Minister for Transport & Regional Services v Rudd [2000] FCA 1884

FEDERAL COURT OF AUSTRALIA

Minister for Transport & Regional Services v Rudd [2000] FCA 1884 Airports Act 1996 (Cth) ss 81, 77, 72, 242 Administrative Appeals Tribunal Act 1975 (Cth) s 29 MINISTER FOR TRANSPORT AND REGIONAL SERVICES v KEVIN RUDD NO Q 91 of 2000 KIEFEL J BRISBANE 1 DECEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 91 OF 2000

ON REVIEW FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: MINISTER FOR TRANSPORT AND REGIONAL SERVICES

APPLICANT

AND: KEVIN RUDD

RESPONDENT

JUDGE: KIEFEL J

DATE OF ORDER: 1 DECEMBER 2000

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The application for an order for review is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 91 OF 2000

ON REVIEW FROM A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: MINISTER FOR TRANSPORT AND REGIONAL SERVICES

APPLICANT

AND: KEVIN RUDD

RESPONDENT

JUDGE: KIEFEL J

DATE: 1 DECEMBER 2000

PLACE: BRISBANE

REASONS FOR JUDGMENT EX TEMPORE 1 On 10 August 2000 the Administrative Appeals Tribunal granted Mr Rudd an extension of time within which to bring an application to the Tribunal to review a decision of the Minister for Transport and Regional Services, made on 11 February 1999, approving a draft Master Plan for the Brisbane Airport. The draft plan had been submitted by the Brisbane Airport Corporation, the lessee of the airport. A Master Plan remains in force for five years, or until replaced, and a draft or a final Master Plan relates to a planning period of twenty years duration (ss 81, 77, 72 Airports Act 1996 (Cth)). The Minister seeks judicial review of the Tribunal's decision. 2 Mr Rudd is the member for the federal seat of Griffith. A parallel runway proposed in the draft plan would affect residents in that electorate. Mr Rudd's standing to bring an application to review the Minister's decision was not disputed. 3 Mr Rudd was aware of the Minister's decision almost immediately it was made. Section 242 of the Airports Act permits an application to be brought to the Administrative Appeals Tribunal for a review of the Minister's decision. Mr Rudd's application was not filed until 3 July 2000. The Tribunal's decision proceeds upon the basis that the time prescribed by s 29(2) Administrative Appeals Tribunal Act 1975 (Cth) applied and an extension of time was required. It may be, as senior counsel for the Minister points out, that that sub-section does not apply in this case because the decision was not recorded in the way prescribed by subs (1)(d), in which case s 29(4) would apply. That would require the Tribunal to form an opinion about whether the application was lodged within a reasonable time after the decision was made, and if not, to refuse to entertain it. That would require considerations of the circumstances surrounding the bringing of the application and any explanation of delay and that is what the Tribunal has done here. The Minister did not suggest that there was any relevant point of distinction. 4 The Deputy President was clearly satisfied that the application for review should be entertained despite the not inconsiderable delay. The reason for the delay was the pursuit by Mr Rudd of a political outcome, namely a Senate Inquiry into the subject of the Master Plan. One was finally established but its report was not favourable to the interests Mr Rudd represented. Mr Rudd brought his application to the Tribunal three days after the report of the Inquiry was tabled. In the opinion of the Deputy President if an application had been filed shortly after the making of the Minister's decision it would have been stood over in any event whilst this other process was pursued. As a result the matter would not have been substantially further advanced in the Tribunal. It would seem to follow that the Minister, or Brisbane Airport Corporation, could not complain of prejudice by reason of delay in the proceedings. In any event no argument of hardship of any kind was advanced by either the Minister or the Corporation. The matter was in the Deputy President's opinion one of public interest and concern which should be dealt with before large quantities of time and money were spent on a Master Plan which may or may not have been legitimately approved. The Deputy President added that there was a need for transparency in government decision-making where a decision has wide reaching ramifications and he considered the Tribunal as part of that process. 5 I do not consider that the Deputy President's exercise of discretion has miscarried or that it was in error in any significant respect, and certainly not such as to remove a proper basis for the decision. Mr Rudd was pursuing another course in the period that elapsed from the time of the making of the Minister's decision, and it was obviously a matter of concern to the Tribunal to assess whether or not he had allowed time to go by without pursuing some course. 6 The Deputy President's point about that was not that Mr Rudd could have achieved the same outcome as he may have achieved by reference to the Tribunal or the Courts but that it would not have made much practical difference in relation to how far the matter was advanced in the Tribunal, nor, in my view, in relation to the Minister's submissions is it necessary that an outcome pursued by a party be the same as a legal right that might be obtained from the Courts. The matter is, as the Deputy President found, one of public interest and, whilst this factor is not itself conclusive of the question whether an extension should be granted or even a particularly weighty matter on its own, it is a relevant consideration. No hardship is pointed to, and so much is conceded in the Minister's submissions. This is also something which may be taken into account by the Tribunal. 7 It was not necessary for the Deputy President to add the reference to the need for transparency in government decision-making and the Tribunal's part in that process. It does not amount to an error of law which vitiates the decision. The Tribunal was not obliged to take into account other factors pointed to by the counsel for the Minister, for example, the fact that twenty-five per cent of the five year period for the airport plan had already passed but, in my view, even if the Tribunal had done so, it could not be said that a different result would have been reached. The application for an order for review will be dismissed. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel .