Thomson v ACT Planning and Land Authority  ACAT 38 (2 October 2009) On 2 October 2009, the ACT Civil and Administrative Tribunal (‘ACAT’) handed down a decision which discussed whether the limitation on ACAT’s jurisdiction to hear applications for review of planning decisions breached the right to a fair trial as protected under the Human Rights Act 2004 (ACT) (the ‘HRA’). The Court held that the limitation on their jurisdiction was proportionate.
Ms Thomson (the ‘applicant’) lived in a house that backed on to a development site on which it was proposed to build a two storey apartment block. The apartments would overlook Ms Thomson’s garden.
The plans for the apartment building were approved by the ACT Planning and Land Authority and Ms Thomson sought a review of the decision to approve the plans on the basis that the apartments would infringe her privacy.
The Authority argued that s 121(2) of the Planning and Development Act 2007 (ACT) limited ACAT’s jurisdiction to review decisions of the Authority and, specifically, excluded certain facts from being reviewed by ACAT.
ACAT considered that the arguments made by the respondent raised questions about the operation of the HRA, and noted that, pursuant to s 40B of the HRA, the Tribunal must give proper consideration to relevant human rights.
ACAT considered that two rights protected under the HRA may be relevant: the right to privacy and reputation (s 12) and the right to a fair trial (s 21).
ACAT dismissed arguments relating to the right to privacy on the basis that any infringement of Ms Thomson’s right would not be arbitrary or unlawful as the issue of privacy was specifically addressed in the relevant planning code.
ACAT next considered the right to a fair trial and adopted the approach to interpretation taken by the ACT Court of Appeal in R v Fearnside, namely:
- First, it is necessary to consider whether the legislation enlivens a human right;
- If, the answer to question 1 is yes, it is necessary to consider whether the legislation contains a limitation which is reasonable within s 28 of the HRA; and
- If the answer to question 1 is yes and the answer to question 2 is no, then it is necessary to consider and apply the interpretive principle in s 30 of the HRA, namely that they must, so far as it is possible to do so, interpret legislation in a way that is compatible with human rights.
Has the right to a fair trial been enlivened?
Section 21(1) of the HRA provides that:
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.
ACAT noted that, ‘in deciding whether the right to a fair trial is enlivened or engaged by this case, it must be determined whether the applicant had “rights and obligations recognised by law”’.
ACAT considered that there was at least a prima facie argument that the right to a fair trail was engaged by the limitation imposed on ACAT’s jurisdiction as the right of a third party objector:
- has previously been recognised by the court in planning decisions; and
- has been recognised by the UK and European courts in relation to art 6(1) of the European Convention on Human Rights, which is the corresponding ‘fair trial’ provision.
Further, ACAT noted that the term ‘rights and obligations’ should be interpreted broadly so as to include novel claims and incipient rights.
ACAT considered that the word ‘decided’ in s 21 of the HRA requires that there be a dispute to be resolved. On the facts, ACAT held that Ms Thomson’s initial appeal against the development approval indicates the presence of a dispute and that, on balance, the right to a fair trial was engaged.
Is the limitation on the right to a fair trial reasonable?
As the answer to question 1 of the Fearnside test was yes, ACAT next moved to consider question 2.
ACAT noted that, in determining whether the planning approval process is consistent with the right to a fair trial, it is necessary to look at the composite process for decision making, including the initial decision, and the factors considered in making that decision, the opportunity for input from third parties, and the availability and quality of the relevant review mechanisms. This composite approach impacts on the proportionality of the limitation on the right to a fair trial.
They noted that in drafting the Planning Act significant public consultation had been held into, amongst other things, the limited appeal right and that the Act had been drafted in light of the policy concern about the costs and uncertainty arising from planning appeals as well as the impact this would have on developers.
In the context of the planning rules, which required things such as privacy to be considered at the initial decision making process, and the public policy arguments, ACAT determined that the limited appeal rights set out in the Planning Act placed a reasonable limit on the right to a fair trial enshrined in s 21 of the HRA.
In accordance with the Fearnside test, as the answer the question 1 was yes, and the answer to Question 2 was no, ACAT did not move to consider question 3.
ACAT reviewed Ms Thomson’s application in accordance with their limited review power and found that there was no reason why the development approval should not have been granted.
Relevance to the Victorian Charter
The interpretive method favoured by ACAT aligns with that taken by Bell J in the Victorian decision of Kracke v Mental Health Review Board & Ors. This approach is currently being considered by the Victorian Court of Appeal.
Section 24 of the Victorian Charter protects the right to a fair hearing. The right is expressed as follows:
A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
The wording of the right protected differs from that used in the HRA. While, the focus in the Thomson decision was on the expression ‘rights and obligations’ and the word ‘decided’, neither of which terms appears in the Victorian Charter, the decision is relevant for its discussion and analysis of the scope, content and interpretation of rights.
The decision is available at http://acthra.anu.edu.au/cases/Thomson_v_ACTPLA__AT_09.1_-_ACAT_38_%5B1%5D.pdf.
Victoria Edwards is on secondment to the Human Rights Law Resource Centre from Freehills