Land and Environment Court New South Wales

• Medium Neutral Citation: Regional Express Holdings Limited v Dubbo City Council (No 3) [2014] NSWLEC 87
• Hearing dates: 24, 25 February 2014
• Decision date: 26 June 2014
• Jurisdiction: Class 4
• Before: Pain J

Decision

1. The Applicant's Further Amended Summons dated 24 February 2014 is dismissed.

2. Costs are reserved.

3. Exhibits to be returned.

• Catchwords: JUDICIAL REVIEW - challenge to local council decision to charge fee for service of passenger security screening at regional airport - whether power to charge entity not receiving the service - statutory requirements for notification of public of intended fee complied with - no failure to accord procedural fairness to applicant - council decisions not irrational or unreasonable - no failure to consider mandatory relevant matters - irrelevant matters not considered
• Legislation Cited: Aviation Transport Security Act 2004 (Cth) s 9, Div 2 Pt 4, s 27, s 33, s 41A; Aviation Transport Security Regulations 2005 (Cth) reg 3.20, reg 4.02, reg 4.09; Civil Aviation Safety Regulations 1998 (Cth) Pt 1, reg 47.100; Evidence Act 1995 s 160; Interpretation Act 1987 s 33; Local Government Act 1993 s 6, s 7, s 8, s 9, s 24, s 66, s 117 s 192, s 197, s 405, s 496, s 501, s 561, s 608, s 610A, s 610C, s 610D, s 610F, Ch 15; Migration Act 1958 (Cth)
• Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680; Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1; Coco v R [1994] HCA 15; (1994) 179 CLR 427; Daly v Thiering [2013] NSWCA 25; Daly v Thiering [2013] HCA 45; (2013) 303 ALR 188; Fernando v Commissioner of Police (1995) 36 NSWLR 567; Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269; Hurstville City Council v Minister for Planning and Infrastructure [2012] NSWLEC 134; (2012) 189 LGERA 269; House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498; Kioa v West [1985] HCA; (1985) 159 CLR 550; Kong v Minister for Health [2014] FCA 34; (2014) 308 ALR 522; Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; (2004) 141 FCR 346; Luu v Renevier (1989) 91 ALR 39; Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2009] NSWLEC 109; Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67; Martino Developments Pty Ltd v Doughty [2008] VSC 517; Meriton Apartments Pty Ltd v Council of the City of Sydney (No 3) [2011] NSWLEC 65; (2011) 182 LGERA 256; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; Parramatta City Council v R & R Fazzolari Pty Ltd [2008] NSWCA 132; (2008) 162 LGERA 1; Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 535; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; Reid's Farms Pty Ltd v Murray Shire Council [2010] NSWLEC 127; (2010) 182 LGERA 1; Salemi v MacKeller (No 2) (1977) 137 CLR 396; Sharples v Minister for Local Government [2008] NSWLEC 328; (2008) 166 LGERA 302; Sharples v Minister for Local Government [2010] NSWCA 36; (2010) 174 LGERA 129; Smith v Wyong Shire Council [2003] NSWCA 322; (2003) 132 LGERA 148; Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1
• Texts Cited: Mark Aronson, "Jurisdictional Error and Beyond" in Matthew Groves (ed), Modern Administrative Law in Australia - Concepts and Context (2014 Cambridge University Press); Mark Aronson and Matthew Groves, Judicial Review of Administrative Action, (5th ed 2013, Thomson Reuters); Theresa Baw, "Illogicality, Irrationality and Unreasonableness in Judicial Review" in Neil Williams (ed), Key Issues in Judicial Review (2014 Federation Press); D C Pearce and R S Geddes, Statutory Interpretation in Australia, (7th ed 2011 LexisNexis)
• Category: Principal judgment
• Parties: Regional Express Holdings Limited (Applicant); Dubbo City Council (Respondent)
• Representation: Mr J Simpkins SC with Mr J S Emmett (Applicant); Ms S Duggan SC with Mr M Seymour (Respondent); Mills Oakley Lawyers (Applicant); Booth Brown Samuels & Olney Solicitors (Respondent)
• File Number(s): 40372 of 2013

Judgment

Judicial review of decision to impose fee for service by local council

1 The Applicant Regional Express Holdings Ltd (Rex) challenges two resolutions of Dubbo City Council (the Council) concerning the imposition of fees for security screening of passengers at Dubbo City Regional Airport (the airport). The Council relied on s 608(1) of the Local Government Act 1993 (LG Act) in imposing these fees.

2 According to Rex there are two decisions of the Council under challenge. The first decision challenged is the resolution passed by the Council at its ordinary Council meeting on 22 October 2012 adopting the Report of the meeting of the Dubbo City Regional Airport Working Party (Working Party) (October 2012 report) held on the same day (the first decision). In the October 2012 report the Working Party recommended screening of all passengers travelling to Dubbo with the cost to be charged to RPT (Regular Public Transport) operators and spread across all RPT passengers flying into and out of Dubbo.

3 The second decision challenged is the resolution passed by the Council at its ordinary Council meeting on 25 February 2013 adopting the Report of the Working Party meeting held on the same day (the second decision). The Working Party had in turn adopted the Report of the Director Corporate Development titled "Draft Revenue Policy/Screening Charges Dubbo City Regional Airport" dated 12 February 2013 (February 2013 report) including the recommendation that the draft Revenue Policy for the recovery of passenger and checked baggage screening costs at the airport be adopted noting that such policy is on a full cost recovery basis payable by the RPT operators as contained in this report. By adopting this recommendation, the Council resolved to charge a fee for the costs of security screening at the airport to the two RPT operators which use the airport, namely Rex and QantasLink. The Further Amended Summons (FAS) dated 24 February 2014 seeks declarations of invalidity of both decisions and consequential orders, inter alia.

Local Government Act 1993

4 The Council's power to provide services and charge a fee for these is regulated by the LG Act.

5 Approved fee is defined in the Dictionary to the LG Act as:

approved fee means:

(a) in relation to a fee to which Division 2 of Part 10 of Chapter 15 applies, a fee determined by the council in accordance with that Division, or

(b) in relation to a fee to which Division 3 of Part 10 of Chapter 15 applies:

(i) the fee prescribed by the regulations for the purposes of the provision in relation to which the expression is used or determined by the council in accordance with any such regulations, or

(ii) if no such regulations are in force, the fee (if any) determined by the Director-General for the purposes of the provision in relation to which the expression is used, or

(iii) if no such regulations are in force and no fee is determined by the Director-General, the fee (if any) determined by the council for the purposes of the provision in relation to which the expression is used.

6 Section 6 of the LG Act provides:

6 Notes in the text

Introductions to Chapters, notes, charts and diagrams are explanatory notes and do not form part of this Act. They are provided to assist understanding.

7 Sections 7 and 8 of the LG Act provide:

Chapter 2 "What are purposes of this Act?"

7 What are the purposes of this Act?

The purposes of this Act are as follows:

(a) to provide the legal framework for an effective, efficient, environmentally responsible and open system of local government in New South Wales,

(b) to regulate the relationships between the people and bodies comprising the system of local government in New South Wales,

(c) to encourage and assist the effective participation of local communities in the affairs of local government,

(d) to give councils:

· the ability to provide goods, services and facilities, and to carry out activities, appropriate to the current and future needs of local communities and of the wider public

· the responsibility for administering some regulatory systems under this Act

· a role in the management, improvement and development of the resources of their areas,

...

Chapter 3 "What is a council's charter?"

8 The council's charter

(1) A council has the following charter:

· to provide directly or on behalf of other levels of government, after due consultation, adequate, equitable and appropriate services and facilities for the community and to ensure that those services and facilities are managed efficiently and effectively

...

· to raise funds for local purposes by the fair imposition of rates, charges and fees, by income earned from investments and, when appropriate, by borrowings and grants

...

(2) A council, in the exercise of its functions, must pursue its charter but nothing in the charter or this section gives rise to, or can be taken into account in, any civil cause of action.

8 Section 24 within Ch 6 "What are the service functions of Councils?" Pt 1 "General" provides:

24 Provision of goods, services and facilities and carrying out of activities

A council may provide goods, services and facilities, and carry out activities, appropriate to the current and future needs within its local community and of the wider public, subject to this Act, the regulations and any other law.

9 The introduction to Ch 6 relevantly states:

Introduction. This Chapter confers on councils their service or non-regulatory functions. Examples of these functions include the provision, management or operation of:

· community services and facilities

...

This list of examples is not exhaustive.

These functions are conferred in broad terms in Part 1. Particular provisions are made for the management of public land in Part 2. Part 3 imposes some restraints and qualifications on the exercise of the service functions.

A council may have other service functions under other Acts. For example, a council has functions relating to the provision and management of roads under the Roads Act 1993.

10 Section 192 within Pt 2, Div 2 provides:

192 Inspections and investigations

For the purpose of enabling a council to exercise its functions, a person authorised to enter premises under this Part may:

(a) inspect the premises and any food, vehicle, article, matter or thing on the premises, and

(b) for the purpose of an inspection:

(i) open any ground and remove any flooring and take such measures as may be necessary to ascertain the character and condition of the premises and of any pipe, sewer, drain, wire or fitting, and

(ii) require the opening, cutting into or pulling down of any work if the person authorised has reason to believe or suspect that anything on the premises has been done in contravention of this Act or the regulations, and

(c) take measurements, make surveys and take levels and, for those purposes, dig trenches, break up the soil and set up any posts, stakes or marks, and

(d) require any person at those premises to answer questions or otherwise furnish information in relation to the matter the subject of the inspection or investigation, and

(e) examine and test any meter, and

(f) measure a supply of water, and

(g) take samples or photographs in connection with any inspection.

11 Section 405 within Ch 13 Pt 2 provides:

Chapter 13 How are councils made accountable for their actions?

Part 2 Strategic planning

405 Operational plan

(1) A council must have a plan (its operational plan) that is adopted before the beginning of each year and details the activities to be engaged in by the council during the year as part of the delivery program covering that year.

(2) An operational plan must include a statement of the council's revenue policy for the year covered by the operational plan. The statement of revenue policy must include the statements and particulars required by the regulations.

(3) A council must prepare a draft operational plan and give public notice of the draft indicating that submissions may be made to the council at any time during the period (not less than 28 days) that the draft is to be on public exhibition. The council must publicly exhibit the draft operational plan in accordance with the notice.

(4) During the period of public exhibition, the council must have for inspection at its office (and at such other places as it may determine) a map that shows those parts of its area to which each category and sub-category of the ordinary rate and each special rate included in the draft operational plan applies.

(5) In deciding on the final operational plan to be adopted, a council must consider any submissions that have been made concerning the draft plan.

(6) The council must post a copy of its operational plan on the council's website within 28 days after the plan is adopted.

Chapter 15 How are councils financed

12 The introduction to Ch 15 relevantly states:

Introduction. The main sources of council finance are:

· rates, of which there are 2 kinds

- ordinary rates

- special rates

· charges

· fees

· grants

· borrowings

· income from business activities

· income from land

· income from other investments

· sales of assets.

This Chapter deals mainly with the making and collection of the different kinds of rates and the imposition of charges.

...

The Chapter also enables the making and collection of charges. A charge may be made in relation to specified services provided by a council (such as the provision of water, sewerage or drainage services or the collection of garbage). A charge may be set at a level that enables part or full cost recovery or, in some cases, that exceeds costs.

A council may impose charges in addition to ordinary rates and special rates or in substitution for special rates that may be made for the same purposes as a charge.

A charge, when made, has the same characteristics as a rate concerning payment, the accrual of interest (if the charge remains unpaid) and the procedures that may be taken for its recovery.

The reasonable cost to the council of providing domestic waste management services must not be recovered by the ordinary rate. It must be obtained from the making and levying of a charge.

