The general nature of the Administrative Procedures - Grounds 2 and 3
50 Finn J commenced by referring to the general character and purpose of the EP(IP) Act and the Administrative Procedures. His Honour stated:
"Together the Act and the Procedures are directed towards the regulation of internal governmental decision-making and the relations between different organs of government: Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 at 510. They are aimed at "executive action generally": ibid, 545; and in consequence "may affect the performance of administrative functions in many fields of governmental activity": ibid, 524-525. They are, in short, concerned with, and can operate generally upon, government's own decision making processes in the practical conduct of public administration. It is important that sight is not lost of this rather limited and specific, albeit important function.
Section 5(1) of the Act states the Act's object in respect of designated governmental actions. This is "to ensure, to the greatest extent that is practicable, that matters affecting the environment to a significant extent are fully examined and taken into account". In a constitutional sense, responsibility for that object can properly be said to reside in the Minister for the Environment in the first instance, as the minister administering that Act. The actual duties the Act itself imposes on the Minister - or for that matter any other minister - to effectuate that object are, though, quite circumscribed. The Minister is obliged to "give all such directions and do all such things as … can be given or done" by him to see that the Administrative Procedures are observed: EP(IP) Act s 8. And the Minister as well has a particular obligation to provide information under s 10 of the Act. But it is administrative procedure not statutory duty that carries forward the object of the Act.
Section 6 of the Act empowers the Governor-General by order to approve administrative procedures "for the purpose of achieving the object of [the EP(IP) Act]". As Gibbs J observed in the Australian Conservation Foundation case, above, at 524:
"The Administrative Procedures [so made] are exactly what their name suggests - rules which lay down the procedure to be followed by persons seeking, considering or taking administrative action. They are not declared by the Act to have the force of law; on the contrary, they must be 'consistent with relevant laws' (s. 6), and in this respect they differ from regulations which, according to s. 9, 'have effect notwithstanding any other law'."
While they are designed to ensure that an important value is taken into account in governmental decision-making, they do so only by engrafting procedural requirements onto the general decision-making processes of the executive government. And in this I would again emphasise the "wide arena" of governmental decision-making in which the Procedures can be brought into play: cf Australian Conservation Foundation case, above, at 525."
51 It is clear that in rejecting the applicants' contentions Finn J relied heavily upon the reasoning of Gibbs J (as his Honour then was) in Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493 at 524. The Australian Conservation Foundation case involved an appeal against a decision of Aickin J who had ordered that the plaintiff's claim be struck out, and that the action be dismissed. Aickin J's judgment is set out at 496-512. He observed at 510:
"I am unable to draw an inference from the provisions of the Act and the Administrative Procedures that they show a legislative intention that any private citizen may apply to the court to enforce compliance with their requirements by the executive government or by statutory authorities. It appears to me that the Act and the Procedures are directed towards the regulation of internal governmental procedures and the relations between different organs of government, whether exercising the executive power of the Commonwealth or performing functions as statutory authorities (as defined).
The procedures are entirely within the control of the executive government and the object of the Act as set out in s. 5 is to ensure "to the greatest extent that is practicable, that matters affecting the environment to a significant extent are fully examined and taken into account …" by the executive and by statutory authorities. By s. 8 each Minister is to give directions for ensuring that procedures are given effect to and that final environmental impact statements are taken into account. This demonstrates that "enforcement" of the Act and of the Administrative Procedures is placed primarily in the hands of the relevant Ministers and that the Act and the Procedures are concerned with the decision-making processes of government. Private citizens may be adversely affected by government decisions and in appropriate cases may resort to the Courts to challenge the power to make a particular decision having such an effect upon them, but that is a matter quite different from enforcement of these internal governmental procedures. If these are duties of an enforceable character placed on Ministers and others, they are enforceable only by the Attorney-General or by those who are themselves adversely affected more than or differently from the general public."
52 Aickin J's statement of principle regarding the nature of the Administrative Procedures did not foreclose the possibility that the Administrative Procedures could, in an appropriate case, create public duties capable of being enforced at the behest of private citizens with a sufficient interest in the matter in dispute to justify recourse to the courts.
53 The first issue in the Australian Conservation Foundation case was whether the Administrative Procedures under the EP(IP) Act created private rights giving the Australian Conservation Foundation Inc ("the Foundation") standing to institute a private action to enforce them. That issue was determined against the Foundation.
