No irrelevant matters considered, no unreasonableness or irrationality in Council decisions
232The nature of elected councils and the powers being exercised by them under the LG Act in relation to the provision of services and charging for these must be considered in resolving these grounds of review. The broad nature of the power of a council to provide services has already been canvassed above in considering the first ground of review in relation to s 7 (purposes of the LG Act), s 8 (the council's charter), s 24 (power to provide services) and s 608 (power to charge for services), of the LG Act. The nature of council decision-making in this statutory context has not received much judicial consideration.
233Under s 610D the matters a council must take into account when determining the amount of a fee for service are specified as the cost to the council of providing the service, the price suggested for the service by any relevant industry body or in any schedule of charges published from time to time by the Department (none were before the council), the importance of the service to the community and any factors specified in the regulations (none were specified in the regulations). Under subsection (2) the cost to the council of providing a service in connection with the exercise of a regulatory function need not be the only basis for determining the approved fee for that service.
234As the Council submitted the range of matters which a council may otherwise take into account is wide given the broad purposes in the LG Act, the council's charter and s 24. In this context the Council was able to consider security and safety matters and ease of administration of the service which are the basis for most of the Council's fifteen reasons identified by Rex as unreasonable or irrational (namely (i), (ii), (iii), (iv), (v), (vii), (viii), (ix), (x), (xi), (xii), (xiv) and (xv)) in relation to the first and second decisions. Fairness in equal treatment of passengers and charging of RPT operators is identified in (vi), (vii), (x) and (xiii) also in relation to the first and second decisions. One additional matter is identified by Rex in relation to the second decision (par 217) of there being no evidence to support the statement that passengers would be confused by split screening service.
235The Council's submissions at par 229 relying on Marrickville Metro (CA) properly reflect the nature of the Council's decision-making processes in this case, namely that councillors bring their own understanding of the needs of the community to bear in decisions of this kind. It is useful to set out several paragraphs from Marrickville Metro (CA) as they pertain to the parties' arguments. Tobias JA (Basten and Handley JJA agreeing) held:
97 It cannot be gainsaid that where the exercise of a statutory power by a body such as a council is dependent upon the existence of a fact or the holding of a particular opinion, then the absence of any evidentiary basis upon which that fact can be found to exist or that opinion held would vitiate a council's decision. Pestell was such a case. But it is not this case. As her Honour observed (at [106]) there is nothing in the scope of the Act or the rate setting scheme in relation to the fixing of an ad valorem rate that suggests that it is an irrelevant consideration giving rise to illegality to seek to impose a greater rate burden on one category or sub-category than another category or sub-category. Equally, the fact that the statute permits such a form of discrimination militates against any finding of manifest unreasonableness founded on that consideration.
98 The Council submitted that in the absence of any criteria in the Act for the setting of an ad valorem rate, it had a wide discretion allowing it to take into account whatever matters it regarded as relevant, but that it was not obliged to act judicially. It did not require "evidence" before it made its decision. As long as the Act permitted it to do what it did, its decision must be allowed to stand.
99 The Council was a collegiate body made up of community representatives who were relevantly performing in the present instance a quasi-legislative function. It was setting a tax, but one in which the empowering statute permitted differentiation and/or discrimination. It was not acting as a decision-maker determining some form of dispute between parties. There were no relevant statutory criteria that were required to be satisfied before it exercised the power.
100 Nevertheless, it was submitted by the appellant that the Council's decision, at least to set the ad valorem amount applicable to the sub-category of Business-Marrickville Metro, was based on an arbitrary choice as to what particular amount in the dollar to adopt. But in the present case the Council had before it the various reports of the General Manager, the relevant portions of which I have extracted earlier in these reasons as well as the benefit of the views of the various councillors during the course of the debate before a vote was taken.
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102 ... However, in my view, no such probative evidence in the sense in which that concept is used in the context of a decision-maker who is required to make findings of fact or form an opinion as a condition of exercising a power, was required in the present case.
