Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95

Judgment (479 paragraphs)

[1]

The application involves complex and significant environmental issues associated with potential rehabilitation of mining voids and the environmental impacts of waste activities.

[2]

Specifically, the material relevant to the application raises the following significant issues:
- the application of the planning framework to the rehabilitation and reuse of existing mining voids
- the role of waste facilities, such as the proposed development, in contributing to, or enhancing, recycling in Queensland
- the environmental and amenity impacts of the proposed development.
The site is subject to planning scheme provisions and a temporary local planning instrument (TLPI) which contemplate that mining voids will be filled and rehabilitated to allow for possible future use in this location. The State Planning Policy, which is made to protect or give effect to state interests, is also concerned with ensuring this type of development is compatible with surrounding land uses.
The importance of appropriate regulation of waste activities in this location is reflected in the continuing application of a TLPI to this site, currently TLPI No. 1 of 2021 - Resource Recovery and Waste Activity Regulation which regulates applications for new or expanded waste activities including for the current site, to protect existing and planned sensitive receiving uses from adverse impacts for waste activities.

[3]

[271] There is no reason for thinking that the reasoning is irrational or lacks intelligible justification. Different people may make different decisions or may offer a different reasoning. That is not sufficient. This is not a review on the merits.[242]

[4]

[272] Then, on pages 3 and 4 of the call-in notice, the Deputy Premier sets out 12 reasons why he has decided to call-in the application. Those reasons are:

[5]

1. I consider that the proposed development involves, or is likely to involve, the state interests set out above.

[6]

2. The application is for the development of a resource recovery facility and associated landfill activities that involve the filling of existing mining voids on the site.

[7]

3. The application involves complex and significant environmental issues associated with the potential rehabilitation of mining voids and the environmental impacts of waste activities.

[8]

4. The call in request asserts that the project includes a $200M capital investment to establish a new resource recovery facility on the site and will initially create 300 jobs during the construction phase, with an additional 50 ongoing permanent jobs from the commencement of the operation of the site.

[9]

5. The importance of appropriate assessment of waste activities in this location is reflected in the planning instruments including TLPI No. 2 of 2020 (Waste Activity Regulation) which is applicable to this application.

[10]

6. On 10 December 2021, I made a new TLPI (Temporary Local Planning Instrument No. 1 of 2021 - Resource Recovery and Waste Activity Regulation) which is applicable to the Ebenezer area and the site. This TLPI will be taken into consideration in the assessment of the application.

[11]

7. In November 2021, the Council of Mayors South East Queensland (CoMSEQ) released the South East Queensland Waste Management Plan 2021. This plan sets a path forward for collaboration across South East Queensland councils to jointly address waste management and long-term infrastructure planning.

[12]

8. I am informed that there are three Planning and Environment Court appeals which relate to proposed landfill developments in the Ipswich City Council local government area. These appeals are awaiting judgment.

[13]

a. this application is the subject of a current Planning and Environment Court appeal

[14]

b. there were 60 properly made submissions for the application

[15]

c. there are in excess of 50 submitter co-respondents.

[16]

10. This indicates the level of complexity associated with the assessment of waste activities in this area and the significant community concern.

[17]

11. The representations raised an additional matter that provides evidence to support giving a call in notice, namely potential impacts to the proposed SEQ Intermodal Terminal to be delivered as part of the Inland Rail project.

[18]

12. In accordance with the Human Rights Act 2019, I have considered and given proper consideration to the human rights relevant to my decision whether to issue this call in notice. I have been provided with a human rights assessment document prepared by the department to assist my consideration. Based on this, I have determined that my decision to issue this call in notice is compatible with human rights.

[19]

[273] Those reasons are rationally capable of supporting the decision.[243] The reasons comprise an intelligible justification for the decision.[244]

[20]

[274] In fact, none of the applicants sought to pick apart the 12 reasons. The principal attack on the reasons was the allegation of compelling evidence of substantial similarities between the Wanless Application and the previous applications in the same Council area - an aspect already considered above.

[21]

[275] The joint applicants submit that the similarities between the Wanless application and the earlier applications were brought to the Deputy Premier's attention in representations that he was required to consider. The joint applicants complain that the call-in decision makes no mention of those similarities or why the Wanless application was to be treated differently.[245]

[22]

[276] For the reasons already explained, it is doubtful that the Wanless application can be characterised as materially indistinguishable from the earlier applications.[246] And, the evidence does not establish the extent to which the Wanless application was similar to the prior applications. But, even if it were accepted that the applications were similar or materially indistinguishable, and even if the Minister were the same person, that does not take the joint applicants very far. It is an error in approach to read the legislative regime as requiring the Minister to provide an analysis which answers or resolves each of the arguments put in the representations, or even arguments that are prominent in the representations.

[23]

[277] First, s 103(3) of the Planning Act requires that the call-in notice must state that the Minister is calling-in the application, the reasons for the call-in, including the State interest giving rise to the call-in, and the point from which the process must restart.[247] The legislation does not require that the Minister do more than those three things. As explained, the legislation does not require an analysis or, a 'grappling with', or even an acknowledgment of any particular representation or argument.

[24]

[278] Second, the Minister's discretion to call-in is not confined. No criteria or standard need be met. All that is necessary is that the Minister state the reasons for the call-in, and the State interest - which itself has a subjective element. Thus, a Minister may be presented with 10 arguments against a call-in, may decide that a separate 11th argument justifies the call-in. In other words, the legislation does not require that the Minister's reasons have any particular connection or link with the representations.

[25]

[279] Third, the idea that the Minister must deal with an argument in the representations, raises an impracticality. Why is it, for example, that the Minister should deal with the similarities between the Wanless application and the earlier applications? Possibly it is because the joint applicants, or some or all of the representators, attached some importance to those similarities. Other representors may attach importance to other arguments within the representations. The point is that a value judgment at play in assessing the importance or otherwise of the various representations to the Minister. Certainly, the Minister is required to consider the representations. However, having considered them, the Minister is perfectly entitled to make his own value judgment in deciding that, for another rational reason the Minister has decided to call-in the application.

[26]

[280] Fourth, as it happens, the Deputy Premier's reasons do record the other applications and the P&E appeals associated with those applications. The Deputy Premier's reasons also record "the level of complexity associated with the assessment of waste activities in this area and the significant community concern". Those are some of the reasons for the call-in.

[27]

[281] Fifth, if the court were to require the Minister's reasons to deal with, or to grapple with the arguments in the representations, or the more prominent of those arguments, the likelihood is that the court would be conduct a merits review, or a de facto merits review, of the Minister's decision.[248] And, the focus would cease to be on the vital issue, which is whether the reasons are rationally capable of supporting the decision.

[28]

[282] For those reasons, I find that the Deputy Premier's exercise of his call-in power was not legally unreasonable and/or irrational.

[29]

(a) s 103(3) of the Planning Act obliges the Minister to state the "reasons for the call in";

(b) the call-in decision fails to do so;

(c) instead, the Deputy Premier's decision and reason lists a number of anodyne matters which do no more than describe features of the Wanless project.[249]

[30]

[284] The Deputy Premier's submissions contend that the relevant principles are derived from s 27B of the Acts Interpretation Act 1954 (Qld) and Minister for Immigration and Multicultural Affairs v Yusuf.[250] The former is discussed above[251] and requires that the tribunal, authority body or person set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. As stated above, it is doubtful that s 27B applies.

[31]

[285] In Yusuf the High Court considered s 430(1)(c) of the Migration Act 1958 (C'th) which required the Refugee Review Tribunal, in making its decision on a review of a protection visa decision, to prepare a written statement setting out the findings on any material questions of fact.

[32]

[286] None of that is particularly helpful in a context where the decision being criticised is a discretion of a Minister to call-in an application and the Minister's obligation is to state the reasons for the call in, including the State interest giving rise to the call in. As explained, a Tribunal's obligation will not be the same as a Minister's obligation to state the reasons for the exercise of a statutory discretion.

[33]

[287] There is force in Wanless' submission that the reasons of an administrative decision maker are "meant to inform"; they are "not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed". They are to be read as a whole.[252] Of course, any shortcomings in the expression of the reasons does not involve jurisdictional error and thus s 231 of the Planning Act excludes any right of review on this ground.[253]

[34]

[288] The Deputy Premier's reasons for the call-in can be summarized as follows: [254]

[35]

(a) The proposed development involves economic interests which the Deputy Premier considers are State interests, namely:

(i) redevelopment of disused mining voids that will create economic opportunities;

(ii) a $200M capital investment to establish a new resource recovery facility which will initially create 300 construction jobs and an additional 50 ongoing permanent jobs;

(iii) an opportunity to create economic development and to establish a market leading recycling facility;

(iv) The 'Shaping SEQ' plan[255] identifies the site and surrounding land as being within the Ebenezer major enterprise and industrial area Regional Economic Cluster and these areas are intended to advance the economy and drive greater levels of local employment;

(v) there is potential for the development of the SEQ Intermodal Terminal for the Inland Rail project in the vicinity of the site which will support significant local employment and generate a significant increase in the Gross State Product.

(b) Similarly, the proposed development involves environmental interests which the Deputy Premier considers are State interests, namely:

(i) the application involves complex and significant environmental issues associated with potential rehabilitation of mining voids and the environmental impacts of waste activities;

(ii) there are significant issues as to the application of the planning framework to the rehabilitation and reuse of existing mining voids, the role of waste facilities, such as the proposed development, in contributing to, or enhancing, recycling in Queensland, and the environmental and amenity impacts of the proposed development;

(iii) certain planning scheme provisions and a temporary local planning instrument contemplate that mining voids will be filled and rehabilitated to allow for possible future use in this location;

(iv) a temporary local planning instrument protects existing and planned sensitive receiving uses from adverse impacts for waste activities.

(c) the development of a resource recovery facility and associated landfill activities that involves the filling of existing mining voids on the site, which involves complex and significant environmental issues associated with the potential rehabilitation of mining voids and the environmental impacts of waste activities.

[36]

[289] The language of the reasons is the rather general language of policy rather than the language of precision. Nevertheless, those reasons qualify as reasons for the call-in. In fact, any one of those reasons on its own qualifies as a reason for the call-in. Read as a whole, the Deputy Premier has set out, in some detail, why he exercised the discretion to call-in the application. Certainly, it is wrong, in my view, to characterise those reasons as "anodyne matters which do no more than describe features of the Wanless project".[257]

[37]

[290] Incidentally, in two instances the Deputy Premier says in his reasons "I am informed...". In its context the Deputy Premier is plainly saying that he is informed of those facts and accepts those facts as true.