54 The passage in the judgment of Gibbs J to which his Honour referred was part of an explanation by Gibbs J as to why, in that case, the Foundation was found to have had no standing to maintain a private action against the Commonwealth and some of Ministers of the Commonwealth for declaratory and other relief seeking to challenge the validity of decisions concerning a proposal by a company to establish and operate a resort and tourist area in Central Queensland.
55 The passage from the judgment of Gibbs J at 524 which was cited, and relied upon, by Finn J was preceded by the following passage, also at 524:
"It is clear that the provisions of the Act, with the possible exception of s. 10, do not create private rights. With that possible exception, the only effect of the provisions now relevant is to enable the Governor-General to approve of Administrative Procedures, and to require every Minister of State to do all he can to ensure that those procedures are given effect in matters dealt with by his department, and, in particular, to ensure that any final environmental impact statement, and any suggestions or recommendations made in accordance with the procedures, are taken into account, in matters to which they relate, in his department. In other words, the Act does not expressly create any rights, and the duty which it casts upon each Minister of State is one which is to be performed by him in the course of administering the affairs of his department. That is a public duty, and it is not owed to any particular person or persons.
In my opinion, the Act does not have the effect that the administrative procedures create rights enforceable by private individuals." [emphasis added]
After the passage cited by Finn J, Gibbs J continued (at 524):
"Moreover, the Minister is not bound absolutely to see that the procedures are observed. He is to "give all such directions and do all such things as … can be given or done by him" to achieve that result: s. 8. That means that the Minister has to do everything possible, consistently with the law, to ensure that his officers, in carrying out their administrative duties, give effect to the administrative directions. The Act may affect the performance of administrative functions in many fields of governmental activity - it is intended to ensure that matters affecting the environment to a significant extent are taken into account by Commonwealth authorities in relation to such matters as the carrying out of works, the enforcement of agreements, the making of decisions, and the incurring of expenditure. In the absence of clear words it is impossible to impute to the Parliament an intention to confer on any private citizen the right to enforce the observance of the proper procedures of administration in the conduct of governmental activities over so wide an area, and there is no hint in the provisions to which I have referred of any such intention.
If it were assumed, contrary to my opinion, that the Governor-General had power, by approving Administrative Procedures, to create legally enforceable rights, it does not appear to me that the Administrative Procedures which were approved have created such rights."
56 Having dealt with the question of construction of the EP(IP) Act to determine that no private right was conferred on the Foundation to enforce a duty owed to it, Gibbs J turned to the question whether the Foundation had an interest different from that of an ordinary member of the public, sufficient to provide standing for the Foundation to bring an action to enforce the public duty, not owed to any particular person or persons to which his Honour had earlier referred. At 526 his Honour said:
"For the reasons I have given, the action was not brought by the Foundation to assert a private right. It is brought to prevent what is alleged to be a public wrong. The wrong is not one that causes, or threatens to cause, damage to the Foundation, or that affects, or threatens to affect, the interests of the Foundation in any material way. The Foundation seeks to enforce the public law as a matter of principle, as part of an endeavour to achieve its objects and to uphold the values which it was formed to promote. The question is whether, in these circumstances, it has standing to sue.
It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. There is no difference, in this respect, between the making of a declaration and the grant of an injunction. The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so."
57 Gibbs J determined that, on the facts, the Foundation did not have such standing. His Honour did not determine that the Administrative Procedures and the EP(IP) Act did not establish a public duty to be performed by the Minister.
58 Stephen J referred at 541 to the operation of s 6 of the EP(IP) Act which he described as conferring "wide powers to create administrative procedures". His Honour continued:
"I put aside for the moment the question of whether those Procedures are legislative in character and perhaps capable of conferring rights enforceable at law, or are merely administrative rules, laid down by the Executive to govern the conduct of officers in carrying out matters of administration. Instead I assume for the moment that the Procedures are of such a nature as to be inherently capable of containing provisions which may confer rights enforceable at law."
