List of legislation: ACT Civil and Administrative Tribunal Act 2008, s 9

Administrative Decisions (Judicial Review) Act 1989

Environment Protection Act 1997, ss 2, 3, 22, 43, 127, 135, and 136B, and Schedule 3

Human Rights Act 2004, ss 8, 21, 30 and 40B

Legislation Act 2001, ss 138, 139 and 141

List of Regulations: Environment Protection Regulation 2005 ss 21, 22 and 25

List of cases: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27

Allatt & ACT Government Health Directorate [2012] ACAT 67

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Gardner & Beaver v ACT Planning and Land Authority

[2010] ACAT 64

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355

Re _Bienstein and Commonwealth Ombudsman [_2003] AATA

Re Toll and Australian Securities Commission [1993] AATA 6; (1993) 29 ALD 412

Smiles v Federal Commissioner of Taxation [1992] FCA 208; (1992) 107 ALR 439

Thomson v ACT Planning and Land Authority [2009] ACAT 38

Tran v ACT Planning and Land Authority [2009] ACAT 46

[1997] ACTAAT 168

Zander v Sweden [1993] ECHR 59

List of Texts/Papers: Convention for the Protection of Human Rights and

Fundamental Freedoms 213 UNTS 221

Explanatory Statement to the Environment Protection Bill 1997 & the Second Reading Speech

R S Geddes, 'Purpose and Context in Statutory Interpretation'

(2005) 2 UNELJ 1

Tribunal: Professor P. Spender - Presidential Member

TRIBUNAL: Professor P. Spender - Presidential Member

Upon being satisfied that the application discloses no reviewable decision and therefore the Tribunal lacks jurisdiction to determine the application, it is ordered that:

1. After making several verbal complaints to the respondent, on 3 July 2011,[1] Mr Peters, on behalf of himself and Mrs Peters (the applicants), wrote to the respondent alleging that an offence under the Environment Protection Act 1997 (ACT) (the Environment Act) had been and would be committed by the occupiers of a unit which was adjacent to the unit owned by the applicants (the neighbours). The alleged offence was said to consist of the noise emitted by the wall-mounted compressor unit of an air conditioner facing the main bedroom window of the applicants' unit.
2. In the letter of 3 July 2011, the applicants requested that the respondent take action to assess whether the air conditioner exceeded allowable noise levels, and/or interfered with the applicants' use and enjoyment of their unit or was otherwise an environmental nuisance. The applicants requested the respondent to seize the air conditioner and to serve an environment protection order on the neighbours.
3. Mr Neil, on behalf of the respondent, wrote to the applicants on 18 July 2011,[2] stating that the approach requested by the applicants was not consistent with the respondent's Enforcement Policy in the Noise Environment Protection Policy.
4. The applicants sent a further letter and some information to the respondent on 30 July 2011.[3] In reply, on 9 August 2011,[4] the respondent restated its view that the regulatory action sought was "inconsistent with both the [Environment Act] and with the policies under which the Environment Protection Authority operates".[5] The letter also indicated that the respondent had written to the neighbours to notify them that "an indicative reading of the reverse cycle air conditioner indicates that the noise from the unit may exceed legally prescribed standards" and to advise them that if they were found to have breached the Act "there may be repercussions".[6]
5. On 15 August 2011, the applicants wrote to the respondent seeking reasons for the decision articulated by the respondent in its letter of 9 August 2011.
6. The respondent wrote to the applicants on 30 August 2011, providing reasons for the decision not to exercise powers under the Environment Act.[7] In this letter the respondent declined to comply with the applicants' request in their letter of 3 July 2011, because it said that the respondent must have regard to the objects of the Environment Act when exercising these powers. These objects include the need "to promote the concept of shared responsibility for the environment". The respondent also explained that it adopted a hierarchical approach to enforcement, which obliged the respondent in order of priority to:

1. seek to work in partnership and collaboratively with the community; 2. warn;

1. consider and/or instigate criminal prosecution.

From the facts that had been provided by the applicants, the respondent stated that it judged that the applicants' matter was in the very preliminary stages of the respondent's enforcement hierarchy.