[38]

[291] The joint applicants make this complaint about the reasons:

[39]

Under the heading "I am calling in this application for the following reasons", the Deputy Premier described the proposed development and other incidental matters but he did not explain the path of reasoning to why the Wanless Application should be called in.

[40]

[292] The legislation does not require the Minister to 'explain the path of reasoning'. That is an incorrect approach. The correct approach is to appreciate that the content of the statutory duty defines the statutory standard that a written statement of reasons must meet to fulfil it.[258] Here, the statutory duty requires the Minister to state the reasons for the decision to call-in, including the State interest giving rise to the call-in.[259] He has done that.

[41]

[293] As Wanless points out, the call-in notice is to be provided within 20 business days after the end of the representation period. In that context, in which a large number of potentially lengthy representations might be made, it would be wrong to read the statute as contemplating reasons which descend to a high level of detail in responding to particular submissions. And it is necessary to read the Deputy Premier's reasons "in a practical and common-sense manner and not with an eye keenly attuned to the perception of error".[260]

[42]

[294] In any event, it is difficult to see what more is required. The Deputy Premier has, for example, decided to exercise his call-in discretion because there are complex and significant environmental issues and there is a wider South East Queensland perspective, as well significant community concern.[261] In so far as there is a path of reasoning, it is merely that, for those reasons, the Deputy Premier has decided to call-in the application.

[43]

[295] The Council's submissions rely on the reasons of Bond J in Willis v State of Queensland to the effect that what is to be set out in the statement of reasons is the actual path of reasoning by which the tribunal arrived at the opinion it was required to form, and that that must be done in sufficient detail to enable the Court to discern whether the opinion does or does not involve any error of law.[262] However, in Willis Bond J was considering the adequacy of the reasons of a tribunal, that is the General Medical Assessment Tribunal under s 516(1) of the Workers Compensation and Rehabilitation Act 2003. That is a different legislative context.

[44]

[296] The Council then submit that the Deputy Premier's reasons do not even attempt to explain the bases upon which the Deputy Premier determined that the Wanless application was likely to involve State interests when comparable applications were determined not to involve any such interests.[263] The legislation does not require such a comparison. And the legislation requires that the relevant Minister, here a 'new' Minister, exercise what is, in effect, a personal discretion. The discretion involves the Minister's consideration as to whether the application affects an economic or environmental interest of the State, or a part of the State, or a Planning Act purpose. It is contrary to the Act to fetter the Minister's discretion by requiring the new or even the existing Minister to act consistently with the prior exercise of the discretion or to justify that Minister to justify a departure from a 'precedent' exercise of the discretion.

[45]

[297] There is also an odd feature here. As mentioned above, all parties agree that this project falls within the concept of the State interest. Thus, the Council complains that the Deputy Premier has failed to explain why the application involves a State interest in circumstances where it agrees there is a State interest. Possibly that confusion arises because the Council (and the applicants) took the view that the previous Minister had positively determined that no State interest was involved in the prior applications.

[46]

[298] The evidence does not go that far. As Wanless explained, what the previous Minister in fact said in correspondence was:

[47]

(a) "I have formed the view that the development does not involve a state interest in a manner that warrants a call in...";

(b) "no state interests are affected by the proposed developments which warrant [the Minister's] involvement";

(c) "the exercise of ministerial call in powers... necessitates me to take the view, above and beyond determining that a state interest is affected, that the circumstances should also warrant the exercise of these powers";

(d) "my Department has advised me that that [sic] there are no grounds for a call-in and accordingly I will not exercise ministerial call-in powers at this time".[264]

[48]

[299] The Council also quibbles about the extent of the capital investment, and the number of jobs likely to be created, the fact that the notice "regurgitates" the submissions made by Wanless, and the Deputy Premier's use of the word 'including' which suggests other reasons not identified.[265] Suffice it to say that the reasons must be read as a whole and in a practical and common-sense manner and not with an eye keenly attuned to the perception of error.

[49]

[300] For those reasons the fourth ground has not been made out.

[50]

[301] The Ashworth parties are local residents of Ipswich. They were co-respondents to Wanless' appeal to the P&E Court. The Ashworth parties contend that the Deputy Premier's decision was infected by apprehended bias. They made submissions about that issue (First Ground). The Ashworth parties also adopted the joint applicants' submissions on the Second to Fourth Grounds. Those issues are considered above. The Ashworth parties also alleged breaches of their human rights. That issue, and the relevant submissions are addressed in this section as the Fifth Ground. On this issue, the Attorney-General intervened on behalf of the State. In doing so, the Attorney-General adopted and relied on a submission made by Wanless.

[51]

[302] It is common ground that the Deputy Premier is a public entity under s 9(1)(e) of the Human Rights Act and that, as a public entity, he has two obligations under s 58(1) of the Human Rights Act:

[52]

(a) not to act or make a decision in a way that is incompatible with human rights (the 'substantive limb' in s 58(1)(a)); and

(b) in making a decision, not to fail to give proper consideration to a relevant human right (the 'procedural limb' in s 58(1)(b)).[266]

[53]

[303] The substantive limb will be considered first.

[54]

[304] Section 58(1)(a) of the Human Rights Act provides that: "It is unlawful for a public entity ... to act or make a decision in a way that is not compatible with human rights".

[55]

[305] The expression "compatible with human rights" is defined in s 8 of the Human Rights Act. It means either that the decision does not limit human rights or, to the extent that it does, those limits on human rights are nonetheless justified according to the test of proportionality set out in s 13 of the Human Rights Act.

[56]

[306] The Attorney-General submits, and it is accepted, that compatibility with human rights should be considered in three stages: engagement, limitation, and justification:

[57]

(a) Engagement: A measure will 'engage' a human right, if the right is 'relevant' or 'apparently limit[ed]'. 'The relevance may be that the right is interfered with (i.e. a negative effect) or promoted'. A human right can only be limited if it is engaged, but it is possible that a human right may be engaged but not limited (for example, property might be deprived so that the right in s 24(2) is 'engaged', but the deprivation may not arbitrary, so that the right is not in fact 'limited').

(b) Limitation: A measure will 'limit' a human right for the purposes of s 8 of the Human Rights Act, if it 'places limitations or restrictions on, or interferes with, the human rights of a person'. That necessarily involves considering whether the impact comes within the scope of the right. When determining scope, 'rights should be construed in the broadest possible way', by reference to the right's 'purpose and ... underlying values'. Because '[t]he protection of human rights crosses borders', the scope of human rights may also be informed by international jurisprudence, including the jurisprudence of the Human Rights Committee (the treaty-monitoring body for the International Covenant on Civil and Political Rights (ICCPR)). Any recourse to international authority must take into account the particular legal and constitutional context in which those cases were decided.

(c) Justification: A limit will be 'justified' if it satisfies the proportionality test in s 13 of the Human Rights Act. It is at this stage that the overall protection of the right is narrowed to 'mitigat[e] any damage to society that may arise from upholding an individual's right.' It is important that this be done at the third stage using the transparent reasoning process set out in

[58]

[307] It is also common ground that the applicants bear the onus of establishing a limit on human rights, including any internal limitations such as arbitrariness. Only then does the Deputy Premier have the onus of showing the limit was justified under s 13 of the Human Rights Act.[268] That said, in Owen-D'Arcy v Chief Executive, Queensland Corrective Services[269] Martin J accepted the views of Richards J in Thompson v Minogue[270] to the effect that the burden of establishing that a limit on a human right is justified or proportionate rests with the relevant public authority. The standard of justification is stringent. The evidence required to prove that a limit on a human right is justified, having regard to the matters set out in the equivalent of s 13(2) of the Human Rights Act, should be "cogent and persuasive".[271]

[59]

[308] The Ashworth parties submit that the Deputy Premier's call-in decision under s 103 of the Planning Act was required to be exercised in a way that is compatible with any the following relevant human rights;

[60]

(a) section 23 - right to participate in public life;

(b) section 24 - right to property; and

(c) section 31 - right to a fair hearing.

[61]

[309] The Deputy Premier states at paragraph 12 of his reasons:

[62]

"In accordance with the Human Rights Act 2019, I have considered and given proper consideration to the human rights relevant to my decision whether to issue the call in notice. I have been provided with a human rights assessment document prepared by the department to assist my consideration. Based on this, I have determined that my decision to issue the call in notice is compatible with human rights."

[63]

[310] The referenced Human Rights Assessment (the 'HR Assessment') identifies the relevant human rights as follows: sections 16, 19, 21, 24, 25, 26 and 29 of the Human Rights Act and goes on to consider whether those rights are limited and, if so, whether the limitation is compatible with human rights.[272] The HR Assessment concludes that the proposed call-in is compatible with human rights. The Ashworth parties contend to the contrary. They argue that the Deputy Premier acted in a way that is incompatible with three human rights, namely the right to participate in public life, the right to property and the right to a fair hearing (the 'substantive limb'). The Ashworth parties' complaints that the Deputy Premier failed to take into account those same three rights (the 'procedural limb') will be considered later in this section.

[64]

[311] Section 23 of the Human Rights Act provides as follows:

[65]

(1) Every person in Queensland has the right, and is to have the opportunity, without discrimination to participate in the conduct of public affairs, directly or through freely chosen representatives.

[66]

(2) Every eligible person has the right, and is to have the opportunity, without discrimination -

[67]

(a) to vote and be elected at periodic State and local government elections that guarantee the free expression of the will of the electors; and

[68]

(b) to have access, on general terms of equality, to the public service and to public office.

[69]

[312] The Ashworth parties say that they took up the opportunity to make representations to the Deputy Premier in respect of the proposed call-in and that, therefore, it is relevant to consider whether in making representations to the Deputy Premier, the Ashworth parties had the opportunity to participate in public life 'without discrimination' and 'on terms of general equality' with other persons making representations.[273]

[70]

[313] The relevant inquiry is whether the Ashworth parties had the opportunity, without discrimination, to participate in the conduct of public affairs. In my view they plainly did. The call-in process required the Deputy Premier to seek representations and to consider those representations.[274] On 29 November 2021 he invited representations. And then, up to and including 21 December 2021 he received 61 representations, which he then considered. Rather than limiting the applicants' opportunity to participate in the conduct of public affairs, the process afforded the representees, including the Ashworth parties, with an opportunity to participate in public affairs. It was the opportunity afforded by the legislation. There were no limits on that opportunity.

[71]

[314] The core of the Ashworth parties' complaint is that the rights of the Ashworth parties to participate in public life was limited in that Wanless, through the lobbyists it had engaged, was able to gain more favourable access to the Deputy Premier's office and to public servants during the representation period. But this complaint is without foundation given my earlier finding that no lobbying took place, let alone lobbying that might be said to comprise an effort to influence the Deputy Premier's decision-making or to influence the relevant public servants so that they might influence the Deputy Premier.

