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[2014] QSC 196
Supreme Court of Queensland
2014-08-21
Jackson J
Original judgment source is linked above.
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - GENERALLY - where the applicant sought judicial review of a decision by the first and second respondents to accept recommendations of the third respondent - where, upon acceptance of the recommendations, the first and second respondents were obliged to refer the recommendations to the relevant Minister - whether the decision to accept the recommendations is a "decision to which this act applies" under the Judicial Review Act 1991 (Qld)
ADMINISTRATIVE LAW - JUDICIAL REVIEW - STANDING TO INSTITUTE PROCEEDINGS - GENERALLY - where the applicant sought judicial review of a decision by the first and second respondents to accept recommendations of the third respondent - where, upon acceptance of the recommendations, the first and second respondents were obliged to refer the recommendations to the relevant Minister - where the relevant Minister made an independent decision giving effect to the recommendations - where the applicant is an incorporated association who submits its members are affected by the decision - whether the applicant or its members are in fact aggrieved by the first and second respondents'decision
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, followed
Deloitte Touche Tohmatsu v Australian Securities Commission [1995] FCA 1212; (1995) 54 FCR 562, distinguished
Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99, followed
Right to Life Association (NSW) v Department of Human Services [1995] FCA 1060; (1995) 56 FCR 50, cited
Judicial Review Act 1991 (Qld), s4, s 20
S Doyle QC and A Pomerenke QC for the third respondent
[1] Jackson J: These are reasons for judgment upon cross-applications made by the parties to an application for judicial review. Mid Brisbane River Irrigators Inc ("MBRI") is the applicant in the originating application for a statutory order of review of a decision made by the first and second respondents ("the QCAA Ministers") to accept recommendations of the third respondent ("the QCA") contained in a report. MBRI was also the applicant in an application for an order for suspension of the decision. The application to suspend the decision was dismissed on 27 May 2014. The Court ordered that MBRI pay the respondents' costs of that application. Cross-applications to dismiss the originating application are made by the first respondent ("the Treasurer") and the QCA. The substantial question dealt with by these reasons is whether the originating application should be dismissed. In part, these reasons are also the reasons for the orders made on 27 May 2014.
[2] The decision was made by the QCAA Ministers on 4 October 2013 ("the QCAA Ministers' decision"). In terms it was as follows:
"As the responsible Ministers under the Queensland Competition Authority Act 1997, we accept the recommendations contained in the Queensland Competition Authority's report titled Irrigation Prices for Seqwater Supply Scheme: 2013-17 (the report) subject to certain qualifications as contained in this notice.
The recommendations in the report are accepted subject to the recommendations specified in Schedule 1 being referred to the Minister for Natural Resources and Mines for further detailed consideration regarding implementation.
We consider this is necessary to allow for the appropriate scope of work and budgetary implications and implementation timelines related to these recommendations to be agreed between Government and relevant stakeholders."
[3] Schedule 1 contains references to passages in the final report concerning interim water allocations (at p 29) and the sufficient level of all loss Water Access Entitlements (at p 73). They are of no present relevance.
[4] The report referred to in the QCAA Ministers' decision was produced by the QCA following a statutory process. Section 23(1) of the Queensland Competition Authority Act 1997 (Qld) ("QCAA") provides for the Ministers under that Act to refer a monopoly business activity to the QCA for an investigation. Section 26 provides that the QCA must have regard to certain matters in conducting the investigation. Section 27 applies the procedural provisions of Part 6 to the investigation. Division 4, Part 3 makes provision for the QCA to report the results of an investigation. Section 30(1) requires the QCA to report the results to the Ministers. Section 33 provides that the QCA must include certain recommendations in the report. Sections 34 and 35 provide for a report to be made available for public inspection. Section 36 provides:
"36 Decision of Minister about particular recommendations in report - monopoly business activity that is a government business activity, other than a significant business activity
(1) This section applies to recommendations about pricing practices, or price monitoring recommendations, contained in a report relating to a monopoly business activity that is a government business activity, other than a significant business activity.
