~ ~ IN THE SUPREME COURT
OF QUEENSLAND No. 7788 of 1998 Brisbane
Before Williams J
[Sita Queensland Pty Ltd v Beattie & Anor]
BETWEEN: SITA QUEENSLAND PTY LTD ACN 070097219 Applicant AND: PETER DOUGLAS BEATTIE First Respondent
DAVID JOHN HAMILL Second Respondent
REASONS FOR JUDGMENT - WILLIAMS J
Judgment delivered 10th day of September 1999
( , CATCHWORDS: ADMINISTRATIVE LAW - Judicial Review on Grounds of Ultra Vires or Defective Exercise of Power - Failure to Exercise Discretionary Power - delegation of power - whether both Ministers made own decision.
Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24, applied.
STATUTES - Acts of Parliament -Interpretation - Queensland Competition Authority Act - definition of "Ministers must act jointly" - sufficient if act in 'concurrence of the other'.
Kendle v Melson (1998) 193 CLR 46, considered. Queensland Competition Authority Act, s 6 considered.
ADMINISTRATIVE LAW - Judicial Review on Grounds of Ultra Vires or Defective Exercise of Power - Abuse of Discretionary power - Consideration oflrrelevant Matter or Refusal to Consider Relevant Matter - whether the matters alleged were irrelevant considerations - whether these considerations were decisive. ADMINISTRATIVE LAW - Judicial Review on Grounds of Ultra Vires or Defective Exercise of Power - error of law - whether Ministers simply adopted the approach of the Minister of Transport & applied the wrong test - distinction between political administrative decision-making and test to be applied in civil litigation.
Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259, approved Briginshaw v Briginshaw (1938) 60 CLR 336, distinguished. Queensland Competition Authority Act, s 57 referred to.
ADMINISTRATIVE LAW - Rules of Natural Justice and Breach Thereof - right of party affected to be heard -whether applicant should have been given the opportunity to comment on Minister of Transport's material- whether consideration of procedural fairness of the type discussed in Kioa v West applied - ground should be considered in light of statutory provisions.
Bread Manufacturers ofNew South Wales v Evans (1981) 56 ALJR 89, referred to. Queensland Competition Authority Act, s 57, referred to.
ADMINISTRATIVE LAW - Judicial Review on Grounds of Ultra Vires or Defective Exercise of Power - Abuse of Discretionary power - Consideration oflrrelevant Matter or Refusal to Consider Relevant Matter - no cluty to consider advice of the Solicitor-General.
ADMINISTRATIVE LAW - Judicial Review on Grounds of Ultra Vires or Defective Exercise of Power - Failure to observe procedures required by statute - whether respondents failed to consult with responsible Minister - no procedures laid down by statute.
ADMINISTRATIVE LAW - Judicial Review on Grounds of Ultra Vires or Defective Exercise of Power - decision not authorised by statute - whether decision incomplete as it did not expressly reject QCA's recommendations.
Queensland Competition Authority Act, s 57, referred to.
Counsel: Mr F Harrison QC & Mr B Porter for the Applicant Mr R Hanson QC & Mr P Flanagan for the Respondents
Solicitors: MacGillvrays for the Applicant Crown Solicitor for the Respondents
Hearing Date: 2nd August 1999. IN THE SUPREME COURT
OF QUEENSLAND
No. 7788 of 1998 Brisbane
Before Williams J
[Sita Queensland Pty Ltd v Beattie & Anor]
BETWEEN:
SITA QUEENSLAND PTY LTD ACN 070 097 219
Applicant AND:
( \ PETER DOUGLAS BEATTIE
First Respondent .
DAVID JOHN HAMILL Second Respondent
REASONS FOR JUDGMENT - WILLIAMS J
Judgment delivered 10th day of September 1999
1. The applicant seeks review pursuant to the Judicial Review Act 1991 (JR Act) of the
decision of the respondents, being the Premier and Treasurer of Queensland, recorded in a
document dated 6 August 1998 and headed Ministers' Decision Noticepursuant to s.57(3) of the
Queensland Competition Authority Act 1997 (QCA Act).
2. To facilitate the hearing ofthe application the applicant delivered a statement of claim.
The allegations of fact contained in paragraphs 1-40 inclusive thereof, while not admitted by the
respondents, are not disputed for purposes of the hearing. 2
3. At least since October 1995 part of the applicant's business has involved the transporting
of passengers by bus between Brisbane and the Gold Coast along what is called the Brisbane-
Gold Coast public transport corridor. There is what is described as a "market" for the provision
of public passenger transport services along that corridor. The applicant has clearly been a
competitor in that market at least since 2 October 1995, and continues to be so.