[72]

[315] But, even assuming that Anacta did lobby the Deputy Premier or his office, I do not accept that Wanless' lawful engagement of Anacta limited the rights of the Ashworth parties to participate in public life. Lobbying by Anacta may enhance Wanless' prospects of persuading the Deputy Premier to make the decision it desires. But the mere enhancement of Wanless' prospects through lobbying does not limit the Ashworth parties' opportunity to participate in the conduct of public affairs. The human right is a right to participate. It is not a right to, or a guarantee of, an equal voice or equality of bargaining power. And, of course, the right to participate in public affairs is not a right to a specific outcome from that participation.[275]

[73]

[316] To return to the words of s 23, the representors are entitled to participate in the conduct of public affairs 'without discrimination'. The expression 'discrimination' is defined in schedule 1 of the Human Rights Act as including direct or indirect discrimination within the meaning of the Anti-Discrimination Act 1991. That Act defines discrimination as being discrimination on the basis of an attribute such as age, impairment, political belief or activity, race, religious belief or religious activity, sex and sexuality.

[74]

[317] The definition of 'discrimination' in the Human Rights Act is inclusive. That is consistent with the ACT equivalent, but contrasts with the Victorian and New Zealand equivalents which contain exhaustive definitions.[276] The Attorney-General argued that the approach taken by Canadian courts in relation to s 15(1) of the Canadian Charter of Rights and Freedoms should be adopted in Queensland. The Canadian Charter also contains an inclusive definition of 'discrimination' in s 15(1).[277] The Supreme Court of Canada has held that only an 'analogous ground' of discrimination will fall within the protection.[278]

[75]

[318] In my view that is the correct approach. The legislature, in choosing to tie the definition of 'discrimination' to the definition in the Anti-Discrimination Act 1991 in a non-exclusory way, must be taken to have left the door open for an analogous grounds of discrimination. In other words, in linking the definition of 'discrimination' to the definition of the same concept in the Anti-Discrimination Act, but not directly adopting that definition, it is reasonable to infer that Parliament intended for the definition to be read as allowing an analogous ground of discrimination.

[76]

[319] In their reply submissions the Ashworth parties contended for a "more expansive definition" of discrimination in the Human Rights Act. But the content and breadth of that more expansive definition was not identified. It is difficult to subscribe to a more capacious definition without knowing the borders, or at least roughly where those borders might be. Certainly, it would be difficult to argue that Parliament contemplated that 'discrimination' merely required differential treatment.[279] Even in common usage the concept of discrimination involves making a distinction, as in to discriminate against a minority.[280]

[77]

[320] In my view, Parliament's use of the legislative device of defining the term 'discrimination' as including the concept of discrimination in the Anti-Discrimination Act means that these principles apply. First, the use of the word 'includes' means that the incorporation of the definition of 'discrimination' in the Anti-Discrimination Act is not intended to be exhaustive.[281] Second, conduct qualifying as 'discrimination', by applying the ordinary use of that word, but beyond the definition of 'discrimination' in the Anti-Discrimination Act, may be comprehended. Third, to say that the concept of 'discrimination' includes various matters is a way of giving at least some meaning to the term; the concept of 'discrimination' cannot have some meaning independent of the meaning that it is given by the legislation.[282]

[78]

[321] Applying those principles, there is nothing in the present facts to suggest that the Ashworth parties' entitlement to participate in the conduct of public affairs was impaired by some act of discrimination. There is no evidence of any discrimination based on any attribute in s 7 of the Anti-Discrimination Act 1991, or any analogous attribute.[283]

[79]

[322] In their reply submissions, the Ashworth parties contended that there were differential opportunities enjoyed in the representation process based on 'political belief or activity', which, in this case, was founded on a political association. I reject that submission. There is no evidence to support such a contention.

[80]

[323] Wanless was the applicant. It asked the Deputy Premier to call-in the application. The Deputy Premier, as required by the legislation, gave notice, called for representations and considered those representations, including representations by the Ashworth parties. Wanless as the applicant and the Ashworth parties as representors had different roles in the process. That is a consequence of the legislative regime. It is not discrimination. In any event, the evidence does not establish that Wanless received preferential treatment, or that some representations were treated more favourably than others, or that some representations were treated other than on their merits, or that political associations were considered at all. I am therefore not satisfied that the Deputy Premier's exercise of his statutory call-in power occurred in a discriminatory manner.[284]

[81]

[324] There is also no validity in the Ashworth parties' contention that they did not have equal access to the public service, contrary to s 23(2)(b) of the Human Rights Act. The right that s 23(2)(b) addresses is a right to join the public service, not a right to communicate with a public servant. This finding is consistent with the equivalent right in art 25(c) of the International Covenant on Civil and Political Rights which, as the Attorney-General submitted, deals with the right and the opportunity of citizens to have access on general terms of equality to public service positions and was intended to prevent privileged groups from monopolizing public service, in the sense of monopolising the composition of the public service.

[82]

[325] Section 24 of the Human Rights Act provides:

[83]

(1) All persons have the right to own property alone or in association with others.

[84]

(2) A person must not be arbitrarily deprived of the person's property.

[85]

[326] The Ashworth parties' say that, applying a liberal interpretation of the concept of 'property' in s 24,[285] their rights in the Wanless P&E appeal should be regarded as a chose in action and the effect of the call-in is to extinguish that chose in action. They contend that the Deputy Premier's decision to call in the application deprived them of property in the form of a statutory right to elect to be a co-respondent and participate as a party in an appeal, pursuant to s 229(1)(b)(iv) of the Planning Act. Thus, it is contended that the property rights of the Ashworth parties have been limited by the call-in which has the effect of terminating the P&E appeal.

[86]

[327] Accepting that the term 'property' in s 24 should be construed liberally and beneficially to encompass economic interests,[286] I am satissfied (as the Attorney-General submitted) even a liberal and beneficial interpretation does not convert something that is not property into property. I am therefore not satisfied that the statutory right to take part in an appeal under s 229 of the Planning Act is a form of property.

[87]

[328] The general definition of 'property' in schedule 1 to the Acts Interpretation Act 1954 provides as follows:

[88]

property means any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes things in action.

[89]

[329] The statutory right here does not qualify as "real or personal property" or as a chose in action. In Cummings v Claremont Petroleum NL the High Court said:

[90]

A right to appeal may be a substantive right, but it is another question whether such a right has the character of property. Some rights created by statute can constitute property, but a right to appeal does not have the character of property merely because it is the creature of statute.[287]

[91]

[330] Here, the interest underlying the statutory right to take part in an appeal under s 229 is not a property interest such as a debt or an interest in real property.

[92]

[331] Consistent with this finding, I accept the Attorney-General's submission that, in spite of the liberal interpretation of the concept of property in s 24, the values underlying the right to property in the Human Rights Act are the need to ensure that human beings can supply themselves with food and otherwise support themselves. The right is thought to be a strategic human right, a right that protects other rights but also valuable in itself as a component of human dignity.[288] Personal property such as food, clothing and housing is at the core of the right,[289] as it 'lies closer to the core of human dignity'.[290] The Ashworth parties' dignity, and their ability to enjoy other human rights, are not at stake in deciding whether the statutory right in s 229 of the Planning Act is a form of property.

[93]

[332] For those reasons, the statutory right of the Ashworth parties under s 229 of the Planning Act does not amount to 'property' for the purposes of s 24 of the Human Rights Act.

[94]

[333] Even if that conclusion is wrong, the Ashworth parties bear the onus of demonstrating that the call-in deprived them of property in an arbitrary way.[291] That onus has not been discharged. The Deputy Premier has acted in accordance with the call-in regime in the Planning Act. That statutory regime can hardly be described as arbitrary.[292]

[95]

[334] Section 31 of the Human Rights Act provides:

[96]

(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

[97]

(a) The Ashworth parties were all parties to the Wanless appeal, being a civil proceeding in the P&E Court;

(b) The effect of the call-in decision was to discontinue that proceeding, thereby limiting their right to have the appeal determined by an independent and impartial court after a fair hearing;

(c) It is difficult to imagine a more extreme limitation on their rights given that the decision of the Deputy Premier had the effect of unilaterally extinguishing their appeal rights retrospectively;

(d) The HR Assessment does not consider or properly consider s 31 of the Human Rights Act;

(e) The Deputy Premier failed to turn his mind to s 31 of the Human Rights Act and give it proper consideration;

(f) It follows that the procedural limb in s 58 of the Human Rights Act has been contravened;

(g) Even if the Deputy Premier had considered s 31 of the Human Rights Act, there is no doubt that the call-in decision (and the consequential discontinuance) limits the Ashworth parties' human rights under s 31 of the in a radical way;

[98]

[336] In response, the Attorney-General relies on the House of Lords decision in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions.[294] The issue in Alconbury was similar to the issue here, namely whether the powers of the Secretary of State under the Town and Country Planning Act 1990 (UK) to 'call in' a development application or to 'recover' an appeal were compatible with the right of access to the courts under article 6 of the European Convention on Human Rights.[295] The UK planning legislation provided for development applications to be decided by local governments, with a right of appeal to an inspector. In exceptional cases involving major development proposals, the Secretary of State had power under s 77 of the Act to call in the application to be decided by the Secretary of State instead of the local government, as well as a power under sch 6 [3] of the Act to 'recover' an appeal underway before an inspector.

[99]

[337] The Attorney-General's submissions have usefully summarised the House of Lords' reasoning, and its application of the jurisprudence of the European Commission of Human Rights and the European Court of Human Rights as follows:[296]

[100]

(a) When the Secretary of State determines a development application following a call-in notice or when he determines an appeal he has 'recovered', he is not himself an independent and impartial tribunal.[297]

(b) However, the decisions made by the Secretary of State following a call-in or recovery were not incompatible with article 6(1) of the European Convention on Human Rights, provided those decisions are subject to review by an independent and impartial tribunal which has full jurisdiction to deal with the case as the nature of the decision required.[298]

(c) In this context, 'full jurisdiction' does not require a review on the merits. 'What is required ... is that there should be a sufficient review of the legality of the decisions and of the procedures followed'.[299]

(d) More than that is not required. Indeed, as Lord Nolan pointed out:

[101]

"...the decisions made by the Secretary of State will often have acute social, economic and environmental implications. A degree of central control is essential to the orderly use and development of town and country. Parliament has entrusted the requisite degree of control to the Secretary of State, and it is to Parliament which he must account for his exercise of it. To substitute for the Secretary of State an independent and impartial body with no central electoral accountability would not only be a recipe for chaos: it would be profoundly undemocratic."[300]

[102]

"In a democratic country, decisions as to what the general interest requires are made by democratically elected bodies or persons accountable to them ... Town and country planning or road construction, in which every decision is in some respects different, are archetypal examples. In such cases Parliament may delegate the decision-making power to local democratically elected bodies or to ministers of the Crown responsible to Parliament. In that way the democratic principle is preserved ... There is no conflict between human rights and the democratic principle ... There is no principle of human rights which requires such decisions to be made by independent and impartial tribunals."[301]

[103]

(f) The power of the High Court in judicial review proceedings to review the legality of the decision and the procedures followed is sufficient to ensure compatibility with article 6(1).[302]

(g) Accordingly, the call-in and recovery powers of the Secretary of State are not incompatible with article 6(1) of the European Convention on Human Rights.

