I admitted evidence to the effect that the effective closure of the east‑west runway resulted in a substantial diminution of noise from aircraft in the areas for which each applicant is responsible: indeed, it is obvious that that would have been so and it is equally obvious that the reopening of that runway to regular use by large aircraft will result in a significant increase of noise from aircraft in those areas; that - and there was no dispute about this - is likely in turn to result in significant detrimental effects on the environment of those areas. It follows that it makes no difference to the outcome of the case that no evidence was admitted in support of para (ii). As for para (iii), the draft EIS (at page 2‑7) refers to "continuing liaison on technical matters" with a number of local councils, including the four applicants. As to para (iv), a supplement to the draft EIS indicates that among those who made the submissions were the first, second and fourth applicants. There is no material before me, other than that supplement, as to the contents of those submissions: the supplement indicates that the submission of the first applicant canvassed a considerable number of matters dealt with in the draft EIS, that of the second applicant with a substantially smaller, though still significant, number of issues and that of the fourth respondent with a small number of issues only. An inspection of the supplement suggests that it is likely that among the individuals and bodies making submissions were a number living, working or carrying on business within the applicants' areas: there is, in fact, no evidence that that is so but, again, I doubt that in the end it much matters. No particular comment is required in relation to para (v). As for para (vi), it will be recalled that para 11.2 of the Administrative Procedures empowers the second respondent to consult with governmental and local authorities "or any other person or body" in relation to proposed exemptions from the Administrative Procedures.
Counsel for the applicants relied particularly on statements of principle in two recent judgments of the High Court. In Annetts v McCann (1990) 170 CLR 596, Mason CJ, Deane J and McHugh J said at 598:
It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.
In Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 Deane J said at 653:
Indeed, the law seems to me to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision‑making ... and where the question whether the particular decision affects the rights, interests, status or legitimate expectations of a person in his or her individual capacity is relevant to the ascertainment of the practical content, if any, of those requirements in the circumstances of a particular case and of the standing of a particular individual to attack the validity of the particular decision in those circumstances.
That was by no means an entirely novel principle. In Kioa v West (1985) 159 CLR 550, at 584, Mason J referred to its antecedents and said:
The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.
Certainly it cannot be said of the AA Act or the Administrative Procedures that there is any express manifestation of a contrary statutory intention. That, however, is not the end of the matter. The cases to which counsel referred all concerned administrative decisions directly affecting the interests of particular individuals. Annetts v McCann concerned a coronial inquiry into the deaths of two boys: the question was whether the coroner was justified in denying to counsel for the boys' parents the right to make a closing address on the evidence. Kioa and Haoucher both concerned deportation orders. There is a clear distinction, and authorities binding on me treat it as an important distinction for these purposes, between decisions affecting the rights or interests of particular individuals and those affecting the interests, indiscriminately, of the members of the public at large or of the members of a section of the public. Thus in Kioa at 584, immediately following the passage to which I have already referred Mason J said:
But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly.
His Honour explained, citing the judgment of Jacobs J in Salemi v MacKellar (No.2) (1977) 137 CLR 396 at 452, that this was so because an executive or administrative decision affecting a person or corporation as a member of the public, or a class of the public, as opposed to affecting the person or corporation individually is truly a "policy" or "political" decision and not subject to judicial review. That explanation raises issues
which are relevant to this and other aspects of these proceedings, and I shall return to it. Meantime, there is an extended discussion of the same distinction by Brennan J in Kioa, commencing at p 619. That discussion includes (at 620) the following passage:
The legislature is not likely to intend that a statutory power of a strictly legislative nature be conditioned on the observance of the principles of natural justice for the interests of all members of the public are affected in the same way by the exercise of such a power ... But the legislature is more likely to intend the exercise of a statutory power of an executive, administrative or quasi‑judicial nature to be so conditioned if an exercise of the power singles out individuals by affecting their interests in a manner substantially different from the manner in which the interests of the public at large are affected.
Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 concerned, among other things, decisions to make recommendations as to the replacement of the schedule of fees payable under the Health Insurance Act 1973 for various services provided by pathologists. Gummow J pointed out, at 637, that the replacement of the fees schedule, in accordance with a recommendation, affected the interests of the Australian public at large and also those of certain classes or groups of the public (eg, obviously enough, pathologists and patients). His Honour continued:
It affected the interests of those providing the pathology services, of the patients and their medical advisors for whom the services are provided and of government (that is to say of the Australian community as a whole) in efficient administration of the law and proper disbursement of public moneys. I believe there is much to be said for the view that the making of a recommendation by the committee and the decision of the Minister to make a determination in accordance with the recommendation of the committee, did not affect the rights, interests and expectations of pathologists, other medical practitioners and patients in a sufficiently
individual direct and immediate way as to attract with regard to persons in these groups the duty to act fairly ...
Exactly the same principles were discussed and applied by the Full Court of this Court in Comptroller‑General of Customs v Kawasaki Motors Pty Ltd (No. 1) (1991) 32 FCR 219: see the judgment of Hill and Heerey JJ at 238‑241.
Several discussions of the distinction are complicated by consideration of a related issue, at least hinted at in the explanation given by Jacobs J cited by Mason J in Kioa. That related issue is the distinction between decisions, on the one hand, having a legislative character and those, on the other hand, of an executive or administrative nature. That further distinction is discussed, for instance, by Brennan J in Kioa, by Gummow J in Queensland Medical Laboratory and by Hill and Heerey JJ in Kawasaki, in each case in or immediately following the passage to which I have referred. In this case, I think it is clear - certainly the contrary was not argued - that each decision is, within the terminology of subs 3(1) of the ADJR Act, a decision of an administrative character made under an enactment. All of the authorities to which I have referred, however, make it clear that though a decision for which an Act or delegated legislation provides is to be characterised as administrative rather than legislative, nevertheless if it affects the interests of the public, or a section of the public, at large rather than the interests of particular individuals it will, usually at least, be a decision in relation to which no particular individual or body can claim an entitlement to procedural fairness: particularly, an entitlement to be heard, in relation to a proposed decision, before it is made.
Counsel for the applicants argued that the decisions of the first and second respondents (and in this respect there is no relevant distinction between them) are not decisions of general application: they are decisions which have application in respect of the residents of areas surrounding the airport, particularly to the east and west; the applicants, in effect, represent the rate payers and residents of their areas, whose interests are affected by the decisions and are not those of the public at large. Attractively as that submission was put, I cannot accept it. It is, I think, contrary to the authorities to which I have referred. No doubt it is possible to say that each person living or working under a flight path within an area for which one of the applicants is responsible is affected in a way which differs from the way "the public at large" - including not just those who live to the north of the airport but also those out of earshot of any conceivable flight path - are affected. But that is clearly not the distinction to which the authorities refer. Each applicant represents the interests of a section, or perhaps several sections, of the public; and, within each section, individuals are affected indiscriminately.
It remains to consider whether there are any particular circumstances relating to the decisions which should be held to have imposed on the decision‑maker an obligation which might not otherwise exist. The effect of the decisions on the environment within the applicants' areas or, for that matter, their effect on "the health, comfort, amenity, convenience, safety, well‑being or property values" of people within the areas, cannot make a difference: as I have held, people within the applicants' areas are not affected, in the terminology used in the authorities, in an individual capacity. The applicants argued also that they had a legitimate or reasonable expectation that they would be consulted, and
given an opportunity to make submissions, before any decision was made to reopen (or to remove an obstacle to the reopening of) the east‑west runway. That expectation was said to arise from the fact that a detailed environmental study preceded the construction and opening of the third runway (and the closure of the east‑west runway) in the course of which the applicants were consulted and three of them (as well as individuals within their areas) made submissions. It was said that in those circumstances I should infer a representation that the decisions which the applicants impugn would not be made without further consultation; it was also put to me that I should find an established course of practice, arising from the process of deliberation which preceded the construction of the third runway, leading to the opening of that runway and the closure of the east‑west runway, the practice being one of consultation in relation to the level of use of the east‑west runway.
There is, however, no evidence of an express representation nor, I think, is there a basis on which I should infer one, particularly one binding on the first or second respondent. The consultation which occurred related to an environmental study (leading to the preparation of the draft EIS) in relation to a proposal to construct a third runway, and in circumstances where a decision had already been made that if the third runway was built and opened a policy of concentration would be applied and the east‑west runway substantially closed. The process of consultation related to that particular matter and occurred, of course, several years ago. The process leading to the construction of the third runway cannot, I think, be seen as establishing a course of conduct giving rise to legitimate expectations as to consultation concerning any future use which might be made
of the east‑west runway: a runway which had been in existence, and in substantial use, for many years before construction of the third runway was proposed. The leading case on a course of conduct of this kind is Council of Civil Service Unions v Minister for Civil Service [1985] 1 AC 374: that case had to do with circumstances entirely different from these: see, for example, the speech of Lord Fraser of Tullybelton at 401.
I have dealt with the particular circumstances as I have out of deference to counsel's arguments and, of course, because the matter may go further. It may well be, however, that such a consideration of those circumstances is (given my earlier conclusion) beside the point: legitimate expectations are not relevant to the true construction of a statutory provision under which a decision is made - the question of construction being whether, in relation to such a decision, an obligation to afford natural justice applies: see Kioa at 617, 618 per Brennan J; see also his Honour's observations in Attorney‑General (NSW) v Quin (1990) 170 CLR 1 at 40, 41.
There is one final consideration relevant to the decision of the second respondent to grant the exemption under the Administrative Procedures, though not to the decision of the first respondent to give the direction to the third respondent. Paragraph 11.2 of the Administrative Procedures provides that the Minister "may consult with any Department or authority of Australia, any State or authority of a State, the Northern Territory or an authority of the Northern Territory, any local authority or any other person or body concerning whether a Commonwealth action, or a class of Commonwealth actions, should be exempted from all or any of the requirements of these procedures". It was said that
this provision, while not imposing in all cases a duty to consult all or any of the persons mentioned (obviously, it could not do so given the virtually unlimited class of persons who might be consulted), taken together with the surrounding circumstances gave rise in this case to a legitimate expectation and therefore a duty of consultation with the applicants. Once, however, other bases of legitimate expectation are excluded, I cannot see how a discretion to consult can give rise to a legitimate expectation or to a duty on any other basis.
For those reasons, the applicants in my view must fail on the question of natural justice or procedural fairness. But before leaving this aspect of the case, it is appropriate briefly to return to the comments of Mason J in Kioa, particularly his reliance on the observations of Jacobs J, to which I have referred. Where, as I think is the case here, a decision which does not attract requirements of procedural fairness is administrative in nature, rather than legislative, it does not follow from those comments, in my view (given the provisions of the ADJR Act, if no other reason) that the decision is not amenable to judicial review. It is by no means inconsistent with a decision that there is no duty to hear persons in relation to a proposed decision to hold also that there are persons "aggrieved" by such a decision who have standing to impugn it, under the ADJR Act, on other grounds. It is therefore necessary to turn to the other grounds on which the applicants rely.