2. However the respondent also relied upon the ambit of the reviewable decision in Schedule 1, item 4, column 2 and in particular that this application was exempted by regulation. This is because s 350 of the Planning and Development Regulation 2008 (ACT) ('Planning Regulation') states that certain merit track decisions are exempt from third party ACAT review. Section 350 of the Planning Regulation refers to an exempt merit track decision as a 'development application in relation to a matter mentioned in Schedule 3 ... part 3.2'. Schedule 3, part 3.2 refers in item 4 to a development on land in ... (c) an industrial zone.

3. The subject land, that is Block 35, Section 37 Fyshwick, is in an Industrial Zone 2, a mixed use industrial zone as set out in the Territory Plan 2008 at 5.1.

1. The applicant made various submissions in relation to the issue of jurisdiction. Firstly the applicant argued that the respondent had made a representation in the notice of decision dated 13 February 2009 that the applicant could seek a review of the decision by ACAT and now could not resile from this advice. The applicant also argued that the jurisdiction of courts cannot be excluded by privation clause. Further, that pursuant to s 426 of the Planning Act, regulations made for that Act cannot abrogate rights expressly created by the Act. It is said that Schedule 1, item 4, column 4 expressly created a right in the applicant to apply for review of the decision to approve the DA. Consequently, so the argument goes, regulations made pursuant to the Planning Act cannot limit, restrict or remove that right and to the extent that they may be interpreted as doing so are invalid.[2]

2. The applicant also argued that she is a person 'aggrieved' by the decision and is therefore a person who has standing to maintain an action pursuant to the Administrative Decisions (Judicial Review) Act 1989 to challenge the decision. The applicant also argued that the Administrative Decisions (Judicial Review) Act 1989 might constitute an authorising law for the purposes of s 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) ('the ACAT Act') and that all the abovementioned provisions must be interpreted in the context of the Territory's constitutional powers noting that the Australian Capital Territory (Self-Government) Act 1988 (Cth) proscribes the territory from acquiring property other than on just terms.

1. The party joined made submissions which supported those of the respondent and emphasised certain other matters, for example, that ACAT is a tribunal of limited jurisdiction and that its jurisdiction is limited to that conferred by statute. ACAT can hear appeals on the merits from decisions that are made reviewable by authorising statutes. This function is independent of the function that is exercised by a court when reviewing an administrative decision under the Administrative Decisions (Judicial Review) Act 1989. However because ACAT is a tribunal of limited jurisdiction it has an obligation to satisfy itself of its jurisdiction in each case and it therefore must satisfy itself of the apparent validity of subordinate legislation that gives it jurisdiction if that matter fairly arises in considering its jurisdiction.[3]

2. The party joined also argued that the ACAT's duty to satisfy itself of its jurisdiction does not extend to considering the validity of enactments and that subordinate courts and tribunals should assume the validity of legislation until and unless a superior court declares it ultra vires.[4] The party joined submitted that the principle in Plaintiff S157/2002 v Commonwealth[5] ('Plaintiff S157') had no application in the current case because ACAT is not a court but a tribunal and its jurisdiction is created by statute and may also be limited or removed by statute.

3. As to whether the advice give by the respondent in the notice of decision to the applicant can constitute a representation, the party joined argued that the advice was merely as to a possible right of review; it did not assert definitively that there was a right of review. Further, a Tribunal of limited jurisdiction cannot be given further jurisdiction by consent or estoppel as its jurisdiction is limited to that given by statute.[6]

1. Pursuant to s 9 of the ACAT Act, it is clear that ACAT may only exercise such jurisdiction as is conferred upon it by an authorising law. It is also clear that the decision is not a reviewable decision for the purposes of Schedule 1, item 4 of the Planning Act as the decision is exempted from Schedule 1, item 4 of the Planning Act by s 350 and Schedule 3, part 3.2, item 4 of the Planning Regulation. There is no indication that the Planning Regulation is invalid nor that the applicant has an existing proprietary right that could be said to have been taken away by the Planning Regulation. The references to Plaintiff S157 cannot be relied upon by ACAT as a tribunal of limited jurisdiction. Moreover, the Tribunal concludes that the advice to the applicant in the notice of decision dated 13 February 2009 did not amount to a representation that the applicant had a right to merits review or that ACAT had jurisdiction to hear the application. It is therefore not necessary for the Tribunal to decide the whether estoppel can confer jurisdiction upon the Tribunal.