(2) Within 90 days after the Minister receives a report, the
(a) accept (with or without qualification), or reject, the recommendations; or
(b) accept (with or without qualification) some of the recommendations and reject the other recommendations.
(3) Before making a decision under subsection (2) about a monopoly business activity involving the supply of water, the Minister must have regard to water pricing determinations.
(4) As soon as practicable after making a decision under subsection (2), the Minister must notify the decision and the reasons for the decision by gazette notice.
price monitoring recommendations means recommendations about -
(a) whether a price monitoring investigation should be conducted in relation to the monopoly business activity; or
(b) what the nature of a future price monitoring investigation in relation to the activity should be."
[5] On 6 January 2012, the relevant Ministers directed the QCA "to recommend irrigation prices to apply to the following Queensland Bulk Water Supply Authority (Seqwater) water supply schemes from 1 July 2013 to 30 June 2017 (the price path period): ... Central Brisbane River". The direction was published in the Queensland Government Gazette as a "Ministers' Referral Notice".
[6] Between June 2012 and May 2013, MBRI, various members thereof, and others made submissions to the QCA.
[7] In December 2012, the QCA published a draft report.
[8] On 1 March 2013, the Chair, the Deputy Chair and a committee member of MBRI met with members of the QCA. The draft report was discussed.
[9] On 13 March 2013, MBRI submitted a further response to the QCA draft report.
[10] In April 2013, the QCA published the final report in two volumes. The final report is the report referred to in the QCAA Ministers' decision.
[11] It is relevant to note the operation of some other provisions of the QCAA without elaboration. Under s 24(1)(b), in making the reference directing the QCA to recommend irrigation prices, the Ministers directed the QCA to consider some particular matters which were stated in the paragraph number 1 of the Ministers' Referral Notice.
[12] The QCAA Ministers' decision was made under s 36 of the QCAA.
[14] Section 37 of the QCAA provides:
"37 Referral of particular accepted recommendations to responsible Minister - monopoly business activity that is government business activity
(1) This section applies if the Minister accepts recommendations about pricing practices relating to a monopoly business activity that is a government business activity.
(2) The Minister must refer the recommendations, and any qualifications on which the recommendations are accepted, to the responsible Minister for the government agency carrying on the monopoly business activity."
[15] The QCAA Ministers acted in compliance with the statutory obligation under s 37(2) in referring the recommendations in the final report which they accepted and their qualifications to the responsible Minister for Seqwater.
[16] On 18 December 2013, the Minister administering the Water Act 2000 (Qld) ("WA") and the Treasurer ("the Water Act Ministers") gave a written joint direction to Seqwater. The direction ("the Water Act Ministers' direction") provided that:
"As the responsible Ministers, we direct Seqwater to comply with the attached Rural Water Pricing Direction Notice (No 1) 2013 in setting rural irrigation water prices for Seqwater water supply schemes and terminations fees for the Pie Creek tariff group from 1 January 2014 to 30 June 2017. This direction is given pursuant to s 1013D(3) of the Water Act 2000 (Qld) ..."
[17] As required by s 1013D(3) of the WA, a copy of the Water Act Ministers' direction was published in the Queensland Government Gazette on 19 December 2013. Part of the notice as published provides:
"Prices for rural irrigation customers in Seqwater water supply schemes and distribution systems
3. The rural irrigation water prices for Seqwater bulk water supply scheme are the Recommended Final Prices in -
[18] The Water Act Ministers gave reasons for their decision to direct Seqwater to implement irrigation price paths for its water supply schemes. The reasons stated that they had considered the QCA's final report and a number of other matters. Among the findings on material questions of fact, the Water Act Ministers referred to the QCAA Ministers' decision accepting the recommendations of the final report. They recorded that the QCAA Ministers referred their decision on the final report to the Minister for Energy and Water Supply for implementation. Further, the findings record that, in making their direction under s 1013D, the Ministers satisfied themselves that the QCA's final report is consistent with the Government's policy with respect to setting irrigation prices, and stated that they had arrived at that view independently of the QCAA Ministers' acceptance of the final report's recommendations.