[104]

[338] That reasoning applies here. And, coincidentally, this hard-fought litigation is compelling evidence of the availability of a review of the legality of the Deputy Premier's call-in decision - consistent with factor (f) above.

[105]

[339] In their reply submissions the Ashworth parties contended that Alconbury served only to demonstrate the importance of considering a right to a fair trial in the context of a ministerial call-in.[303] I do not agree. Alconbury establishes an important principle in the balancing of an individual's human rights and the broader community interests with economic and environmental implications. For the same reason, it is not significant that there are some factual distinctions between Alconbury and this case.

[106]

[340] It is not the case that the authority of Alconbury can be discarded because s 31 and Article 6 are substantively different.[304] A comparison of the two provisions, side-by-side, illustrates their commonality and common heritage:

[107]

Section 31(1), Human Rights Act

[108]

Article 6(1), European Convention on Human Rights

[109]

A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

[110]

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...

[111]

[341] It can be seen that the right given by s 31(1) is not substantially different from the right given by Article 6 of the European Convention on Human Rights. In particular, there is no substantive difference in the condition under which the right applies - civil or criminal proceedings. Both provisions require a "fair and public hearing". The right given under the Queensland Act is to have the proceeding decided by a "competent, independent and impartial court or tribunal". The right given under the European Convention is to have the proceeding decided by "an independent and impartial tribunal established by law". The European provision requires a hearing within a reasonable time. The Queensland provision is silent about that.

[112]

[342] The differences, that is Queensland's additional requirement of a 'competent' tribunal[305] and the European requirement of a hearing within a reasonable time,[306] are not material differences which would justify distinguishing the point of principle in Alconbury. Similar considerations apply to the differences in the respective planning schemes.

[113]

[343] It follows that the Ashworth parties have not established that their rights under s 23, 24 and 31(1) were limited.

[114]

[344] Section 13 of the Human Rights Act provides as follows:

[115]

(1) A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.

[116]

(2) In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant -

[117]

(a) the nature of the human right;

(b) the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;

(c) the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;

(d) whether there are any less restrictive and reasonably available ways to achieve the purpose;

(e) the importance of the purpose of the limitation;

(f) the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;

(g) the balance between the matters mentioned in paragraphs (e) and (f).

[118]

[345] Therefore, even if the Deputy Premier's call-in decision limited the rights of the Ashworth parties, the question that s 13 of the Human Rights Act poses is whether those limitations comprise reasonable limits that can be demonstratively justified in a free and democratic society based on human dignity, equality and freedom. Of course, not every limit on human rights effected by a call-in decision will be reasonable and justified. Much depends on the rights limited and the features and circumstances of the call-in decision.

[119]

[346] In deciding whether a limit on a human right is reasonable and justifiable, s 13(2) requires a consideration of the following relevant factors:

[120]

(a) The nature of the three human rights identified and discussed above[307] are significant, but, as regards the property right, this case does not involve core personal property such as food, clothing, and housing;

(b) Any limits on those human rights arising from the Deputy Premier's exercise of the call-in power is focussed on the State interest and has the effect of altering the decision-maker from the Council to the Minister who is answerable to Parliament;

(c) The change in decision-maker is designed to achieve the purpose of serving the State interest;

(d) There is no alternative method of achieving that purpose of serving the State interest;

(e) The exercise of the call-in power achieves a reasonable balance between the scope of matters left to the Minister's decision and the scope of control possessed by the courts over the exercise of his discretionary power;[308]

[121]

[347] For those reasons, even if the Deputy Premier's call-in decision limited the rights of the Ashworth parties, there is a cogent and persuasive basis for concluding that the limits were reasonable and justified.

[122]

(a) the call-in decision did not limit the Ashworth parties' opportunity to participate in public life 'without discrimination' (s 23);

(b) the statutory right to elect to be a co-respondent and participate as a party in an appeal pursuant to s 229(1)(b)(iv) of the Planning Act does not constitute property, and it has not been demonstrated that the call-in deprived the Ashworth parties of their property in an arbitrary way (s 24); and

(c) the exercise of the call-in power by the Deputy Premier is compatible with the Ashworth parties right to a fair hearing (s 31).

[123]

[349] The 'procedural limb' in s 58(1)(b) of the Human Rights Act provides that: "It is unlawful for a public entity ...(b) in making a decision, to fail to give proper consideration to a human right relevant to the decision."

[124]

[350] Subsection 58(5) of the Human Rights Act provides that:

[125]

For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to -

[126]

(a) identifying the human rights that may be affected by the decision; and

(b) considering whether the decision would be compatible with human rights.

[127]

[351] Again, the Queensland Parliament has utilised the legislative device of defining a term by reference to what it includes. The absence of an exclusive definition makes it relevant and help to consider three Victorian cases have discussed what 'proper consideration' requires of the public entity. It is important to note that these cases pre-date the Queensland Human Rights Act and that the equivalent Human Rights legislation in Victoria does not include an equivalent to s 58(5).

[128]

[352] First, in Castles v Secretary, Department of Justice[309] Emerton J explained the concept of giving 'proper consideration' to human rights in this way:

[129]

[185] The requirement in s 38(1) to give proper consideration to human rights must be read in the context of the Charter as a whole, and its purposes. The Charter is intended to apply to the plethora of decisions made by public authorities of all kinds. The consideration of human rights is intended to become part of decision-making processes at all levels of government. It is therefore intended to become a "common or garden" activity for persons working in the public sector, both senior and junior. In these circumstances, proper consideration of human rights should not be a sophisticated legal exercise. Proper consideration need not involve formally identifying the "correct" rights or explaining their content by reference to legal principles or jurisprudence. Rather, proper consideration will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of justification, proper consideration will involve balancing competing private and public interests. There is no formula for such an exercise, and it should not be scrutinised over-zealously by the courts.

[130]

[186] While I accept that the requirement in s 38(1) to give proper consideration to a relevant human right requires a decision-maker to do more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person's human rights and the implications thereof for the affected person, and that the countervailing interests or obligations were identified.

[131]

[353] Second, in Bare v Independent Broad-Based Anti-Corruption Commission[310] the Victorian Court of Appeal quoted and accepted those views of Emerton J in Castles.

[132]

[354] Third, the approach in Castles was again endorsed by the Victorian Court of Appeal in HJ v Independent Broad-based Anti-Corruption Commission:

[133]

"For a decision-maker to give 'proper' consideration to a relevant human right in compliance with s 38(1) of the Charter, he or she must: (1) understand in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision; (2) seriously turn his or her mind to the possible impact of the decision on a person's human rights and the implications for the affected person; (3) identify the countervailing interests or obligations; and (4) balance competing private and public interests as part of the exercise of justification." [311]

[134]

[355] In Queensland, though, the 2019 legislation has given more guidance. Section 58(5) of the Human Rights Act specifies that 'proper consideration' at least requires the decision-maker to both identify the human rights that may be affected by the decision and to consider whether the decision would be compatible with human rights. However, both those tasks need to be approached in a common sense and practical manner. In Owen-Darcy v Chief Executive, Queensland Corrective Services Martin J said:

[135]

The identification of the relevant human rights is an exercise that must be approached in a common sense and practical manner. Decisionmakers like Ms Newman are not expected to achieve the level of consideration that might be hoped for in a decision given by a judge. On this point, I agree with what Emerton J said in Castles... [His Honour then quoted the passages from Castles extracted above.] [312]

[136]

[356] It follows that, in Queensland 'proper consideration' at least requires the decision-maker to, in a common sense and practical manner, both identify the human rights that may be affected by the decision and to consider whether the decision would be compatible with human rights.[313]

[137]

The Deputy Premier's Consideration of Human Rights

[138]

[357] As explained, the Deputy Premier's call-in decision expressly refers to his proper consideration of the human rights relevant to his decision whether to issue the call-in notice. The Deputy Premier expressly referred to the HR Assessment assisting with his consideration and his determination that his call-in decision was compatible with human rights.[314]

[139]

[358] The HR Assessment considered by the Deputy Premier, recognised that a call-in decision would mean that the appeal to the P&E Court would be discontinued, and that this may have an impact on the human rights of the submitter co-respondents in that appeal. The HR Assessment acknowledged that the parties to the appeal would no longer have the opportunity to be heard in Court which may limit their freedom of expression under s 21 of the Human Rights Act but concluded that any limit on freedom of expression was proportionate under s 13 for the following reasons:

[140]

• the decision involves restarting the development assessment process at the confirmation period, meaning that the application will be required to undergo public notification. This has the effect of enhancing the human right of freedom of expression because the submitters will have an opportunity to comment further on the development application if called in

[141]

• the purpose of the potential limitation is to protect or give effect to state interests (Economic and environmental interests of the State or part of the State as explained in the assessment report)

[142]

• this purpose is significant and recognised as such under the Planning Act 2016

[143]

• there are no less restrictive ways to achieve the purpose.

[144]

[359] The HR Assessment also considered the impact of a decision to call in the application on human rights related to environmental impacts (ss 16, 19, 25, 26 and 29), as well as the property interests at stake in the development application (s 24).

[145]

[360] For the reasons that follow, I am satisfied that the Deputy Premier correctly identified the human rights that might have been affected by the call-in decision and correctly considered whether the call-in decision would be compatible with human rights.

[146]

[361] First, for the reasons explained above, the call-in decision did not limit the Ashworth parties' opportunity to participate in public life 'without discrimination'. There was, therefore, no need for the Deputy Premier to identify that human right as one that may be affected by the call-in decision.