4. On or about 26 February 1996, Queensland Rail (QR) started providing rail services along
that public transport corridor; initially the service was from Brisbane to Helensvale but it has
been extended to Robina. Because of that QR can be described as a competitor in the public
passenger transport market between Brisbane and the Gold Coast. In about January 1995 the
I\. then Minister for Transport and Main Roads set the initial fares to be charged for the rail service;
there was an increase after 23 January 1997.
5. QR is a body corporate which is a statutory GOC as defined in the Government Owned
Corporations Act 1993. It was then established as a body corporate on 1 July 1995 by s.8 of the
Government Owned Corporations (Queensland Rail) Regulation 1995. The 10 million ordinary
shares of $1 each are held equally by the Minister administering the GOC Act and the Minister
for Transport and Main Roads. Thus QR is a government agency as defined in the Schedule to
the QCA Act. By Gazette notice dated 30 June 1997 the then Premier and Treasurer of
Queensland declared all the business activities of QR to be "significant business activities" for
the purposes of s.39 of the QCA Act.
6. The statement of claim alleges that the fares set for rail passengers using the public
transport corridor in question were not set in accordance with ordinary commercial principles;
they were not set so as to recover costs or to make a profit; they do not include any profit margin,
debt guarantee fees, sales tax, or share of corporate overhead; nor do they cover the operating
costs of the service. It is alleged that the fares were set on the basis that Queensland would fund 3
and continue to fund the provision of the Gold Coast rail service by providing both direct
payments and internal cross subsidies to QR to enable it to provide the services.
7. The applicant then alleges that because the rail fare is lower than it's bus fare its share of
the subject market has fallen substantially and it will not be able to continue to carry on business
in that market without significant levels of external funding or cross subsidisation. It asserts that
unless the present situation is remedied it will have to cease providing its services in question.
8. Against that background the applicant made a complaint to the Queensland Competition
Authority (QCA), a body corporate established by s.7 of the QCA Act. Section 38 of that Act
provides:
( " " \ "The principle of competitive neutrality is that a government agency carrying on a significant business activity should not enjoy a competitive advantage, solely because of the government ownership or control ofthe agency, over competitors or potential competitors in a particular market."
9. Section 43 of the QCA Actprovides that a person adversely affected by the competitive
advantage alleged to be enjoyed by the government agency may lodge a complaint. On 2 July
1997 the applicant formally lodged a written complaint alleging against QR a breach of the
principle of competitive neutrality by the prices it was charging for the Brisbane to Gold Coast
passenger rail service.
10. Thereafter the QCA conducted an investigation into the complaint. There is no doubt that
the applicant had ample opportunity to put its case fully to the QCA. Indeed, as is established
by exhibit 6, the applicant was given an opportunity of commenting upon a draft report before
that report was finalised and forwarded to "the Ministers" pursuant to s.52 of the QCA Act.
11. The expression "the Ministers" is used throughout the Act, and in the Dictionary (the
Schedule to the Act) it is defined as meaning "the Premier and the Treasurer". That brings into
play s.6(1) which provides: 4
"F or this Act -
(a) if a thing is required to be, or may be, done by the Ministers, the thing is to be done by the Ministers jointly; and (b) if a thing is required to be, or may be, given to the Ministers, the thing is to be given to each of the Ministers."
Subsection (2) provides that where those two offices are held by the one person (as is not
. infrequently the case) "the thing may be done by, or given to, that person alone".
12. Section 54 provides that the QCA must state in a report whether the complaint has been
substantiated, its reasons for the decision, and (where it decides a complaint has been
substantiated) include recommendations on how the government agency's failure to comply with
the principle of competitive neutrality could be overcome.
13. The report was finalised in June 1998 and delivered under cover of a letter dated 7 July
1998 to the respondents. It is of some relevance to note that the Beattie Government was sworn
in on 29 June 1998 having defeated the previous Government at an election held shortly before
that date.
(\ :1. 4 The report from the QCA is reasonably lengthy but it is not necessary to quote extensively
from it for present purposes. All that need be noted are paragraph 11 reciting the decision, and
paragraphs 36 and 37 containing the recommendations:
"11. The Authority has concluded that:
• the fares charged by QR for its Brisbane to Gold Coast services breach the principle of competitive neutrality; BUT • QR does not enjoy any procedural or regulatory advantage in respect of Brisbane to Gold Coast services which breach the principle of competitive neutrality.
36. The Authority recommends that:
1. A CSO framework be developed for the Brisbane to Gold Coast public transport service which: 5
(i) complies with the principle of competitive neutrality; (ii) achieves an efficient resource allocation within the public transport market in South East Queensland; (iii) promotes competition in the public transport passenger market;
2. Until such time as the appropriate framework is established and implemented, the Queensland Government should, within 6 months of the release of this Report, ensure that passengers currently travelling by bus retain access to those or equivalent public transport services; and
3. Queensland Transport and QR establish a framework to facilitate adherence to the protocols required under the Government Owned Corporations Act 1993 in respect of the establishment of prices for QR services and the payment ofCSOs."