[19] The originating application is for a statutory order of review under s 20 of the Judicial Review Act 1991 (Qld) ("JRA"). Under s 20, there are three elements. First, there must be "a decision to which this act applies". Second, there must be "a person who is aggrieved by" the decision. Third, the application must be made upon one or more of the grounds set out in s 20(2).[1]
[20] Both the QCA and the QCAA Ministers submit that the QCAA Ministers' decision is not a decision to which the JRA applies. The meaning of that expression is defined in s 4 of the JRA. Relevantly, this case is only concerned with para (a) of the definition which provides, inter alia, that the decision must be "made ... under an enactment (whether or not in the exercise of a discretion)". The meaning of that provision was considered in detail in Griffith University v Tang.[2] The QCA and the QCAA Ministers submit that the second criterion involved in the words in s 4(a) as explained in Tang, namely that "the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment", is not satisfied.
[21] In particular, the QCA submits that the only effect of the QCAA Ministers decision was to engage s 37 of the QCAA. The QCA submits that legal rights or obligations were not affected by the requirement under that section to refer the matter to the responsible Minister. The QCA submits that whether legal rights or obligations are affected depends on what the responsible Minister decides to do after the referral is made. Any affect on legal rights or obligations would be by virtue of the decision of the responsible Minister to whom the recommendations are referred, not the acceptance of a recommendation by the QCAA Ministers under s 36 of the QCAA. Thus, the QCA submits that the operative decision in the present case is the Water Act Ministers' direction to Seqwater. Additionally, the QCA and the QCAA Ministers submit that the making of the Water Act Ministers' decision directing Seqwater had the effect that the QCAA Ministers' decision became a spent force, if it affected any legal rights or obligations before that time.
[22] MBRI submits that the QCAA Ministers' decision was a step in a process that is directed to, and capable of, altering or affecting rights and obligations in respect of irrigation water managed by Seqwater. MBRI submits that the requirement that recommendations accepted under s 36 of the QCAA be referred to a relevant Minister under s 37 implies that a decision under s 36 might result in further substantive decisions affecting rights or obligations. MBRI further submits that the statutory recognition of recommendations that have been accepted under s 36 gives the decision under that section sufficient legal force to conclude that it has the capacity to affect legal rights and obligations.
[23] In my view, there is a reasonable argument that the QCAA Ministers' decision was a decision made under an enactment within the meaning of s 4 of the JRA. There is no question that s 36 provides for the making of the decision. It also requires that the Ministers' acceptance or rejection of the recommendations is made in a way that specifies reasons. The decision and reasons must be publicly notified. As well, the making of the decision engages s 37 if the Minister accepts a recommendation or recommendations. In that case, the Minister is obliged to refer the recommendations and any qualifications on which the recommendations are accepted to the responsible Minister for the Government agency carrying on the relevant activities. It is the making of the decision accepting a recommendation under s 36 which engages the obligation of the Minister to refer the recommendation and any qualifications under s 37. In that case, there is a relevant obligation which the decision itself creates. It is only by treating the obligation to refer under s 37 as not being an obligation within the meaning of the statement of principle in Tang that a decision made under s 36 to accept a recommendation is not a decision made under an enactment.
[24] To reach that conclusion, it would be necessary to characterise an obligation of a public nature created under statute, namely the obligation to forward information in the form of a recommendation with or without qualifications to a named recipient, as an irrelevant obligation. In my view, there is no reason in principle or in the case law which requires or justifies that conclusion.