Part 1 An overview of rates and charges

13 Section 496 provides:

496 Making and levying of annual charges for domestic waste management services

(1) A council must make and levy an annual charge for the provision of domestic waste management services for each parcel of rateable land for which the service is available.

(2) A council may make an annual charge for the provision of a domestic waste management service for a parcel of land that is exempt from rating if:

(a) the service is available for that land, and

(b) the owner of that land requests or agrees to the provision of the service to that land, and

(c) the amount of the annual charge is limited to recovering the cost of providing the service to that land.

14 Section 501 provides:

501 For what services can a council impose an annual charge?

(1) A council may make an annual charge for any of the following services provided, or proposed to be provided, on an annual basis by the council:

· water supply services

· sewerage services

· drainage services

· waste management services (other than domestic waste management services)

· any services prescribed by the regulations.

(2) A council may make a single charge for two or more such services.

(3) An annual charge may be levied on each parcel of rateable land for which the service is provided or proposed to be provided.

Part 7 Payment of rates and charges

15 Section 561 states:

561 Who is liable to pay charges?

The person liable to pay a charge is:

(a) the person who, if the charge were a rate and if the land on which the charge is levied were rateable in respect of that rate, would be liable under section 560 to pay the rate, or

(b) the Crown in respect of land owned by the Crown, not being land held under a lease for private purposes.

Part 10 Fees

16 Section 608 in Div 1 titled "Council fees - General" provides:

608 Council fees for services

(1) A council may charge and recover an approved fee for any service it provides, other than a service provided, or proposed to be provided, on an annual basis for which it is authorised or required to make an annual charge under section 496 or 501.

(2) The services for which an approved fee may be charged include the following services provided under this Act or any other Act or the regulations by the council:

· supplying a service, product or commodity

· giving information

· providing a service in connection with the exercise of the council's regulatory functions-including receiving an application for approval, granting an approval, making an inspection and issuing a certificate

· allowing admission to any building or enclosure.

(3) In particular, a council may charge an approved fee for inspecting premises that are reasonably required to be inspected in the exercise of the council's functions, whether or not the inspection is requested or agreed to by the owner or occupier of the premises.

(4) However, a council may not charge an approved fee for the inspection of premises that are not used for a commercial activity, except where it is necessary to inspect the premises in connection with an application for an approval concerning the premises or in connection with any inspection that is reasonably necessary to determine if an approval has been complied with.

(5) (Repealed)

(6) If inspections of premises are reasonably necessary to determine if an approval has been complied with:

(a) an approved fee may be charged for such an inspection only if the charging of the fee has been included as a condition of the approval, and

(b) an approved fee may not be charged for such an inspection before the approval is granted, and

(c) an approved fee may not be charged for the inspection of any thing for which the council relies on a certificate under section 93 that the thing has been done in compliance with the approval.

(7) An approved fee charged for inspecting premises must be repaid to the person who paid it if the inspection is not carried out.

(8) An approved fee charged in connection with a service provided at an airport established and maintained by the council may be recovered from the holder of the certificate of registration issued under the Civil Aviation Regulations of the Commonwealth for the aircraft in respect of which the service was provided. This subsection applies whether or not the holder is the person to whom the service is actually provided.

17 Section 610A within Div 2 titled "Council fees for business activities" provides:

610A Application of Division

(1) This Division applies to a fee charged by a council for any service relating to the following activities:

(a) the operation of an abattoir,

(b) the operation of a gas production or reticulation service,

(c) the carrying out of a water supply or sewerage service (other than a service provided, or proposed to be provided, on an annual basis for which the council is authorised or required to make an annual charge under section 501),

(d) the carrying out of work under section 67,

(e) the carrying out of graffiti removal work under section 11 of the Graffiti Control Act 2008,

(f) any other activity prescribed by the regulations for the purposes of this subsection.

(2) This Division does not apply to a fee charged by a council for a service relating to the following activities:

(a) the issuing of a certificate under Part 4A of the Environmental Planning and Assessment Act 1979,

(b) an activity prescribed by the regulations for the purposes of this subsection.

18 Section 610C within Div 3 titled "Council fees for non-business activities" provides:

610C Application of Division

This Division applies to a fee for a service other than a fee to which Division 2 applies.

19 Section 610D also within Div 3 provides:

610D How does a council determine the amount of a fee for a service?

(1) A council, if it determines the amount of a fee for a service, must take into consideration the following factors:

(a) the cost to the council of providing the service,

(b) the price suggested for that service by any relevant industry body or in any schedule of charges published, from time to time, by the Department,

(c) the importance of the service to the community,

(d) any factors specified in the regulations.

(2) The cost to the council of providing a service in connection with the exercise of a regulatory function need not be the only basis for determining the approved fee for that service.

(3) A higher fee or an additional fee may be charged for an expedited service provided, for example, in a case of urgency.

20 Section 610F also within Div 3 provides:

610F Public notice of fees

(1) A council must not determine the amount of a fee until it has given public notice of the fee in accordance with this section and has considered any submissions duly made to it during the period of public notice.

(2) Public notice of the amount of a proposed fee must be given (in accordance with section 405) in the draft operational plan for the year in which the fee is to be made.

(3) However, if, after the date on which the operational plan commences:

(a) a new service is provided, or the nature or extent of an existing service is changed, or

(b) the regulations in accordance with which the fee is determined are amended,

the council must give public notice (in accordance with section 705) for at least 28 days of the fee proposed for the new or changed service or the fee determined in accordance with the amended regulations.

...

Regulation of airports by Commonwealth government

21 The Commonwealth government regulates airport safety and security, inter alia.

Civil Aviation Safety Regulations 1998 (Cth)

22 Part 1 of the Dictionary to the Civil Aviation Safety Regulations 1998 (Cth) (CASR) contain the following definitions:

registered operator, of an aircraft, has the meaning given by regulation 47.100.

registration holder of an aircraft means the person whose name is entered in the Australian Civil Aircraft Register as that of the aircraft's owner.

23 Regulation 47.100 provides:

47.100 Identity of registered operator of aircraft

(1) If the registration holder of an aircraft is an eligible person, the holder is the aircraft's registered operator.

(2) However, the registration holder may appoint another eligible person as the registered operator.

...

24 A CASA Aircraft Register search dated 10 February 2014 shows that of the eight aircraft for which Rex is the registered operator, Rex is not the registered holder (exhibit B tab 39).

Aviation Transport Security Act 2004 (Cth) and Aviation Transport Security Regulations 2005 (Cth)

25 Section 9 of the Aviation Transport Security Act 2004 (Cth) (the Security Act) provides that an aircraft is a cleared aircraft if the only passengers who are allowed to board the aircraft are cleared passengers. Division 2 of Pt 4 of the Security Act sets out the manner in which passengers become cleared passengers by security screening. Section 27 of the Security Act states a security controlled airport has an airside area and a landside area. Section 33(1) provides that the regulations may prescribe types of landside security zones.

26 Regulation 3.02(a) of the Aviation Transport Security Regulations 2005 (Cth) (the Security Regulations) prescribes a sterile area as a landside security zone. The Security Regulations provide the security requirements for a sterile area in reg 3.20. These include, inter alia, at least one screening point (reg 3.20(3)(a)). All persons entering the sterile area must be screened and cleared (reg 3.20(d)). All passengers must be cleared in accordance with reg 4.09(2)(b) in order to enter the sterile area.

27 Section 41A(1) of the Security Act provides that a person who presents at a screening point in order to enter an area or zone of a security controlled airport is taken for all purposes to consent to each screening procedure that may be conducted. Section 41A(2)(b) provides that s 41A(1) does not apply if the passenger refuses to undergo the procedure.

28 Security reg 4.02 provides that an aircraft must be a cleared aircraft if its maximum take off (MTO) weight is more than 20,000kg.

Evidence

29 Rex tendered the Council's statement of reasons filed on 10 September 2013 (exhibit A). Rex also tendered two volumes of documents essentially providing the relevant council file, inter alia (exhibit B). A confidential report titled "Tender for screening services Dubbo Regional Airport by Director Corporate Development of the Council" dated 6 December 2012 was tendered by Rex (exhibit C).

30 The Council tendered emails between Mr Lodge of Rex, Mr Kim of Rex and Mr Dickerson, Mayor of the Council dated 18 October 2012 and 21 October 2012 (exhibit 1).

31 Rex read affidavits of Mr Warrick Lodge, General Manager for Network Strategy and Sales for Rex sworn on 24 June 2013 and 18 July 2013.

Agreed chronology of relevant events

32 The parties agreed a chronology of events as follows. On 19 September 2012 QantasLink advised the Council (the operator of Dubbo Airport) that it intended to fly Q-400 aircraft from Sydney to Dubbo from March 2013. The aircraft are above the 20,000kg MTO weight threshold for required security screening pursuant to the Security Regulations, with the result that the airport would need to commence security screening (exhibit B tab 3 p 13).

33 On 19 September 2012 a report entitled "Passenger and Baggage Screening at Dubbo Regional Airport" was produced (exhibit B tab 6 p 3). The report recommended that passenger and checked baggage screening be on a "full cost recovery basis", with four different options for recovery from operators/airlines, including:

(a) Only screening passengers and checked baggage on aircraft which are above the 20,000kg MTO weight and only charging QantasLink;

(b) Screening all passengers but only charging QantasLink;

(c) Screening all passengers and charging both airlines on a per available seat basis; or

(d) Screening all passengers and charging both airlines on a per passenger basis.

34 On 16 October 2012 the Council sent a notice of the Council meeting to be held on 22 October 2012 to Mr Maurice Gahan, NSW Sales Manager of Rex. The notice attaches the agenda for the meeting, as well as the 19 September 2012 "Passenger and Baggage Screening at Dubbo Regional Airport" report (exhibit B tab 3 p 1).

35 On 22 October 2012 the Working Party made the following recommendation:

That all RPT passengers and checked baggage travelling from Dubbo be screened for both passenger safety and security purposes, with the costs of such screening to be on an all encompassing user charge basis for use of the Dubbo City Regional Airport by RPT operators, and spread across all RPT passengers flying into and out of Dubbo.

36 Also on 22 October 2012, the Council resolved to adopt the report of the Working Party (October 2012 report), including the above recommendation (exhibit B tab 7 p 1) (the first decision).

37 On 23 October 2012 Rex received a letter from the Council notifying it of the meeting on 22 October 2012 (exhibit B tab 9 p 1).

38 On 24 October 2012 Rex wrote to the Mayor of Dubbo advising of its objections to the Working Party report it received that same day (exhibit B tab 9 p 1).

39 On 24 October 2012 Rex received an email from the Council summarising the "Council's resolution" (exhibit B tab 8 p 1).

40 On 9 November 2012 the Mayor wrote to Rex acknowledging that it was never expected that Rex or QantasLink would be in attendance at the Council meeting held on 22 October 2012 (exhibit B tab 11 p 2).

41 On 16 November 2012 Rex replied to the Mayor's letter of 9 November 2012 and informed the Mayor of new regulatory changes that permitted parallel departures of screened and unscreened flights (exhibit B tab 12 p 2).

42 On 17 December 2012 the Council resolved at a Council meeting:

that Council place on public exhibition for a period of 28 days the proposed fee in respect of screening at Dubbo City Regional Airport for the period 04 March 2013 to 30 June 2012, with such being "full cost recovery from RPT operators".

43 The Council also noted that negotiations with Rex and QantasLink were proceeding on the basis of all passengers being screened (exhibit B tab 15 p 2).

44 On 19 December 2012 Rex sent a further letter to the Mayor outlining its objections to the proposed screening (exhibit B tab 16 p 1).