[147]

[362] Second, the exercise of the call-in power by the Deputy Premier is compatible with the Ashworth parties right to a fair hearing. The Deputy Premier was not required to identify that right as one that may be affected by the call-in decision. For completeness, whilst the HR Assessment did not expressly tackle the right to a fair hearing under s 31, the HR Assessment did address the call-in decision's impact on the opportunity to be heard in court which, it was thought, may limit freedom of expression under s 21 of the Human Rights Act, but that limitation was thought to be proportionate because of right to be heard that might be afforded by the new process.

[148]

[363] Third, the statutory rights to participate in a P&E appeal does not constitute property, even if it did, it has not been demonstrated that the call-in deprived the Ashworth parties of their property in an arbitrary way.

[149]

[364] Further, the HR Assessment took the view that property rights were affected:

[150]

If this [i.e. the call-in] occurs, the property rights, both of Wanless (and its individual employees) and any submitters may be potentially limited in that the Minister would be stepping in to determine whether or not the development may proceed.

[151]

Any potential limitation on property rights is reasonable and justifiable in the circumstances, because:

[152]

as noted above, the restarting point of the development assessment process at the confirmation period means that the application will be required to undergo public notification
the purpose of the potential limitation is to protect or give effect to state interests (economic and environmental interests of the State or part of the State as explained in the assessment report);
this purpose is significant and recognised as such under the Planning Act 2016
there are no less restrictive ways to achieve the purpose.

[153]

[365] And so, whilst the Deputy Premier need not have identified and considered the rights given by s 23, 24 and 31 of the Human Rights Act, because those rights were not affected by the proposed call-in decision, the Deputy Premier did in fact identify and consider the potential impact on the right to property under s 24.

[154]

[366] I am not satisfied that there is any basis for a finding that, in making the call-in decision, the Deputy Premier failed to give proper consideration to a human right relevant to the decision. I therefore find that the Deputy Premier has not breached the 'procedural limb' in s 58(1)(b) of the Human Rights Act.

[155]

[367] The Attorney-General submits, and I accept, that s 59(5) of the Human Rights Act makes plain, the applicants may seek relief or remedy on a ground of unlawfulness arising under s 58 only under the 'piggyback clause' in s 59. Section 59(2) permits a person to seek relief or a remedy for unlawfulness arising under s 58, but only if the condition in s 59(1) is met, that is, "if the person may seek any relief or remedy" in relation to the same decision on a ground of unlawfulness arising "other than because of s 58". In other words, the 'piggyback' clause permits an applicant to seek relief for a breach of s 58 only where the applicant has at least one 'independent ground', unrelated to s 58, for alleging that the impugned act or decision was unlawful.[315]

[156]

[368] Here, the Ashworth parties satisfied the 'piggyback' requirements by relying also on the other four grounds of challenge to the Deputy Premier's call-in decision. However, they also contended that, in some circumstances, the failure to consider properly, or to consider at all, those human rights that are relevant to the call-in decision provides a separate judicial review ground.[316] I reject that contention. It is inconsistent with the plain words of s 59. As the Attorney-General submits, an applicant who establishes a breach of s 58 is limited to the 'relief or remedy' to which they would have been entitled for the independent ground. The obvious purpose of s 59 is to safeguard against an increase in litigation.[317] And, as Tate JA observed in Bare v Independent Broad-Based Anti-Corruption Commission[318] these provisions were intended to have a normative effect on the conduct of public authorities.[319] The intention was to change behaviour, not to provide an additional weapon.

[157]

[369] That rationale is relevant to a further argument raised by Wanless and adopted by the Attorney-General. Wanless and the Attorney-General submitted that s 231 of the Planning Act precluded any relief under s 59 of the Human Rights Act.

[158]

[370] Section 231 of the Planning Act provides:

[159]

(1) Subject to this chapter, section 316(2), schedule 1 and the P&E Court Act, unless the Supreme Court decides a decision or other matter under this Act is affected by jurisdictional error, the decision or matter is non-appealable.

[160]

(2) The Judicial Review Act 1991, part 5 applies to the decision or matter to the extent it is affected by jurisdictional error.

[161]

(3) A person who, but for subsection (1) could have made an application

[162]

under the Judicial Review Act 1991 in relation to the decision or matter, may apply under part 4 of that Act for a statement of reasons in relation to the decision or matter.

[163]

(a) conduct engaged in for the purpose of making a decision; and

[164]

(b) other conduct that relates to the making of a decision; and

[165]

[166]

non-appealable, for a decision or matter, means the decision or matter -

[167]

(b) may not be challenged, appealed against, reviewed, quashed, set aside or called into question in any other way under the Judicial Review Act 1991 or otherwise, whether by the Supreme Court, another court, any tribunal or another entity; and

[168]

(c) is not subject to any declaratory, injunctive or other order of the Supreme Court, another court, any tribunal or another entity on any ground.

[169]

[371] The evident purpose of s 231 is to oust the jurisdiction of courts and tribunals, except for those specific proceedings that are specified, and except for those proceedings where the Supreme Court decides that the relevant decision is affected by jurisdictional error. Of course, privative clauses like s 231 should be narrowly construed.[320] It is presumed that the Parliament does not intend to cut down the jurisdiction of the courts save to the extent that the legislation in question expressly so states or necessarily implies.[321]

[170]

[372] In Victoria it is a matter of some controversy as to whether a breach of the Victorian equivalent of s 58(1) the Human Rights Act[322] is a jurisdictional error. In Bare v Independent Broad-Based Anti-Corruption Commission[323] Warren CJ found that a breach of the Victorian equivalent of s 58(1) did not amount to jurisdictional error. Her Honour decided that there was no indication that it was the intention of the legislature in drafting the Act, including the equivalent of s 58(1), that a decision by a public authority that did not properly consider a human right, or that breached a human right would be invalid. However, the other two members of the Victorian Court of Appeal, Tate JA and Santamaria JA, both offered some detailed observations but found it unnecessary to decide the issue and left it unresolved.[324]

[171]

[373] In Queensland, however, the controversy has been quelled by s 58(6) of the Human Rights Act which provides that:

[172]

(a) an act or decision of a public entity is not invalid merely because, by doing the act or making the decision, the entity contravenes subsection (1); and

(b) a person does not commit an offence against this Act or another Act merely because the person acts or makes a decision in contravention of subsection (1).

[173]

[374] And so, the legislative intention in Queensland is clear. On the one hand, s 58(1) provides that it is unlawful for a public entity to act or make a decision in a way that is not compatible with human rights, or to fail to give proper consideration to a human right relevant to the decision. On the other hand, the unlawfulness[325] does not make the decision invalid (or even an offence).

[174]

[375] In my view, the Attorney-General's submissions are correct that s 58(6) makes it clear that a breach of s 58(1) amounts to a non-jurisdictional error.[326]

[175]

[376] Thus, even if there were a breach of s 58 of the Human Rights Act, s 59 presents an obstacle to the applications. Section 231 of the Planning Act is a further obstacle because it bars non-jurisdictional errors such as those based on s 58(1) of the Human Rights Act.

[176]

[377] It is understandable that the outcome may not be a palatable one for the Ashworth parties. They are local residents who were participating in the P&E process. No doubt they had invested time, energy and expense in that proceeding. The Minister's call-in put a halt to that process and imposed a new, largely discretionary process. However, that has come about as a consequence of the law, which expressly reserves those powers to the Minister. The Minister is responsible to Parliament - and ultimately the electors.

[177]

[378] For those reasons I refuse the applications.

[178]

[379] I will hear the parties on the appropriate form of orders and on costs.

[179]

[1] The Council is named as the third respondent in each of the applications. However, the Council's submissions supported the applicants, at least in respect of the second, third and fourth grounds.

[180]

[2] The steps and the challenges are discussed in more detail below.

[181]

[3] A "State interest" is widely defined in Schedule 2 of the Planning Act 2016 as an interest that the Minister considers affects on economic or environmental interest of the State, or part of the State, or affects the interest of ensuring that the Act's purpose is achieved.

[182]

[4] See s 101 to 106 of the Planning Act 2016.

[183]

[5] This summary is taken from the joint submissions of Austin and Veolia at [2]. There was no dispute regarding the issues.

[184]

[6] Incidentally, some of the grounds of challenge overlap. And some of the submissions of the various parties overlapped. That has given rise to some unavoidable, but regrettable, repetition in these reasons.

[185]

[7] Submissions of the first respondent at [57].

[186]

[8] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. See also Charisteas v Charisteas [2021] HCA 29; (2021) 95 ALJR 824 at [11] (per Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ).

[187]

[9] This expression is used by the High Court. See, for example_,_ CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [18]. [132].

[188]

[10] British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at [44]-[46] per French CJ. See also Byrne J in Greenwood v Winsor [2008] QSC 68 at [89]: "It is not enough that the reasonable bystander has a vague sense of unease or disquiet."

[189]

[11] Wanless submissions at [74] relying on Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [55]; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [130]; Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCAFC 175; (2007) 166 FCR 154 at [82].

[190]

[12] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [26].

[191]

[13] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [23], [55]. See also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [26].

[192]

[14] Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCR 154 at [57] based on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [26].

[193]

[15] [2015] HCA 20; (2015) 255 CLR 135 at [23], [55].

[194]

[16] The footnote in the original, with reference to the quotes within this passage, refers the reader to Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 367.

[195]

[17] [2002] HCA 51; (2002) 210 CLR 438 at [70].

[196]

[18] Wanless submissions at [75] relying on Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 at 109-110; Hannay v Brisbane City Council [1999] 2 Qd R 54 at 55.

[197]

[19] Wanless submissions at [76] relying on Idonz Pty Ltd v National Capital Development Commission (1986) 13 FCR 70 at 82.

[198]

[21] Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCR 154 at [81]

[199]

[22] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [78]; McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 at [80].

[200]

[23] McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 at [80].

[201]

[24] Gwandalan Summerland Point Action Group Inc v Minister for Planning [2009] NSWLEC 140; (2009) 75 NSWLR 269 at [44].

[202]

[25] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [58].

[203]

[26] Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCAFC 175; (2007) 166 FCR 154 at [82], [86], [88].

[204]

[27] No submissions were made that contested these paragraphs of the Wanless submissions.

[205]

[28] In analysing the statutory regime, it is necessary to bear in mind that the concern of the law is to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37] (Gleeson CJ).

[206]

[29] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [58].

[207]

[30] A submitter is a person who makes a properly made submission about the application (for a development application or change application) or the person who made the submission (for a particular submission): Schedule 2 of the Planning Act 2016.

[208]

[31] Planning Act 2016 s 102(2).

[209]

[32] The "submitters" referred to in s 102(2) are any members of the public (of whom the Minister is aware) who made a submission about the original development application, whether in favour, neutral or against it.

[210]

[33] Planning Act 2016 s 102(3)(d).

[211]

[34] Planning Act 2016 s 102(4).