1. At the conclusion of the letter of 30 August 2011 the officer of the respondent stated:

Finally I acknowledge that my decision not to issue an environment protection order is reviewable by the ACT Civil and Administrative Appeals Tribunal [sic].[8]

1. In this letter, the respondent also expressed some doubt as to whether the applicants were persons affected by noise because it said that they did not reside in the unit.
2. It was subsequently conceded by the respondent that the applicants occupy the unit intermittently, and this had previously been advised by the applicants in their letter dated 30 July 2011 which stated that the applicants stayed in the unit irregularly but "often for periods of varying length, which are as long as several weeks".[9]
3. On 8 September 2011, the applicants filed an application in the ACT Civil and Administrative Tribunal (the tribunal or ACAT) seeking review of a number of purported decisions that the applicants alleged had been made by the respondent.
4. During a series of directions hearings, attempts were made to ascertain the reviewable decision/s upon which the applicants relied. Without forming a final view, the tribunal conducting the interlocutory hearing (the Tribunal) questioned whether it had jurisdiction to determine the application for review. During the directions hearings, the applicants indicated that the Human Rights Act 2004 (the Human Rights Act) applied to the jurisdiction question.
5. On 1 December 2011, the Tribunal directed the parties to file submissions on the jurisdiction of the tribunal to hear the application. The application was heard by the Tribunal in March 2012, and further submissions were filed by the parties subsequent to the hearing. Copies of the correspondence between the parties during 2011 were also filed with the tribunal (the Tribunal Documents) subsequent to the interlocutory hearing.

1. The primary issue for determination is whether the applicants' complaints and the respondent's replies constitute a reviewable issue which would empower the tribunal to review the decision. Related to this question was whether the Human Rights Act was engaged by the application and, if so, its effect on the question of jurisdiction.

1. The material filed by the applicants was extensive and the Tribunal has attempted to pare down the applicants' arguments to the essential issues relevant to the question of jurisdiction.
2. The tribunal's jurisdiction is limited by statute. Relevantly, section 9 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) provides that a person may apply to the tribunal if an authorising law provides that the application may be made.
3. The relevant authorising law for the purposes of the present matter is the Environment Act. The objects of this Act are set out in section 2 and include:

(a) to protect and enhance the quality of the environment; and

(b) to prevent environmental degradation and adverse risks to human

health and the health of ecosystems by promoting pollution prevention, clean production technology, reuse and recycling of materials and waste minimisation programs; and

(c) to require people engaging in polluting activities to make progressive environmental improvements, including reductions of pollution at the source as such improvements become practical through technological and economic development; and

(h) to regulate, reduce or eliminate the discharge of pollutants and hazardous substances into the air, land or water consistent with maintaining environmental quality;

1. The Environment Act creates a general environmental duty under section 22 as follows:

(1) A person must take the steps that are practicable and reasonable to prevent or minimise environmental harm or environmental nuisance caused, or likely to be caused, by an activity conducted by that person.

1. "Environmental harm" is defined in the Dictionary of the Environment Act as meaning:

any impact on the environment as a result of human activity that has the effect of degrading the environment (whether temporarily or permanently).

1. Section 25 of the Environment Protection Regulation 2005 (ACT) (the Regulation) provides that excessive noise may constitute an environmental harm for the purposes of the Environment Act. It states:

For the Act, noise emitted from a place in the ACT is taken to cause environmental harm in an affected place if the noise level at the compliance point for the place from which the noise is emitted is louder than the noise standard for that place.

1. The term "affected place" is defined in section 22 of the Regulation as follows:

affected place, for noise being emitted from a place in the ACT, means a place (other than a road or road related area), whether inside or outside the ACT, where a person is affected by the noise.

(2) However, a parcel of land held under a territory lease is an affected place for noise emitted from the parcel only if the noise is emitted from a unit and the affected place is another unit on the same units plan.

_(3) For subsection (1), a person is not affected by noise unless - _

(a) the person complains about the noise to an authorised officer;and

(b) the noise level at the affected place exceeds the noise standard for the affected place.

1. Section 21 of the Regulation defines affected person, for an affected place, to mean an occupier of the affected place.
2. Section 43 of the Environment Act states in part:

Authority may require environmental authorisation

(1) Subject to subsection (2), the authority may notify a person in writing that the person is not to conduct, or continue to conduct, a specified activity unless the person holds an environmental authorisation in relation to that activity.

_(2) The authority may notify a person under subsection (1) if the authority has reasonable grounds for believing - _

(a) that, in conducting the specified activity, the person has contravened, is contravening or is likely to contravene a provision of this Act; and

(b) that, as a result, serious or material environmental harm has happened, is happening or is likely to happen.

