1. As stated above, the issue to be decided is whether the Third Parties should be 'joined' under section 29(5)(a) of the ACAT Act. Insofar as the applicant continued to rely upon the definition of "interested person" in section 13 of the Heritage Act, the Tribunal expressly rejects this approach, as discussed below.
2. The Tribunal agrees with the submission made by the respondent, without objection by the other participants, that the terms of 29(5)(a) of the ACAT Act are not materially different to section 28(2) of the ACT AAT Act. Section 28(2) of the ACT AAT Act applied the test of whether the interests of the person who is seeking to be added to be proceedings are affected by the decision.
3. Therefore the Tribunal considers that the proper interpretation of section 29(5)(a) of the ACAT Act is that the interests of third parties who are seeking to be added to the proceedings must be affected by the decision under review in order for them to be "joined as a new party" under 29(5) of the ACAT Act. This test is familiar and is used in several analogous Commonwealth statutory provisions such as section 30 of the Administrative Appeals Tribunal Act 1975 (Cth) and section 12 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
4. It is to be noted that the test of whether a person's interests are affected by the decision is also used in provisions such as section 27 of Administrative Appeals Tribunal Act 1975 (Cth) that determine whether the applicant has standing to bring an application for review. The present Tribunal would prefer to focus upon cases decided under provisions where third parties are seeking to be added to the proceedings such as US Tobacco and Control, rather than cases that discuss the applicant's standing because the criteria for the exercise of the power in relation to third parties in section 29(5) of the ACAT Act are less restrictive than the power that applies to applicants under section 29(6) of the ACAT Act. The situation involving the Third Parties here is analogous to the circumstances where a party is seeking to intervene in proceedings (other than by way of an intervention right in an authorising statute) or to be otherwise involved in proceedings as amicus curiae. This would probably involve an analysis of cases such as Levy v Victoria.[30]
5. However there is a confluence in the case law, particularly in administrative law, between analyses of the applicant's standing and a third party who alleges that his or her interests are affected by the decision. For example, the seminal High Court judgments on applicants' standing are frequently cited by courts when determining whether a third party's interests are affected, therefore it is artificial to attempt to demarcate between the interests of applicants and third parties. Accordingly, the participants in the present proceedings have relied upon case law where an applicant's standing is challenged.
6. The general approach that must be adopted by the Tribunal in resolving this question must be consistent with the obligation under section 7(a) of the ACAT Act to ensure that procedures are as simple, quick, inexpensive and informal as is consistent with achieving justice and should be in comity with the approach to standing that has been adopted by the Commonwealth Administrative Appeals Tribunal, which has been described as "liberal and flexible".[31]
7. Determining whether a person's interests are affected by a decision under review begins with the concept of a special interest discussed by Gibbs J (as he then was) in Australian Conservation Foundation v Commonwealth. In that case his Honour stated:

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 the public right or to enforce the performance of the public duty.[32]

1. Gibbs J considered that it was necessary for the would-be litigant to have a special interest in the subject matter of the action. However, an interest "does not mean a mere intellectual or emotional concern".[33]
2. The relevant principle was stated by the Full Court of the Federal Court of Australia in US Tobacco as follows:

The term 'interest' has long been an expression used within the law with respect to parties so as to require an involvement with the case greater than the concern of a person who was a mere intermeddler or busybody. Nevertheless, the criterion ... is not a restrictive one. ... The necessary interest need not be legal, proprietary, financial or other tangible interests. Neither need it be peculiar to the particular person. [34]

1. The Court in US Tobacco relied in part upon the decision of Davies J in Control where his Honour made the following additional points in relation to, inter alia, section 30 of the Administrative Appeals Tribunal Act 1975 (Cth):

... the words "interests are affected" denote interests which a person has other than as a member of the general public and other than as a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed. The interest affected need not be a legal interest nor need the person seeking joinder establish legal ownership of the interest.[35]

1. Both Davies J in Control and, interstitially, the Court in US Tobacco quoted Brennan J (as he then was) in Re McHattan and Collector of Customs (NSW) (McHattan):

The relevant 'interests' do not have to be pecuniary interests or even specific legal rights: cf Bilbao v Farquhar [1974] 1 NSWLR 377 at 380 per Hutley JA. Restrictions of that kind are incompatible with the variety of decisions which are subject to review - some decisions affecting legal rights, others being unlikely to do so.[36]

1. Davies J (both originally and as quoted in US Tobacco) continued:

However, a person seeking joinder must be able to identify a relevant interest which is his. In other contexts, dicta in cases have used the adjectives "real", "genuine" and "direct" to describe the relationship required between the decision and the interest. Section .... 30(1) do[es] not make use of adjectives but [does] require that the applicant demonstrates genuine affection of an interest which attaches to him. The nature of the interest required in a particular case will be influenced by the subject matter and context of the decision under review.