37. In the interests of overall efficient allocation of resources, the Authority suggests that the framework adopted in due course to remedy the breach of competitive neutrality should also reflect the contribution of public transport relative to ( '\ private transport to the transport needs of the region."
15. No one suggested that that report did not meet the requirements of s.54 ofthe QCA Act.
In accordance with s.55 within 2 days after the respondents received the report they had to ensure
that a copy of it was available for public inspection. It was not suggested that there was a failure
to comply with that statutory requirement.
Section 57 is of critical importance for present purposes and it is in these terms:
"57(1) Within 1 month after the Ministers receive a report, the Ministers must-
(a) accept or reject the authority's decision on whether the complaint the subject of the investigation has been substantiated; and
(b) if the authority decides a complaint has been substantiated - accept (with or without qualification), or reject, any recommendation of the authority contained in the report on how the government agency's failure to comply with the principle of competitive neutrality could be overcome.
(2) However, the Ministers may act under subsection (1) only in consultation with the responsible Minister.
(3) The Ministers must give a written notice (a "Ministers' Decision Notice") to the authority setting out their decision under sub section (1) and the reasons for the decision. " 6
17. The responsible Minister for purposes of subsection (2) thereof was the Minister for
Transport and Minister for Main Roads (hereinafter simply referred to as the Minister for
Transport). By letter dated 14 July 1998, signed by the Treasurer on behalf of himself and the
Premier, a copy of the QCA's report was forwarded to the Minister for Transport initiating
consultation pursuant to s.57(2). That letter contained the observation that "At first glance, the
QCA's finding that a breach of competitive neutrality by QR has occurred and QCA's attendant
recommendations in order to overcome the breach, would appear to be appropriate in the
circumstances." The reply from the Minister for Transport was received in the Treasurer's office
on 3 August 1998. It consisted ofa letter and accompanying comment on the QCA Report. In
broad terms the submission from the Minister for Transport was that the finding that there was
a "breach of the principle of competitive neutrality is both incorrect and fundamentally flawed
and therefore should be rejected." He also submitted that the three recommendations contained
in that Report "should be rejected as they stand".
18. The applicant primarily attacks the process by which the respondents arrived at their
decision contained in the Ministers' Decision Notice bearing date 6 August 1998. The relevant
part of that document is as follows:
"The decision
As the Ministers responsible under the Act, pursuant to s.57:
a. we reject the QCA's decision that there has been a breach ofthe principle of competitive neutrality in relation to the fares charged by QR for its Brisbane to Gold Coast services; and
b. we accept the QCA's decision that QR does not enjoy any procedural or regulatory advantages in respect of the Brisbane to Gold Coast services which breach the principle of competitive neutrality. 7
Reasons for the decision
a. Rejection ofQCA's decision that there has been a breach ofthe principle of competitive neutrality in relation to the fares charged by QR for its Brisbane to Gold Coast services.
We reject the QCA's decision that there has been a breach ofthe principle of competitive neutrality in relation to the fares charged by QR for its Brisbane to Gold Coast services because we consider that the information available to us is not sufficiently conclusive to support the QCA's decision.
b. Acceptance of the QCA's decision that QR does not enjoy any procedural or regulatory advantages in respect ofthe Brisbane to Gold Coast services which breach the principle of competitive neutrality.
The complainant alleged that it was disadvantaged by a number of procedural and regulatory mechanisms.
We accept the QCA's decision that QR does not enjoy any procedural or regulatory advantages in respect of the Brisbane to Gold Coast services which breach the principle of competitive neutrality for the reasons set out in the attachment to this decision notice."
It is not necessary to set out the reasons contained in the attachment.
19. The bases on which the decision of the respondents is attacked are somewhat differently
stated in the Statement of Claim and the Outline of Submissions of the Applicant delivered 19
July 1999. The argument in court followed the Outline of Submissions, and that should be taken
as the operative statement of the bases on which the decision is challenged. The grounds of
attack can be summarised as follows:
1. Failure to exercise discretion
(a) decision non-delegable; (b) Ministers did not decide personally; (c) both Ministers must actively consider.
2. The Ministers took irrelevant considerations into account.
3. The Ministers' decision was tainted by error oflaw.
4. The Ministers failed to accord the applicant procedural fairness. 8
5. The Ministers failed to take into account relevant circumstances.
6. The Ministers failed to observe procedures required by the statute.
7. The Ministers' decision is not authoried by the statute.
It is necessary to deal with each of those contentions in turn.