2. The Tribunal notes the applicant's argument that s 5 of the Administrative Decisions (Judicial Review) Act 1989 could constitute an authorising law for the purposes of s 9 of the ACAT Act. In this respect, the applicant's submission pointed to 's 22A' . It is assumed that this reference should be to s 22Q of the ACAT Act which states that the tribunal may decide whether or not a person's interests are affected by a decision, and the tribunal's decision is conclusive. The effect of s 22Q of the ACAT Act is that ACAT should have regard to references in authorising laws to persons whose interests are affected by a decision.

3. Section 5 of the Administrative Decisions (Judicial Review) Act 1989 gives a right to apply for review of a decision to a person aggrieved by a decision. However this allows the person aggrieved to make an application to the Supreme Court for an order for review. Adopting a purposive interpretation to both the Administrative Decisions (Judicial Review) Act 1989 and the ACAT Act would militate against an interpretation that s 5 of the Administrative Decisions (Judicial Review) Act 1989 could confer jurisdiction upon ACAT.

4. Therefore, an ordinary reading of the ACAT Act, the Planning Act and the Planning Regulation would indicate that ACAT has no jurisdiction to hear the application.

The Application of the Human Rights Act

1. However, in construing the relevant legislative provisions to determine the extent of its jurisdiction, ACAT must apply s 30 of the Human Rights Act 2004 (ACT) ('HRA'). Section 30 provides that:

So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.

This provision has particular salience to ACAT because ACAT is a public

authority under s 40 of the HRA. Section 40B states that:

(b) in making a decision, to fail to give proper consideration to a relevant human right.

1. This issue was dealt with at some length by the Tribunal in Thomson & ACT Planning and Land Authority[7] ('Thomson') and the current Tribunal concurs with the approach to interpretation adopted by the Tribunal in that decision. The Tribunal in Thomson followed the interpretation of s 30 which was preferred by the ACT Court of Appeal in R v Fearnside[8] ('Fearnside') as amplified by Refshauge J in Hakimi v Legal Aid Commission (ACT); Australian Capital Territory (Intervener)[9] ('Hakimi'). The approach favoured in Fearnside involved a three step process that must be adopted in discerning the human rights issues:

1. It is necessary to consider whether the legislation 'enlivens' a human right;

2. If the answer to the first question is yes, it is necessary to consider whether the legislation contains a limitation which is reasonable within s 28 of the HRA; and

3. If the answer to the first question is yes and the answer to the second question is no, it is necessary to consider and apply the interpretative principle in s 30 of the HRA.[10]

In applying the Fearnside test to the present case, the parties submitted that the Tribunal should have regard to persuasive court and tribunal decisions in Victoria, the United Kingdom and the European Court of Human Rights ('the European Court'), an approach which was adopted in Thomson.[11] This accords with the principle of construction elucidated in s 31 of the HRA that the judgments of foreign and international courts and tribunals which are relevant to the interpretation of the relevant human right may be considered.

1. The Tribunal is grateful for the helpful submissions made by the parties regarding the application of the HRA to the current proceedings.

1. In deciding whether it has jurisdiction in relation to this application, the Tribunal must consider the right to fair trial provided by s 21 of the HRA. This provision states that:

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

1. When applying the Fearnside test to the current application, it must first be decided whether the relevant decision is apparently inconsistent with or imposes a limitation on the right to fair trial.[12] The question posed in Fearnside was whether the decision 'enlivened' a human right. This question is analogous to the question posed by the European Court in deciding whether an application is admissible.[13] Of considerable importance in the present case is whether the applicant held 'rights and obligations recognised by law' which could attract the protections afforded by s 21 of the HRA.