[212]

[35] As well as the P&E Court: see Planning Act 2016 s 103(1). Note that the notice need only be given to any principal submitter.

[213]

[36] Planning Act 2016 s 103(3).

[214]

[37] Planning Act 2016 s 104(1). In deciding the restart point, the Minister may consider anything that the Minister considers relevant: Planning Act 2016 s 103(4).

[215]

[38] Planning Act 2016 s 105(1).

[216]

[39] Planning Act 2016 s 105(3).

[217]

[40] Planning Act 2016 s 105(1).

[218]

[41] Planning Act 2016 s 105(4)(a).

[219]

[42] Planning Act 2016 s 105(5). For present purposes, I have excluded cancellation applications.

[220]

[43] Planning Act 2016 s 105(6).

[221]

[44] The four categories of people are slightly modified. The fourth category involves 'principal submitters' and there is a possible fifth category of the P&E Court. Incidentally, by Schedule 2 to the Act a 'principal submitter', for a properly made submission, means - (a) if the submission is by 1 person - the person; or (b) otherwise - (i) the submitter that the submission identifies as the principal submitter; or (ii) if the submission does not identify a submitter as the principal submitter - the submitter whose name first appears in the submission.

[222]

[45] Planning Act 2016 s 106(1).

[223]

[46] Planning Act 2016 s 105(2).

[224]

[47] Planning Act 2016 s 91.

[225]

[49] Planning Act 2016 s 231(4).

[226]

[50] See the summary in Wanless' submissions at [64].

[227]

[51] Planning and Environment Court Act 2016 s 37.

[228]

[52] Part 3 of the Judicial Review Act 1991 deals with applications for statutory orders for review. Part 4 enables statements of reasons and Part 5 deals with prerogative orders and injunctions. Only challenges under Parts 4 and 5 are permitted.

[229]

[53] See Wanless' submissions at [66].

[230]

[54] See Wanless' submissions at [75], [76] and [79].

[231]

[55] As explained, the first and third applicants (Austin and Veolia) filed joint submissions. The second applicants (the Ashworth Applicants) filed separate submissions.

[232]

[56] Joint Applicant's supplementary submissions at [13] relying on Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [11]- [15] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ.

[233]

[57] (1990) 170 CLR 596 at 598.

[234]

[58] [2010] HCA 23; (2010) 241 CLR 252.

[235]

[59] (1990) 170 CLR 596.

[236]

[60] The later discussion refers to notice of the call-in being given to the assessment manager, the applicant and, if relevant, any referral agency or principal submitter for the application.

[237]

[61] [2009] QSC 408.

[238]

[62] The call-in power under the Integrated Planning Act 1997 involved a different, more abbreviated regime which just empowered the Minister to call-in.

[239]

[63] See Planning Act 2016 s 55.

[240]

[64] Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCAFC 175; (2007) 166 FCR 154 at [82].

[241]

[65] The position might be different if, for example, the decision-maker was required to assess whether there was evidence satisfying criteria.

[242]

[66] Joint Outline of Submissions in Further Reply to the Applicants at [9]; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [14]. See also the useful discussion of this topic at Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 7th ed at [8.190]

[243]

[67] By a 'wide' obligation of procedural fairness the intention is to refer to both the hearing rule and the bias rule.

[244]

[68] Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 7th ed at [8.130].

[245]

[69] Joint Outline of Submissions in Further Reply to the Applicants at [11]. The submission has parallels with the approach Kirby J took to what his Honour described as an "astonishing" submission that the bias rule did not apply to a tribunal decision: The Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128 at 138 at [45], [46].

[246]

[70] See the discussion above at 0.

[247]

[71] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [55].

[248]

[72] This is the language of Hayne J in Minister for Immigration and Cultural Affairs v Jia Legeng [2000] HCA 63; (2001) 205 CLR 337 at [183]. See also Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [21].

[249]

[73] Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 7th ed at [8.10].

[250]

[74] See above at [9].

[251]

[75] Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 7th ed at [8.170]

[252]

[76] [2001] HCA 23; (2001) 206 CLR 128 at 138 and 144.

[253]

[77] [2001] HCA 23; (2001) 206 CLR 128 at [57], [60].

[254]

[78] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Charisteas v Charisteas [2021] HCA 29; (2021) 95 ALJR 824 at [11] (per Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ). Note that there is a helpful discussion of the law on the legal test for apprehended bias in the ALRC's Final Report 138: Without Fear or Favour, December 2021 at [3.13].

[255]

[79] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [20]; Joint Applicants' submissions at [34].

[256]

[81] [1994] HCA 30; (1994) 181 CLR 41 at 74. These four categories are discussed in some detail in ALRC 138 at [3.32].

[257]

[82] The concept of a fair-minded lay observer has been described as a 'kind of thought experiment': The Hon Richard Chisholm, 'Apprehended Bias and Private Lawyer-Judge Communications: The Full Court's Decision in Charisteas' (2020) 29(3) Australian Family Lawyer 18, 30 discussed in the ALRC 138 at [3.27].

[258]

[83] McGovern v Ku-Ring-Gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 at [26].

[259]

[84] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [55].

[260]

[85] Wanless submissions deal with this aspect in some detail at [103]-[106] of the Wanless submissions.

[261]

[86] There is some overlap in the way the issues fall to be considered.

[262]

[87] Wanless submissions at [105], [106].

[263]

[88] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [102].

[264]

[90] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 565 [187] relied on by Spigelman CJ in McGovern v Ku-Ring-Gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 at [11].

[265]

[91] McGovern v Ku-Ring-Gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 at [11].

[266]

[92] McGovern v Ku-Ring-Gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 at [22].

[267]

[93] See the Deputy Premier's submissions at [62]; Wanless submissions at [107]. Those submissions emphasise the distinction between political and judicial decision-making but do not go on to explicitly contend that by reason of the political nature of the decision-making the rules of procedural fairness are excluded.

[268]

[94] Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 7th ed at [8.130]. See also Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 at [50] where Gaudron, Gummow and Hayne JJ repeated the observation of text writers Wade and Forsyth, Administrative Law, 8th ed at 464 that ''the whole object'' of a statutory provision placing a power into the hands of the Minister ''is that he may exercise it according to government policy''.

[269]

[95] The Deputy Premier is the relevant Minister.

[270]

[96] Submissions of the Joint Applicants at [4]. The Ashworth Parties make a similar objection. They point out that of the four development applications for landfill facilities in Ipswich that have been before the P&E Court, the Deputy Premier decided to call-in only the Wanless Development Application: Ashworth Parties' submissions at [73(k)].

[271]

[97] The request is at 5.1 of the Agreed Bundle.

[272]

[99] The applications are useful summarised by the submissions of the joint applicants at [6]. Note however, that Ms Morrissy's report refers to the Bio Recycle project as involving both an expansion of an existing resource recovery and landfill facility at Swanbank and a new waste and transfer facility at Jeebropilly.

[273]

[102] [1994] HCA 30; (1994) 181 CLR 41 at 74. See the discussion above at FIRST GROUND: APPREHENDED BIAS, The Bias Rule.

[274]

[103] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 74; ALRC 138 at [3.42].

[275]

[104] British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at [145].

[276]

[105] ALRC 138 at [3.45]; Aronson, Groves and Weeks at 676, citing Locabail (UK) Ltd v Bayfield Properties [1999] EWCA Civ 3004; [2000] QB 451, 495.

[277]

[106] If there were an obligation of consistency, for how long was the Minister bound to render consistent decisions?

[278]

[107] The suburbs are Swanbank (Bio Recycle), New Chum (Austin and Cleanaway), Jeebropilly (Lantrak and Bio Recycle) and Ebenezer (Wanless). Swanbank and New Chum are adjoining suburbs to the east of Ipswich. Jebropilly and Ebenezer are adjoining suburbs to the west of Ipswich.

[279]

[108] Ms Morrissy describes the applications by the other four waste/recycling entities by using the expression 'No Call-in waste applications', meaning the prior applications discussed above.

[280]

[109] This is Ms Morrissy's abbreviation for the Minister for State Development, Infrastructure, Local Government and Planning.

[281]

[110] See Ms Morrissy's report at [1.13].

[282]

[112] South East Queensland Regional Plan 2017.

[283]

[113] State Development Assessment Provisions.

[284]

[114] Ms Morrissy's report at [2.14].

[285]

[115] Ms Morrissy's report at [2.22].

[286]

[116] Ms Morrissy's report at [3.10].

[287]

[117] Ms Morrissy's report at [4.5].

[288]

[118] For example, the applications may have entirely similar or entirely different traffic and ecological impacts. One does not know that from the report.

[289]

[119] Ms Morrissy's report at [4.8].

[290]

[120] There are in fact two Morrissy reports but the second adds little of present significance to the first.

[291]

[121] Deputy Premier's Submissions at [66].

[292]

[122] Presumably it would be a significant undertaking to compare, for example, the 13 categories of assessment listed above. Environmental impacts alone would require some effort to make the comparison.

[293]

[123] Deputy Premier's Submissions at [68].

[294]

[124] Submissions in reply of the joint applicants at [33].

[295]

[125] [2019] HCA 50; [2019] 268 CLR 76 at [58], [59].

[296]

[126] Submissions of the joint applicants at [14] to [25].

[297]

[127] Ms Cohen uses the expression 'unscheduled' in her first affidavit.

[298]

[129] The Deputy Premier's submissions (at [12(c)]) point out the 'conspiratorial tone' to this combination of allegations.

[299]

[130] For example, in Lewis & Kyrou's Handy Hints on Legal Practice 4th ed at [26.65] there is a recommendation that legal practitioners should take detailed diary notes of all telephone conversations and discussions in conference with clients, witnesses, opposing practitioners and counsel. It is not easy to apply that analogy to a Chief of Staff. Courtesy calls are unlikely to be comprehended by the practice. The professional practice of taking notes of conversations with clients is designed to guard against negligence claims. Thus, in Olympic Holdings Pty Ltd v Lochel [2004] WASC 61, Legal Services Commissioner v Voll [2008] LPT 1, and Legal Services Commissioner v Rowell [2013] QCAT 397 the absence of a contemporaneous note by the solicitor of conversations with the client was decisive in disputes between solicitor and client. Corones, Stobbs & Thomas, Professional Responsibility and Legal Ethics in Queensland, 2nd ed at [5.50].

[300]

[133] See the later discussion of the topic of lobbying.

[301]

[135] Affidavit of Savannah Kuylaars, ex SFK-5 at page 31.

[302]

[136] See, for example the definition of 'lobby' in the Macquarie Concise Dictionary, 3rd ed, which speaks of 'attempt to enlist popular and political support for some particular cause' and to 'frequent the lobby of a legislative chamber to influence the members'.