Failure to Exercise Discretion
20. The principal issues raised by the applicant under this heading were that the respondents
merely rubber-stamped advice given by Departmental officers and did not exercise their own
discretion, and the decision was not truly a joint one as required by the Act.
21. It is true that the respondents were given briefing notes by Departmental officers,
particularly Treasury officials. In the circumstances that is not surprising. As already noted the
Beattie Government had been in office for only a few weeks when the decision had to be made,
and much of the background related to matters and decisions for which the former government
was responsible. In those circumstances, particularly given that the decision had to be made
within one month, advice from Departmental officers was critical. In Minister for Aboriginal
Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Gibbs CJ observed at 30-31:
"Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary ofthe relevant facts furnished by the officers of his Department. No complaint could be made if the Departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a Departmental summary which fails to bring his attention to a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law."
Mason J in the same case at 38 recognised that the business of government could not be carried
on if Ministers were required to exercise all powers personally. That was subject to those cases
where the statute made it clear that the Minister had to exercise the power personally. Further 9
reference should be made to the remarks in that case of Brennan J at 65-6:
"The Department does not have to draw the Minister's attention to every communication it receives and to every fact its officers know. Part of a Department's function is to undertake an analysis, evaluation and precis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions. The press of ministerial business necessitates efficient performance of that departmental function. The consequence of supplying a departmental analysis, evaluation and precis is, of course, that the Minister's appreciation of a case depends to a great extent upon the appreciation made by his Department. Reliance on the departmental appreciation is not tantamount to an impermissible delegation of ministerial function. A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts. But if his Department fails to do so, and the validity of the Minister's decision depends on his having had regard to the salient facts, his ignorance of the facts does not protect the decision."
In this particular case the Treasurer, the respondent Hamill, swore in his affidavit that he
read the report ofthe QCA on a number of occasions; under cross-examination he did not resile
from that proposition. The material satisfies me that the respondent Hamill read the report and
considered it in the light of advice from his Department and the material which resulted fron
consultation with advice from the Minister for Transport. On the evidence I am satisfied that the . respondent Hamill did not merely adopt Departmental advice so that it could be said that he did
not exercise a personal discretion.
~23. However, I am satisfied that the Premier, the first respondent Beattie, did not read in full
the report of the QCA. He may have skimmed some parts of it, particularly the
recommendations, but I am satisfied that in the main he relied on Departmental briefing notes
as to its contents. I am also satisfied that he directed his mind to issues raised in the briefing
notes and in particular to the observations and recommendations which emanated from the
Minister for Transport. There is also no doubt, as he frankly acknowledged, that he was
influenced in reaching the conclusion that he should concur in the decision because the
Treasurer's signature was already on the document. 10
24. The main concern ofthe first respondent was whether or not the decision to reject the first
finding in the QCA report conflicted in any way with government policy on competition. It was
understandable in the circumstances that the Premier should be more concerned with such
broader policy considerations.
25. In my view the process of reasoning of the first respondent could best be expressed by
saying that, having directed his attention to issues raised in the briefing notes and the material
from the Minister for Transport, and taking into account the broad policy implications of the
decision, he concurred in the decision reached by the Treasurer. To that extent he made his own
decision. ( \ -26. That leads to the applicant's second argument under this head; the contention that the
"Ministers must act jointly". It was submitted that each of the respondents was required to join
in the exercise of the power and that the statute required "both the Premier and the Treasurer to
tum their minds together to the substantive issues". In a word, the decision had to be made in
"concert" . / \. 27. In essence the applicant was contending for a Gilbertian solution: "replying we sing as
one individual". That, to my mind, is taking the requirement of the statute too far.
28. There is little authority on what is required wh~re a power must be exercised by two or
more persons jointly. The question was touched upon in Kendle v Melsom (1998) 193 CLR 46
where the court was concerned with the appointment of two men to be "joint and several"
receivers and managers of an undertaking pursuant to the terms of a mortgage. Brennan CJ and
McHugh J at 51 said:
"The question is whether, if a plurality be appointed, the powers which the Bank is authorised to confer on them are powers that must be exercised by them jointly - that is to say, powers in which each must join in the exercise - or powers that can be exercised by them severally - that is to say, powers which each may exercise independently of the other." 11
On the following page they spoke in terms of the receivers necessarily "agreeing on the course
to be pursued"; the powers "could not be exercised by two or more persons acting independently
one of the other." Then on 54 those learned judges used the expression: "they must together
resolve on the general course of the receivership". And again on 55 they spoke of "a concurrence
... that might be express or implied" before it could be said the power had been exercised jointly.
Hayne J at 67 used similar language; he spoke in terms of the receivers acting with the
"concurrence of the other". He seems to have regarded that as sufficient for it to be said that the
receivers were acting together, that is jointly.