[25] The QCA and the QCAA Ministers alternatively submit that the QCAA Ministers' decision was not a decision within the meaning of s 4 of the JRA because it is not "a decision which is final or operative and determinative, at least in the practical sense of an issue of fact falling for consideration".[3] This formulation is associated with statements taken from the decision of the High Court in Australian Broadcasting Tribunal v Bond.[4] However, the QCAA Ministers' decision was not "a conclusion reached as a step along the way in the course of reasoning to an ultimate decision". Once the decision to accept or reject a recommendation or recommendations is made, the QCAA Ministers must notify the decision with reasons in the Queensland Government Gazette. And if the decision is to accept a recommendation or recommendations, the recommendations must be referred to an appropriate Minister. There is no other course of reasoning to an ultimate decision then to be made by the QCAA Ministers. Once they have decided, notified and, where required to do so, referred any accepted recommendation to the appropriate Minister, there is nothing which remains for the QCAA Ministers to do. The problem in the present case is not one where the targeted decision is but a point along the path or continuum to an ultimate decision to be made by the QCAA Ministers.
[26] The QCA and the QCAA Ministers further submit that if the QCAA Ministers' decision ever had any effect it became a spent force upon the making of the Water Act Ministers' decision. They rely on Deloitte Touche Tohmatsu v Australian Securities Commission.[5] However, the problem discussed in that case is of a different kind. The relevant section provided that where it appeared to the ASC to be in the public interest for a person to begin a proceeding, the ASC had power to cause the proceeding to be started and to be carried on in the person's name. The question was whether the decision that the ASC considered that it appeared to be in the public interest for the proceeding to be started could be challenged as a separate decision from the decision to actually start the proceeding and carry it on in the person's name. In circumstances where a proceeding had been started and carried on, the Court was of the view that the taking of the ultimate and operative decision to start the proceeding meant that the decision that it appeared to be in the public interest to bring a proceeding was spent. In my view, that reasoning does not apply to a decision made under s 36 by the QCAA Ministers. Although the Water Act Ministers decision to direct Seqwater was an operative decision, it was not a decision made by the same repository of decision making power as the QCAA Ministers' decision to accept or reject the QCA's recommendations in the final report. There are cases where a later decision in a continuum of decisions will have the affect of rendering an earlier decision a "spent force". In some contexts, repeated decisions which are made over successive time periods will operate in that way. An earlier, inoperative decision may no longer be capable of judicial review. But, in my view, that principle does not apply to the decision of the QCAA Ministers in the present case.
[27] If any further justification for that conclusion were needed, the recommendations of the final report extend over a forecast period of several years. In my view, the implementation of the final report's recommendations is not "spent" because in December 2013 the Water Act Ministers gave their direction to Seqwater to implement the report, or because Seqwater sent invoices for the first quarter of 2014 in accordance with the Water Act Ministers' direction.
[28] That is not to say that the validity of the Water Act Ministers' direction depends upon the validity of the QCAA Ministers' decision. But whether the earlier decision is invalid or not is not answered because its effect as a decision became spent upon the later decision being made. In my view, the legal efficacy of the QCAA Ministers' decision was not affected by the later decision of the Water Act Ministers to make the Water Act Ministers' direction.
[29] The QCA and the QCAA Ministers submit that, in any event, MBRI is not a person aggrieved by the QCAA Ministers' decision.
[30] Section 7 of the JRA provides:
(1) In this Act, a reference to a person aggrieved by a decision includes a reference -
(a) to a person whose interests are adversely affected by the decision; or
(b) in the case of a decision by way of the making of a report or recommendation - to a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendation.
(a) to a person aggrieved by conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision; or
(b) to a person aggrieved by a failure to make a decision;
includes a reference to a person whose interests are, or would be, adversely affected by the conduct or failure."
[31] MBRI submits that the QCAA Ministers' decision affects the rights of its members. MBRI further submits that its members previously paid a "price" of nothing for their water allocation. Seqwater started invoicing MBRI's members for water services or facilities Seqwater provides or administers from January 2014.