1. Section 136B(b) of the Environment Act states that a person whose interests are affected by a decision may apply to the tribunal for review of a reviewable decision.
2. The meaning of the term "reviewable decision" is set out in section 135 as follows:

reviewable decision means a decision mentioned in schedule 3, column 3 under a provision of this Act mentioned in column 2 in relation to the decision

1. The applicants contend that the only relevant decisions in Schedule 3 are as follows:

notify entity not to conduct, or continue to conduct, stated activity unless person holds environmental authorisation

entity conducting or proposing to conduct stated activity

1. The applicants argued that the complaints made by them to the respondent constituted a reasonable expectation that the neighbours had breached the Environment Act by failing to observe the general environmental duty under section 22 of the Environment Act. The applicants submitted that the neighbours were causing environmental harm as defined in the Dictionary of the Environment Act because their activity has the effect of degrading the environment (temporarily or permanently). The respondent had done nothing in response to those complaints to carry out its function to administer the Environment Act having regard to the objects stated in the Environment Act, particularly section 2.
2. The applicants argued that the Environment Act, including the concept of reviewable decision in section 135, must be construed broadly to promote the objects of the Act. This would allow the Tribunal to interpret its jurisdiction broadly to include actions that are not strictly nominated in Schedule 3.
3. The applicants further argued that the respondent's contentions about statutory interpretation (outlined below) were too narrow and potentially discriminatory. For example, they noted that persons who are nominated as entities in column 4 of Schedule 3 (who have the right to apply to the tribunal for review of a decision) are generally the people who have caused the problem. They contended that the sufferer from the problem is never designated in Schedule 3. The applicants considered that possible alternative remedies such as common law proceedings or remedies under the Administrative Decisions (Judicial Review) Act 1989 were inappropriate because of, inter alia, the costs associated with pursuing those remedies.
4. The applicants then argued that the Environment Act must be construed and applied in accordance with the Human Rights Act, which promotes an approach to statutory interpretation which expands the meaning of "reviewable decision" in section 135 of the Environment Act so as to include the purposes of the Environment Act. Relying on earlier decisions of the tribunal to establish that certain human rights were engaged but distinguishing the outcomes,[10] the applicants argued that the consequence of their suggested expanded, purposive interpretation[11] of the Environment Act is that other decisions, including decisions the applicants alleged had been made by the respondent, may be reviewed by the tribunal.
5. The applicants argued that the prohibition on discrimination under section 8 and the right to fair hearing under section 21 of the Human Rights Act were engaged in the present application for review. Section 8(3) of the Act states:

(3) Everyone is equal before the law and is entitled to the equal protection of the law without discrimination. In particular, everyone has the right to equal and effective protection against discrimination on any ground.

(1) Everyone has the right to have ... rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

1. In submissions filed after the hearing, the applicants raised further points referring to the civil dispute jurisdiction of the tribunal on the premise that the application effectively sought relief for nuisance or, alternatively, that their application could be amended to include such a claim.

1. The respondent approached the question of jurisdiction on two bases. Firstly, the respondent referred to the "orthodox" approach to the jurisdiction question. Secondly, the respondent questioned whether the Human Rights Act had any impact on the jurisdiction question, and ultimately contended that it was irrelevant.
2. On the orthodox approach, the respondent emphasised that the tribunal has limited jurisdiction and while section 136B of the Environment Act allows for persons whose interests are affected by a decision under the Environment Act to apply for merits review, pursuant to section 9 of the ACAT Act an applicant may challenge, and the Tribunal may review, only those decisions that are identified as reviewable decisions in the Environment Act.[12]
3. The respondent stated that the Tribunal must firstly identify precisely the action said to constitute the decision and, secondly, to identify precisely whether that action falls within the set of reviewable decisions in the empowering statute.[13]
4. The respondent further contended that the proper approach to statutory interpretation requires that the text of a provision be analysed first[14] and then the language, scope and object of the statute as a whole must be considered to ensure that the provisions serve harmonious goals.[15]
5. In the respondent's view, the reviewable decisions are identified in Schedule 3 of the Environment Act and none of the "decisions" challenged by the applicants are identified in column 3 of Schedule 3.
6. Therefore, on an ordinary reading of the Environment Act, the alleged decisions are beyond the jurisdiction of the Tribunal.[16]
7. Finally, the respondent submitted that the decisions nominated in column 3 of Schedule 3 of the Environment Act are identified with a degree of precision and the specificity with which the decisions are identified leaves no room for any implication that other available decisions are reviewable.[17]
8. The respondent accepted that the applicants intermittently occupy the unit and accepted that during these periods the applicants are capable of being "persons affected by noise" at an "affected place" for the purposes of the Regulation and undertook to investigate a complaint if the applicants were so affected.[18] However, the respondent had determined in their letter of 30 August 2011[19] and subsequently[20] that investigative and enforcement action would, reasonably, not be taken at that stage in respect of the complaint by the applicants.
9. As a consequence of this state of play, the respondent argued that the communications and actions of the respondent did not amount to a "decision". The respondent contended that the term "decision" is limited to a decision that is final and operative and determinative of the matter.[21] In an analogy with the exercise of prosecutorial discretion by directors of public prosecutions[22] and by investigators under the corporations and securities law,[23] a determination that investigative and enforcement action will not be undertaken does not constitute a final and operative decision for the purposes of the ACAT Act. Further, a final and operative decision could not be inferred by the effluxion of time, because there had been a positive determination by the respondent based on certain factors that had been taken into account.
10. The parties' submissions regarding the application of the Human Rights Act are dealt with interstitially in the discussion below.

