Bituminous Products Pty Ltd v General Manager

[1] The applicant manufactures pre-coating for aggregate used in road construction and maintenance. It seeks an order of statutory review in respect of a decision concerning the proportion of waste oil that the Department of Main Roads will approve in such material, the effect of which is to exclude the applicant's product from use by contractors. The respondent now applies for an order dismissing that application pursuant to s 48(1)(b) of the Judicial Review Act 1991 on the ground that there is no reasonable basis for it, because the decision, it is said, is not one to which the Judicial Review Act applies. (To avoid any confusion, I shall continue to refer to the applicant and respondent by their titles in the substantive application.)

[2] Section 4 of the Judicial Review Act is in the following terms:

"In this Act -

decision to which this Act applies means -

(a) a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion); or

(b) a decision of an administrative character made, or proposed to be made, by, or by an officer or employee of, the State or a State authority or local government authority under a non-statutory scheme or program involving funds that are provided or obtained (in whole or part) -

(i) out of amounts appropriated by Parliament; or

(ii) from a tax, charge, fee or levy authorised by or under an enactment."

It is the second part of that definition which is primarily at issue here. The applicant says that the decision in question is one made under a "non-statutory scheme or program" involving funds provided out of amounts appropriated by Parliament. The respondent, on the other hand, says that the decision was either made under a statutory scheme or program, or no scheme or program at all was involved.

[3] The decision under review was made by the respondent in these terms:

"Main Roads to approve the use of waste oil in precoating materials. The proportion of waste oil in the precoating material is not to exceed twenty per cent."

The applicant, when asked to particularise the "non-statutory program or scheme" under which the decision was said to have been made, identified:

"a program or repetition of events being the projects involving the supply of cover aggregate under the Standard Specification".

The relevant funds, according to the particulars, were provided

"out of amounts appropriated by parliament for the purposes of the construction and maintenance of roads in Queensland by the Department of Main Roads and also for the purposes of the supervision and regulation of the construction and maintenance of roads in Queensland by the Department of Main Roads".

[4] The statutory framework for road construction and maintenance is to be found in the Transport Infrastructure Act 1994. Section 5 requires the chief executive (the Director-General of the Department of Transport) to develop transport infrastructure strategies, while s 11 of the Act obliges the chief executive (in this case, the Director-General of the Department of Main Roads) to develop roads implementation programs. Section 11(2) prescribes content; the programs must include "a program of projects, and policies and financial provisions, for implementing the transport infrastructure strategies in relation to road transport infrastructure...". Section 29 enables the chief executive, in accordance with the relevant roads implementation program, to enter and carry out contracts for road works. It was common ground that such works are funded by both State and Commonwealth allocations.

[5] An affidavit of Mr Neil Doyle, the Deputy Director-General, Department of Main Roads, helpfully provides some practical background. The department uses a manual entitled "Standard Specification Roads" which sets out, amongst other things concerned with road construction or maintenance projects, the standards of materials to be used in road construction. The table of contents for the manual, which occupies two volumes, is in evidence. It includes specifications for aspects of road building such as drainage, earthwork, bitumen surfacing, manufacture of culverts and pipes, asphalt surfacing, concrete and steel girders and traffic signals.

[6] One of the many interesting matters dealt with by specification is supply of cover aggregate. The relevant specification, MRS11.22, seems to be what is referred to in the applicant's particulars. Clause 7.1.4 of that specification requires that cover aggregate be pre-coated prior to its being spread. The pre-coating is to be carried out with "one of the products listed in clause 2.1 of Annexure MRS11.22.1". At Annexure MRS11.22.1, one finds a form designed to be completed according to the requirements of a given contract. The form contains a section headed "Pre-coating of Cover Aggregate" with a sub-heading "Acceptable Pre-coating Agents"; below appear three columns headed "Product", "Supplier" and "Approximate Application Rate". The specification and its annexures take one no further as to the identity of the pre-coating products which may be used.