45 In a letter dated 20 December 2012, the Mayor wrote to Rex advising that the Council had resolved that all RPT passengers and checked baggage travelling from Dubbo be screened. The Mayor also states that a "draft Revenue policy" would be placed on public exhibition for a period of 28 days that proposed for the period 4 March 2013 to 30 June 2013 that the cost of such screening be on the basis of "full cost recovery from RPT operators". The Mayor also states that recovery of fees would be on a pro rata basis based on the RPT traffic for the month (exhibit B tab 17 p 1).

46 On 14 January 2013 Rex wrote a further letter to the Mayor setting out its objections to the security screening (exhibit B tab 22 p 2).

47 On 17 January 2013 and 31 January 2013 the Council published notices about security screening fees in local newspapers (exhibit B tab 23).

48 On 12 February 2013 the Airport director produced a report for the Working Party entitled "Draft Revenue Policy/Screening Charges Dubbo City Regional Airport" (February 2013 report) (exhibit B tab 28 p 3). This report noted Rex's position that it should not be charged for security screening. It states that this was inconsistent with the Council's resolution of 22 October 2012. This report recommends:

that the draft Revenue Policy for the recovery of passenger and checked baggage screening costs at the Dubbo City Regional Airport be adopted noting that such policy is on a full cost recovery basis payable by RPT operators and as contained in this report.

49 On 25 February 2013 the Working Party met and recommended that its report from the meeting on 25 February 2013 be adopted. The report attaches the 12 February 2013 "Draft Revenue Policy/Screening Charges Dubbo City Regional Airport" report. The Council met and adopted the report of the Working Party that same day (exhibit B tab 28 p 1) (the second decision).

50 On 27 February 2013 the 22 October 2012 the Working Party Report and Council Report were published on the Council website (exhibit B tab 52 p 2).

51 On 28 February 2013 Rex received a letter from the Council advising it of the outcome of the 25 February 2013 meeting (exhibit B tab 30).

52 In March 2013 the Council issued Rex with its first invoice for security screening (continued on a monthly basis thereafter) (exhibit B tab 37). Rex has not paid any of the invoices issued to it.

Grounds of judicial review

53 Four grounds of judicial review are considered.

1. The Council has no power to impose fee for service on Rex under the LG Act

54 The FAS states that the first decision of the Council is invalid on the following grounds:

(a) The Council does not have the power to make a decision that:

(i) compels the Applicant to accept passenger and checked baggage security screening services; or

(ii) compels the Applicant to pay for services provided to third parties.

55 The Second Decision is invalid on the following grounds:

(a) The Council does not have the power to make a decision that:

(i) compels the Applicant to accept passenger and checked baggage security screening services; or

(ii) compels the Applicant to pay for services provided to third parties.

Rex's submissions

56 Rex has challenged both the first and second decisions in these proceedings. Rex's primary position is that the first decision is the only one that needs to be challenged. This was the decision in which the Council resolved to impose security screening on Rex's customers and charge Rex a fee for doing so. Neither the Working Party nor the Council revisited or reconsidered this decision at a later meeting. Properly understood, the second decision simply adopted a particular revenue policy to implement the first decision. If the first decision is invalid, then the consequential second decision cannot stand.

57 Rex also challenged the second decision. The second decision purportedly fixed the basis on which the impugned fee would be charged. Even if the first decision is not set aside (or if the Court forms the view that the second decision is capable of standing independently of the first decision), the second decision should be set aside.

58 Rex submitted that the Council did not have the power to impose the fee for security screening under s 608(1) for three reasons. Firstly, the fee is not for a service under s 608(1). Secondly, the section should not be construed to limit the common law presumption of statutory interpretation to refuse a service where the service is one that is not requested. Thirdly, the power to inspect is dealt with separately in s 192 of the LG Act and fees for security screening are not separately dealt with.

Not supply of a service under s 608(1)

59 Service is not defined in the LG Act. The qualities of a service referred to in s 608(1) can be considered by dictionary definitions. In the Oxford Dictionary the definition includes inter alia "the action of serving, helping, or benefiting; conduct tending to the welfare or advantage of another" and the "supply of the needs of persons". In the Macquarie Dictionary the definition includes inter alia "the supplying or supplier of any articles, commodities, activities, etc., required or demanded". These definitions were relied on to submit that the fee for security screening is not a service under s 608 because it is not requested or required by Rex or for the benefit of Rex.

Limit of common law right not to accept service not permissible

60 The Council's power to impose the fee under s 608(1) should not be inferred to include the power to set quantification of a fee where the service is not voluntarily accepted and the service is required to be taken. The Council's power should be construed so that common law rights to accept or reject a service should not be interfered with except in clear terms.

61 In Fernando v Commissioner of Police (1995) 36 NSWLR 567 the statutory power to medically examine an accused by taking blood without the consent of the accused was considered. Priestley JA at 572-573 provides an overview of the approach to statutory construction in which Parliament does not intend to change common law positions beyond what is clearly stated directly or by implication citing various authorities including Coco v R [1994] HCA 15; (1994) 179 CLR 427. Martino Developments Pty Ltd v Doughty [2008] VSC 517 Vickery J at [18]-[27] and Daly v Thiering [2013] NSWCA 25 Hoeben JA (McColl and Macfarlan JJA agreeing) at [43](j) were also relied on by Rex as statements of principle concerning the application of this presumption in statutory construction.

Statutory construction where no request for service

62 A fee a council seeks to impose for a service not required or requested of the council is dealt with separately in the LG Act. Section 608(3) expressly authorises a council to charge a fee for inspections, whether or not the owner or occupier agrees to the inspection. Section 608(4) limits this power by stating that the inspection of non-commercial premises may only be the subject of a fee in connection with an application for approval concerning the premises (that is in the course of a process voluntarily instigated by the owner/occupier). Furthermore, the power to inspect is expressly granted elsewhere in the LG Act, in s 192. There is no equivalent statutory provision empowering the Council to conduct involuntary security screenings.

63 Section 608(1) may be contrasted with the provision for charges in Ch 15, Pts 1-7 (in particular s 501). Those charges deal with the kind of services that councils provide whether or not the recipient agrees to accept them such as water supply, sewerage, drainage and waste management. They are the subject of a separate regime under the LG Act.

64 Even if the Court construed s 608(1) as authorising the Council to charge a fee to Rex for screening services, it does not authorise the Council to compel Rex or Rex's passengers to accept those services.

65 The Council cannot rely on s 608 because the screening services are provided not to Rex but to Rex's customers. The statutory context of the security clearing requirement is important. Regulation 4.02 of the Security Regulations provides that an aircraft must be a cleared aircraft if its MTO weight is more than 20,000kg. The aircraft used by Rex at the airport have a MTO weight less than 20,000kg. Section 9 of the Security Act provides that an aircraft is a cleared aircraft if the only passengers who are allowed to board the aircraft are cleared passengers. Division 2 of Pt 4 of the Security Act states that passengers become cleared passengers by security screening. In other words, it is the passengers who receive the security screening services, not Rex.

66 Subject to an inapplicable exception (discussed below), s 608 only permits fees to be charged to and recovered from persons who actually receive the services in question. So much is clear from the contrast with charges under Ch 15, Pts 1-7, where the legislation expressly sets out the persons from whom the charges may be recovered: s 561. The second sentence of s 608(8) also expressly states that a particular fee can be recovered from someone even though that person is not the person to whom the service is actually provided. These features of the legislation indicate an intention that (unless s 608(8) applies) s 608(1) only contemplates the recovery of fees for services from persons to whom those services are provided. That is consistent with the ordinary way in which one would interpret a power to impose fees for the provision of services.

Section 608(8) exception not applicable

67 The exception in s 608(8) is not applicable and the Council cannot rely on s 608(8) for several reasons. The CASR draw a distinction between a registration holder and registered operator. The registration holder of an aircraft is the person whose name is entered on the Australian Civil Aircraft Register as the aircraft's owner: Pt 1 of the Dictionary. The registered operator has the meaning in reg 47.100. The registered operator is either the registration holder or a person appointed by the registration holder.

68 The CASA registrations for Rex aircraft (exhibit B vol 1, tab 39) demonstrate that Rex is the holder of the registration for only some of its aircraft. The first decision and second decision purport to impose the fee on the RPT operator regardless of which aircraft is being used. That is not permitted by s 608(8).

69 Moreover, the first decision and the second decision do not purport to impose the fee by reference to the holder of the certificate of registration of the aircraft at all. Rather, the Council purported to impose the fee on the RPT operator. As is clear from the CASA aircraft registrations, the entity which is the registered operator is not the same as the entity which is the aircraft registration holder. Section 608(8) does not permit the Council to impose the fee on the RPT operator.

70 Section 608(8) can only sensibly apply in relation to services in respect of an aircraft. The manner in which the Council decided to impose security screening services (imposing them on all RPT passengers indiscriminately) means that the services are not provided in respect of an aircraft. They are services that the Council has purported to impose on passengers regardless of which aircraft they are boarding.

71 In reply to the Council's submissions concerning the construction of s 24 Rex submitted that none of the authorities cited by the Council suggest that s 24 provides a source of power for a council to impose services involuntarily. While Parramatta City Council v R & R Fazzolari Pty Ltd [2008] NSWCA 132; (2008) 162 LGERA 1 was concerned with compulsory acquisition of land, the power to acquire compulsorily was based on other legislation. The only authority cited in respect of s 608, Meriton Apartments Pty Ltd v Council of the City of Sydney (No 3) [2011] NSWLEC 65; (2011) 182 LGERA 256 involved a council establishing work zones on public roads for construction purposes. Those services were provided at the applicant's request and to the applicant in that case.

72 Rex submitted that any deemed consent of passengers at the airport as currently configured is irrelevant. The evidence indicates that the airport was reconfigured following the Council's decision to impose security screening on all passengers. The material before the Council on 22 October 2012 (when it made the first decision) indicated that Council had options that included imposing security screening only on passengers who required screening under Federal legislation (exhibit B tab 3 at 8-9). That material indicated that the airport needed to be extended regardless of which option was adopted. The reconfiguration was still only proposed at the time of the second decision on 25 February 2013 (exhibit B tab 28 at 17-18).

73 Accordingly, the requirement for all passengers to be cleared before entering the sterile area and the deemed consent of passengers in light of the current reconfiguration of the airport all followed the Council's impugned decisions. If the Court accepts that the first decision or the second decision was invalid, then this aspect of the structure of the airport cannot affect that invalidity.

Council's submissions

74 Modification to the terminal building to accommodate an increased passenger load was necessary (exhibit B tab 3 p 8-9). The Council resolved to modify the terminal building, including building a sterile departure lounge (exhibit B tab 29 p 49, tab 20 p 2). That is, passengers enter into the sterile area (that is the departure lounge) in order to get to the tarmac and board any aircraft departing from the airport.

75 Rex inappropriately separates the decision-making process into two distinct phases and refers to these phases as the first and second decisions. The process is a continuum; a single determination. The decision-making process, the obligations that arise, and the meaning of the legislative provisions must be measured against the whole decision and not broken into parts.

76 Contrary to Rex's allegations, the decisions are supportable by direct reference to the text of s 608(1) because the services are provided under s 24 of the LG Act. Rex is not compelled to do anything by reference to the decisions of the Council. If it wishes to use the airport for its commercial purposes, then it must take into account the fees and charges involved in doing so, the same as any other operator.

77 The fact that it is a single composite decision-making process is derived from the statutory context:

(a) decision to provide service: s 24 LG Act;

(b) decision to charge a fee for service: s 608(1) with the need to create an "approved fee";

(c) determine the amount of the charge (s 610D), involving:

(i) consideration of matters under s 610D; and

(ii) public notice and further consideration: s 610F;

(iii) make an approved fee: s 405.