2. The applicants submitted that s 21 confers a right of access to justice by analogy with Article 14(1) of the International Covenant on Civil and Political Rights ('ICCPR') and Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms[14] ('the European Convention'). Article 6(1) confers a right to fair trial 'in the determination of ... civil rights and obligations'.[15] According to the applicant's argument, the right to access to justice is not limited to substantive rights but includes procedural rights. In this respect, the applicant relied upon Al-Adsani v United Kingdom ('Al-Adsani').[16] The European Court made the following comments in that case:

Whether a person has an actionable domestic claim may depend not only on the substantive content, properly speaking, of the relevant civil right as defined under national law but also on the existence of procedural bars preventing or limiting the possibilities of bringing potential claims to court. ... [I]t would not be consistent with the rule of law in a democratic society or with the basic principle underlying [Article 6(1)] ... if, for example, a state, without constraint or control by the [courts] removed from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons.

1. The applicant argued that the Planning Act provides for the right of the applicant to challenge the decision to approve the DA. However this right to challenge - which, the applicant argues, is the right to access to justice - has been abolished by the Planning Regulation. This framework, the applicant submits, is analogous to the issue dealt with by the European Court in Al-Adsani. In that case Al-Adsani alleged that he had been tortured in Kuwait and after fleeing to the UK sought to bring a personal injury action there against the Kuwaiti government. The UK courts eventually struck out his application on the ground of State immunity and Al-Adsani sought relief in the European Court arguing that the UK Courts, by granting immunity from suit to the State of Kuwait, had unfairly denied his right to access to court under Article 6(1) of the European Convention.[17] The European Court found that the application was admissible[18] but there had been no violation of Article 6(1).[19]

2. In the present case, the applicant says that the right to challenge the decision to approve the DA in respect of land adjoining her property is a right well recognised by our law but here is subjected to procedural bars. The applicant relies upon the following quote from Al-Adsani to support this proposition.

The proceedings which the applicant intended to pursue were ... damages for personal injury, a cause of action well known to English law. The Court does not accept the Government's submission that the applicant's claim has no legal basis in domestic law since any substantive right which might have existed was extinguished by the operation of the doctrine of state immunity.[20]

The respondent and the party joined argued that the applicant has no right or obligation recognised by law which would enliven s 21 of the HRA. The respondent submitted that a person has no right of 'access to justice' to enforce a right that she or he does not hold. Similarly, the party joined contended that the human right protected by s 21 of the HRA is the right to have existing 'rights and obligations' heard by a fair tribunal. The section is not concerned with determining the existence or content of the 'rights and obligations' themselves but in the procedural issues associated with the rights. It further submitted that s 21 of the HRA has no connection with the present application as the present application relates to the very existence of the right or obligation recognised by law not to the procedure to be followed to determine if it exists.

This argument focuses upon the requirement that ACAT's powers to conduct merits review under the ACAT Act must be conferred by authorising laws. In this case the authorising laws are the Planning Act, and the Planning Regulation. As discussed above, the regulation appears to be within power and the Planning Act expressly states (by operation of s 407 and Schedule 1) that the regulation may restrict the class of objections that may be reviewed by ACAT. The party joined submits that the text of the Planning Act and its Explanatory Statement make it clear that the express purpose of the legislature was that types or classes of planning decisions could be excluded by regulation from merits review.

Both the submissions of the respondent and the party joined relied upon a conventional analysis of the operation of administrative law that dictates that the Planning Act and Planning Regulation confer and delimit the rights of the applicant to seek redress in ACAT. On this argument, the rights of the applicant are codified in the Planning Act and the Planning Regulation and those rights do not include a right to merits review of the decision to approve the DA. Therefore, the argument proceeds, s 21 of the HRA cannot operate because there are no rights vested in the applicant upon which the procedural guarantees conferred by that provision may operate.

The party joined argues that the scheme of administrative law remedies provides for a general right of judicial review including the 'entrenched' right to judicial review arising from the inherent jurisdiction of the Supreme Court but only in a limited class of cases for review by an administrative tribunal on the merits. Therefore administrative review by a tribunal is not a reflection of any general legal right but merely a grant by the legislature of a review power of particular classes of administrative decisions. It therefore follows that what is granted by statute can be restricted or removed by statute without infringing the HRA because there is no underlying right found in the HRA or elsewhere that is given effect to by the ACAT Act.