[7] However, Mr Doyle says that an "approved product list" was developed by an officer within the Department. Major suppliers were asked to provide different formulations whose adhesive performance was tested. The applicant's product, "Pre-coat Supa 35", was considered suitable and placed on the approved product list, where it remained for a number of years until revision of the list in October 2002. It was removed, on the respondent's material, because of concerns about its waste oil content; a letter to the applicant from the Department of Main Roads, dated 12 February 2003, explained that "information from users" had led to the Department's concerns. Annexed to that letter was a summary of responses from various districts where the product was used for road sealing, some of which included complaints about the product.

[8] Mr Morcombe, the General Manager of the applicant, says in his affidavit that there was no discussion with it prior to the product's removal from the list. After the applicant had provided reports from independent experts as to the safety of the product, and had made a number of submissions as to why it should be reinstated on the approved products list, the respondent set up trials comparing the applicant's product with another pre-coating agent. The products' relative performances were assessed on criteria such as skid resistance and environmental impact. The results were reviewed by a panel which made recommendations, pursuant to which the respondent made the impugned decision.

[9] There is no dispute in the present case that the decision was one of an administrative character made by an officer or employee of the state. It was accepted that expenditure on construction and maintenance of public roads involved funds provided from parliamentary appropriations. The real question is whether the decision is capable of being characterised as one made "under a non-statutory scheme or program".

[10] The applicant mounted a number of arguments: firstly, it said that there was a scheme or program by which the respondent's employees identified and specified the products eligible for State Government expenditure, a scheme which was embodied in the manual of Standard Specifications, and under which the "approved product list" came into being. Alternatively, the decision could be regarded as made pursuant to the Roads Implementation Program, which was a non-statutory program. If neither of those issues was to be determined in the applicant's favour, it was at least the case that the material before the court was not sufficiently conclusive to admit of their summary resolution. Finally, there was a last resort argument: the decision was one "under an enactment", falling under s 4(a).

[11] As to the first of those arguments, it was contended that the process of developing lists of products and formulating specifications to be observed by those contracting to construct or maintain roads was itself a systematic, maintained program. As the notes to the most recent edition of the Standard Specifications manual showed, it was amended and updated to reflect problems identified in the application of previous specifications and the development of new technology. Those notes describe a general upgrading of the Standard Specifications as between second and third editions in order to keep up with, inter alia, "good practice", the requirements of the Environmental Protection Act 1994, and changes in terminology. It was submitted that the decision to restrict approved products, and, in effect, exclude the applicant's product was made in the course of the program of identifying products and methodologies to be used in road works.

[12] The applicant sought to draw an analogy with the circumstances in Macedab Pty Ltd v Director-General, Department of the Premier, Economic and Trade Development.[1] In that case, a developer sought to challenge a decision of the respondent refusing to acquire its land on hardship grounds. The decision was reviewed by the court under s 4(b); but it is important to observe that it was conceded for the Director-General that the decision was of an administrative character, made by an officer of the state, and that funds were appropriated by parliament for the purpose of land acquisition on compassionate grounds. It seems to have been assumed that the process of acquisition constituted a "non-statutory scheme or program". The application was in the event dismissed, in a decision upheld by the Court of Appeal[2]. (No issue arose in the Court of Appeal as to the decision's status under s 4(b).) The applicant argued that the program here, of identifying products to be used in road building contracts, was comparable to the program in Macedab, which it characterised as one of identifying land for acquisition and then acquiring it.

[13] On another view, the applicant said, the process of reviewing the manual, testing products and making determinations about which would appear on the approved products list could be regarded as falling within the Roads Implementation Program and its described aims. The introduction to the Roads Implementation Program sets out "Key Deliverables" which include "ongoing research and development to provide leading edge technology in roads and bridge construction and maintenance"; "maintenance of an environmental management system which provides cost-effective best practice and continual improvement in environmental management in all facets of road design, construction, maintenance and road system operations"; and "establishment of quality business practices and management information systems which support effective and efficient delivery of the roads' task." Those objectives were, it was submitted, consistent with the testing regime which produced the decision under review; it had focussed on environmental and safety concerns.