103 In any event the councillors must be taken to have local knowledge as to the success or otherwise of the Centre and in fact there are references in the material that I have extracted as to the drawing power of the Centre. The councillors were aware of the amount of the increase which, for the 2002/2003 year, appears to be less than $50,000 over and above what otherwise the Centre would have paid had its land remained in the Business-General sub-category. After all, this was a complex containing some 101 tenancies. It is the only such complex in the LGA which thus gave it a degree of monopolisation.
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127 I have already expressed the view that in the context of the particular statutory provisions which relevantly invested the Council with what was essentially an unconfined power, there was no requirement that before that power was exercised the Council must have had before it probative material that would "justify" the decision it proposed to make. What would "justify" the decision to one person would not necessarily "justify" it to others. It would not be difficult to infer that the increase in the rates payable by the appellant would meet with the acclaim of those ratepayers whose rate burden was reduced. Of course, there would be limits even though there was no mandatory requirement to impose rates "fairly" (whatever that might mean in the present context). Thus to increase the rate burden on one ratepayer to the point where all other ratepayers or a significant class of them paid only nominal rates, would probably demonstrate irrationality. Such a conclusion would be justified if the purpose of the Council was to place such a financial burden on the Centre so as to force it out of business. But that is not this case.
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130 At the end of the day the real complaint of the appellant is that the Council's decisions, including those in 2007 and 2008, were "unfair": but even if that be so, it does not support a finding of Wednesbury unreasonableness. To make the challenged decision the Council was not required by the Act to find any facts or form any opinion. The councillors were elected to, amongst other things, exercise their function to declare categories and sub-categories of rateable land and to fix the ad valorem rate to be applied to the land values of that land within those categories and sub-categories. This they did and the Act did not prevent them from doing so. They were therefore entitled to pass the resolutions they did. Accordingly, I would reject the appellant's challenge to the 2007 and 2008 rate setting decisions.
236As Tobias JA identified the council is a collegiate body made up of community representatives, performing in that case a quasi-legislative function where the statute permitted discrimination with no statutory criteria required to be satisfied in relation to rate setting. While this matter raises the charging of fees for a service rather than rate setting the observations of Tobias JA apply equally by parity of reasoning to this circumstance given the wide discretion in providing services and charging for these under the LG Act. Considering [97], [130] the LG Act does not specify the existence of a fact or the holding of an opinion by a council is required before a service is implemented and a fee charged. It is not a decision where facts must be found to exist in order to exercise a power validly by the Council.
237Rex's submissions on lack of rationality in the Council's first and second decisions appear to be based largely on the assertion of lack of evidence before the Council in relation to each of the numerous reasons given by the Council. A challenge based on the lack of probative evidence to support a local council decision was considered in Marrickville Metro at [97]-[100] as set out above. As the Council submitted there is no statutory requirement that certain facts must be found before the exercise of power in s 24 or s 608(1) of the LG Act. The Council had before it the Working Party report which it resolved to adopt in October 2012 and further reports before it when it determined to charge a fee in February 2013. These reports were in evidence and canvassed a number of operational issues pertinent to the decision. It is not necessary for a valid decision for the Council to identify for every reason given a factual circumstance which could be said to underpin it.
238The statutory scheme for the provision of services by an elected council is not able to be equated with a tribunal or court process where fact finding is an essential part of the discharge of the decision-maker's function, often directed to a singular statutory precondition being satisfied in order to exercise power, for example. The collegiate decision-making of the Council on an issue with many variables such as the decision to implement this service and charge for it is a decision of a quite different nature. Rex's lack of probative evidence argument relied on Luu v Renevier, however the decision-making context of that matter was entirely different. There a minister's delegate was determining whether to allow a person to remain in Australia under the Migration Act 1958 (Cth). One factual issue was key to the delegate's determination. The Federal Court found his conclusion was not based on probative evidence on that key factual issue. Council's decision-making processes are different being far more multifaceted with many variables potentially relevant and the broad discretion in the LG Act. Luu should be distinguished for this reason.