1. The evidence and other material relied upon by the Tribunal to determine the jurisdictional point was the material put in support of the application by the applicants, the Tribunal Documents, the parties' submissions, and the correspondence filed by the respondent and admitted into evidence as Exhibit Rl and Exhibit R2.
2. The Tribunal understands that the use of the phrases "environment order" and "environment protection order" in the correspondence between the parties to mean an act of the respondent requiring an environmental authorisation under section 43 of the Environment Act.
3. The jurisdiction of the tribunal is, of course, determined by the statutory provisions and, therefore, the statement by the officer of the respondent in the letter of 30 August 2011 that his decision not to issue an environment protection order is reviewable by ACAT does not bind either the respondent or the tribunal.
4. It is clear that the communications between the respondent and the applicants do not fall within section 43 of the Environment Act, because there was no notification by the respondent to the neighbours not to conduct any specified activity without holding an environmental authorisation in relation to that activity. The conduct engaged in by the respondent involved consideration of a request to exercise investigatory and enforcement powers in response to an alleged breach of the Environment Act. This consideration did not result in a notification to the neighbours.
5. Nor can such a notification be inferred from the circumstances. The Tribunal agrees with the respondent's submissions that the reviewable decisions are nominated with some specificity in Schedule 3 of the Environment Act and there is very little room for implication.
6. The Tribunal considers that the applicants' approach to the interpretation of the Environment Act is, with respect, incorrect. The applicants argued that the purposes of the Environment Act should be understood to give rise to a positive legislative intention to include other reviewable decisions as well as those nominated in Schedule 3. For this purpose, the applicants relied upon the objects of the Environment Act, in combination with the statements made by the relevant minister during the passage of the legislation[24] and the Explanatory Statement.[25]
7. The text of the relevant provisions is very clear and the methodology which must be adopted to determine whether the Tribunal has jurisdiction is also clear. As argued by the respondent, it involves identifying precisely the action that is said to constitute the decision and, secondly, identifying precisely whether the action falls within the list of reviewable decisions in Schedule 3 of the Environment Act.
8. In this case, the respondent chose not to undertake investigation or enforcement action pursuant to the applicants' complaint about a potential breach of the Environment Act and the Regulation as a consequence of a noisy air conditioner in an adjoining unit. This decision by the respondent to not investigate the complaint is quite remote from the reviewable decisions that are nominated in items 3 and 9 of Schedule 3, even if the Tribunal adopted the analysis proposed by the applicants whereby items 3 and 9 of Schedule 3 are somehow construed conjunctively.
9. Nor is it permissible for the Tribunal to infer a broader power to engage in merits review against the clear wording of the statute. In this regard, the Tribunal accepts the respondent's submission that the proper approach to statutory interpretation is to start with the text of the relevant provisions[26] and then consider the language, scope and object of the statute as a whole with a view to ensuring that the provisions serve harmonious goals.[27] The objects of the Environment Act cannot be read so as to somehow give the tribunal a roaming jurisdiction based on the concept of environmental harm.
10. The Tribunal finds the actions undertaken and the communications made by the respondent in the circumstances do not fall within the set of reviewable decisions listed in Schedule 3 of the Environment Act. In this regard, the Tribunal is not assisted by the parliamentary speeches nor the Explanatory Statement to the Environment Protection Bill 1997 because there is no ambiguity that arises in the text of the legislation and therefore recourse to the extrinsic materials is not warranted.[28]

Does the Human Rights Act Impact on the Jurisdiction Question?

1. The rights asserted by the applicants are said to be relevant to the jurisdiction question due to the operation of the interpretive rule in section 30 of the Human Rights Act or by application of the duty on public authorities in section 40B of the same Act. There is some uncertainty as to whether the duty on public authorities in section 40B of the Human Rights Act to give proper consideration to a relevant human right applies to the tribunal when it undertakes functions which may be classified as judicial or quasi-judicial, such as the determination of jurisdiction.[29] However, the tribunal currently adopts a cautious approach and gives consideration to relevant human rights in analogous proceedings until the issue is resolved by the ACT Supreme Court.[30] The approach to interpretation under section 30 of the Human Rights Act has been discussed recently in Allatt v ACT Government Health Directorate[31] and need not be repeated here.
2. As stated above, the applicants rely upon the prohibition on discrimination under section 8 and right to fair hearing in section 21 of the Human Rights Act. The applicants did not clearly establish the grounds upon which the section 8 right should operate, therefore the Tribunal declines to make findings upon this alleged right.
3. Conversely, compendious submissions were made by the parties regarding the right to fair hearing.
4. As stated by the respondent, section 21 of the Human Rights Act involves four elements:

(1) the existence of a right or obligation "recognised by law";

(2) a process which "decides" or "determines" that right or obligation;

(3) the requirement that the process involve a "fair trial"; and

(4) the requirement that it involve an "independent and impartial" tribunal.

1. The first question that arises is whether the applicants are asserting a right or obligation recognised by law. This is an issue of some difficulty and the Tribunal agrees with the respondent's submission that the jurisprudence in this area has tended to create a series of complex, and often indeterminate, rules.
2. The question of whether the right to fair hearing is engaged where access to merits review in the tribunal is excluded by statutory provisions, e.g. an amendment to the statute or by regulation, has been dealt with extensively by the tribunal in Thomson v ACT Planning and Land Authority (Thomson)[32] and Tran v ACT Planning and Land Authority (Tran).[33] In both those decisions it was held that the applicants may have had the requisite "rights or obligations" to enliven the operation of section 21 of the Human Rights Act. However, both of these cases are distinguishable from the present case because in both cases there had been an engagement in an administrative process which had, prime facie, led to a possible reviewable decision, resulting in a reviewable decision notice and an application to the tribunal. Once the tribunal had considered the question of jurisdiction it was found that it lacked jurisdiction due to the operation of a statutory provision which limited merits review in Thomson and excluded it altogether by regulation in Tran. Although there was, and continues to be, some uncertainty about the nature of the right which must be held by the applicant in such a situation, the tribunal in Thomson and Tran relied upon certain judgments handed down by the ACT Supreme Court and English jurisprudence regarding the rights of third party objectors in planning matters to establish the relevant right or obligation, at least to a threshold standard.[34]
3. In the current application for review, the rights alleged by the applicants are far more tenuous and remote than those asserted by the applicants in Thomson and Tran. They consist entirely of a series of requests by the applicants for the respondent to undertake investigative or enforcement action. Apart from the officer of the respondent in the letter of 30 August 2011 volunteering that his actions might constitute a reviewable decision, there is very little material from which the Tribunal could craft the requisite right. Several "rights" are asserted by the applicants in the submissions, for example, a right to freedom from environmental nuisance or pollution under the Environment Act, and a right to ensure that the Environment Act is administered to achieve its objectives. However, the Tribunal does not consider that the general scheme created by the Environment Act to protect the environment in the public interest necessarily creates rights in the applicants. It is noteworthy that the Environment Act only identifies a limited range of decisions for review by the tribunal which are primarily based on the impact of those decisions on the parties subject to investigative or enforcement action. There is little room for an alleged right that is based upon the broad objectives of the Environment Act which is enforceable in the tribunal (as opposed to other fora) when the tribunal's role is so circumscribed by the legislation. Both parties recognised that other possible remedies may exist in other fora e.g. seeking leave to obtain an injunction under section 127 of the Environment Act, the general law of nuisance or mandamus.
4. However, the applicants also asserted that their right to the use and enjoyment of their property is relevant to the question of jurisdiction. The respondent conceded that this right might enliven the right to fair hearing based upon the European Court of Human Rights decision in Zander v Sweden[35] which found that the decision to grant a permit for an activity which had the capacity to result in pollution to a neighbouring land could affect the use and enjoyment or property rights of the neighbour. Accordingly, it was held that a dispute relating to the grant of the permit engaged article 6 of the European Convention on Human Rights [36]which, for all intents and purposes, is equivalent to section 21 of the Human Rights Act.
5. Even if the Tribunal agreed with the respondent's concession and holds that a right to use and enjoy the applicants' property satisfies the requisite right or obligation under section 21 of the Human Rights Act (and it makes no findings in this regard), further requirements need to be established. In particular, the second limb of section 21 requires that those rights be "decided" by the proceedings. It is not enough for the rights to be "affected by" or "be relevant to" an application, rather they must be determined by the proceedings.[37] It is clear that a proceeding about an environmental authorisation that has yet to be issued will not "decide" a right to the use and enjoyment of property. The powers in the Environment Act that are relied upon by the applicants i.e. to notify an entity not to conduct an activity unless an environmental authorisation is held (section 43(1) and item 3 Schedule 3) and/or to not take action to review an environmental authorisation (section 57(2) and item 9 Schedule 3) are simply irrelevant to the present situation and the respondent's conduct is too remote from the applicants' rights to use and enjoy their property so as to constitute a "determination" for the purposes of section 21 of the Human Rights Act.
6. The Tribunal therefore finds that section 21 of the Human Rights Act is not engaged by the present proceedings.
7. The Tribunal declines to make any findings in relation to the nuisance application that was asserted by the applicant in the submissions filed by them after the hearing. If the applicants seek to amend their application to include a claim for nuisance, the Tribunal refuses leave to do so because the respondent is not a proper respondent to a claim for nuisance.