78 The Council had no power to levy the fee until after public exhibition and the consideration of objections. If they were separate decisions some liability for a fee would flow from the first decision, but it does not.

79 The calling for submissions and the consideration of the submission in the legislative context involves consideration of both the quantum of the fee and the levying of the fee in general. The Council's report (exhibit B tab 28) recognises this in both its text and its conclusions where it is noted that by adopting the draft revenue policy Council is "reconfirming" (tab 28 p 5) the position to charge all RPT airlines on a per passenger basis. The totality of the issues are considered to determine whether to alter the position notified, and in this case not to do so.

80 This singular process is also acknowledged as part of Rex's (at least initial) understanding by the nature of the submissions made by them on the revenue plan comprising the 20 minute presentation to councillors on 25 February 2012 (exhibit B tab 27 and tab 30 p 2) and the submission of the letters that were attached to that report (exhibit B tab 28 p 6-15 and tab 28 p 4).

81 In response to Rex's submissions on the meaning of service in s 608 of the LG Act the Council submitted that a purposive interpretation should be undertaken in accordance with s 33 of the Interpretation Act 1987. The objects of the LG Act (as in sections 7 and 8 of the LG Act), the Charter of the Council and the general statutory context speaks of an approach contrary to that taken by Rex.

82 The text and context of the LG Act should be considered. First, there is no express statutory limitation for a service to be voluntary. This issue only arises because Rex seeks to measure whether the service is one to them as individuals, whereas the LG Act makes it clear that the service is not to be measured against an individual desire or need but rather to provide services appropriate to the current and future needs of local communities and of the wider public: s 24 LG Act.

83 In Parramatta City Council v R & R Fazzolari Pty Ltd Tobias JA (Hodgson and Palmer JJA agreeing) considered s 24 of the LG Act at [134]-[135] and identified its broad scope. By analogy this reasoning must allow for the provision of airport screening services.

84 The Council accepted the general principle of statutory construction that absent clear words an Act is taken not to be construed to infringe common law rights, but that principle does not arise. Rex has not identified a common law right that has been infringed by s 608. Alternatively, if accepted that there exists a common law right of an individual only to be provided with services he or she consents to then that right has been expressly altered by the provision of the LG Act for the reasons outlined as to why the charge can be imposed without the need for consent.

85 The Council has the power to charge a fee for a service even if the recipient does not consent based on the statutory intent expressed in the LG Act. The power of a council to provide services is not limited in express terms, that is, there is no express requirement for consent. The only limitation on the provision of the service is that the service be appropriate to the current and future needs within its local community and of the wider public, subject to the LG Act, the regulations and any other law.

86 The charging of the fee for that service is dealt with in s 608(1) which contains no words of constraint. Constraints should not be implied in this section because:

(1) Subsection (2) contains no words of constraint but rather is illustrative (not exhaustive) of the types of services for which a fee can be charged. It includes the supply of a service, product or commodity.

(2) To the extent that subsections (3) -(7) do contain words of limitation:

(a) Those subsections specifically limit their application to a single circumstance being the inspection of premises;

(b) In some circumstances, the charge may still be levied notwithstanding that it was not requested or agreed to by the owner or occupier of the premises as the inspection of premises in the context of the LG Act may be requested by a person who is not the owner or occupier (for example a builder seeking inspections as required by an approval). This is made plain by subsection (7) that acknowledges that fees may be made and inspections requested by someone other than the owner.

(c) The limitations as to the provision of a service of inspection to non-commercial premises recognises the context of the LG Act which treats residential premises differently from commercial premises for the purposes of entry for inspection and the like: for example see s 192 and s 197 LG Act.

(d) Subsection (6) relates specifically to inspections for approvals and seeks to limit the occasions on which councils can charge for that particular service and is unrelated to the power generally.

(3) Subsection (8) is not a limitation on the power to charge but rather expands the power of recovery. The clear words of subsection (8) are that it relates to the recovery of the fee and not the charging of the fee.

87 This construction is also consistent with the stated purpose of the LG Act and the Charter which looks to the broader public good rather than the individual.

Council has power to impose fee for service on Rex under LG Act

88 This case raises fundamental questions about the power of councils to charge a fee for a service.

One decision or two?

89 The FAS asserts there are two separate decisions and both are invalid for the same reasons namely they compel Rex to accept the security screening services at the airport or compel Rex to pay for it when it is provided to passengers (third parties). The issue arises of whether the Council's first decision in October 2012 is justiciable, Rex's case assuming that it is, the Council arguing that it is not. The Council does not dispute the second decision in February 2013 is justiciable. Resolution of this question does not matter for the absence of power argument maintained by Rex as the same issues are identified in the FAS for both decisions. It may have implications for later grounds of review however. It is logical that the issue be determined first as the answer defines the relevant factual matrix the Court is to consider.

90 This case raises the question of justiciability in relation to the provision of council services for the first time in this Court so far as I am aware. No cases considering that question have been found. It is necessary to consider the particular statutory scheme and also the individual circumstances impacted by the Council's decision-making processes.

91 In Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2009] NSWLEC 109 I considered whether several ad valorem rate setting decisions of a council were justiciable at [22]-[33]. My conclusion that such a decision was justiciable related to different provisions in the LG Act and does not apply directly here. It is useful to consider the authorities I cited at [22]-[23] and [30]:

22 Whether a decision of a local council under a statute is justiciable depends on whether the decision concerns a matter that is largely one concerning policy and/or political considerations. A lengthy consideration of justiciability was necessary in the full Federal Court in Minister for the Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218. The Federal Court had to consider whether the exercise of a prerogative power by the Cabinet rather than a decision made under a statute was justiciable. The decision of the Federal Cabinet to nominate a national park for inclusion on the UNESCO World Heritage list was held to be non-justiciable as it involved a number of complex policy questions which were more appropriately dealt with in the cabinet rather than by a court. The lead judgment of Wilcox J at 244 - 253 analyses the leading cases and the relevant history leading to his determination that a cabinet decision could be justiciable depending on the nature of the decision made and its effect, see also Bowen CJ at 223 - 225.

23 The obiter passage in Kioa v West of Mason J relied on by the Council to argue that these judicial review proceedings are not justiciable is in the context of His Honour stating that the common law duty to act fairly applies to administrative decisions which affect rights, interests and legitimate expectations of individual citizens. As an example of a decision to which the duty does not attach, his Honour gave the imposition of a rate on ratepayers and at 584 quoted Jacobs J in Salemi v MacKellar (No 2) (1977) 137 CLR 396:

...the duty [to act fairly] does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the act or decision which attracts the duty is an act or decision:

" ... which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a `policy' or `political' decision and is not subject to judicial review." (Salemi [No 2] [99], per Jacobs J.)

...

30 While there is not a decision which has specifically considered the issue of justiciability in the context of ordinary rate setting, the lack of specific criteria in the Act to be satisfied when setting such a rate alone does not suggest the decision is non-justiciable. That there is broad discretion under the LG Act for the setting of an ordinary rate by a council in the context of the detailed statutory regime for the setting of rates also does not indicate the matter cannot be subject to a judicial review challenge. The Council has argued that the decision involves a balancing of policy considerations rendering it non-justiciable. The reasoning in Peko Wallsend of the full Federal Court that decisions of the Federal Cabinet were not automatically immune from judicial review also suggests that a finding of lack of justiciability in relation to a decision made under a statute should not be made lightly. In Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 relied on by the Council in relation to the nature of council decision-making on rates, discussed at par 112 below, the New Zealand Court of Appeal refers to rating decisions being judicially reviewable on grounds such as manifest unreasonableness.

92 The LG Act provides a very detailed scheme for rate setting as identified in Marrickville Metro at [13]-[15]. Appeal rights provided in the LG Act enable a review of a rate category and appeal against the date of declaration of a category to the Court. The LG Act gives the power to councils to provide services in s 24, a wide power which I discuss more fully in the next section. The LG Act does not mandate any specific requirement that must be met or considered before a decision to provide a service is made by a council, in marked contrast to the rate setting provisions in the LG Act considered in Marrickville Metro. The LG Act imposes specific obligations on a council when charging a fee for a service in Pt 10 Divisions 1 to 3 which apply to the second decision made by the Council in February 2012.

93 Rex submitted that its rights, interests and expectations were affected by the first decision in October 2012, drawing perhaps on the words in Kioa v West [1985] HCA; (1985) 159 CLR 550 cited above. In Kioa v West examples given of administrative decisions which were not justiciable were council rates and charging for services for ratepayers as these were described as affecting members of the public or a class of the public and not an individual directly. Those examples are provided in obiter comments and are not binding on me. In Marrickville Metro I held the ad valorem rate setting decisions of a council were justiciable in the circumstance that only one entity was the subject of a rate category under challenge.

94 While it is possible to characterise the first decision of the Council to accept a recommendation of the Working Party to change how the airport terminal operated to introduce screening for all passengers and charge operators for it as a policy change, that decision impacted on only two entities, Rex and QantasLink, according to the evidence before me. The characterisation of the administrative decision by Rex as the decision in which the Council resolved to impose security screening on all passengers and charge Rex a fee for doing so is correct given the adoption of the Working Party's recommendation by the Council to exactly that effect. That accords with my observation in Marrickville Metro at [30], set out above, that broad discretionary decisions are not necessarily immune from judicial review. While the Council could not legally charge the fee in October 2012 as the requirements of s 610F had not then been complied with by the Council, the February 2013 decision which adopted the revenue policy providing for the fee was confirming the earlier decision already made by the Council to take that course. The February 2013 decision did not seek to review the earlier decision in October 2012. Consequently Rex as one of only two airline operators did have its individual interests directly affected by the first decision.

95 I did not accept the argument in Marrickville Metro that the existence of appeal rights in the LG Act excluded judicial review. Here there are no appeal rights provided for in the LG Act which further confirms my conclusion.

96 For the reasons identified in Kioa v West by Mason J that the common law duty to act fairly applies to administrative decisions which affect rights, interests or legitimate expectations of individual entities, here Rex, I consider that the decision is justiciable at least to the extent that a duty to act fairly was imposed on the Council in making the first decision. The observations of Jacobs J in Salemi v MacKeller (No 2) (1977) 137 CLR 396 at [99] also support this conclusion because his Honour states that decisions that directly affect a person or corporation individually attracts the duty to act fairly, as opposed to administrative decisions that indirectly affect members of the public or a class of the public which do not attract such a duty. I consider that Rex's interests are affected individually as a corporation, not as a class of the public, given that it is one of two airlines impacted by the decision.

97 Contrary to the Council's submission that the duty could only arise in relation to the second decision by virtue of s 610F, I agree with Rex that there is nothing in the LG Act that manifests a clear statutory intention to exclude such a duty in the context of the first decision. Section 610F provides for public notice of the amount of the proposed fee, to which the second decision is directed. The first and separate decision relates to the decision of the Council to provide the passenger screening service to all passengers.

98 Council's decision-making process in October 2012 and February 2013 is set out in the chronology and I do not need to consider the process in more detail in order to determine the first ground of review concerning the power of the Council to charge a fee for a service. As already identified in par 54-55 the same bases for invalidity are alleged for both decisions it is unnecessary in this ground to further distinguish between the two resolutions of the Council.

Scope of power to charge fee for service under LG Act where no request for service

99 In response to another airline operator wishing to fly aircraft requiring passenger security screening to and from the airport the Council redeveloped the airport terminal to include a sterile area (a landside security zone) as defined in the Security Act and Security Regulations. All passengers must be security screened before entering a sterile area, in this case within the airport terminal. The Council has commenced charging a fee to two operators, Rex and QantasLink, for that service.