[303]

[137] See s 42(1)(a) of the Integrity Act 2009. For present purposes I have simplified the definition to its core. Lobbying of course can involve contact with an Opposition representative in an effort to influence the Opposition's decision-making [see s 42(1)(b)] and there are exclusions [see s 42(2)].

[304]

[138] It was a little unclear as to precisely how correspondence came to be placed into the VIP corro file. The joint applicants contended that it was the Minister who added the request to that file. However, that seems unlikely. The evidence is that the correspondence was tagged as 'VIP corro' - presumably by Ms Cohen or another member of staff (see paragraph [143](c) below) - and then printed by an administrative staff member and placed in a folder to be provided to Ms Cohen and the Deputy Premier.

[305]

[139] Ms Cohen's first affidavit at [5]; Agreed bundle at 1979.

[306]

[140] Ms Cohen's third affidavit at [4]; Agreed bundle at 1984.

[307]

[141] The submissions of the Ashworth parties at [80].

[308]

[142] Ms Cohen regarded the first call as a courtesy call. The Soorley-Doss call has a similar character. And the second call appears to have been a reminder about the statutory deadline.

[309]

[143] See Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 7th ed at [10.40] quoting Gas & Fuel Corporation Fund v Saunders [1994] FCA 1237; [1994] 52 FCR 48.

[310]

[144] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [7].

[311]

[145] The submissions of the Ashworth parties at [81].

[312]

[146] [2019] HCA 50; [2019] 268 CLR 76 at [58], [59].

[313]

[148] Submissions of the Joint Applicants at [38], [48].

[314]

[149] Transcript T1-62 line 29 to T1-63 line 16.

[315]

[152] Transcript T1-64 line 38 to T1-65 line 15.

[316]

[153] Mr SC Holt KC appeared with Ms S Spottiswood for the joint applicants.

[317]

[155] [2019] HCA 50; [2019] 268 CLR 76 at [58], [59].

[318]

[156] A donation of $35,000 was made on 15 February 2022 - shortly after the call-in decision.

[319]

[157] The highest of the other donations is $10,000, with another of $6,093, although there is a donation on 15 February 2022 of $35,000.

[320]

[158] [1994] HCA 30; (1994) 181 CLR 41 at 74. See the discussion above at the section: FIRST GROUND: APPREHENDED BIAS, The Bias Rule.

[321]

[160] Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 90; Aronson, Groves & Weeks (supra) at 693 [10.330].

[322]

[161] Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 at [20] per Gleeson CJ.

[323]

[162] [2002] HCA 51; (2002) 210 CLR 438 at [74].

[324]

[163] [2019] HCA 50; [2019] 268 CLR 76 at [58], [59].

[325]

[164] Applegarth J considered a part of the regulatory regime that prohibited donations from property developers in The Australian Institute for Progress Ltd v Electoral Commission of Queensland [2020] QSC 54; (2020) 4 QR 31.

[326]

[165] See Town of Gawler v Minister for Urban Development and Planning [2011] SASC 26 at [76]- [79] (a case relied on by the Deputy Premier at [85] of his submissions).

[327]

[166] The Hon Richard Chisholm, 'Apprehended Bias and Private Lawyer-Judge Communications: The Full Court's Decision in Charisteas' (2020) 29(3) Australian Family Lawyer 18, 30 discussed in the ALRC 138 at [3.27].

[328]

[167] The hypothetical observer will consider the relevant legislation: see the discussion in Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 7th edition at [10.80] - [10.110]; see also CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; [2019] 268 CLR 76 at [58], [59].

[329]

[168] Agreed Bundle at 1332-1334; see also Transcript T3-29.

[330]

[169] [2019] HCA 50; [2019] 268 CLR 76 at [58], [59].

[331]

[170] Ms Cohen's third affidavit at [4].

[332]

[172] Department of State Development, Infrastructure, Local Government and Planning.

[333]

[173] The Deputy Premier's submissions at [102].

[334]

[174] Joint applicants reply submissions at [45].

[335]

[175] Regulation 50 provides: The representation period for a proposed call in is the period, of at least 5 business days after the proposed call in notice is given, stated in the notice.

[336]

[176] Of course, the danger in any summary like this is some features are jettisoned in the exercise of abbreviating.

[337]

[177] https://www.coaldrakereview.qld.gov.au/assets/custom/docs/coaldrake-review-final-report-28-june-2022.pdf

[338]

[181] The call-in decision was made on 27 January 2022. The Coaldrake Report is dated 28 June 2022.

[339]

[183] Submissions in reply of the applicants at [106].

[340]

[184] Submissions in reply of the applicants at [107].

[341]

[185] Mr R Traves KC appeared with Mr SJ Webster and with Ms S Marsh for Wanless in each application.

[342]

[186] [2003] HCA 51; [2003] 215 CLR 317 at [66]- [71]. Heydon J agreed at [177] and McHugh agreed at [40]. Whilst in dissent as to the result, Gleeson CJ agreed on this aspect at [25].

[343]

[187] Submissions in reply of the applicants at [107].

[344]

[188] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Charisteas v Charisteas [2021] HCA 29; (2021) 95 ALJR 824 at [11] (per Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ).

[345]

[190] Wanless' submissions at [114(g)].

[346]

[191] As to the existence of the discretion to refuse relief, see Garde-Wilson v Legal Services Board (2018) 19 VR 398 at [99] - a case relied on by Wanless in their submissions at [127].

[347]

[192] Builders' Registration Board of Queensland v Rauber (1983) 47 ALR 55 at 71-72; Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 at 88-89.

[348]

[193] See Planning Act 2016 s 102(4) and the joint applicants' submissions at [53].

[349]

[194] Elias v Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499 at [57].

[350]

[195] Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [24]- [27] (citations omitted).

[351]

[196] [2019] FCA 43; (2019) 364 ALR 513. Both the applicants and the respondents relied on Stambe for different purposes: see, for example, Transcript 4-39 and 4-49.

[352]

[197] [2019] FCA 43; (2019) 364 ALR 513 at [65].

[353]

[198] [2019] FCA 43; (2019) 364 ALR 513 at [71]- [74].

[354]

[201] That was a feature also present in Stambe v Minister for Health [2019] FCA 43; (2019) 364 ALR 513.

[355]

[202] Deputy Premier's submissions at [115].

[356]

[203] The joint applicants' reply submissions at [53].

[357]

[204] The expression "read, identify, understand and evaluate" is the expression used by Kiefel CJ, Keane, Gordon, and Steward JJ in Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [24] - quoted above.

[358]

[205] See the Council's submissions at [12], [13].

[359]

[206] The Council's submissions at [13] speak of there being no evidence that the Minister actually read the representations and grappled with their contents.

[360]

[207] The joint applicants reply submissions at [54]-[58].

[361]

[208] See the quote above from Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [26].

[362]

[209] See the discussion of the third stage above (Threshold Issue, The Statutory Context).

[363]

[210] Planning Act 2016 s 103(3).

[364]

[211] The joint applicants appear to submit to the contrary: see, for example, the joint applicant's submissions in reply at [56].

[365]

[212] The joint applicant's submissions in reply at [61(a)].

[366]

[213] The joint applicant's submissions in reply at [61(c)].

[367]

[214] The joint applicant's submissions in reply at [62]. Note that, in a similar vein, the Council say the Deputy Premier was required to "grappled with [the] contents" of the representations: Council's representations at [13].

[368]

[215] As it happens, though, the reasons do actually provide reasons as well as findings on material questions and evidence or other material.

[369]

[216] [2020] FCAFC 110; (2020) 278 FCR 529 at [28] and [35].

[370]

[217] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 at [43].

[371]

[218] The joint applicant's submissions in reply at [65]. Note that the briefing note and its attachments were cited by the Deputy Premier as the factual basis for his discretion.

[372]

[219] (1986) 162 CLR 246 (at 30 - 31)

[373]

[220] [2017] FCAFC 107; (2017) 252 FCR 352 at [61]-

[374]

[221] Agreed Bundle at 85 (part of the call-in notice).

[375]

[222] Ibid. The Minister's reasons expressly adopt this point.

[376]

[223] See, for example s 174 of the Act.

[377]

[224] For example, the purpose of valuing, protecting and promoting Aboriginal and Torres Strait Islander knowledge, culture and tradition, and conserving places of cultural heritage significance, and providing for housing choice, diversity and affordability, and encouraging investment, economic resilience and economic diversity, may all pull in different directions.

[378]

[225] ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [19]- [20]; Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [23]- [31], [76] and [88]-[113].

[379]

[226] SZVFW (2018) 264 CLR 54 at [84].

[380]

[227] [2012] HCA 61; [2013] 249 CLR 332 at [25].

[381]

[228] [2012] HCA 61; [2013] 249 CLR 332 at [26].

[382]

[229] Joint applicant's submissions at [64].

[383]

[230] [2002] WASCA 100 at [61]- [67].

[384]

[231] [1947] EWCA Civ 1; [1948] 1 KB 223 at 229.

[385]

[232] Swan Hill Corporation v Bradbury (1937) 36 CLR 746; Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 504 - 505; Council of the City of Parramatta v Pestell [1972] HCA 59; (1972) 128 CLR 305 at 327; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 41 - 42.

[386]

[233] [2002] WASCA 100 at [57], [58] (Malcolm CJ, with whom Wallwork J and White AuJ agreed).

[387]

[234] [2002] WASCA 100 at [60].

[388]

[235] [2002] WASCA 100 at [61].

[389]

[236] See the discussion above concerning the nature of the Minister's discretion. See, for example, THRESHOLD ISSUE: RULES OF PROCEDURAL FAIRNESS - The Statutory Context and Some Features of the Call-in Regime (third point).

[390]

[237] [2020] FCAFC 21; (2020) 275 FCR 188 at [113].

[391]

[238] Submissions of the joint applicants at [65]: "inconsistency born of the application of differing standards and values should be reduced as far as is possible to do so".

[392]

[239] [2019] QSC 124.

[393]

[240] Submissions of the joint applicants at [66]. As to the second aspect see above at FIRST GROUND: APPREHENDED BIAS, Failure to Call-in Indistinguishable Applications.

[394]

[241] Submissions of the joint applicants at [70].

[395]

[242] See Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at 654; Francis v Crime and Corruption Commission [2015] QCA 218 at [33].

[396]

[243] Reason 12 (which addresses human rights) is not really a reason for the exercise of the discretion, and so my reference to the reasons should be read as a reference to reasons 1 to 11.

[397]

[244] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [47].

[398]

[245] Joint applicant's submissions at [68]. This argument is similar to earlier arguments made by the joint applicants - but in a different context.

