relevant minister was not made by the same repository of decision-making power as the QCAA Ministers’ decision, see [26].
Given these conclusions, the Court was then required to turn to the question of whether the MBRI was “a person aggrieved” by the decision. See [29]–[30]. As an incorporated association, MBRI does not “simply acquire the ‘interests’ or standing of its members,” see [32]–[33], instead it was required to demonstrate a “sufficient interest”. See discussion [34]–[36]. Upon considering the facts before the Court, however, his Honour concluded that the QCAA Ministers’ decision to accept the recommendations did not adversely affect the interests of MBRI or MBRI’s members – any adverse impact was a consequence of the subsequent actions of the relevant minister. [39] Given this conclusion there was no reason to rule whether MBRI had standing in the present matter, [38], and the Court dismissed the application.