1. A concept of remoteness was developed by Brennan J (as he then was) in McHattan as follows_:_

However, a decision which affects interests of one person directly may affect the interests of others indirectly. Across the pool of sundry interest, the ripples of affection may widely extend. The problem which is inherent in the language of the statute is the determination of the point beyond which the affection of interests by a decision should be regarded as too remote ... . The character of the decision is relevant, for if the interests relied on are of such a kind that a decision of the given character could not affect them directly, there must be some evidence to show that the interests are in truth affected.[37]

1. Consequently, in order to succeed in their applications under section 29(5)(a) of the ACAT Act, the Third Parties must establish that their interests are affected in a way that is greater than a mere emotional or intellectual concern and greater than that held by a member of the public who holds the view that the law should be observed. Their interest must be genuine, real and direct but need not be legal or equitable or pecuniary. Finally, there must be evidence to show that their interests are affected by the decision in a way that is not too remote. On the last point, the Tribunal must determine whether the interests alleged by the Third Parties fall within the "ripples of affection" which are recognised by law, having regard to the subject and context of the decision under review.
2. As stated above, in the applicant's written submissions filed on 2 October 2012 it was argued that the content of the terms "affect" and "interest" are to be seen in the light of the scope and purpose of the particular statute in issue, citing Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (Alphapharm)[38]. It was contended that, applying Alphapharm, the terms "affect" and "interest" should be considered in the light of section 13(1) of the Heritage Act, which sets out who is an "interested person", but since none of the Third Parties fell within this definition, their applications to be added as parties should fail. During the hearing, the focus of the applicant's argument was upon the interpretation of section 10 of the Heritage Act, which is the basis upon which the reviewable decision was made. This accords with the approach adopted by the courts in US Tobacco, Control and McHattan.
3. The respondents and Mr Meani considered that the Heritage Act was silent on the issue of the criteria to be applied when third parties are seeking to be added to ACAT proceedings, therefore section 29(5) of the ACAT Act must be applied.
4. Insofar as the applicant continues to rely upon the argument that section 13 of the Heritage Act applies, alone or in combination with the High Court decision in Allan v Transurban City Link Ltd[39] (Allan), the Tribunal expressly rejects this approach and therefore distinguishes Allan because section 13 of the Heritage Act applies to applicants rather than third parties seeking to be added after an application for review has been filed. The Tribunal therefore agrees with respondent and Mr Meani that the Heritage Act is silent on the issue and the issue must be determined by reference to section 29(5)(a) of the ACAT Act.
5. Following on from a request by the Tribunal, the parties filed very helpful submissions on the operation of the Human Rights Act in this case, notably submissions about the right to freedom of religion in section 14 of that Act which includes the freedom to worship as part of a community and the right to fair hearing under section 21 of that Act.
6. The Tribunal has considered the operation of these provisions but it is not necessary to engage in a protracted analysis of the Human Rights Act because once the relevant statutory provisions (constituted by section 29(5) of the ACAT Act and section 10 of the Heritage Act) have been determined, it is only necessary to engage in a conventional application of those statutory provisions to the interests alleged by the Third Parties.[40] In particular, there are no competing available meanings that are in play in this case which require the application of section 30 of the Human Rights Act.[41]

1. There was some discussion in the hearing as to whether any of the Third Parties might be classified as occupiers of the land. The applicant argued that no interest in the land, such as a contractual licence, had been conferred upon them. The respondent rightly conceded that the Tribunal does not have sufficient evidence at this stage to make such a finding. Accordingly, the Tribunal declines to make any findings as to whether or not the Third Parties are occupiers.

1. In this part of the decision the Tribunal sets out its findings in relation to the application by the three men. The application by the Parish Pastoral Council is dealt with separately below.
2. The Tribunal finds that each of the three men, Mr Hosking, Mr Meani and Mr Kane, has a special interest in the subject matter of the action. Each of these men has an interest that is greater than a non-Catholic member of the public and greater than Catholic members of the public who are not members of the congregation at St Patrick's Church.[42] As worshippers at the church, their interest in the proceedings is spiritual and not merely an emotional or intellectual concern.
3. There is some doubt as to whether a spiritual concern by itself is sufficient to confer a special interest in this case. The Tribunal notes the argument made by Mr Hijazi on behalf of Mr Meani that the special interest was, in part, spiritual, relying on Onus v Alcoa. In that case, Alcoa was proposing to build a smelter on land that it occupied in Portland, Victoria. The applicants, members of the Gournditch-jmara Aboriginal community, alleged that the land contained relics of the former Aboriginal occupation of the area and the development threatened the relics in breach of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) (the Relics Act). The applicants were descendants of the Gournditch-jmara people who had occupied the land and were therefore custodians of the relics under customary law. The High Court found that the applicants had standing to enforce the Relics Act to protect the relics said to exist on the land occupied by the respondent.[43] As noted above, Mr Hijazi argued that the church building at St Patrick's is analogous to the relics in Onus v Alcoa.
4. The applicant argued that Onus v Alcoa should be distinguished because members of the aboriginal community who claimed to have standing in that case were custodians of the relics under customary law.
5. There is no doubt that the applicants' custodianship was an important element of the facts in Onus v Alcoa. However, it is not necessary for the Tribunal to decide whether a spiritual concern is a sufficient interest in the present case because there are elements of each application which cumulatively give rise to a special interest which is not too remote. It is to be noted however, that the reasoning of the High Court in Onus v Alcoa recognises that the proximity of a would-be litigant to the subject matter is a critical consideration. For example, Stephen J stated:

As the law now stands it seems rather to involve in each case a curial assessment of the importance of the concern which a plaintiff has with particular subject matter and of the closeness of that plaintiff's relationship to that subject matter. The present appellants are members of a small community of aboriginal people very long associated with the Portland area; the endangered relics are relics of their ancestors' occupation of that area and possess for their community great cultural and spiritual significance. ... The importance of the relics to the appellants and their intimate relationship to the relics readily finds curial acceptance. It is to be distinguished, I think, and will be perceived by courts as different in degree, both in terms of weight and, in particular, in terms of proximity, from that concern which a body of conservationists, however sincere, feels for the environment and its protection.

1. Similarly, Gibbs CJ made the following comparison, focusing upon the particular characteristics of the members who were seeking standing and the close nature of their interest:

The position of a small community of aboriginal people of a particular group living in a particular area which that group has traditionally occupied, and which claims an interest in relics of their ancestors found in that area, is very different indeed from that of a diverse group of white Australians associated by some common opinion on a matter of social policy which might equally concern any other Australian.[44]

1. This is similar to the "ripples of affection" test that was discussed in McHattan, Control and US Tobacco.
2. The elements of the applications by the three men which cumulatively give rise to the special interest are as follows. In Mr Hosking's case there is a long involvement with a significant community and religious group that uses the church - the Deutsche Bonifactius Gemeinde - and a five-year association with St Patrick's Church itself. Mr Kane has worshipped at the church for 52 years and performs a variety of functions that assist the maintenance and administration of the church. Mr Meani has also had a long involvement with the church as a worshipper and performs many administrative duties to assist the church and the parish priest. However, overall, it is the role of the three men as lay office-bearers in organisations that make use of the physical premises of the church in combination with the assistance they provide in the operation of parish activities that conclusively leads to the decision that their interests are affected. Although their applications to be added as parties are in a personal rather than representative capacity (with the exception of Mr Meani's representative application which will be discussed below), nevertheless their interests are affected by the subject matter of the decision.
3. The decision in this case is a registration of St Patrick's Church under section 40 of the Heritage Act due to its heritage significance. The Tribunal adopts the reasoning of the respondent that the heritage listing provides protection against redevelopment and the interest of the Third Parties is to seek to uphold the decision under review so as to conserve the church buildings and surrounds. The respondent registered the building under subsections 10(c) and (h) and it may be that these provisions are relevant to the Third Parties as contemporary practitioners of religion or tradition or related customs that have been practised on the site. However, counsel for the applicant conceded during the hearing that because the Tribunal stands in the shoes the decision maker[45] when engaging in merits review, then a finding by the Tribunal of heritage significance (or lack thereof) under section 10 of the Heritage Act is potentially available under any of its subsections. Therefore other heritage significance criteria may be considered, for example subsection 10(d) which states that the place may have heritage significance if:

(d) it is highly valued by the community or a cultural group for reasons of strong or special religious, spiritual, cultural, educational or social associations; ....

1. Having found that the interests of the three men are sufficient to allow them to be added as parties under section 29(5)(a) of the ACAT Act, the Tribunal declines to exercise its discretion to refuse the applications due to the potential cost and delay that might arise by the addition. No evidence was put forward by the applicant to support this argument and the Tribunal has extensive powers to control its proceedings in any case. Similarly the Tribunal is not persuaded by the applicant's argument that the interests of the Third Parties and the respondent are so aligned that the addition of the Third Parties will add nothing to the proceedings. This argument is speculative at this stage and should not act as an obstacle to the joinder.
2. Therefore, based on the foregoing, each of the men who has applied to be joined as parties under section 29(5) of the ACAT Act has an interest that is affected by the subject matter of the proceedings. Applying McHattan, Control, US Tobacco and Onus v Alcoa their interest is not too remote from the subject matter of the reviewable decision. Accordingly they will be added as parties.