1. The Tribunal concludes that the applicant has not established that a reviewable decision was made by the respondent under the Environment Act which would permit an application for review to be determined by the Tribunal.
2. Accordingly, the Tribunal does not have jurisdiction to determine the application for review and it is therefore dismissed.

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

[10] Thomson v ACT Planning and Land Authority [2009] ACAT 38

Tran v ACT Planning and Land Authority [2009] ACAT 46

[11] R S Geddes_, '_Purpose and Context in Statutory Interpretation' (2005) 2 UNELJ 1

[12]Whitwell and Building Controller [1997] ACTAAT 168; Re Bienstein and Commonwealth Ombudsman [2003] AATA 1197

[13] Re Bienstein and Commonwealth Ombudsman [2003] AATA 1197 at [11]

[14] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]

[15] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[71]; Legislation Act 2001 (ACT) section 139

[16] Relying on the conclusion in Tran v ACTPLA at [2009] ACAT 46 at [20]

[17] Whitwell and Building Controller [1997] ACTAAT 168 at [9]

[18] Respondents Submissions dated 10 February 2012 at [12]

[19] Tribunal Documents at pages T43-T45

[21] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

[22] Smiles v Federal Commissioner of Taxation [1992] FCA 208; (1992) 107 ALR 439 at [5]

[23] Re Toll and Australian Securities Commission [1993] AATA 6; (1993) 29 ALD 412

[24] Applicants' Reply dated 3 March 2012 at page 17

[25] Applicants' Reply dated 3 March 2012 at page 18

[26] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27

[27] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] - [71]; Legislation Act 2001, s.139

[28] Legislation Act 2001, s.138, 139 and 141(2)(a); Allatt & ACT Government Health Directorate [2012] ACAT 67 at paragraphs [75] to [77]

[29] Gardner & Beaver v ACT Planning and Land Authority [2010] ACAT 64 at [48] to [52]

[30] Gardner & Beaver v ACT Planning and Land Authority [2010] ACAT 64 at [52].

[31] Allatt & ACT Government Health Directorate [2012] ACAT 67 at [63]-74]

[32] [2009] ACAT 38

[33] [2009] ACAT 46

[34] Thomson v ACT Planning and Land Authority [2009] ACAT 38

Tran v ACT Planning and Land Authority [2009] ACAT 46

[35] [1993] ECHR 59

[36] Convention for the Protection of Human Rights and Fundamental Freedoms 213 UNTS 221

[37] Thomson v ACT Planning and Land Authority [2009] ACAT 38 at [79]