29. To my mind that is the only way of sensibly construing a requirement, such as that here, c whereby two persons are to join in making a decision. Particularly in the context of a government decision made at ministerial level it is not necessary, in my view, that the two
ministers should meet face to face and verbally discuss options and reasons for a particular
decision before it can be said that the decision is that of each of them. That is essentially what
the applicant here pontends for. In this particular case the Premier was significantly influenced ( by the con~ideration that the Treasurer had applied his mind to the detail of the matter for
determination and had arrived at a particular decision. Having regard to the Treasurer's decision,
and the contents of the briefing notes, the Premier was satisfied that he should concur in the
Treasurer's decision. That in my view is sufficient to make the decision that of both ministers
arrived at jointly. It meets the test as formulated in Kendle.
30. In those circumstances it is not necessary to make a final determination as to whether or
not the decision was non-delegable; each of the respondents directed his mind sufficiently to the
facts and the question in issue in order to exercise his own discretion, albeit they were acting
together. \
12
Irrelevant Considerations
31. In the Statement of Claim, as later particularised, seven matters were designated as being
irrelevant considerations which the respondents took into account in arriving at their decision;
those considerations allegedly were:
(i) the cost to the State of Queensland of accepting the QCA decision;
(ii) the possible electoral consequences of raising rail fares so as to comply
with the principle of competitive neutrality;
(iii) similar complaints might be lodged by other unsubsidised private
transport operators in competition with QR; ( (iv) the Government's prerogative to purchase public transport services and
provide subsidies for whatever reason it chooses might be constrained by
an unfavourable precedent;
(v) the Government's legal position in a dispute with the applicant then the
subject of litigation might be damaged or compromised;
(vi) the findings might allow the applicant to recommence negotiations on the
matters of complaint raised by applicant generally;
(vii) the findings might result in the Government having to pay compensation.
32. In evidence each respondent expressly denied taking particulars (i) and (ii) into
consideration. It is in practical terms unthinkable that any government, particularly a government
with a small majority, would not have regard to the cost to the State of making a decision or the
possible electoral consequences of the decision. As I said in the course of argument, as a
Queensland taxpayer I would certainly hope that the cost to the State was always considered
when a government (of whatever political persuasion) was making a decision with economic
implications. For these reasons I would need further persuasion before concluding that either 13
item (i) or item (ii) was an irrelevant consideration such as would vitiate the decision. But
ultimately I have come to the view that what each respondent was saying in evidence was that
neither item (i) nor (ii) was a decisive consideration when it came to reaching the ultimate
decision. Particularly bearing in mind that this was a decision which involved government
policy for the future I am not persuaded that there is any substance in the contention of the
applicant that the decision was vitiated because items (i) and (ii) caused the Ministers to reach
the conclusion which they did.
33. It will be recalled that the statute requires the respondents to act "only in consultation
with the responsible Minister", here the Minister for Transport. The respondents had no control
over what material that other Minister might place before them in the course ofthe consultation.
Here, as already noted, the Minister for Transport submitted a letter and accompanying comment
on the QCA report. That material spoke of "grave consequences" flowing from the repondents
not rejecting the conclusion that there had been a breach of competitive neutrality. Those grave
consequences were particularised in terms of items (iii) to (vii) inclusive above. It was
incumbent upon the respondents to consult with the Minister for Transport and in consequence
they were statutorily bound to give some consideration and weight to whatever arguments he
! i - .... placed before them, though they had no control over what submissions might be made .. To that
extent it could not be said that anything contained in the material from the Minister for Transport
constituted an irrelevant consideration for present purposes.
34. But in any event I am not persuaded that either of the respondents in arriving at his
decision placed such weight on all or any of items (iii) to (vii) such as would lead to the
conclusion that the decision was vitiated because irrelevant considerations had been taken into
account. 14
Error of Law
35. As already noted the reasons given by the respondents for rejecting the decision ofthe
QCA that there had been a breach of the principle of competitive neutrality was that they
considered "that the information available to us is not sufficiently conclusive to support the
QCA's decision". Counsel for the applicant linked that with the statement by the Minister for
Transport in paragraph 7 of his comments that the finding by the QCA would potentially warrant
additional government funding such that the respondents would "need to be absolutely certain
that the QCA's conclusion that a breach has occurred is based on a sound premise and on ( conclusive evidence." The submission was made that the language used in the "Ministers'
Decision Notice" so closely reflected what was said in paragraph 7 that the inference should be
drawn that the respondents adopted and applied that approach. It was then contended that ifthat
was done then there was an error of law in the decision making process because the wrong test
was applied. According to counsel for the applicant what was said by the High Court in
Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2 established the appropriate test; the
satisfaction of the repondents had to be on the balance of probabilities taking into account the
seriousness of the consequences. In that context counsel also referred to Bruce v Cole (1998) 45
NSWLR 163 at 190 and Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41
at 67.