[14] The Roads Implementation Program was, the applicant said, a non-statutory program; it was ministerially created pursuant to a power conferred by the Transport Infrastructure Act. A statutory program was one which was actually created by statute, not merely one that was created by a person who had a power under a statute to set it up. If the legislation were construed to contrary effect, so that any scheme or program put into place by a person with authority under the statute was to be regarded as "statutory", s 4(b) would lose much of its effect.

[15] As a further alternative, the applicant submitted, if the decision did not fall within paragraph (b) of s 4 it might fall within paragraph (a); that is, it was a "decision under an enactment". Its submissions about the possible application of s 4(a) were premised, as were the respondent's, on the constructions given by courts to that section and its equivalent in the Administrative Decisions (Judicial Review) Act 1977 (Cth) prior to the handing down of the decision in Griffith University v Tang [2005] HCA 7; (2005) 79 A.L.J.R. 627.

[16] Finally, the applicant suggested, summary disposition of the application would in any event be inappropriate until disclosure had been given and all material constituting the whole road infrastructure program had been put in evidence. It was possible, it was said, that "documents will be turned up, which will identify, maybe, a different source by which the decisions were made". But the content of the Standard Specifications Manual, on which the applicant relies as encapsulating the relevant program, is known; it is not suggested that there is anything uncertain or yet to be ascertained in that regard. Although the Roads Implementation Program is not fully in evidence, it is a matter of construction whether it is a statutory or non-statutory program. If it is the former, and if the decision was made under it, the decision will not be amenable to review, whatever else might emerge about the program's compass. I do not think that resolution of the questions posed here can properly be deferred on the off chance that something else might turn up, particularly when there is no hint of anything further involved in the decision making process.

[17] The respondent's argument was that any decision to include or exclude items from the approved product list was no more than a general administrative decision, unrelated to any programme or scheme. Alternatively, if the decision could be said, in a general sense, to be made pursuant to any scheme, it was the statutory scheme for road building which was implemented by the Roads Implementation Program. It was beyond doubt, it was submitted, that the Roads Implementation Program was part of a statutory scheme. Section 11(2) of the Transport Infrastructure Act dictated its content, and the Roads Implementation Program itself sets out its legislative basis as s 11 of the Transport Infrastructure Act. The program was to be distinguished from programs or schemes sourced in initiatives of the executive Government, but not supported by legislation. The English Criminal Compensation Board scheme (for compensation of victims of violent crime), discussed in the report of the Electoral and Administrative Review Commission (EARC)[3], was a prime example of the latter class.

The history of s 4(b)

[18] It was as the result of EARC's recommendation that s 4(b) was inserted into the Judicial Review Act to create an additional category of reviewable decisions, beyond those contemplated by the Administrative Decisions (Judicial Review) Act 1977 (Cth). EARC described its recommendation as an adaptation of a recommendation made by the Administrative Review Council (ARC)[4]. The latter had advocated an extension of the ambit of the Administrative Decisions (Judicial Review) Act to

"the area of decision making under a non-statutory scheme or program that is authorised by an exercise of executive power and funded by an appropriation made by the Parliament specifically for the scheme or programme." [5]

The ARC gave this rationale for its recommendation:

"the funding of such schemes by a specific item in appropriation legislation passed by the Parliament gives them the same public interest character as they would have if they were the subject of other legislation enacted in the public interest."[6]

[19] The EARC report goes on to say that its proposed paragraph (the template for s 4(b)) is to

"extend to non-statutory schemes or programs operated by State Government Departments, statutory authorities or local government authorities, where the funds are appropriated by parliament or raised under the authority of an enactment." [7]

It gives as examples of what might be covered, a scheme operated by a local council funded by rate collections without statutory basis, or a scheme operated by a primary producer body established under statute and funded by compulsory levy pursuant to statutory authority.