100 There is no legal requirement imposed by the Security Act and Security Regulations that Rex passengers be security screened as its aircraft are below the required weight threshold of 20,000kg specified in the Security Regulations. As Rex submitted, the position is different if the Security Regulations are engaged (as they are in respect of QantasLink's aircraft). The Security Regulations specify that aircraft of more than 20,000kg MTO are not permitted to take off without security screening.

101 Rex does not require the service in order to operate under the Security Act and Security Regulations. The Council is the operator of the regional airport which Rex wishes to use as part of its commercial airline business. Rex is not compelled by law to use the airport. No issue was or could be raised before me of the commercial arrangements between Rex and the Council relating to that airport use and I am not making any findings on that matter. The issues before me rest solely on a consideration of the Council's powers under the LG Act. In the FAS Rex challenges both the first and second decisions on the basis that, in the first limb, the Council's power to compel Rex to accept passenger and checked baggage security screening services or, in the second limb, to compel Rex to pay the fee for that service to individual passengers.

Scope of power under s 24

102 The next section of the judgment considers statutory construction issues concerning the power of councils to provide services. Well understood principles of statutory construction require that the words of a statute be considered by a purposive approach to their construction. In Hurstville City Council v Minister for Planning and Infrastructure [2012] NSWLEC 134; (2012) 189 LGERA 269 I stated at [55]:

Section 33 of the Interpretation Act 1987 requires a construction which promotes the purpose or object of an Act over one which would not. Guidance on applying this approach was provided by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky at 381 - 382. Their Honours stated that the "primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute", that a "legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals" and that "a court construing a statutory provision must strive to give meaning to every word of the provision". Brennan CJ and McHugh J in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12 also referred to the necessity of applying a construction of a statute consistent with its purpose. Where words are plain and unambiguous they should be given their ordinary and grammatical meaning, per Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 305. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] the joint judgment (Hayne, Heydon, Crennan and Kiefel JJ) confirmed that statutory construction commences with a consideration of the language of the text, which may require consideration of the context, including the general purpose of the provision and the mischief it seeks to remedy. See also French CJ (in a separate judgment but agreeing with the orders of the joint judgment) at [4] - [5]. In Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; (2010) 78 NSWLR 704 at [12] Allsop P stated that in construing an Act the legal and historical context must be considered at the outset. At [13] his Honour emphasised the principles in Project Blue Sky.

103 Close consideration of the LG Act as a whole as well as the words of the particular section is required, as identified in the previous paragraph. There is no definition of services in the LG Act. As identified in the Council's submissions, s 24 of the LG Act provides a wide power to councils to provide services. Services may be provided by a council which are appropriate to the current and future needs of the local community and the wider public. That broad power is informed by the objects of the LG Act in s 7 which specifies that a purpose of the LG Act is to give councils the ability to provide services and to carry on activities appropriate to the current and future needs of local communities and the wider public. Further the council's charter in s 8 includes the provision, after due consultation, of appropriate services and facilities to the community and to raise funds for local purposes by the fair imposition of rates, charges and fees.

104 In Fazzolari Tobias JA (Hodgson and Palmer JJA agreeing) considered s 24 of the LG Act at [134]-[135] and stated:

[134] Section 24 is drafted in the widest terms. It is entirely permissive and in no way prescriptive. Relevantly, it empowers a council to carry out activities appropriate to the current and future needs within its local community and of the wider public. According to the Introduction, which by s 6 is provided to assist in the understanding of the text of the Act, that function includes the provision, management or operation of, amongst other things, land and property development and housing. The Introduction to Ch 6 notwithstanding, in my opinion whatever might be the ultimate width of s 24, its ambit includes the implementation of the Civic Place Master Plan...

[135] The foregoing receives support following passage from the judgment of Stein J (as his Honour then was) in JR & EG Richards (NSW) Pty Ltd v Scone Shire Council & Anor [1995] NSWLEC 200 (24 November 1995) unreported:

The approach to council powers and functions under the 1993 Act is very different from that under the former legislation. In many ways the 1919 Act was more limited and prescriptive in its grants of power to councils to carry out functions. The 1993 Act approaches council powers and functions in a broader fashion: see for example s 24 quoted above. Indeed, it has been suggested that the wide grant of power in ss 21-24 of the Act was an attempt to overcome deficiencies of power under the 1919 Act and the application of the doctrine of ultra vires.

...

105 While Fazzolari was dealing with a different issue, a compulsory acquisition of land, these findings are pertinent to this matter. I consider the paragraphs above usefully and accurately describe the wide powers conferred by s 24. In Fazzolari Tobias JA referred to the introduction to Ch 6 "What are the service functions of councils?" which relevantly to this matter includes, as examples of functions, community services and facilities. On its face the power in s 24 is wide with no explicit constraints specified in the section. The decision to provide a sterile area, as defined in the Security Regulations, in the airport terminal which has resulted in the necessity for screening of all passengers is within the responsibilities of the Council as the airport operator. Given the wide range of areas in which councils can operate it is not feasible to be prescriptive in the LG Act in relation to all the kinds of services councils may provide. Hence the widely drafted provision in s 24. The security screening of passengers service which the Council can choose to provide as appropriate for the health and safety of the community and the wider public is enabled by s 24 of the LG Act. While it is relatively straightforward to conclude that the Council has wide powers under s 24 that finding alone does not answer the question of whether Rex can be charged for the security screening service.

Whose service?

106 The next issue to resolve is whether the service is provided to Rex or individual passengers and therefore which limb of Rex's ground of review in the FAS applies.

107 The first limb in the FAS states that Rex cannot be compelled to accept security screening. Whether the screening of individual passengers in the airport terminal is a provision of a service to those individual passengers unrelated to which airline they travel with must be considered. The Council's resolutions in October 2012 and February 2013 state that all RPT passengers and their bags will be screened for passenger safety and security purposes. This confirms that the service is to individual passengers. The service is not described by the Council as being provided to the RPT operators such as Rex.

108 Further, the Commonwealth statutory scheme for security screening focusses on individual passengers using the airport. This suggests they should be viewed separately for that purpose from the airline they are travelling with. Section 41A(1) of the Security Act states that all passengers are taken to consent to screening procedures that may be conducted if they present at a screening point. Section 41A(2) states subsection (1) does not apply if a passenger refuses to undergo the procedure. I do not know what happens if a passenger refuses screening but do not need to know for current purposes. To the extent there is an implied compulsion in accepting security screening services that compulsion falls on passengers as individuals. I do not consider the first ground raised in the FAS based on Rex being compelled to accept the service reflects the Council's resolution to provide the service or the Commonwealth statutory scheme regulating security screening at the airport by the Council through its contractors.

109 The second limb of the FAS refers to the Council charging Rex for the provision of the service to individual passengers pursuant to s 608(1) of the LG Act. That limb more accurately reflects the Council's decision under the LG Act. Given that the airport terminal is now built in such a way that all passengers move through the sterile area in order to board aircraft, as a practical matter that also appears the most appropriate way of considering the challenge (although I agree with Rex's submissions at par 72-73 that the fact the airport has been built in the present configuration by the Council does not support the validity of its decision to charge Rex the fee being challenged by Rex).

Construction of s 608(1)-(7)

110 It is now necessary to consider the scope of the power to charge a fee by a council under s 608(1). In support of its case, Rex relied on dictionary definitions of service to imply into the statutory scheme the limitation that any council services must be accepted voluntarily in order to be charged for them. I have found above that the recipients of the service are the individual passengers using the airport. The issue that arises under the second limb of the FAS is whether the Council's lawful powers to provide the service to one group of people means that it can charge someone else for the service (Rex) who does not receive (or need) the service provided to the recipient group. Sections 24, 608 and 610F do not provide any specific guidance on who services can be provided to or more importantly for this matter who can be charged for them.

111 Few cases have considered the power of a council to charge fees for a service under s 608. Meriton (No 3) was referred to by the Council, a judicial review challenge to the amount of fees imposed by a council under s 608 in relation to work zones established on a public road near the applicant's development site. The issues in that case were different to this matter. The challenge to the validity of the fees charged under s 608 related largely to the manner of calculation of the fees by the council requiring consideration of the amount of fees charged in light of the factors identified in s 610D(1) of the LG Act. While s 7 and s 8 of the LG Act were referred to as identifying the wide range of functions of councils informing fee setting by councils, the arguments were addressed to the amount of the fees and whether these were reasonable, inter alia. The question before me is whether the fees can be charged at all.

112 As already identified above the LG Act provision dealing with services is a widely defined power under s 24. A fee may be charged by a council for a service as provided in Ch 10 s 608 - s 610F. Rex submitted that s 608 allows the Council to only charge for those services it provides which are requested or accepted by recipients of the service unless the LG Act specifically provides for charging regardless of whether these services are requested. The LG Act does not specifically provide for passenger screening at airports. Section 608(1) states that a council may charge and recover an approved fee for any service it provides, other than those where an annual fee is required under other parts of the LG Act. Subsection (2) states services may be charged for the supply of a service. These sections are wide in their scope and have no explicit limitation on the power to charge in them. Subsection (2) is facilitative of the power in subsection (1).

113 The concept of service as identified in the dictionary definitions referred to by Rex include the action of serving, helping or benefitting someone, and supplying the needs of persons, which wording is consistent with the wording in s 24 that a council can provide a service appropriate to the current and future needs of the local and wider community. That ordinary meaning of the service must be considered in this statutory context and cannot usurp that, consistent with the oft-quoted comment of Mason P in House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at 505:

A dictionary may offer a reasonably authoritative source for describing the range of meanings of a word, including obsolete meanings. Dictionaries recognise that usage varies from time to time and place to place. However, they do not speak with one voice, even if published relatively concurrently. They can illustrate usage in context, but can never enter the particular interpretative task confronting a person required to construe a particular document for a particular purpose.

114 Applying the dictionary definition of service to the effect that only persons receiving or benefiting from the service or whose needs are being met can be charged under s 608(1) is not the correct approach to statutory construction.

115 As an aid to construction, Rex relied on s 608(3)-(7) which authorises a council to charge a fee for carrying out inspections of premises whether or not the inspection is requested or agreed to by the owner or occupier and is limited in subsection (4) in the case of non-commercial premises. Rex also relied on other parts of Ch 15 which contain specific provisions allowing the council to charge for waste collection and other services. The other parts of Ch 15 are referred to in s 608(1) which states that a council may charge and recover an approved fee for a service provided by it other than fees which must be or will be charged on an annual basis for domestic waste management services under s 496. Section 608(1) also refers to s 501 under which an annual fee may be charged for water supply, sewerage, drainage and non-domestic waste management services inter alia. Rex relied on the sections of the LG Act regulating charging for domestic waste management which charges are compulsory in contrast, it was said, to unspecified services such as passenger screening.

116 There are no words of limitation in s 608(1) reflecting Rex's submissions so that if the limitation contended for exists it must be implied. As the Council submitted there are no constraints in subsection (2), which provides a non-exhaustive list of services for which a fee can be charged. Given the wide range of services which can be provided by a council it would be very difficult to specify how fees are to be charged for all services which may be provided.

117 Section 608(3)-(7) deals with a specific circumstance where a fee can be charged relating to the inspection of properties. The Council submitted that because these sections specifically limit their application to a single circumstance, the inspection of premises, the wide scope of the Council's powers to charge fees for services is confirmed. Rex's approach that the context of s 608(3) expressly providing for charging a fee for a service not requested impliedly limits the exercise of the otherwise broad power under s 608(1) to charge for a service does not reflect a purposive approach to statutory construction and is not required to give effect to the statute. That one area where councils do commonly provide services, building inspections, is specifically provided for in s 608(3)-(7), including charging a fee whether the service is requested or not, does not mean that the broad power to charge a fee for a service under s 608(1) is limited to those requesting or receiving a service.