36. In the circumstances I am not persuaded that the submissions are valid. In my view the
more pertinent observations are those of the High Court in Minister for Immigration and Ethnic
Affairs v Wu (1996) 185 CLR 259 at 282; there Brennan CJ, Toohey, McHugh, and Gummow
JJ said: 15
"Submissions were made at the hearing of the appeal as to the correct decision making process which would have been permissible for the delegates to adopt. These submissions were misguided. They draw too closely upon analogies in the conduct and determination of civil litigation.
Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial. Administrative decision-making is ofa different nature. A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law. The term "balance of probabilities" played a major part in those submissions, presumably as a result of the Full Court's decision. As with the term "evidence" as used to describe the material before the delegates, it seems to be borrowed from the universe of discourse which has civil litigation as its subject. The present context of administrative decision-making is very different and the use of such terms provides little assistance."
37. Wu and Fernandez v Government ofSingapore (1971) 1 WLR 987, were each concerned
with prophesying as to what might happen in the future rather than with making findings as to
what in fact occurred in the past. But nevertheless it is clearly correct to draw a distinction
between fact finding in civil litigation and making a political-administrative decision as to
whether or not a particular report should be adopted by government. (cf. also the reasoning of
the Privy Council in Mahon v Air New Zealand (1984) AC 808 at 814-5).
,s., I am by no means satisfied that the respondents reached their decision simply by adopting
the approach of the Minister for Transport indicated in paragraph 7 of his report. The language
used in the Ministers' Decision Notice recognises that the matter was one of importance for the
government and does no more than establish that the respondents considered that the report in
the particular respect should not be accepted because in their view the evidence was not
sufficiently conclusive to support that decision.
39. Section 57 does not oblige the respondents to apply any particular test or to have regard
to any particular circumstances in arriving at their decision. As already noted it is in essence a .' 16
policy decision for government and such a decision will inevitably be based on what the two
most senior Ministers in the government consider to be appropriate having regard to government
policy.
40. In the circumstances I am not satisfied that there was any error of law in that the
respondents applied some incorrect test in arriving at their decision.
Failure to Accord Procedural Fairness
41. The contention here of the applicant is that it was not accorded procedural fairness
primarily because the respondents did not give it the opportunity of commenting on the material
obtained from the Minister for Transport pursuant to s.57(2) of the Act. Though there was a deal
of cross examination on the point it seems clear that the applicant was not aware of the contents
ofthat submission and had no opportunity of commenting on it prior to the decision being made
by the respondents.
42. Whether or not that amounted to a failure to accord procedural fairness must be
determined in the light of the statutory provisions. Section 57 requires the Ministers to make
their decision within one month and decrees that they must consult with (in this case) the
Minister for Transport. Their decision in writing must be given to the QCA (s.57(3)) and must
be made available within 2 days for public inspection (s.59). It is for the QCA to provide "the
complainant" (in this case the applicant) with a copy of the Ministers' decision (s.58); there is
no obligation on the Ministers to provide the complainant with a copy of the decision.
43. Whilst the investigation carried out by the QCA is instigated by someone making a
complaint, the ultimate decision of the Ministers pursuant to s.57 is more than an acceptance or
rejection of that complaint and has more far-reaching economic consequences. In carrying out
its investigation the general procedures to be followed by the QCA are as set out ins.173 of the
Act; inter alia, the authority must "comply with natural justice". It is not disputed that that was 17
done here. The material suggests that the applicant was provided with a draft of the QCA report
and given the opportunity of commenting on that draft before the final report was submitted to
the Ministers pursuant to s.52.
44. It is of significance that what the Ministers can either accept or reject is the QCA report,
not the complaint which initiated the investigation. In that context it is of importance that the
only consultation specified by the legislation at the stage of the ministerial decision is with the
"responsible Minister". The respondents did not have to accord procedural fairness to the QCA,
the authority whose report is being accepted or rejected.