59 His Honour later observed at 544-5:
"… the subject matter of the Procedures is such as to suggest that the appellant has no standing to enforce compliance with them. They are not a code of procedure, such as is familiar in town planning legislation, designed to ensure that those who are likely to be affected by the grant of some permit or the rezoning of some land are given a right to object and to have their objection heard and determined. On the contrary, s. 5(1) of the Act makes it quite clear what Parliament was about when it enacted this legislation …
As already noted, it is "for the purpose of achieving the object of this Act" that s. 6 provides for the approval of "administrative procedures" by order-in-council. The whole concept is, then, that "administrative procedures" should be established so as to achieve the object of ensuring, in relation to actions and decisions of government, as full an examination as is practicable by the Department and the Minister of matters affecting the environment. This is to be achieved with the aid of environmental impact statements. But the ultimate decision of the Minister or of his Department of Environment is not in any way shackled by the E.I.S. procedure, still less by such comments as others may contribute: on the contrary the E.I.S. is only an aid to decision-making. When a final E.I.S. emerges from the process prescribed by the Procedures there then follow Ministerial and Departmental "comments, suggestions and recommendations concerning the proposed action" - Procedures, par. 9.3; these may prove to be directly contrary either to the conclusion of the E.I.S. or of the comments of third parties. And in the upshot all that must occur is that all Government Ministers must ensure that the E.I.S. and any such Ministerial or Departmental suggestions or recommendations are "taken into account" - Procedures, par. 9.5 and s. 8. Environmental considerations are made of mandatory relevance to the decision-making process, but compliance with such conclusions concerning the environment as emerge from the process is not made a condition precedent to government action. The only role for members of the public who make comments on a draft E.I.S. is that of providing information and expressing views, the decision-making function remaining wholly that of government."
60 His Honour concluded at 545-6:
"This legislation, and the role of the Minister under it, is, therefore, entirely different from legislation under which a Minister, or tribunals appointed by him, adjudicate as between parties, an applicant and objectors to that application, in town planning or local government matters or adjudicate as between a citizen and some government department which has denied him a benefit to which he lays claim. Here no quasi-judicial function is in question, nor any dispute involving a private individual and calling for resolution. The Minister is charged, rather, with wholly executive functions, in the performance of which he has the assistance thought to be provided by an E.I.S. If that E.I.S. is less informative than it should be, due either to its initial inadequacy or to its failure to reflect in its final form those comments critical of it which may have been made, it is the Minister who is to that extent the loser since the assistance he receives from the E.I.S. is the less."
61 Finally at 546 his Honour dealt with the "juristic nature of the rules of conduct prescribed in the Procedures". His Honour stated:
"To ask whether they are delegated legislation or only mere rules of executive conduct perhaps does not much advance matters: see Pearce, Delegated Legislation (1977), pp.1-2. The important question is whether breach of the rules which they prescribe results in a justiciable issue, in the sense of an issue which, given a plaintiff having locus standi, the courts will entertain."
62 Mason J at 547 commenced his judgment by agreeing, for the reasons given by Gibbs J, that apart from s 10, on which ultimately the appellant placed no reliance, neither the EP(IP) Act nor the Administrative Procedures confers any rights on an individual or corporation which has furnished comments pursuant to para 6.3.1(d) of the Administrative Procedures and, therefore, the issue was whether the Foundation had standing to prevent a public wrong arising. His Honour agreed with Gibbs J that to seek a declaration or injunction to prevent the violation of a public right or to enforce the performance of a public duty, a special interest in the subject matter, over and above that enjoyed by the public generally, was required. Mason J agreed that the Foundation did not have such standing. He did not, however, suggest that the Administrative Procedures and the EP(IP) Act did not create a public right or expectation or a public duty.
63 All of the foregoing judgments in the Australian Conservation Foundation case were concerned with the question of standing, not with the nature of any public duty arising out of the Administrative Procedures and the EP(IP) Act. A similar view on standing at an earlier time was taken by Plowman J in Essex County Council v Ministry of Housing and Local Government (1967) 66 LGR 23 at 31. His Lordship held that a local authority which wished to dispute the siting of runways at Stansted Airport which the government had determined to authorise by a special development order, thus avoiding the procedure of an ordinary application for planning permission, had no right to be heard in opposition to the making of such an order. The power to make such an order was "a purely administrative or legislative power fully exercisable discretionarily" for which the Minister was responsible only to Parliament. See H W R Wade and C F Forsyth, Administrative Law, 7th ed 1994 at 570-1.