118 The provisions for charging a fee annually for domestic waste collection and water supply services in s 496 and s 501 do not specify who can be charged. Those sections appear to be more directed to the timing of such charges, namely annually. They do not assist Rex's construction.

119 I consider the Council's construction of s 608(1) is correct. Before finalising my finding on the scope of s 608(1) I should address the parties' other related arguments.

Common law right not infringed

120 It is a well established principle of statutory construction that legislation which overrides common law rights must do so clearly, D C Pearce and R S Geddes, Statutory Interpretation in Australia, (7th ed 2011 LexisNexis) at [5.27]-[5.28] referring to Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277, Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1, Coco v R inter alia. The common law right said by Rex to be infringed is the right not to have a fee imposed for a service not requested of a council. No specific authority was provided for that proposition in the sense that no similar case where such a right has been recognised was provided. Given the wide range of potential common law rights which might arise for consideration by a court that is not surprising and is certainly not a criticism of Rex's case. What must be identified is whether the right as articulated by Rex is a common law right. The Council submitted that Rex has not identified a common law right which is infringed by the Council's decision to charge this fee.

121 It is helpful to quote from Pearce and Geddes at [5.35], [5.36] where the authors quote McHugh J in Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269 at [36]:

... nowadays legislatures regularly enact laws that infringe the common law rights of individuals. The presumption of non-interference is strong when the right is a fundamental right of our legal system; it is weak when the right is merely one to take or not take a particular course of action. Courts should not cut down the natural and ordinary meaning of legislation evincing an intention to interfere with these lesser rights by relying on a presumption that the legislature did not intend to interfere with them. Given the frequency with which legislatures now abolish or amend "ordinary" common law rights, the "presumption" of non-interference with those rights is inconsistent with modern experience and borders on fiction. If the presumption still exists in such cases, its effect must be so negligible that it can only have weight when all other factors are evenly balanced.

122 Pearce and Geddes go on to state:

Notwithstanding McHugh J's pessimistic view of the value of the presumption against interference with common law principles and rights, there are many cases in which the principle has been applied. The following [extensive] list gathers together for ease of reference examples where the courts have required the need for a clear indication of an intention for the rights of individuals to be abrogated and the conduct referred to permitted ...

· limiting ability to carry on one's own business or trade; Commonwealth v Progress Advertising and Press Agency Co Pty Ltd (1910) 10 CLR 457; Committee of Direction of Fruit Marketing v Collins (1925) 36 CLR 410...

123 The nature of the common law means there are no fixed categories of such rights. The cases that were relied on by Rex, Fernando citing Coco v R, Martino and Daly consider personal rights that are more readily identifiable as fundamental personal rights which the common law protects in the absence of clear statutory language to the contrary. Fernando concerned the powers of police to take blood samples from a suspect in custody potentially in breach of a common law right prohibiting assault on a person. Martino considered whether a common law right to claim personal damages had been overturned by a Victorian statute. Daly considered a broadly similar right in relation to whether a common law right to claim damages was constrained by NSW motor vehicle accident legislation. In those cases it was accepted that specific common law rights existed (Fernando expressly at 583, Martino (Victorian Supreme Court) expressly at [17], Daly NSW Court of Appeal impliedly at [43], (reversed by the High Court in Daly v Thiering [2013] HCA 45; (2013) 303 ALR 188) which would be affected by the statutes in question.

124 The facts of these cases provide little guidance as to whether the right claimed here by Rex is such a right. Priestley JA observed in Fernando that in Coco the High Court took a firm approach to the construction of legislation which arguably abrogates or curtails fundamental rights, freedoms and immunities and identified that there was much room for argument about the content of such rights and freedoms (at 583).

125 The extract above from Pearce and Geddes provides a useful discussion of the principle, which is largely in accordance with what Rex submitted. At [5.36] a lengthy list of cases in which courts have required the need for a clear indication of an intention for the rights of individuals to be abrogated is identified. The closest example to this matter is limiting the ability to carry on one's own business or trade with authorities cited from 1920 and 1925, a time when there was far less statutory intrusion into trade and commerce than there is today.

126 Rex's desire to continue with its business model of using smaller aircraft, which charging for the screening service potentially impinges on, is not a fundamental right to which this principle of statutory construction applies in my view. This approach would appear to be more characterised as a desire to take a particular course of action per McHugh J in Gifford at [36] cited above in par 121. As the Council submitted Rex is not compelled to use the airport. I do not consider a common law right of Rex is infringed by the Council's decision to charge it a fee.

Construction of s 608(8)

127 Rex relied on the reference in s 608(8) to recovery of an approved fee for a service at an airport from the registration holders of aircraft to argue that different corporate entities (identified in par 24) should have been the subject of the Council's resolution on 25 February 2013 and the Council was not therefore empowered to impose the fee on Rex. As the Council submitted subsection (8) specifically provides a power of recovery. It is not an exceptional provision, as Rex described it, which confines the Council's powers in s 608(1).

128 While the recovery of a fee for the provision of passenger screening is not explicitly before the Court the Council's position is indirectly supported by s 608(8). It refers to the recovery of fees for the provision of services at airports from registration holders. The screening of passengers on entry to the sterile area is solely to enable them to board an aircraft, clearly a service broadly connected to airports.

129 Whether Rex's voluntary use of the airport means that it is effectively a beneficiary (I have found it is not a recipient) of the security screening service can also be considered. This was briefly raised in the Council's submissions to the effect that Rex is not compelled to accept the service of passenger security screening because it is not compelled to use the airport. The Council submitted that Rex could be charged if this was the level at which service is considered. Although not necessary to consider given my conclusion above that s 608(1) does enable Rex to be charged in any event, this approach has support given my reasoning in relation to s 608(8) above.

Conclusion

130 I conclude that the Council does have power to charge Rex a fee under s 608(1) of the LG Act for the passenger security screening service as determined in October 2012 and February 2013. Rex is unsuccessful on this ground of review.

2. Failure to comply with s 610F in relation to second decision

131 The FAS asserts that the Council failed to comply with the statutory process required before adopting the draft Revenue Policy and charging Rex the new security screening fee pursuant to sections 608, 610D and 610F of the LG Act, in that the Council failed to:

(i) give public notice of the fee that the Council proposed to charge Rex, as required by s 610F(1) and (3) of the LG Act: the public notice stated the estimated cost of the security screening services to the Council for the period 4 March 2013 to 30 June 2013 but not the precise amount of the fee to be charged by the Council;

(ii) consider submissions made by Rex, as required by s 610F(1) of the LG Act;

(iii) consider the importance of the service to the community, as required by s 610D(1) of the LG Act.

132 On 17 January 2013 and 31 January 2013 the Council published notices about security screening fees in local newspapers (exhibit B tab 23). These stated:

Council at its meeting held on 17 December 2012, resolved to enter into agreement with MSS Security Pty Ltd for the provision of security services at Dubbo Regional Airport. This service is provided to the travelling public at full cost recovery from the Regular Public Transport Operators (ie the airlines).

This security service will commence on 4 March 2013. The service cost for the initial period 4 March 2013 to 30 June 2013 is estimated at $244,331.

Council further resolved to place the proposal to charge fees for this service on public exhibition for at least 28 days.

Submissions on the proposal are to be addressed to the General Manager and will be received up until 5 pm Friday 8 February 2013.

...

133 The 2012/2013 Operational Plan - Quarterly Review dated 8 February 2013 by the Council includes section 7 annual statement of revenue policy, as part of the Operational Plan 2013 - 2014 as amended and adopted by Council on Monday 24 June 2013, which states (exhibit B tab 25 p 9):

	2012/2013	2013/2014
	Actual	Proposed	GST	Base Amount	Council's Pricing Policy	Comments
Passenger and Checked Baggage Screening RPT flights	Full cost recovery of contractors' charges - invoiced monthly (4/3 -30/6/13)	Full cost recovery of contractors' charges - invoiced monthly	As applicable	Full cost recovery of contractors' charges - invoiced monthly	FCR	Fees to provide funds to cover the cost of engaging a contractor to undertake passenger and checked baggage screening at the Airport.

134 On 12 February 2013 the airport director produced a report for the Working Party entitled "Draft Revenue Policy/Screening Charges Dubbo City Regional Airport" (exhibit B tab 28 p 3). This report noted Rex's position that it should not be charged for security screening, stating that this was inconsistent with the Council's resolution of 22 October 2012. This report recommends:

that the draft Revenue Policy for the recovery of passenger and checked baggage screening costs at the Dubbo City Regional Airport be adopted noting that such policy is on a full cost recovery basis payable by RPT operators and as contained in this report.

135 The table in the 2012/2013 Operational Plan - Quarterly Review reproduced above was included in the report "Draft Revenue Policy/Screening Charges Dubbo City Regional Airport" as well (exhibit B tab 28 p 5).

136 On 25 February 2013 the Working Party met and recommended that its report from the meeting on 25 February 2013 be adopted. The report attaches the 12 February 2013 Draft Revenue Policy/Screening Charges Dubbo City Regional Airport report. The Council met and adopted the report of the Working Party that same day (exhibit B tab 28 p 1). Representatives of Rex addressed councillors on that day. An extract from that report provides:

This cost must be recovered from users if the Airport is to remain viable. Accordingly, in respect of providing the Passenger and Checked Baggage Screening Service at the Dubbo City Regional Airport and charging a fee for such service, the Local Government Act requires that a Council must not determine the amount of a fee until it has given public notice (28 days) and has considered any submissions duly made to it during the period of public notice. In this regard, Council at its meeting held on 17 December 2012 resolved:

1. That Council accept the tender of MSS Security Pty Ltd in the base annual sum of $732,994.46 (plus GST) (and subject to the casual rates contained in the tender for coverage of exceptions outside schedule flight times) for the provision of security screening services at Dubbo Regional Airport for a period of five years commencing March 2013.

2. That Council place on public exhibition for a period of 28 days the proposed fee in respect of screening at Dubbo City Regional Airport for the period 04 March 2013 to 30 June 2013, with such being - "full cost recovery from RPT operators".

3. That it be noted that negotiations with Rex and QantasLink are proceeding on the basis of all passengers on RPT services at Dubbo Regional Airport being screened.

4. That the position of QantasLink in respect of the payment of screening costs as contained within the report herewith for the period 04 March 2013 to 30 June 2013 be noted.

5. That the Mayor and General Manager continue discussions with Regional Express with regard to screening charges.

6. That a further report in regard to the outcome of negotiations with Regional Express be provided to Council in due course.

7. That the documents and considerations in regard to this matter remain confidential to the Council.

8. That any necessary documents in regard to this matter be executed under the Common Seal of the Council.

It is advised that the matter was publicly exhibited and advertised in the Daily Liberal for 28 days with submissions closing at 5.00 pm on Friday 8 February 2013.

As a result of the exhibition period, one submission was received, that being from Regional Express Holdings Ltd (REX) opposing the draft Revenue Policy. In this regard, REX has requested that Council attach their letters of 24 October 2012, 16 November 2012, 20 December 2012 and 14 January 2013 as their submission to oppose the draft revenue plan.

It is the position of REX that "security charges would only be borne by the services that legally require the screening (ie flight departures above the 20,000 kg MTOW threshold). Such position is opposed to Council's position of 22 October 2012 "that all RPT passengers and checked baggage travelling from Dubbo be screened for both passenger safety and security purposes, with the costs of such screenings to be on an all encompassing user charge basis for the use of the Dubbo City Regional Airport by RPT operators and spread across all RPT passengers flying into and out of Dubbo."

REX also advise in correspondence of 14 January 2013 that it has commenced proceedings with a formal submission to the ACCC.