[399]

[246] In fact, as the joint applicants point out, the Council had requested that the earlier applications be called-in but asked that the Wanless application not be called-in on the basis of the view taken in the earlier applications that the (then) Minister did not believe a State interest was involved and because of its smaller scale.

[400]

[247] Planning Act 2016 s 103(3).

[401]

[248] As Wanless' submissions make clear at [152(c)]: "This is a completely unworkable suggestion which would impose an undue burden on decision-makers far beyond anything required by the authorities on unreasonableness and/or irrationality grounds of review."

[402]

[249] Joint applicants' submissions at [72].

[403]

[250] [2001] HCA 30; (2001) 206 CLR 323 at [68].

[404]

[251] SECOND GROUND: FAILURE TO CONSIDER REPRESENTATIONS, The Reply Argument.

[405]

[252] Wanless submissions at [155] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 at 708.

[406]

[253] Wanless submissions at [158]. See later discussion of this topic in the section: FIFTH GROUND: HUMAN RIGHTS: a Further Obstacle.

[407]

[254] The reasons are quoted in full above.

[408]

[255] ShapingSEQ is the regional plan for the South East Queensland (SEQ) region.

[409]

[256] Some aspects have been deleted in the interests of brevity.

[410]

[257] Joint applicants' submissions at [72].

[411]

[258] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 at [43].

[412]

[259] Planning Act 2016 s 103(3).

[413]

[260] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [76]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272; see Wanless submissions at [164].

[414]

[261] Wanless neatly reduces the Deputy Premier's reasons to this: "The reasons identify environmental complexity, possible economic impact, community concern and possible impact on infrastructure as economic or environmental interests of the State." (Wanless submissions at [163]). Of course, various other aspects of the reasons might be highlighted by a 'potted' summary like this.

[415]

[262] [2016] QSC 80 at [11(g)].

[416]

[263] Council's submissions at [29].

[417]

[264] Wanless submissions at [165(d)]; Agreed bundle of documents, p 180, 185, 196 and again at 196.

[418]

[265] The use of the word 'including' is used in relation to State interest, but not in relation to the reasons proper.

[419]

[266] See the Attorney-General's submissions at [3], [4] which are consistent with the Ashworth submissions at [96]. See also Owen-D'Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273, [128], [129].

[420]

[267] See Sabet v Medical Practitioners Board (Vic) [2008] VSC 346; (2008) 20 VR 414, 431 [108]-[109]; Baker v DPP (Vic) [2017] VSCA 58; (2017) 270 A Crim R 318, 331 [56]; Thompson v Minogue [2021] VSCA 358, [96]; see also Owen-D'Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273, [132].

[421]

[268] See the Attorney-General's submissions at [8] which are consistent with the Ashworth submissions at [102], [103].

[422]

[269] [2021] QSC 273, [133].

[423]

[270] [2021] VSC 56 at [80].

[424]

[271] [2021] QSC 273, [133] applying [2021] VSC 56 at [80].

[425]

[272] See the discussion below concerning the 'procedural limb'.

[426]

[273] Ashworth parties' submissions at [111].

[427]

[274] Planning Act 2016 s 102.

[428]

[275] Explanatory note, Human Rights Bill 2018 (Qld) 21 referred to in the Attorney-General's submissions at [20].

[429]

[276] Human Rights Act 2004 (ACT); Charter of Human Rights Act Responsibilities Act 2006 (Vic); New Zealand Bill of Rights Act 1990 (NZ); Attorney-General's submissions at [25]-[29].

[430]

[277] The wording of s 15(1) of the Canadian Charter is slightly different to s 23 of the Queensland Human Rights Act. Section 15(1) of the Canadian provision provides for every individual a guarantee of equality before and under the law, as well as the equal protection and equal benefit of the law without discrimination.

[431]

[278] Andrews v Law Society of British Columbia 1989 CanLII 2 (SCC); [1989] 1 SCR 143.

[432]

[279] See Rasmussen v Denmark [1984] ECHR 17; (1984) 7 EHRR 371; Andrews v Law Society of British Columbia 1989 CanLII 2 (SCC); [1989] 1 SCR 143, at 181.

[433]

[280] See, for example, the definition of 'discriminate' in the Macquarie Concise Dictionary, 3rd ed.

[434]

[281] Note that the drafting of the definitions in the Schedule 1 Dictionary in the Human Rights Act 2019 uses both devices of 'means' and 'includes' in other definitions to indicate whether or not it is to be exhaustive. A court should be slow to depart from the pattern thus established: Cohns Industries Pty Ltd v Deputy Federal Commissioner of Taxation (1979) 24 ALR 658 at 660; Pearce, Statutory Interpretation in Australia, 9th ed at [6.8].

[435]

[282] These principles have been extracted from Pearce, Statutory Interpretation in Australia, 9th ed at [6.8].

[436]

[283] See the Attorney-General's submissions at [25]-[29].

[437]

[284] Cf Ashworth parties' submissions at [40].

[438]

[285] See the Ashworth submissions in reply at [42], [43].

[439]

[286] PJB v Melbourne Health [2011] VSC 327; (2011) 39 VR 373, 395 [87]; Attorney-General's submissions at [38].

[440]

[287] (1996) 185 CLR 124, at 133.

[441]

[288] Rhoda E Howard-Hassmann, Reconsidering the Right to Own Property (2013) 12(1) Journal of Human Rights 180, 181.

[442]

[289] There was much discussion among the drafters of the Universal Declaration of Human Rights about this right. They disagreed over whether property should refer only to personal property and, if so, what personal property meant, as opposed to a more expansive meaning of property: Rhoda E Howard-Hassmann, supra, at 181.

[443]

[290] See the travaux préparatoires for article 17 of the Universal Declaration of Human Rights; Rhoda E Howard-Hassmann supra, at 180, 181; Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (University of Pennsylvania Press, 1999) at 140-156. Alfredsson has commented that the final version of article 17 belies the controversy it has caused, both prior to and subsequent to its adoption: Gudmundur Alfredsson on article 17 in 'The Universal Declaration of Human Rights: A Commentary' (Ed. Eide, 1992) at 255. Regardless of the controversy, it is plain that essential needs such as food, clothing and housing are at the core of the right.

[444]

[291] Arbitrariness in this context means capricious, unpredictable or unjust and also unreasonable in the sense of not being proportionate to a legitimate aim sought: PJB v Melbourne Health [2011] VSC 327; (2011) 39 VR 373 at [85].

[445]

[292] Wanless make this point at [194] of their submissions.

[446]

[293] This is a paraphrasing of paragraphs [120]-[125] of the Ashworth parties' submissions.

[447]

[294] [2003] 2 AC 295, 308, 309, 324 and 343.

[448]

[295] Article 6 of the European Convention on Human Rights is similar but not identical to s 31: "Right to a fair trial 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

[449]

[296] The Attorney-General's submissions on Alconbury are gratefully acknowledged and adopted here.

[450]

[297] [2003] 2 AC 295 at 318.

[451]

[298] [2003] 2 AC 295 at 318.

[452]

[299] [2003] 2 AC 295 at 320, 323, 330, 339, 350 & 362.

[453]

[300] [2003] 2 AC 295 at 323.

[454]

[301] [2003] 2 AC 295 at 325.

[455]

[302] [2003] 2 AC 295 at 321, 334.

[456]

[303] Ashworth reply submissions at [45].

[457]

[304] The Ashworth parties make this distinction in their reply submissions at [46].

[458]

[305] More likely than not 'competence' is assumed as part of the UK's requirement of "an independent and impartial tribunal established by law".

[459]

[306] The Queensland provision refers to a hearing of a 'court or tribunal' whereas the European provision is limited to 'tribunal'. The difference is not material because a court is likely to be comprehended by the expression 'tribunal'.

[460]

[307] The right to take part in public life (s 23) the right to property (s 24) and the right to a fair hearing (s 31(1)).

[461]

[308] R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, 351-2. Some of these factors were identified by the Assessment under Human Rights Act 2019 which is Schedule 2 to the Briefing Note.

[462]

[309] [2010] VSC 310; (2010) 28 VR 141 at [185]- [186]

[463]

[310] [2015] VSCA 197; (2015) 48 VR 129 at [52], [146], [276]-[279] and [535]. All three judges of appeal quoted paragraphs [185] and [186] from Castles with evident approval.

[464]

[311] [2021] VSCA 200; (2021) 64 VR 270 at [155].

[465]

[312] [2021] QSC 273 at [137].

[466]

[313] In that respect, the position in Queensland may vary from that in Victoria where the view expressed in Castles was that proper consideration need not involve formally identifying the "correct" rights: see Owen-Darcy v Chief Executive, Queensland Corrective Services [2021] QSC 273 at [136].

[467]

[314] The Deputy Premier was entitled to seek and obtain the advice of relevant public servants: see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 at 340.

[468]

[315] See also Owen-Darcy v Chief Executive, Queensland Corrective Services [2021] QSC 273 at [100].

[469]

[316] Ashworth parties' reply submissions at [23].

[470]

[317] Queensland, Parliamentary Debates, Legislative Assembly, 31 October 2018, 3185-6

[471]

[318] [2015] VSCA 197; (2015) 48 VR 129 at [299].

[472]

[319] See also Castles v Secretary, Department of Justice [2010] VSC 310; (2010) 28 VR 141 at [185]- [186] (quoted above).

[473]

[320] Bare v Independent Broad-Based Anti-Corruption Commission [2015] VSCA 197; (2015) 48 VR 129 at [100]; citing Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602 at 631 and a number of other cases.

[474]

[321] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476. By the same token, it is appreciated that the Human Rights Act is to be read liberally as it allows for the vindication of human rights: Goode v Common Equity Housing Ltd [2014] VSC 585 at [25].

[475]

[322] Section 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

[476]

[323] [2015] VSCA 197; (2015) 48 VR 129 at [100].

[477]

[324] [2015] VSCA 197; (2015) 48 VR 129 at [378]- [397] (Tate JA) and [496], [600] and [617]-[626] (Santamaria JA).

[478]

[325] The use of the term 'unlawful' does not necessarily connote invalidity: that every invalid act is an 'unlawful' act does not entail that every unlawful act is invalid: Bare v Independent Broad-Based Anti-Corruption Commission [2015] VSCA 197; (2015) 48 VR 129 at [617].

[479]

[326] Attorney-General's supplementary submissions at [19]. However, it is doubtful that one can go so far as to say that s 58(6) evinces an intention to allow for human rights review to be ousted by privative clauses in other Acts that apply to non-jurisdictional errors of law.

At a glance

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Cases Cited (102)