"The fact that the appellant is an incorporated association, has been incorporated since 1984, and is a successor to an earlier body does not by itself confer the status upon it of a person aggrieved. If an individual sought to acquire standing by virtue of its strong feelings and emotional concern with the decision made and had no other connection with the subject matter of the decision, that individual has no standing. A corporation cannot be placed in any better position than the individual and this applies even in the case where the corporation has included in its members those who would themselves have an interest in the subject matter of the litigation...
Wide and liberal though the laws of standing should be, the courts of this country have drawn the line of demarcation between an open system and the requirement of some form of interest in the subject matter of the proceeding other than a mere emotional attachment or intellectual pursuit or satisfaction. The precise ambit and content of this interest is in a state of flux."
[33] That a representative body does not acquire standing because some of its members possess it was succinctly confirmed in Manuka Business Assn Inc v Australian Capital Territory Executive,[9] Clyde Group Inc v Minister for Primary Industries and Water[10] and Defence Coalition against RCD Inc v Minister for Primary Industries and Energy.[11]
[34] In Australian Institute of Marine and Power Engineers v Secretary, Department of Transport,[12] Gummow J considered that an industrial organisation registered pursuant to the Conciliation and Arbitration Act 1904 (Cth) had sufficient interest to seek reasons for a manning notice where the members of the organisation were marine engineers and electrical engineers at sea. The key factors which on the whole satisfied His Honour that the applicant had a sufficient interest were that:
(a) the applicant had among its interests or objects the obtaining and maintenance of reasonable conditions of employment of its members and the negotiation of awards and agreements with employers including the owner;
(b) the applicant was invited to participate in the Manning Committee in respect of the ship in question and made submissions in regard to the proposed manning notice and it was seeking reasons as to why the decision was at variance with its submissions to the Manning Committee;
(c) there was a dispute as to the merits of the content of the manning notice and the applicant's complaint was not said to be made frivolously and it plainly had a real interest in the matter; and
(d) there was some potential practical effect upon the applicant, in terms of the number of its members that may be engaged as a result of the manning notice.
[35] In Clyde Group Inc v Minister for Primary Industries,[13] Blow J refused to summarily dismiss a claim on the basis that it was not "clear" that the applicant did not have sufficient interest. In doing so, His Honour relied on the following:
"[18] As at 16 October 2007, the applicant corporation had 15 members. Its only role is to act as a representative body for the purpose of making representations to the authorities in relation to the bodies of water affected by the decision in question. There is no suggestion that any other representative body with similar interests exists, nor that this body lacks support amongst the class of persons whose interests it was formed to represent. It and its unincorporated predecessor have undertaken the role of making representations. To a small degree, that role has been acknowledged by the exchange of correspondence."
[36] In Access for All Alliance (Hervey Bay) v Hervey Bay City Council,[14] Collier J found that an incorporated association which was established to ensure equitable and dignified access to all community premises and facilities for all members of the community did not have sufficient interest as a "person aggrieved" under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) on the following grounds:
(a) some of the respondent's members were disabled and others were simply concerned citizens;
(b) as an incorporated association, the respondent's interest did not equate with that of its members;
(c) there was no evidence, in any event, that the memberships of the respondent met the standard of "sufficient interest"; and
(d) there was no evidence that the respondent association was a 'peak body' or had been recognised by government as a body representing the concerns of the disabled in the region.
[37] In my view, the QCAA Ministers' decision to accept or reject the QCA's recommendations in the report under s 36 of the QCAA was not a decision by way of making a report or recommendation. In the circumstances of this case, the question is whether MBRI is a person whose interests are adversely affected by the decision to accept the recommendations. In my view, the contention that the QCAA Ministers' decision adversely affected the interests of MBRI or MBRI's members should be rejected.
[38] I do not find it necessary to resolve whether MBRI's position as a representative body for its members in relation to their interests as irrigators is sufficient to clothe it with those interests. It would facilitate the orderly resolution of litigation over a public right adversely affecting the interests of members of such a group for a court generally to be able to recognise the representative body as a person whose interests are adversely affected, although the cases reveal that there is difficulty in acting on such a broad basis as that.