[20] The recommended subsection found its way into the Judicial Review Bill and ultimately into the Act with only the very minor change that reference was made to employees as well as officers of the state. The explanation given in the EARC Report is repeated in the explanatory note, although the only example given is that of a council scheme funded by rate collections.

[21] Section 4(b) has received little judicial consideration. Anghel v Minister for Transport (No. 1)[8] involved an application for review of a decision to approve construction of a railway line to the port of Brisbane. As in the present case, an application was made under s 48(1) to stay or dismiss, one of the bases being that there was no decision within the meaning of the Act. The applicants for review relied on s 4(b); against that, the respondent contended that the project for the construction of the line was not a "scheme or program". In answer to a submission that "'a scheme or program' connoted a repetition of events", Derrington J said this:

"the reference to a scheme, as distinct from a programme, suggests that the whole of the range is intended to be covered between the two. According to the Oxford English Dictionary, a scheme may mean a project (which was the term used by the Minister in his letter to Queensland Rail) or an enterprise, and it is reasonable that this quality of singleness was intended by the expression as distinct from a programme."[9]

His Honour concluded that the project was a scheme, but dismissed the application for judicial review on different grounds.

[22] Similarly, in Wide Bay Helicopter Rescue Service Incorporated v Minister for Emergency Services[10] the respondent to an application for review sought its dismissal on a number of grounds, including that the decision, to place a community rescue helicopter at Bundaberg, was not made under an enactment nor under a non-statutory scheme or program. The background was that the applicant had been incorporated with a view to its becoming the rescue organisation operating in the area, but the government decided instead to vary an existing agreement with another organisation to extend its helicopter rescue service to the Wide Bay/Burnett region. It was ultimately conceded that the decision was not one made "under an enactment", but it was contended that it fell within s 4(b). The learned judge made this observation:

"If this review was related to a decision to make Government funds available to the provider of a rescue service in the Wide Bay/Burnett region then the decision in question may well be within s 4(b), but that could hardly be the case where the only relevant decision was to base a 'community provider rescue helicopter... at Bundaberg'".[11]

He went on to conclude that the application did not relate to a decision within s 4(a) or 4(b) of the Act. If his Honour were intending to suggest that only decisions involving government funds were encompassed by s 4(b), I would respectfully disagree; but it seems more probable that he meant no more than that a program of funding rescue services was a different proposition from the limited and isolated decision which was in contention.

[23] Finally, in Mikitis v Director-General, Department of Justice and Attorney-General[12] the applicants had sought review of a decision to alter the layout of the Cairns Office of the Director of Public Prosecutions to an open plan arrangement. They argued that there was a scheme for the provision of office accommodation which was established by Cabinet Minute and was administered by committee. Wilson J identified the role of the committee in question as being to formulate and review strategies and guidelines for planning, provision and management of office accommodation for government agencies. Those guidelines were not, she said, part of any scheme, and the decision in question was not one made under a non-statutory scheme or program.

[24] It can be seen that guides as to what constitutes a scheme or program for the purposes of the section are in short supply. "Programme" is defined in the Shorter Oxford English Dictionary, relevantly for present purposes, as "a planned series of activities or events"; "scheme" as "a plan, a design; a project, an enterprise; a programme of work or action to attain an objective". Both definitions connote the need for some planned action; the existence of an orderly structure does not of itself constitute a program. On the other hand, I think one can say, as a general proposition, that the greater the difficulty in identifying a discrete program or scheme, the less likely it is that there exists one. While the statute, unquestionably, is a remedial one, giving redress to those aggrieved by administrative decision making, there is another policy consideration: the avoidance of "fragmentation of the processes of administrative decision-making ... (setting) at risk the efficiency of the administrative process".[13] One must be on guard against dissecting a given program so as artificially to confer an unwarranted status, as miniature "programs", on any of its internal arrangements which themselves appear structured or organised.