239As the Council identified there is no requirement that a council be fair when rate-setting citing Marrickville Metro (CA) at [127]. The same can and should be said for providing a service or charging a fee for service by parity of reasoning. In any event the Council explicitly considered its approach of treating all passengers and RPT operators the same way as being fair, as identified above in par 234. That is a judgment open to the Council.
240The nature of the Council's decision-making outlined above does not require a finding of jurisdictional fact and that is what the irrationality ground identified in SZMDS is directed to. It is not necessary to consider the case law referred to by Rex on irrationality in decision-making such as SZOOR given an inevitable finding that there is no such error in fact finding in the circumstances of this case.
241Rex also submitted that the decisions were so irrational that they were unreasonable in the Wednesbury sense. The principle of unreasonableness as found in Wednesbury which requires the exercise of discretionary power in making a decision to be so unreasonable that no reasonable council could reach it, a high hurdle to overcome, has been broadened by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225. In Li Hayne, Kiefel and Bell JJ held that the legal standard of unreasonableness is not limited to what is irrational at [68]. The degree of unreasonableness depends on the statutory context particularly where discretions are ill-defined at [67]. French CJ held at [28] decision-making under the relevant statute cannot be capricious or arbitrary or contrary to common sense. Gageler J held the stringency of the Wednesbury unreasonableness approach remained and was met in the circumstances of that case, at [113]-[124]. That decision has been the subject of comment: Theresa Baw, "Illogicality, Irrationality and Unreasonableness in Judicial Review" in Neil Williams (ed), Key Issues in Judicial Review (2014 Federation Press) 72-76, Mark Aronson, "Jurisdictional Error and Beyond" in Matthew Groves (ed), Modern Administrative Law in Australia - Concepts and Context (2014 Cambridge University Press) at 259, and further judicial consideration by the Full Federal Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280 at [43]-[52]. As this case is simply not close to being arbitrary or capricious or lacking in common sense (to adopt French CJ in Li) in the context of the LG Act I do not need to further examine these authorities or other sources.
242In light of these findings the fifteen grounds in the FAS set out in par 213, reflecting the Council's stated reasons, are not irrational or unreasonable. Nor is the additional ground raised in relation to the second decision that a split screening service would cause confusion and inconvenience.
243The ground of taking into account an irrelevant consideration presents Rex with a high hurdle as there is no fixed list of matters described as irrelevant for these decisions under the LG Act. As stated by Mason J in Peko-Wallsend at 40, in order to succeed on a challenge based on a decision-maker considering irrelevant matters those matters must be either expressly or by implication matters which the decision-maker must ignore. The determination depends on the statutory framework, including the objects and purposes of a particular Act. The applicant must demonstrate that having regard to that framework a certain matter is irrelevant. There are no matters which were specifically referred to under the LG Act which the Council had to ignore in making the decision to provide security screening services under challenge. Accordingly, in order to succeed Rex must establish that the matters it says are irrelevant had to be ignored as a matter of statutory interpretation in light of the objects and purposes of the legislation.
244Demonstrating there was an error by the Council in taking into account irrelevant matters is a difficult task for Rex, particularly given the broad policy nature of the decision to provide a service and charge for it. Five matters are cited as taking into account irrelevant considerations, that passengers are screened at Sydney Airport, that Council commonly does business this way, that it is the easiest way to charge for screening services and that it would lead to a better working environment for all parties. Apart from Rex asserting, essentially, that in its opinion these are irrelevant that is not a self evident matter.
245In an amendment to the FAS in relation to the second decision in par 216 Rex identified a further matter said to be irrelevant, namely the desirability of reducing costs to QantasLink. The same comment applies to this matter also. Rex has not demonstrated as a matter of statutory construction that this matter is an irrelevant consideration. I consider this is attempting to raise matters of merit about which there may be genuine differences of subjective opinion which I cannot consider in judicial review proceedings.