To summarise the arguments, the applicant contends that she possesses a right to which s 21 of the HRA can attach. Conversely, the respondent and party joined argue that s 21 may only attach to that which is conferred by the statute which in this case is nothing. This argument shall hereinafter be referred to as the 'nullity argument'. On this argument, the nullity is distinguishable from the right which would be conferred upon the applicant if she sought judicial review of the decision to approve the DA in the Supreme Court due to the nature of the inherent jurisdiction of that court.

These arguments raise important conceptual questions about the nature of the 'right' upon which s 21 of the HRA might operate.

By analogy with cases decided by the UK courts and by the European Court under the European Convention, it is likely that the engagement of s 21 of the HRA requires something more than a 'right' to access to justice. But conversely, the threshold standard for activation of s 21 of the HRA may not require a traditionally recognised substantive right under domestic law. The term 'rights and obligations' is interpreted autonomously[21] which means that the words are to be understood in terms of their meaning in the European Convention. That meaning 'is not controlled by the interpretation of the domestic legislation, although it is very relevant'.[22] For example, Ortenburg v Austria[23] concerned an appeal to the European Court against a planning decision which affected land adjacent to the applicant's property. Article 6(1) of the European Convention was said to be engaged because the decision substantially affected private rights i.e. the value of the applicant's land. This is similar to the argument put by the applicant in the present case that, pursuant to statute, she enjoys rights to contest development occurring on adjacent land. This right is said to stem from the applicant's proprietary interest as registered proprietor of the adjoining land. However, in relation to the Ortenburg case, Leigh states, 'it cannot be said that a proprietor has any general right to ensure that the activities of others (including the State) would not diminish the value of his property'.[24] Although the nature of the civil right held by the applicant in Ortenburg was found by this Tribunal in Thomson to be distinguishable from the right of the third party objector in Thomson, Ortenburg nevertheless demonstrates that a claim may engage Article 6(1) even if it is not based on a traditionally recognised right.[25] This may be due, in part, to the autonomous interpretation of the concept of a 'civil claim' under Article 6(1) of the European Convention which is guided by the principle that 'access to law is a universally recognised legal principle and essential for the rule of law.' [26]

In the Thomson case[27] the tribunal found three bases upon which a third party objector to a DA approval may have rights and obligations recognised by law under s 21 of the HRA.

1. An express recognition by Refshauge J in Capital Property Projects (ACT) Pty Limited v Planning and Land Authority[28] that the right of a third party objector under the predecessor to the Planning Act engaged s 21 of the HRA. 2. The recognition by the UK courts and the European Court that the right of a third party objector to a planning approval may engage Article 6(1) of the European Convention 3. An incipient or inchoate right or novel claim analogous to the right referred to by the late Connolly J in West v New South Wales.[29]

9. The Tribunal in Thomson discussed the nature of the threshold standard that may apply under s 21 of the HRA for both rights[30] and obligations.[31] In the present case, the party joined relied upon the nullity argument to distinguish West v NSW and a related decision of the European Court-Z v United Kingdom.[32]

10. In West v NSW, an application was made by the defendant to strike out an action for damages for negligence as disclosing no reasonable cause of action. In their defence the defendants admitted certain factual matters, but denied the existence of a duty of care and further argued that pursuant to s 128 Rural Fire Act 1987 (ACT) their acts or omissions were done in good faith and therefore could not be the subject of any claim.

11. In determining the approach to be adopted to the strike out application, the late Connolly J opted for the traditional approach to summary judgment because he regarded it as consistent with the statutory recognition of the right to fair trial under s 21 of the HRA. Although the plaintiff's claim was novel but it was not bound to fail.[33] By applying s 21 to the claim, his Honour was concluding that s 21 was engaged or enlivened by the claim. This is comparable to European Court finding that the claim is admissible.