[25] As I have already said, I do not consider that the decisions to which the subsection applies are confined to those involving funds provided by parliamentary appropriation or levy under an enactment. Rather, the funding qualification relates to the "scheme or program"; that reading is syntactically appropriate and accords with the extrinsic evidence as to the purpose of the section. The emphasis on public funding suggests that a useful, although not necessarily essential, identifier of a scheme or program within the subsection is that there is either a specific appropriation or a specific statutory levy for its purposes. That view is reinforced by EARC's reliance on the ARC recommendation, with its express rationale that the public interest character is conferred by a parliamentary appropriation specifically for the scheme or program.

[26] In the present case, the development of specifications and product lists for the carrying out of road works does not warrant characterisation as a program or scheme; it is the development of criteria for application to a program. The better analogy, in the Macedab instance, is with criteria for land acquisition as opposed to the land acquisition program itself; or in another analogy, with criteria for eligibility for criminal compensation, as opposed to the compensation payment scheme.

[27] I do not think it assists to emphasise the development and refinement of the standards as if they were an end in themselves; that is to ignore their objective, which is to assist in the efficient administration of the program of road building. The element of structure exists, but only for the purpose of facilitating the activities and attaining the larger objectives of the Roads Implementation Program. The formulation of the approved product list is even less deserving of characterisation as a program; there seems nothing particularly coherent or systematic about its maintenance. It seems to have endured for many years unamended, with the revision that led to the removal of the applicant's product an ad hoc change brought about by specific complaints.

[28] And while, as I have said, it is not a conclusive feature, it is of some significance that the funding underpinning the preparation of the manual and the list of approved products seems to have been merely the general allocation for road works. It was not suggested, and it is wildly improbable, that any specific amounts are set aside for the preparation of these documents or the compilation of the information which they contain.

[29] The decision here was made as part of the minutiae of the Roads Implementation Program. That raises the question of whether that program is to be characterised as a statutory program or a non-statutory program. The distinction between a program developed pursuant to a specific statutory requirement (as this was) and a program created directly by statute is not, I think, a meaningful one in this context. One can certainly see considerable scope for argument about what degree of connection with a statutory base might serve to take a program out of the "non-statutory" category; but I do not think this case falls into any area of shadow. While the remedial intent of the legislation is to be given weight, that cannot be at the expense of logic, language and meaning. The development of the Roads Implementation Program is required by statute; its minimum content is prescribed by statute; its purpose is to implement strategies whose development in turn is required by statute; statutory powers are conferred on the chief executive officer for the furtherance of its aims. To describe it as non-statutory would be an exercise in the absurd.

[30] Finally, the applicant's submission that, in the alternative, the decision was to be regarded as one made "under an enactment" was overtaken by the handing down of the High Court's decision in Griffith University v Tang[14]. Although the applicant would unarguably, in my view, qualify as "a person aggrieved", and the decision might be described as "impliedly authorised" by statute, the judgment of the majority in Tang requires the identification of rights or obligations affected by the decision before the Judicial Review Act can be said to apply[15]. Here, while the applicant's interests were clearly affected by the decision, it had no existing right or obligation, affected by it; nor would it have acquired any rights through the making of a different decision. The decision cannot therefore be characterised as made under an enactment.

[31] The decision does not fall within either limb of s 4, and is consequently not amenable to review. The application for a statutory order of review is dismissed, pursuant to s 48(1)(b), as having no reasonable basis.

[1] Unreported, Supreme Court of Queensland, Demack J, 14 September 1994.

[2] [1995] QCA 230.

[3] EARC, Report on Judicial Review of Administrative Decisions and Actions, (December 1990) at 51, para 6.30.

[5] ARC, Report on the Ambit of the ADJR Act, Report No. 32, (1989) at 38.

[8] [1995] 1 Qd R 465.

[9] [1995] 1 Qd R 465 at 468.

[10] (1999) 5 QAR 1.

[11] (1999) 5 QAR 1 at 8, para 30.

[12] (1999) 5 QAR 123.

[13] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 per Mason CJ at 337.

[14] (2005) HCA 7 (3 March 2005).

[15] (2005) HCA 7 (3 March 2005) at para 89.