Rex's submissions

137 The impugned fee is one to which s 610C and s 610F Div 3 of Pt 10 applies. For the period 4 March 2013 to 30 June 2013, the relevant provision is s 610F(3). The only public notice that the Council gave was of its "Revenue Policy". This simply stated that the services be imposed on the basis of "full cost recovery from RPT operators" (exhibit B tab 23). The draft Revenue Policy did not even state that the fee would be on a per-passenger basis, although the Mayor's letter of 20 December 2012 appears to assume that (exhibit B tab 17). This did not satisfy the requirements of s 610F(3). Although there is no reference to a requirement for an amount in s 610F(3), s 610F(1) and s 610F(2) have references to a requirement for specifying an amount. It would be an odd result if s 610F(2) requires an amount to be specified but not s 610F(3). Therefore s 610F(3) includes the requirement in s 610F(1).

138 Alternatively, if it is not necessary to specify an amount under s 610F(3), public notice of the proposed fee is still required because sufficient indication of the fee is needed to show the extent of the imposition and the mechanisms of the imposition.

139 For the period after 1 July 2013, the relevant provision is s 610F(2) as the Council was required to have and did have a draft operational plan as required under s 405. The operational plan repeats the "Revenue Policy", but does not identify the amount of the fee (or that it would be recovered on a per-passenger basis). Section 610F(2) makes the requirement for public notice of the amount of the fee explicit from 1 July 2013. The formula adopted by the Council leaves Rex and QantasLink in ignorance about the amount of their fee until they know what percentage of passengers they carried during each relevant time period.

140 Since the Council failed to indicate the proposed amount of the fee, the submissions made by Rex to the Council could not address one of the relevant matters. Accordingly, the Council cannot be regarded as having considered submissions duly made, as required by the second part of s 610F(1).

141 The Council asserted that this failure was not a material failure that results in invalidity. The Court should reject that submission. The requirement is an important statutory feature of the legislation with the use of mandatory language such as "must". There is every reason to conclude that failure to comply with it would mean the fee is invalid.

142 Given the centrality of procedural fairness to the exercise of statutory powers (see Kioa v West at 584), and that s 610F is clearly a statutory regime for according procedural fairness in respect of fees generally, there is no reason to construe the statute as accepting the validity of fees that have been purportedly adopted without following that procedure.

Council's submissions

143 Section 610F(1) makes a clear distinction between the amount of the fee and the fee. That is, the amount of the fee is something that cannot be determined until there has been public notice of the fee and the Council has received submissions from the public (presumably intended to inform the Council as to what the amount of the fee should be). Accordingly, the Council did not breach s 610F(1) of the LG Act in not publishing the precise amount of the fee.

144 In any event, if there was a failure by the Council to publish the precise amount of the fee in the draft operational plan there was notice given as to the formula that would be used to generate the precise amount of the fee which was based on inputs that could not be known to the Council when publicly notifying the fee, that it was full cost recovery, monthly, GST as applicable with a base amount (exhibit B, tab 25). A figure could not be ascertained by the Council because the number of RPT flights is in the hands of the airline, not the Council. If s 610F(1) creates a legal requirement to publish the precise amount of the fee, the Council did not fall so far short of this standard that the result should be invalidity of the fee: Sharples v Minister for Local Government [2008] NSWLEC 328; (2008) 166 LGERA 302, Sharples v Minister for Local Government [2010] NSWCA 36; (2010) 174 LGERA 129.

145 The Council did in fact quite expressly take into consideration the submissions of Rex. Further the Council did in fact take into consideration the importance of the service to the community by adopting the observation that the cost of screening needed to be recovered from users if the airport is to remain viable (exhibit B tab 28 p 4, 6-15).

Council complied with s 610F in relation to second decision

146 Approved fee is defined in the LG Act dictionary in four parts, set out above in par 5, the power for charging an approved fee being in s 608(1). The relevant part of the definition to apply is (b)(iii) relating to Div 3 of Pt 10 of Ch 15. If no regulations are in force and no fee is determined by the Director-General, the fee is that determined by a council for the purpose of the provision in relation to which the expression is used. Accordingly in relation to the making of an approved fee provided for under s 608(1), the Council must not determine the amount of a fee until it has given notice of the fee in accordance with s 610F(1) and has considered any submissions made to it during the public notice period. The terms "fee" or "amount of a fee" or "amount of a proposed fee", which terms appear solely or together in subsections (1)-(3), are not separately defined in the LG Act dictionary.

147 Rex alleged a failure by the Council to comply with s 610F(3) for the period 4 March 2013 to 30 June 2013. As submitted by Rex (and not disputed by the Council) s 610F(3) applies for that period as it fell outside the date on which the operational plan for the year in which the fee was to be made commenced. The public notices placed by the Council on 17 and 31 January 2013 stated that the service is provided to the travelling public at full cost recovery from the RPT operators with an estimated cost for the initial period of 4 March 2013 to 30 June 2013 of $244,331. Rex argued that form of public notice did not comply with subsection (3) because a specific amount of the proposed fee was not contained in the notices, meaning a dollar amount. Section 610F(3) states that a council must give public notice for at least 28 days of the fee proposed for the new service.

148 Applying principles of statutory construction which require close analysis of the terms of a statute in context, s 610F as a whole must be considered so that subsection (3) should be read with s 610F(1) (and also with subsection (2) as I discuss below). Section 610F(1) specifies that a council must not determine the amount of a fee until it has given public notice of the fee and received and considered submissions made during the public notice period. The terms "fee" and "amount of a fee" appear in s 610F(1) so that a distinction is made between the two in that subsection. That suggests that the reference to the proposed fee which must be given public notice in subsection (3) can be different to the amount of a fee a council must determine under s 610F(1). This suggests that subsections 610F(1) and (3) do not require a exact fee to be publicly notified. That leads me to the next issue of what is meant by fee and amount of fee in these subsections.

149 I referred to exact fee in the previous paragraph which inferentially identifies Rex's argument that an exact fee which, I understand, means a dollar amount of the fee RPT operators would be individually charged should have been publicly advertised. As the words exact or dollar amount do not appear in subsections (1), (2) or (3) when fee or the amount of the (proposed) fee is referred to, Rex must demonstrate that the ordinary meaning of fee or, more precisely, amount of fee in s 610F must mean the exact or dollar amount of fee an individual will be charged in this statutory context. A requirement to identify individual fees is not explicit in the section.

150 The statutory context does not require that construction to give effect to the purpose of achieving a council's duty to notify the public of a council's intention to charge a fee for a service. The Council relied on a formula for arriving at the fee as sufficient to satisfy s 610F, whether subsections (1), (2) or (3), as the precise amount which would be charged depends on the important variable of the number of RPT operated aircraft services. This is unknown in advance to the Council and therefore not known at the time public notice had to be given under s 610F(1). The public notices in January 2013 stated that the fee was to be full cost recovery from RPT operators, gave a commencement date and the cost estimate for the initial period of three to four months. The notices provided a general description of the intended fee to be charged in the initial period.

151 From 1 July 2013 s 610F(2) applies, as Rex submitted, as a draft operational plan was required to be prepared under s 405. This was done by the Council and its provisions are set out above in the table copied at par 133. This subsection should also be read with subsection (1) as the section must be considered as a whole and subsection (1) contains the requirement a council must comply with in determining a fee. Section 610F(2) requires the amount of a proposed fee to be notified. The table states that fees will charged on a full cost recovery of contractors' charges to be invoiced monthly, GST as applicable. A precise dollar amount of the fee to be charged to individual RPT operators is not identified by those words in the draft operational plan. If Rex's criticism of the draft operational plan is to be upheld I must find the terms of s 610F(2) require the exact or dollar amount to be charged to each RPT operator must be specified in the plan. For the reasons I have already given above in par 148-150 in relation to subsections (1) and (3) I consider s 610F(2) has also been complied with.

152 Further, in applying the necessary purposive approach to construction, I agree with the Council's submission that the likely explanation for the different reference to fee and amount of fee in subsection (1) is to enable public submissions about the intended fee to be received and considered before the amount of the fee is determined. This is supported by the use of the different phrases "amount of fee" in subsection (1) and "amount of a proposed fee" in subsection (2) in that the "proposed fee" amount should be notified, as in subsection (2), before the "amount of the fee" is determined, as in subsection (1).

153 I find that there was no failure by the Council to comply with the LG Act requirements in s 610F(3) in relation to the period 4 March to 30 June 2013 and of the requirements in s 610F(2) from 1 July 2013.

154 If I am wrong and the amount of a (proposed) fee in s 610F(1)-(3) means that an exact or dollar amount of the fee to be charged to RPT operators was required in the public notice and the draft operational plan by s 610F(1) to (3) I should determine if such a failure gives rise to invalidity of the decision of the Council in February 2013 to implement the fee and charge RPT operators accordingly. Sharples (at first instance and in the Court of Appeal) referred to by the Council has some similarities to this case in that it concerned the making of rate increase determinations under the LG Act by the Minister for Local Government. There was misleading public notification in the course of the relevant council complying with the public notification procedures required in a guideline. The Minister's power was argued to be subject to a condition precedent that a council's application be in accordance with the relevant guideline and, as it was not, the Minister's determination was invalid. At [80]-[92] Biscoe J analysed statutory construction issues which arise when there is breach of a statutory condition to the exercise of power in order to determine if the Minister's determination in breach of the statute gave rise to invalidity as articulated in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 535 at [93].

Where there has been a breach of a legislative provision, the test is whether "it was a purpose of the legislation that an act done in breach of the provision should be invalid".

155 In Smith v Wyong Shire Council [2003] NSWCA 322; (2003) 132 LGERA 148, the Court of Appeal (Spigelman CJ, Sheller JA agreeing with Tobias JA dissenting on one ground) decided that a failure to comply with a s 117(3) direction by a council in the preparation of a local environmental plan did not alone invalidate the local environmental plan. The whole Court decided that a breach of s 66(1) did result in invalidity, that being a requirement to publicly exhibit a copy of any relevant s 117 direction. Relevant factors considered by Spigelman CJ were the terminology used in the instrument such as whether expressed in mandatory language which had a rule-like quality which could be easily identified and applied drawing on Project Blue Sky at [95] at [22]-[23], the extent of public inconvenience to hold the decision invalid at [25]-[29], and whether invalidity of non-complying conduct is necessary or desirable to ensure compliance at [40], inter alia, see Sharples at [87]. Sharples at first instance was upheld on appeal.

156 The statutory construction task of determining whether the failure should give rise to invalidity is informed by the Council's actions. The provision in s 610F(1) is in mandatory language, a council must not determine the amount of a fee until public notice of the fee has been given in accordance with the section and has received and considered submissions. Public notice of the intention of the Council to charge a fee in the terms contained in the notices was given. The notices provided detail broadly of the overall cost of the service for three to four months up to 30 June 2013 and that RPT operators would be charged for it. The draft operational plan specifies more detail in stating that the fees will be charged monthly with GST as applicable. In other words, there has been no failure to publicly notify the Council's intention to charge a fee and the details of how that fee would be calculated were provided, unlike in Smith for example. The Council received submissions as also required in mandatory language by s 610F(1) and considered these, as demonstrated in the extract from the report to the Council set out in par 136. The mandatory aspects of s 610F(1) have been largely complied with.

157 To the extent there was a breach of the LG Act invalidity of the decision to charge a fee will not cause direct public inconvenience in that the service can continue at the airport considering a further matter identified in Smith. I do not consider that invalidity is necessary or desirable to ensure compliance given the circumstances outlined above.

158 Rex submitted that it was unable to make pertinent submissions because of the lack of a dollar amount of fee being notified. The extract from the Working Party report set out above provided to the Council makes clear that Rex's numerous submissions were made known to the Council at the time the decision was made in February 2013 to implement the approach to fees in the revenue policy. That Rex's submissions did not address a particular dollar amount does not undermine a finding that Rex did address directly the proposed fee by the Council.