45. The weakness ofthe applicant's argument is demonstrated by a consideration ofthat part
of the report accepted by the respondents. The QCA found against the contention of the
applicant that Queensland Rail enjoyed a procedural or regulatory advantage in respect of the
Brisbane to Gold Coast services which breached the principle of competitive neutrality. If there
was substance in the applicant's argument that it had to be accorded procedural fairness at the
stage of the ministerial decision then it would equally apply to the ministerial decision accepting
that part of the Report. It has not been suggested that the respondents ought to have given some
notice to the applicant of their intention in that regard. ( \ 46. Counsel for the applicant also submitted that there was a failure to accord procedural
fairness in that the opinion of Mr Freeburn of counsel obtained by Crown Law critical of the
Report was not made available to the applicant. On the evidence it does not appear that
Freeburn's advice played any significant role in the decision-making process of either of the
respondents. It appears that the advice did not come to the attention of the Treasurer, and the
Premier only glanced at it in passing. Freeburn's advice did come to the knowledge ofQCA
which in tum obtained its own legal advice on the issues therein raised. 18
47. Against that background it is correct, in my view, to say that the ministerial decision
pursuant to s.57 is not directly concerned with the complaint which initiated the investigation but
with the broader economic and policy question as to whether or not the report and its
recommendations should be adopted by the government. In that context the observations of
Gibbs CJ in Bread Manufactures of New South Wales v Evans (1981) 56 ALJR 89 at 94 are
instructi ve:
"I return to consider the nature of the power which the Commission exercises under s.20(1). Except in the case where an inquiry is required to be held, the Commission does not follow a procedure similar to that of a court. It is not called upon to adjudicate upon a controversy between contending parties. The exercise of its discretion does not depend upon the formation of an opinion as to any particular fact or circumstance. It is no doubt required, by s.58, to consider such general matters as whether an increase in price would be "undue" and to what extent the regulation of the price of bread (an essential commodity) is "necessary", but its discretion is virtually unfettered. Its function, at least in the present case, was to make a general decision of a discretionary character which affected all consumers and sellers of bread. In Salemi v MacKellar (No.2) (1977) 137 CLR 396 at 452 Jacobs J drew a distinction between an Act which directly affects a person individually and one which affects him simply as a member of the public or a class of the public, and said that an executive or administrative decision of the latter kind is truly a "policy" or "political" decision and is not subject to judicial review. Although, it is unsafe to generalise, I respectively agreewith the significance ofthe distinction .... The provisions of the Act support the view, which the nature of the power suggests, that the audi alteram partem principle has no application to the exercise by the Commission of its powers in a case in which no enquiry is required to be held."
To similar effect is some of the reasoning of the Full Court of the Federal Court in Controller
General of Customs v Kawasaki Motors Pty Ltd (1991) 32 FCR 219.
48. Here, at the stage of the ministerial decision pursuant to s.57, the exercise of discretion
does not depend upon the formation by the Ministers of an opinion as to any particular fact or
circumstance. They are not called upon to adjudicate upon a controversy between contending
parties. The discretion is virtually unfettered. The decision is not primarily directed to the matter
of complaint which initiated the investigation by the QCA, but rather to the way in which the 19
economic affairs of a government instrumentality should be handled in the future. In my view
the decision is clearly a "policy" or "political" one involving social, political and economic
considerations affecting the wider Queensland community.
49. Even if the finding that there had been a breach of competitive neutrality had been
accepted, that would not have altered the position of the applicant. It derived no right or remedy
from a decision accepting the finding. Some further future government action was required
before the applicant's position improved in any way, and there was no obligation on the
government to take that further step. The legislation did not impose any sanction where the
government accepted such a finding but failed to take further remedial action. Such
considerations are relevant when considering what obligation, if any, there was on the
respondents to accord the applicant procedural fairness.
50. In all the circumstances I am not satisfied that considerations of procedural fairness ofthe
type discussed in Kioa v West (1985) 159 CLR 550 applied here. Thus I have reached the
conclusion that the respondent's decision is not vitiated by a failure to accord the applicant ( procedural fairness.
Failure to Take into Account Relevant Circumstances
, 51. The contention here is that the respondents failed to have regard to legal advice which the
QCA obtained from the Solicitor-General dealing with some of the issues which had been raised
in Freeburn's advice. The opinion in question was obtained after delivery of the report, but that
is not decisive. I cannot see that the respondents were under a duty, statutory or otherwise, to
take the advice of the Solicitor-General into account. Each of the respondents was aware from
a departmental memorandum that the QCA had legal advice to the effect that its interpretation
of the statue was correct. But it seems reasonably clear that the actual decision made by the
respondents was based primarily on economic considerations rather than questions of 20
construction of the statute with respect to the function and powers of the Authority.
52. It is not clear from the statement of claim that this was initially relied upon by the
applicant as a ground for review, but in any event I am not satisfied that there is any substance
in the argument. Given the nature of the ministerial decision, a matter which has been discussed
above, the respondents were under no duty, enforceable by the applicant, to have regard to the
legal opinion in question before arriving at their decision.