12. West v NSW is analogous to the case of Z v The United Kingdom[34] where the European Court found that Article 6(1) was engaged in circumstances where the applicant's claim for negligence in the domestic courts had been struck out as disclosing no cause of action against the local authority because domestic law did not impose an actionable duty of care. In discussing the applicability of Article 6(1) the European Court emphasised that:

Article 6 s 1 extends only to 'contestations' (disputes) over (civil) 'rights and obligations' which can be said, at least on arguable grounds, to be recognised under domestic law; it does not itself guarantee any particular content for (civil) 'rights and obligations' in the substantive law of the Contracting States". ... It will however apply to disputes of a "genuine and serious nature" concerning the actual existence of the right as well as to the scope or manner in which it is exercised.[35]

1. The Court provided further detail about the methodology it adopted in deciding whether a serious and genuine dispute had arisen about the existence of the right asserted by the applicants under domestic law. The factors that the European Court took into account included the grant of legal aid to the applicant and the decision of the Court of Appeal that the claims merited leave to the House of Lords. Importantly, the European Court rejected the Government's submission that there was no arguable 'right' for the purposes of Article 6 once the House of Lords had ruled that no duty of care arose. The European Court further commented that this submission would only be relevant to any claims lodged or pursued subsequently by other plaintiffs. The Court said:

The House of Lords' decision did not remove, retrospectively, the arguability of the applicants' claims. ... In such circumstances, the Court finds that the applicants had, on at least arguable grounds, a claim under domestic law.[36]

1. It may be that there is no difference between the substantive 'right' possessed by the applicant in Z v United Kingdom which was found by the European Court to be sufficiently tenable to engage Article 6(1) and the 'right' of the applicant in the current case. In Z v United Kingdom case the substantive right was not ultimately recognised under domestic law, whereas in the current case the respondent and parties joined argued that it was null i.e. no right existed in the first place. The arguments made by the party joined about Z v United Kingdom and West v NSW focussed more on the issue of violation of Article 6(1) than admissibility. In the Tribunal's view the issue must be considered at the admissibility stage in the European case law or its equivalent in the ACT case law - the first limb of the Fearnside test. The Tribunal therefore does not accept the arguments made by the party joined regarding Z v United Kingdom and does not accept the nullity argument in this case.

2. In relation to the nullity argument, Refshauge J in Capital Property Projects (ACT) Pty Limited v Planning and Land Authority[37] found that an analogous right of a third party objector under s 5 of the Administrative Decisions (Judicial Review) Act 1989 was sufficiently tenable to enliven s 21 of the HRA in that case. This was discussed by the Tribunal in Thomson.[38] The present Tribunal considers that the express recognition by Refshauge J in Capital Property Projects (ACT) Pty Limited v Planning and Land Authority[39] militates against the nullity argument put by the respondent and the party joined.

3. The party joined draws a distinction between the Tribunal's statutory jurisdiction and the inherent jurisdiction of the Supreme Court to provide judicial review,[40] which was the relevant cause of action in Capital Property Projects (ACT) Pty Limited v Planning and Land Authority. [41] The Tribunal in Thomson[42] doubted whether the 'right' which may or may not enliven s 21 of the HRA could change according to the context in which it is asserted. Ultimately, these issues may only be resolved by the Supreme Court, and it is worth noting that the interpretative obligation under s 31 HRA may have the consequence that 'established meanings will sometimes have to give way to new interpretations that move beyond traditional ones'[43] or may require 'the application of a methodology that profoundly challenges the tenets of the classic model of administrative law'.[44]

4. In the meantime, the Tribunal will follow the approach adopted in Thomson. It is satisfied that s 21 of the HRA is enlivened in this case because, firstly, the nature of the 'right' held by the applicant falls within the 3 bases held in Thomson to be sufficient to trigger s 21, at least to a threshold standard. Secondly, the operation of relevant provisions of the Planning Act and Planning Regulation prevent access to merits review of the decision to approve the DA. Applying the first limb of the Fearnside test, the relevant statutory provisions 'affect, impinge upon or diminish the relevant human right, that is the right in s21(1) of the HRA.'[45]