1. In relation to the application by the Parish Pastoral Council, the Tribunal refuses the application for that group to be added as a party. Mr Meani, on behalf of the group, did not satisfy the Tribunal that the Parish Pastoral Council had sufficient independence to constitute a "person" for the purpose of section 29(5) of the ACAT Act and the definition of that word in the Legislation Act.
2. As stated above, "person" is defined in section 160 of the Legislation Act to include a reference to a corporation as well as an individual. Further, the Dictionary of the Legislation Act states that "body" includes any group of people joined together for a common purpose, whether or not incorporated. This joining of people "together for a common purpose" was not established by Mr Meani. As argued by the applicant, the Parish Pastoral Council has not been established in any way that is sui juris capable of asserting rights against the applicant. Rather it has been established by the diocesan Bishop to be part of the applicant. The Parish Pastoral Council is a consultative body only, with functions that include advising the parish priest. It is not a governing or independent body and cannot enter into arrangements in its own right.[46]
3. Even if the Parish Pastoral Council did have sufficient independence to constitute some type of unincorporated association of the purposes of section 22Q of the ACAT Act, it was unclear whether the objects and purposes of the Council, (argued by Mr Meani to include elements of Canon Law) include a proceeding such as this.
4. Further, it was not established that Mr Meani as chairperson of the Parish Pastoral Council had the authority to represent that Council, as opposed to the group of nine parishioners who had signed the petition authorising him to act on their behalf.
5. Accordingly the application by the Parish Pastoral Council to be added as a party is dismissed.

1. The Tribunal notes that Mr Hosking challenged the applicant trustees' authority to lodge the application for review. However, as discussed in the interlocutory hearing, the Tribunal finds that any irregularity in the commencement of proceedings has been cured by the resolution of the trustees on 7 September 2012. This had the effect of ratifying the earlier commencement.
2. Because the applicant's powers to commence the proceedings are derived from the Roman Catholic Church Property Trust Act 1937 (ACT), the Tribunal does not consider that the issue raised by Mr Hosking regarding the juridic person is relevant to the present application for interim orders.

TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF CANBERRA AND GOULBURN

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

[1] Tribunal documents pages 351 and 360

[6] Warren Gardner & Julie Beaver v ACT Planning and Land Authority [2010] ACAT 64; Allatt v ACT Government Health Directorate [2012] ACAT 67

[7] [1988] FCA 213; (1988) 20 FCR 520 at 527-528

[8] [1981] HCA 50; (1981) 36 ALR 425 at 431

[9] Meani Submissions 26 September 2012 at [12]

[11] Hosking Submissions 14 September 2012

[15] Meani Submissions 26 September 2012 at [11]

[16] Meani Submissions 26 September 2012 at [12]

[17] 'Parish Pastoral Councils in Australia' at PPC.catholic.org.au, quoted in Meani Submissions 22 October 2012 at [15]

[18] [1980] AATA 78; (1980) 3 ALD 74

[19] [1980] AATA 78; (1980) 3 ALD 74 at 79-80

[20] Respondent's Submissions 19 October 2012 at [18]

[21] Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27 at 36; [1981] HCA 50; 36 ALR 425 at 431

[22] (1980) 146 CLR 493 at 530; 28 ALR 257 at 270

[23] [2003] AATA 899 at [14] - [15]

[24] [1980] AATA 78; (1980) 3 ALD 74 at [81]

[25] [2006] AATA 329 at [18]

[26] [1986] AATA 203; (1986) 10 ALD 262 at 272

[27] [1986] AATA 203; (1986) 10 ALD 262 at 271-272

[28] (1991) 23 ALD 392

[29] [2003] AATA 899

[30] [1997] HCA 31; (1997) 189 CLR 579

[31] R Creyke and J McMillan_, Control of Government Action: Text, Cases & Commentary_ 3rd edn (2012), page 990

[34] [1988] FCA 213; (1988) 20 FCR 520 at 527

[35] [1980] AATA 78; (1980) 3 ALD 74 at 79

[36] (1977) 1 ALD 67, at 69-70

[37] (1977) 1 ALD 67 at 70

[38] [1994] FCA 996; (1994) 121 ALR 373 at 395 (per Gummow)

[39] (2001) 208 CLR 167

[40] Momcilovic v The Queen (2011) 245 CLR 1

[41] Re Islam [2010] ACTSC 147; [2010] 244 FLR 158 at [236]; compare Allatt v ACT Government Health Directorate [2012] ACAT 67

[42] Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27 at 36

[43] Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27 at 36

[44] Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27 at 37

[45] Drake v Minister of Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589

[46] Applicant Submissions 7 November 2012 at [47]