64 As their Honours noted, the Administrative Procedures, though similar in many respects to regulations (including the requirement of gazettal, tabling and possible disallowance) are not declared by the EP(IP) Act to have the force of law. On the contrary, they must be "consistent with relevant laws" pursuant to s 6. They differ significantly, in that respect, from regulations under the Act which, according to s 9, "have effect notwithstanding any other law". If the Administrative Procedures do have some of the characteristics of delegated legislation, they certainly do not have the same force, or operate in precisely the same manner, as regulations, whether under the Act, or otherwise.
65 In de Smith, Woolf and Jowell, Judicial Review of Administrative Action 5th ed 1995, the learned authors discuss the distinction between legislative and administrative acts and comment at p 1006-8:
"Other criteria for distinguishing legislative from administrative acts appear in ordinary linguistic usage. In the first place, every measure duly enacted by Parliament is regarded as legislation. If land is compulsorily acquired by means of a Private Act of Parliament or a Provisional Order Confirmation Act, the acquisition is deemed to be a legislative act; though if the acquisition is effected by means of a compulsory purchase order made under enabling legislation, it will usually be classified as an administrative act. Secondly, departmental instruments or announcements which, although general in application, normally neither create legally enforceable rights nor impose legally enforceable obligations since they are not made pursuant to express statutory authority. Rules of this kind are usually referred to as examples of "administrative action." Circulars issued by the Department of the Environment to local planning authorities on the manner in which they should exercise their statutory powers fall into this category, as do the rules formulated by the Foreign and Commonwealth Office to govern the exercise of the prerogative power over the issue and withdrawal of passports. And the same is true of an announced amnesty for illegal immigrants who satisfy certain criteria. Just as the Crown is without authority to alter the general law of the land by prerogative, so are its servants and other public authorities without inherent authority to impose legal duties or liabilities or to confer legally enforceable rights, privileges or immunities on the subject. Hence, the extra-statutory concessions to taxpayers that the Inland Revenue and Customs and Excise authorities announce from time to time cannot be relied upon in any court of law, although they have been styled "administrative quasi-legislation." It must not be assumed, however, that departmental communications issued in the form of circulars, notes for guidance or letters to local and regional authorities, or press notices, are necessarily destitute of legal effect. It is possible that in some circumstances, at least, the promulgation of informal rules or the announcement of a policy must give rise to procedural obligations, or be used as evidence of the matters that may legitimately be considered in the exercise of discretion or even create a form of estoppel. And it may not be totally fanciful to imagine that a public authority may be held to have abused its discretion by clearly misinterpreting its own rules that it purported to apply." [footnotes omitted]
66 In Pearce and Argument, Delegated Legislation in Australia 2nd ed 1999, the concept of "legislation" is distinguished from executive activity by reference to the test propounded by the Donoughmore Committee of the United Kingdom Parliament (Report, 1932, Cmd 4060). That Committee distinguished legislative and executive authority by adopting the approach that legislative activity involves the process of formulating general rules of conduct without reference to particular cases while executive action involves the process of performing particular acts, issuing particular orders or making decisions that apply general rules to particular cases. That approach accords with relevant High Court authority - see for example, Minister for Industry and Commerce v Tooheys Ltd (1982) 42 ALR 260 at 265.
67 The distinction is not always easy to make. In arriving at a decision in a particular case, for example, an administrator will often formulate a general principle that will be applied to the determination of such cases in the future. Conversely, even an Act of Parliament may sometimes be seen as executive or administrative in character because of its application to a particular fact situation or to a named individual.
68 Outside the established categories of delegated legislation - regulations, rules, by-laws and ordinances - there is a proliferation of instruments that find their source of authority in statute but which do not necessarily fit within the established categories of delegated legislation. In its report, Rule Making By Commonwealth Agencies (Parliamentary Paper No 93 of 92), the Commonwealth Administrative Review Council referred to these instruments as "rules". They are also sometimes described as "quasi-legislation", on the basis that they are almost laws - see R E Megarry, Administrative Quasi-Legislation (1944) 60 LQR 125. They include codes of practice, guidance notes and guidelines. They may even be contained in statutory instruments - see generally Pearce and Argument, supra at 7-14.