Failure to Observe Procedures
53. The contention here of the applicant is that the respondents did not act in consultation
with the responsible minister, the Minister for Transport, as required by s.57(2) of the Act. The
statute is silent as to what constitutes consultation. The respondents, under the hand of the
Treasurer, forwarded a copy of the QCA report to the responsible minister and asked for his
comments. They were provided by that Minister with a response in writing. The material
emanating from the Minister for Transport was is in some detail and was considered by the
respondents. In those circumstances I am not satisfied that there was any failure to comply with
the statutory requirement; as no procedures were laid down by the statute it is difficult to contend
that there was no proper consultation.
54. In so far as the argument on behalf of the applicant seems to suggest that there should be
some oral debate among the three Ministers in question I am not convinced that that is required
by the statute.
55. There was no substance in this ground.
Decision not Authorised by the Statute
56. As noted above the Report of the QCA set out two conclusions and made three
recommendations. The respondents clearly made a decision on each of the conclusions as to the
subject matter of the investigation, but it did not expressly deal with the recommendations. 21
Section 57(1)(b) ofthe Act is quoted above and I will not repeat it in full; essentially it provides
that the Ministers must, if the authority decides that a complaint has been substantiated, accept
or reject any recommendation of the authority contained in the Report. As already noted the
respondents did not expressly do so, but they clearly rejected the basis upon which the
recommendations were made. Once the relevant decision was rejected there was in practical
terms no basis on which it could be said that the recommendations retained some standing. In
the circumstances I am not satisfied that the ministerial decision is incomplete in the absence of
a decision pursuant to s.57(1)(b).
57. When a statute specifies in some detail what matters should be dealt with by a decision ( it is desirable that the decision maker follow the statutory requirements with some particularity;
but that does not mean that a decision has not been made in circumstances where all matters
requiring determination have been dealt with, at least impliedly, by the decision announced.
General Observations
58. There are a number of further observations which should be made on the submissions ( made by counsel for each side.
59. It is true that the applicant was not given a chance to make submissions or representations
directly to the respondents before they made their decision whether to accept or reject the
decision ofthe QCA. However, as noted above, there is nothing in the Act which requires the
respondents to give the applicant that opportunity; that is to be contrasted with the requirement
to consult with the "responsible Minister". That express provision indicates the policy nature of
the decision being made. The decision of the QCA is not one which the government must adopt;
after further consultation with the "responsible Minister" the two most senior Ministers, the
Premier and Treasurer, may either accept or reject the decision. Further, as the decision has to
be made within one month there would, as is evidenced by what occurred in this case, be 22 " practical difficulties in allowing the applicant, or its legal representatives, to make written or
verbal submissions to both the Premier and Treasurer in the light of the response of the
"responsible Minister".
60. In the circumstances I reject the submission that procedural fairness obligated the
respondents to give the applicant the right to make submissions or representations to them before
the decision under s.57 was made.
61. It should also be noted that most, if not all, of the applicant's contentions were discussed
in the report. A reading of the report would make a person aware of the contentions of the
applicant.
It is of some significance to note that under cross examination the second respondent, the
Treasurer, clearly indicated that he had reasons for rejecting the QCA report which went beyond
matters raised in the Departmental briefing notes. That confirms that he directed his mind to the
substantive issues raised by the Report and its recommendations.
63. The applicant's strongest argument is that the first respondent, the Premier, never read
fully (or perhaps even any) of the QCA report. In consequence the submission was made that
he never considered the substantive issues and that his concurrence was not In those
circumstances such as to be said an exercise of his own discretion.
64. Section 57 appears to be unique in that it is the only provision known to counsel (and the
first respondent) which required a decision to be made by two specified Ministers jointly. As
already noted the two specified Ministers here are the two most senior members of Cabinet.
That, in my view, can only be explained on the basis that usually a decision under s.57 will
involve issues of government economic policy having wider ramifications than would flow from
acceptance or rejection of the specific complaint which gave rise to the investigation. In those
circumstances, bearing in mind the authorities to which I have earlier referred, I have come to 23
the conclusion that it is sufficient if one ofthose senior Ministers (here with Treasurer) fully and
carefully directs his mind to the substantive issues, and the other (here with Premier) directs his
mind to issues raised by Departmental advisors and the Treasurer, and the broader implications
of government economic policy involved, and then concurs in the decision reached by the
Treasurer.
65. The only other argument which was raised at a late stage by counsel for the applicant was
that the Departmental officers were biased because they suppressed the opinion obtained by the ( QCA from the Solicitor-General. That does not appear to be borne out by the evidence. There
was reference in the departmental briefing material to the fact that the QCA had its own legal
( advice in relation to some of the issues raised in the opinion of Freeburn, and if those matters
were regarded as significant by either of the respondents they could have taken the matter further.
Nothing was withheld from the respondents, but inferentially neither regarded the legal issues
as critical to their decision.
66. In all the circumstances the application for judicial review should be dismissed with costs. (