1. The Tribunal in Thomson stated that proof of the sufficiency of the composite process in administrative decision making will be required where the right to fair trial is engaged under s 21 of the HRA and limitations are placed upon merits review. To elaborate, compliance with Article 6(1) in administrative contexts requires examination of the 'composite process' of decision-making. This requires an overall assessment of the process used (in arriving at the decision and rights of appeal) to determine whether the composite process is fair, even if there are deficiencies in one or more steps of the process. In the planning context it is necessary to look at:
   • the characteristics of and procedures followed by the initial decision maker;
   • opportunities for third parties to have input in the approval process, and
   • the availability and quality of review mechanisms, including judicial review

2. In Thomson the Tribunal discussed the composite process before tackling the proportionality analysis under s 28 HRA, which is required on the second limb of the Fearnside test. Although the HRA arguments failed on the first limb in Fearnside,[46] Besanko J quoted with approval the overarching test adopted by the Supreme Court of New Zealand in R v Hansen[47] ('Hansen') as follows:

Step 2. Ascertain whether that meaning is apparently inconsistent with a relevant right or freedom.

Step 3. If apparent inconsistency is found at step 2, ascertain whether that inconsistency is nevertheless a justified limit in terms of s 5.

Step 4. If the inconsistency is a justified limit, the apparent inconsistency at step 2 is legitimised and Parliament's intended meaning prevails.

Step 5. If Parliament's intended meaning represents an unjustified limit under s 5, the Court must examine the words in question again under s 6, to see if it is reasonably possible for a meaning consistent or less inconsistent with the relevant right or freedom to be found in them. If so, that meaning must be adopted.

Step 6. If it is not reasonably possible to find a consistent or less inconsistent meaning, s 4 mandates that Parliament's intended meaning be adopted.[48]

1. In Fearnside, Besanko J commented that the general approach taken by the majority in Hansen is the correct one, although 'whether that will be so in every case is best left for a case in which the issue is decisive and is the subject of detailed submissions from both sides'.[49] Following this approach, the composite process would be considered as an element of the proportionality inquiry under the second limb of Fearnside and Step 3 of Hansen. However, the issue was not the subject of detailed submissions by the parties in either Thomson or the present case, so the analysis of the composite process and proportionality must be brief.

2. No evidence was led by the respondent or the party joined as to the composite process of decision making that applied in this case. However, the removal of the applicant's access to merits review by this Tribunal may be considered in the context of the whole planning approval process which includes 'an administrative decision making process by ACTPLA, a statutory corporation independent from the Minister, and some procedural safeguards, such as the notification of affected parties and the opportunity for third parties to make representations regarding the development proposal.'[50] The Tribunal notes that the development proposal for the subject land was publicly notified from 8 December 2008 to 5 January 2009 and that one written representation was received during the public consultation, presumably by the applicant in the present proceedings as it was not contested that the applicant had made a representation. The issues raised by the applicant in the written representation were addressed by the respondent on pages 4 - 5 of the Notice of Decision dated 13 February 2009.

3. The decisions of ACTPLA are also amenable to judicial review at common law and under the ADJR, though those remedies are costly and do not provide a full quasi-judicial procedure where factual matters can be determined.

4. Without concluding on this point, the Tribunal will consider the proportionality elements which arise under Step 2 of Fearnside, Step 3 of Hansen and the application of s 28 of the HRA.

(1) Human rights may be subject only to reasonable limits set by

Territory laws that can be demonstrably justified in a free and democratic society.

(2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:

(b) the importance of the purpose of the limitation;

(d) the relationship between the limitation and its purpose;

(e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.

Section 28 requires the Tribunal to decide whether the right to fair trial in s 21 HRA has been subjected to reasonable limits that can be demonstrably justified in a free and democratic society. The factors set out in s 28(2) provide an inclusive list of matters that must be taken into account. This may be broadly described as a proportionality analysis - is the restriction placed on the right proportional to the purpose of the Territory laws?