[39] Be that as it may, in the present case, the decision to accept or reject the QCA's recommendations in the report had no direct effect upon either MBRI or its members. The decision did not have any legal impact against which protection is potentially required by MBRI's members or otherwise. MBRI was not able to point to the way in which its interests or its members' interests were adversely affected by the QCAA Ministers' decision. Its submissions proceeded on the premise that the Water Act Ministers' direction to Seqwater adversely affected the interests of its members because Seqwater is obliged to apply and recover charges for SEQ Water supply schemes and terminations fees for the Pie Creek Tarff Group from 1 January 2014. That may be accepted. But MBRI did not articulate how an order setting aside the QCAA Ministers' decision could affect the validity of the Water Act Ministers' direction to Seqwater to charge for water services or facilities in accordance with the QCA's recommendations in the report. It is difficult in those circumstances to see how it is that either MBRI or its members can be "aggrieved" by the QCAA Ministers' decision.
[40] Section 29 of the JRA confers the power to suspend the operation of a decision made under an enactment and confers the power to order a stay of any proceeding under the decision. Once the QCAA Ministers' decision was made, notified and referred to other Ministers, the statutory consequences of making the decision under the QCAA were complete. There is no apparent ongoing operative effect of the decision which remains to suspend.
[41] Further, the applicant identified no other statutory process which depends or hangs upon the operation of the QCAA Ministers' decision. MBRI did not specifically apply for an order suspending the operation of the Water Act Ministers' decision, as a proceeding made under the QCAA Ministers' decision, but I will deal with that question in any event. Although the Water Act Ministers' decision directed Seqwater to implement the recommendations of the QCA made in the report, that was not a legal consequence of the QCAA Ministers' decision. The Water Act Ministers were not bound to act on the QCAA Ministers' decision. They were not bound to exercise the power under s 1013D of the Water Act 2000 (Qld), nor in exercising that power were they bound to direct Seqwater in any particular way having regard to the QCAA Ministers' decision. In my view, the Water Act Ministers' decision was not a proceeding under the QCAA Ministers' decision.
[42] It followed that no order should be made under s 29 of the JRA. Accordingly, the application for orders under that section was dismissed with costs on 27 May 2014.
[43] From the foregoing discussion, it follows in my view that the applications of the QCAA Ministers and the QCA for orders under s 48 of the JRA that the application for a statutory order of review be dismissed should succeed.
[44] Unless there is some matter to be raised in opposition to the orders for costs sought by the QCAA Ministers and the QCA, the costs of the originating application, including the costs of those applications and should follow the event.
[45] I will hear the parties before making final orders in accordance with these reasons.
[1] The provision in s 20(3) that the section only applies to a decision made after the commencement of the Act is no longer generally relevant.
[2] [2005] HCA 7; (2005) 221 CLR 99, 130 [89].
[3] Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99, 122 [61].
[5] [1995] FCA 1212; (1995) 54 FCR 562, 576B-C.
[6] Compare an unincorporated association which may derive a special interest or status from its members; see Access for All Alliance (Hervey Bay) v Hervey Bay City Council [2007] FCA 615; citing Executive Council of Australian Jewry v Scully (1998) 79 FCR 537.
[7] Right to Life Association (NSW) v Department of Human Services (1994) 54 FCR 209, 227.
[8] [1995] FCA 1060; (1995) 56 FCR 50, 67-68.
[9] (1998) 146 FLR 464, 468.
Mid Brisbane River Irrigators Inc
The Treasurer and Minister for Trade of the State of Qld & Ors [2014] QSC 196
(1990) 170 CLR 321
(1995) 54 FCR 562
(2005) 221 CLR 99
(1995) 56 FCR 50
(1998) 79 FCR 537
(1994) 54 FCR 209
(1998) 146 FLR 464
(1997) 74 FCR 142
(1986) 13 FCR 124