69 The Administrative Procedures may be viewed as a form of quasi-legislation, albeit one which is not attended with some of the problems of inaccessibility associated with other such instruments. While they are not included in the published Statutory Rules, their existence is notified in the Gazette and they are subject to disallowance by either House of Parliament.
70 As against these considerations, the approach which Aickin J took to the Administrative Procedures when considering the question of standing in the Australian Conservation Foundation case, and which Gibbs J also took on appeal, must now be recognised as having dealt only with one of a number of considerations in determining whether the Foundation had the requisite degree of interest in the subject matter of the litigation to give it standing. Whether such a special interest is held by a person in any given case is now regarded as involving questions of fact and degree: Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 per Brennan J at 75. Since these cases were decided there has been considerable development in this branch of the law. There has been an increased public perception of the need for bodies established to protect public interests to be able to have access to the courts to act pursuant to their charters. See for example United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520; Botany Bay City Council v Minister of State for Transport and Regional Development (supra) and Marrickville Council v Minister for the Environment, Sport and Territories (1996) 45 ALD 39.
71 In addition, since 1 October 1980, a statutory right to seek review of administrative decisions has been available under the Administrative Decisions (Judicial Review) Act, a right which is based on qualifications for standing that are wide and flexible. See Australian Conservation Foundation v Minister for Resources (1989) 76 LGRA 200 at 204 per Davies J.
72 No doubt, as a result of these developments, the standing of the local authorities to be applicants in this proceeding was not challenged. It followed that it was not relevant whether the Administrative Procedures had the character of legislation that provided a right for a private citizen to take action to have a private right enforced. The admission of standing meant that the applicant councils were litigants able to seek orders to prevent the violation of a public right or to enforce the performance of a public duty.
73 The Administrative Procedures may not, create legal rights and duties in quite the same way as do regulations under the EP(IP) Act, or under other legislation for the reasons given by Finn J. Those Procedures are, in our opinion, a hybrid between legislative and executive acts. We are not, however, persuaded that the Administrative Procedures, in combination with the Act, do not impose upon the relevant Minister a duty to ensure that the decision-making processes under the Act are properly administered.
74 The duty to be performed by the Minister is to ensure, within the relatively minor limitations provided for by s 8, that procedures approved under the Act are given effect. This emerges from a combination of ss 5, 6, and 8 of the EP(IP) Act. Section 8 is explicit in its imposition of a duty to give directions for ensuring that procedures are given effect to, while s 5 contains a powerful statement of the object of the Act.
75 There may be circumstances in which it might be said that the Minister had failed to perform such a duty. That might be so if, for example, he had purported to make a determination under Administrative Procedure 3.1.1(b) cognisant of a failure by a proponent to comply with the requirements of paras 2.1 and 2.2. It might be open to a party aggrieved to complain that the Minister had ignored non-compliance with the Administrative Procedures by a proponent when those paragraphs were plainly included in order to ensure that the Minister was properly instructed on relevant matters before making a determination under para 3.1.1(b).
76 Thus, if to the Minister's knowledge, the requirements of para 2 have not been met it may follow, in an appropriate case, that a determination made by the Minister thereafter would be reviewable, being a decision that did not conform with the requirement that the Minister perform his or her duty, and being a decision not made in accordance with the processes and procedures required by and under the EP(IP) Act.
77 Finn J found that when the Minister noted that all reasonable and prudent alternatives appeared to have been taken into account, no error of law in the Minister's decision was manifested. That is, by so acting the Minister had not failed to perform a duty arising out of the EP(IP) Act. In our view, his Honour was correct in so finding. It was unnecessary under the Administrative Procedures, and the EP(IP) Act, for the Minister for the Environment to record his satisfaction that the requirements of para 2.2 had been met. In making his determination under para 3.1.1(b) the Minister was not required under para 3.1.2 to undertake his own examination of reasonable and prudent alternatives and it followed that there was no duty to be enforced in that regard.
78 Although, therefore, we would take a somewhat different approach to the Administrative Procedures to that taken by Finn J, we are not persuaded that the approach that his Honour took led to any error in the result. In particular, we do not consider that the differences between the way in which we would approach the Administrative Procedures and the way in which Finn J approached them, leads to any difference, for present purposes, in the interpretation of the provisions that were in issue on this appeal. We would therefore not allow the appeal on grounds 2 and 3 of the amended notice of appeal.