In Thomson, the Tribunal analysed the factors set out in s 28(2) of the HRA and concluded that the limitation upon the right to fair trial which applied in that case - partial removal of merits review by the Planning Act - was reasonable, considering the broad objectives of the Planning Act, the public consultation that occurred prior to the passage of the Planning Act and the 2008 Territory Plan and ongoing opportunities for certain people to make representations about development proposals in combination with access to judicial review. The Tribunal in that case also discussed the development of policy and public debates which accompanied the passage of the Planning Act including the legislative purpose of limiting third party appeal rights in that legislation.[51]

Pursuant to s28(2)(b) of the HRA, the purpose of the limitation in this case is the need for certainty and predictability for applicants for development approval and the need to ensure a timely approval process. The present Tribunal agrees with the approach in Thomson that these objectives are sufficiently important to justify some constraints on third party review rights.[52]

The present Tribunal agrees with the reasoning in Thomson regarding proportionality as it applies to the Planning Act and Planning Regulation. However, there are aspects of this case which differ from Thomson. Firstly, this case involves the complete removal of merits review of the decision to approve the DA by the Planning Act and Planning Regulation whereas Thomson involved only partial removal of merits review by the Planning Act. Secondly, Thomson concerned residential property (both the land subject to development and the applicant's adjoining residence) whereas in the current case the subject land, and the applicant's land which adjoins it, are zoned industrial.

Dealing with the first issue, the nature and extent of the limitation is a factor to be considered under s 28(2)(c) of the HRA. In this respect the Tribunal notes the submissions of the party joined that the text of the Planning Act and the Explanatory Statement make it clear that the express purpose of the legislature was that types or classes of planning decisions could be excluded by regulation from merits review. Certainly it is not unusual in Australian planning law for the rights of third party objectors to be limited or removed by legislation or other instruments.[53] However, the applicant argued that the Tribunal should approach the issue of jurisdiction from the perspective of access to justice and the question then is whether any limitation of a right to access can be shown to be 'demonstrably justified' in a free and democratic society. The applicant further argued that limitations on the right to access to justice are intrinsically inimical to the ideal of open government and must be closely scrutinised before they can be accepted as 'demonstrably justified'. Although it is regrettable that the Planning Act and Planning Regulation have the effect of restricting the applicant's access to merits review, the present Tribunal considers that the limitation was closely scrutinised and 'demonstrably justified' in the Thomson case.

The second issue concerns the zoning of the land, which in this case is industrial. This zoning is of some antiquity. The Fyshwick area was set aside for industrial purposes in 1950 and the first site was made available in 1954.[54] A limitation upon third party appeal rights where the relevant land is in an industrial zone would have less weight in the balancing exercise required under s 28 of the HRA than where the relevant land is in a residential zone.

The Tribunal considers that although the relevant provisions of the Planning Act and Planning Regulation (which have the effect of preventing the applicant from seeking merits review of the decision to approve the DA in this Tribunal), create a limitation that enlivens the right to fair trial under s 21 of the HRA, that limitation is nevertheless reasonable under s 28 of the HRA. It is therefore not necessary for the Tribunal to engage s 30 of the HRA to reinterpret the provisions of the Planning Act and Planning Regulation.

1. For the reasons expressed above, the Tribunal is satisfied that it does not have jurisdiction to review this application and orders that the application be dismissed.

DATE/S OF HEARING: 20 MAY 2009 PLACE: CANBERRA

DATE/S OF DECISION: 3 JULY 2009 PLACE: CANBERRA

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

[1] Re Bienstein & Cth Ombudsman [2003] AATA 1197; (2003) 38 AAR 270 at [8] - [11].

[2] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Legislation Act 2001 (ACT), s 43

[3] Adams and Tax Agents' Board (1976) 12 ALR 239

[4] Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 67 ALR 553 at 559

[5] (2003) 211 CLR 476

[6] Callaghan v DBA [1978] AATA 30; Re: Davnar [1987] AATA 122

[7] (2009) ACAT 38

[8] [2009] ACTCA 3; (2009) 165 ACTR 22 at [93] - [94]

[9] [2009] ACTSC 48

[10] R v Fearnside [2009] ACTCA 3; (2009) 165 ACTR 22 at [93]

[11] (2009) ACAT 38 at [39]

[12] Hakimi v Legal Aid Commission (ACT); Australian Capital Territory (Intervener) [2009] ACTSC 48 at [51] - [53]

[13] S Greer, The European Convention on Human Rights: Achievements, Problems and Prospects, 2004, Cambridge University Press, pp 144-146.

[14] 213 UNTS 221

[15] The relevant text states as follows:

'In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.'

[16] [2001] ECHR 761 at [47]- [49]

[17] E Bates, 'The Al-Adsani Case, State Immunity and the International Legal Prohibition on Torture (2003) 3 Human Rights Review 193 at 193

[18] Al-Adsani v United Kingdom [2001] ECHR 761 at [3].

[19] Al-Adsani v United Kingdom [2001] ECHR 761 at [67].

[20] Al-Adsani v United Kingdom [2001] ECHR 761 at [48].

[21] Benthem v Netherlands (1984) 6 EHRR 283

[22] Kracke v Mental Health Review Board & Ors [2009] VCAT 646 at [382], citing König v Federal Republic of Germany [1978] ECHR 6; (1979-80) 2 EHRR 170, [88]; Kaplan v United Kingdom (1982) 4 EHRR 64, [134].

[23] [1994] ECHR 42; (1994) 19 EHRR 524

[24] L Leigh 'The Right to Fair Trial and the European Convention on Human Rights' in D Weissbrodt and R Wolfrum (eds) The Right to a Fair Trial, Springer, 1997 at p 648.

[25] L Leigh 'The Right to Fair Trial and the European Convention on Human Rights' in D Weissbrodt and R Wolfrum (eds) The Right to a Fair Trial, Springer, 1997 at p 648.

[26] Kracke v Mental Health Review Board & Ors [2009] VCAT 646 at [381], citing Golder v United Kingdom [1975] ECHR 1; (1979-80) 1 EHRR 524, [34] and [35]

[27] (2009) ACAT 38 at [57]

[28] [2008] ACTCA 9

[29] [2007] ACTSC 43

[30] (2009) ACAT 38 at [57] - [75]

[31] (2009) ACAT 38 at [76] - [78]

[32] [2001] ECHR 333

[33] [2007] ACTSC 43 at [35]

[34] [2001] ECHR 333

[35] [2001] ECHR 333 at [87]

[36] [2001] ECHR 333 at [89]

[37] [2008] ACTCA 9

[38] (2009) ACAT 38 at [59] - [62]

[39] [2008] ACTCA 9

[40] See generally, S Kneebone, 'What is the Basis of Judicial Review?' (2001) Public Law Review 95.

[41] [2008] ACTCA 9

[42] (2009) ACAT 38 at [62]

[43] C Evans and S Evans, Australian Bills of Rights, 2008, LexisNexis, at 95.

[44] Michael Taggart 'Reinventing Administrative Law' in Nicholas Bamforth and Peter Leyland Public Law in a Multi-Layered Constitution, 2003 Hart Publishing at 325

[45] R v Fearnside [2009] ACTCA 3; (2009) 165 ACTR 22 at [99].

[46] R v Fearnside [2009] ACTCA 3; (2009) 165 ACTR 22 at [99].

[47] [2006] NZSC 67; [2007] NZLR 1

[48] R v Hansen [2006] NZSC 67; [2007] NZLR 1 at [92] quoted in R v Fearnside [2009] ACTCA 3; (2009) 165 ACTR 22 at [97].

[49] R v Fearnside [2009] ACTCA 3; (2009) 165 ACTR 22 at [98], citing H Wilberg, "The Bill of Rights and Other Enactments" [2007] NZLJ 112

[50] Thomson & ACT Planning and Land Authority (2009) ACAT 38 at [92]

[51] Thomson & ACT Planning and Land Authority (2009) ACAT 38 at [100]- [103]

[52] Thomson & ACT Planning and Land Authority (2009) ACAT 38 at [99]

[53] See generally G McLeod (ed) Planning Law in Australia and for examples, note the restrictions in New South Wales at [1.180], Queensland at [1.2059] and Victoria at [2.740].

[54] NCDC, Tomorrow's Canberra, 1970, at p 65