159 Rex is unsuccessful on this ground of review.

3. Failure to accord procedural fairness in relation to first decision

160 Rex also alleged that the Council failed to comply with the common law requirement of procedural fairness before making the first decision. The Council failed to give Rex a proper opportunity to be heard before it decided to conduct passenger and checked baggage screening at the airport on a full cost recovery basis and that the costs of the security screening would be charged to all RPT operators, that is Rex and QantasLink.

161 I found above at par 96-97 that the Council's decision-making process in relation to the first decision is justiciable at least in relation to a duty to accord procedural fairness to Rex. Virtually all of the evidence directed to this ground related to an alleged failure to provide an opportunity to Rex to inform the Council of its views before the first decision on 22 October 2012. While the FAS also refers to a failure to accord procedural fairness in relation to the second decision, the evidence and Rex's submissions did not address that issue. Given the evidence before me I consider that would be a difficult challenge to maintain in any event as Rex was clearly provided with an opportunity to put its views to the Council in writing and in person on 25 February 2013.

162 It is common ground that Rex was not invited to the Working Party meeting on 22 October 2012. That meeting recommended that all RPT passengers be screened for both safety and security purposes with the cost spread across all passengers to be paid by RPT operators using the airport.

Evidence

163 The tender bundle (exhibit B), exhibit 1, the affidavits of Mr Lodge and his oral evidence contain the evidence relevant to this ground. On 16 October 2012 the Council sent a notice of the Working Party meeting to be held on 22 October 2012 by letter posted to Mr Gahan, NSW State sales manager for Rex. The notice attaches the agenda for the meeting and the 19 September 2012 "Passenger and Baggage Screening at Dubbo Regional Airport" Working Party report (exhibit B tab 3). This report states that the Council would need to resolve as a matter of policy which passengers are to be screened. Council would also need to resolve as a matter of policy which carrier(s) pay and how charges are to be levied. This decision must be made and conveyed to the affected airlines no later than 4 December 2012 if the 4 March 2013 target date is to be achieved (exhibit B tab 3 p 4). It recommends (exhibit B tab 3 p 4):

(1) That the information contained within this report be noted.

(2) That Council resolve as a matter of policy that the conduct of passenger and checked baggage screening be on a full cost recovery basis.

(3) That Council resolve as a matter of policy which passengers are to be screened, which carrier(s) pay for the screening and how charges are to be levied.

(4) That the Mayor and General Manager undertake discussions with the affected airlines on the basis of Council's resolution as per three (3) above.

(5) That Council endorse the proposed building extensions and the necessary funds for such extension and associated works, be borrowed internally and repaid over a 10 year period.

(6) That following discussions with relevant airlines, a further report be submitted to Council detailing fees payable in respect of airport usage by airlines including landing fees and other charges.

164 The report sets out the number of flights that Rex and Qantaslink operate between Dubbo and Sydney. It states that whilst the need to install passenger and checked baggage screening may seem to be financial impost in the short term it will open the way to other potential carriers (exhibit B tab 3 p 5). The report notes that Rex aircraft do not require screening as they are an MTO weight of 13 tonne. Rex's likely strident opposition is also noted and how other regional airports deal with screening is stated. The cost to Council in staffing and operating the screening would be the same whether only QantasLink passengers were screened or both QantasLink and Rex passengers were screened (exhibit B tab 3 p 6).

165 Options that are available to Council are listed which are (exhibit B tab 3 p 7-8):

(1) screen all passengers and checked baggage on all RPT flights and charge carriers operating aircraft with MTO weight of 20 tonne or more;

(2) screen all passengers and checked baggage on all RPT flights and charge all RPT carriers on a per available seat basis;

(3) screen all passengers and checked baggage on all RPT flights and charge the full cost to all carriers on a per passenger basis; or

(4) do not screen passengers on RPT flights on aircraft of less that 20 tonne MTO weight but screen passengers on RPT aircraft with MTO weight of 20 tonne or more and screen all checked baggage on RPT flights and charge the cost to carriers operating aircraft with MTO weight of 20 tonne or more.

166 The report discusses the move toward a category 3 airport which is a full screening airport through the interim step of a category 7 airport which had become effective on 8 October 2012 (exhibit B tab 3 p 9).

167 On 18 October 2012 Mr Lodge, General Manager for Network Strategy and Sales for Rex, sent an email to Mr Dickerson, mayor, stating that he is aware of the Council's deliberations with regard to airport security following Qantaslink's decision to use heavier aircraft. Mr Lodge requests Mr Dickerson to call him regarding this matter (exhibit B tab 4).

168 An email dated 21 October 2012 from Mr Lodge to Mr Kim and Mr Brooksby included an email sent by Mr Lodge on 18 October 2012 at 2:07pm (exhibit 1) which stated:

I just spoke with Mayor Dickerson and shared our views re security screening at Dubbo. (i.e. shared the WGA/ABX experience etc. in that this has been up and running since July).

Maurice is in DBO (at a travel expo today) and in discussions with Lindsay Mason (the airport Manager/the Stephen Prowse of DBO), Lindsay mentioned that there was a council workshop on Monday to discuss possible screening options. Lindsay said that his recommendation was for an arrangement to allow screened and unscreened passengers but said to Maurice that there is a new mix of councillors and that he was unsure where things would lead to.

I therefore advised Maurice that I would speak with the Mayor and speak to him about our views before they discuss internally.

The Mayor understands our position in that our passengers don't require screening so we object to being screened and charged. He also understands that there are no regional airports where Rex currently incur screening, even though there are some like MQL & BNK where the passengers are screened on some occasions. He asked that if cost was not an issue (i.e. if council did not charge us if our pax were screened and obviously not charge us if our pax were not screened) would Rex prefer our pax to be screened if QF pax were screened and I said no, our preference is not to be screened because it is not required by law. He was leading into whether or not there was commercial (from a sales perspective) considerations and said that this was not a concern in terms of customers choosing the airline. I said the only commercial concern is the cost.

...

169 On 18 October 2012 Mr Dickerson sent an email to Mr Rogers (who appears to be a council employee) at 4:37pm reporting on the call with Mr Lodge. Mr Lodge is reported as stating that segregation of passengers is possible with screening, that he is concerned about Rex being charged, at other airports Rex is either not screened or screened but not charged, if QantasLink triggers the need it should pay and if Rex has to bear extra costs it will look at capacity and frequency (exhibit B tab 5).

170 On 22 October 2012 the Working Party produced a report which recommended that the report of the Working Party meeting held 22 October 2012 be adopted (exhibit B tab 6 p 1). It includes the agenda for the 22 October 2012 Working Party meeting and the report of the Working Party dated 19 September 2012 (identified above including the recommendations in par 163-166).

171 On 22 October 2012 the Council resolved to adopt the recommendations of the Working Party as follows (exhibit B tab 7 p 1):

(1) That the information contained within this report be noted.

(2) That Council seek a category 3 screening status from the Office of Transport Safety (OTS), as required.

(3) That all RPT passengers and checked baggage travelling from Dubbo be screened for both passenger safety and security purposes, with the costs of such screenings to be on an all encompassing user charge basis for use of the Dubbo City Regional Airport by RPT operators and spread across all RPT passengers flying into and out of Dubbo.

(4) That the Mayor and General Manager undertake discussions with the affected airlines on the basis of Council's resolution as per three (3) above.

(5) That Council conceptually endorse the proposed building extensions with the necessary funds for such extension and associated works, being borrowed internally and repaid over a 10 year period.

(6) That following discussions with relevant airlines, a further report be submitted to Council detailing fees payable in report of airport usage by airlines including landing fees and other charges.

(I note these recommendations are drawn from the substance of the Working Party report of 19 September 2012. They do not literally reflect the section of the report called recommendations set out in par 163.)

172 Mr Lodge was sent an email by Mr Gahan on 24 October 2012 forwarding an email from the airport operations manager to Mr Gahan setting out the recommendations adopted by the Council (exhibit B tab 8).

173 On 24 October 2012 Mr Lodge wrote to Mr Dickerson stating that the Working Party's notice of meeting dated 16 October 2012 was not received until a day after the meeting, on 23 October 2012. He stated this was insufficient notice and it was unclear from the notice of meeting whether or not Rex was invited to attend the meeting. Mr Lodge reiterates Rex's position that since its aircraft do not require security screening it should not pay for it (exhibit B tab 9).

174 On 9 November 2012 Mr Dickerson responded to Mr Lodge's letter dated 24 October 2012 stating that the papers of the Working Party meeting were forwarded to Rex as a courtesy and due to the short notice it was never expected that Rex or QantasLink would attend (exhibit B tab 11).

175 Mr Lodge swore affidavits dated 24 June and 18 July 2013. His affidavit sworn 24 June 2013 sets out the recommendations in the document titled "Report of the Dubbo City Regional Airport Working Party - Meeting 22 October 2012" and "Report: Passenger and Baggage Screening at Dubbo Regional Airport" dated 19 September 2012 (exhibit B, tab 6) (par 5) and the document titled "Report Dubbo City Regional Airport Working Party 22 October 2012" (exhibit B tab 7) (par 6).

176 Mr Lodge states that until he first saw the report titled "Draft Revenue Policy/Screening Charges Dubbo City Regional Airport" (exhibit B tab 28) dated 12 February 2013 on or about 22 February 2013 he was not aware of any Council resolution that all passengers be screened with costs to be charged on an all encompassing user charge basis (par 8). To the best of his knowledge this resolution was not contained in any of the documents that were available to the public on the Council's website prior to 22 February 2013 (par 8). The terms of this resolution are inconsistent with the terms of the documents that were available to the public on the Council's website prior to about 22 February 2013 when he first saw the February report (par 9).

177 On or about 12 March 2013 Mr Lodge saw for the first time the document titled "Report Dubbo City Regional Airport Working Party 22 October 2012" (exhibit B tab 7) (par 11). Mr Lodge had reviewed the Council's website on many occasions between 25 October 2012 and 12 March 2013 (par 12). The Council has not stated whether the "Report Dubbo City Regional Airport Working Party 22 October 2012" was placed on the public record.

178 In his affidavit sworn 18 July 2013 Mr Lodge states that a letter dated 16 October 2012 sent by Mr Etcell, Manager Administrative Services of the Council, to Mr Gahan, NSW State Sales Manager for Rex (exhibit B tab 3) enclosed two documents titled "Agenda Dubbo City Council Regional Airport Working Party 22 October 2012" and "Report: Passenger and Baggage Screening at Dubbo Regional Airport." A copy of this letter and the documents enclosed were received by Mr Gahan on 23 October 2012 and Mr Gahan sent them by facsimile to Mr Lodge (par 6). The "notice of meeting" Mr Lodge referred to in his letter dated 24 October 2012 was referring to the letter sent by Mr Etcell to Mr Gahan dated 16 October 2012 (par 9). Mr Lodge stated that Baker & McKenzie, Rex's former solicitors, were instructed that the report of the meeting of 22 October 2012 of the Working Party was uploaded onto the Council's website on 27 February 2013 (par 13).

179 Mr Lodge was sent an email by Mr Gahan on 24 October 2012 forwarding an email from the airport operations manager containing the recommendations adopted by Council (exhibit B tab 8). Mr Lodge has no recollection of reading or seeing this email on the date it was received (par 16). He first became aware of the email on or around 12 March 2013 (par 17).

180 Mr Lodge was cross-examined. Mr Lodge stated that discussions with councils are generally his responsibility. Mr Lodge knows Mr Gahan who is located in Rex's Lismore office. If Mr Gahan received any security screening information he would forward it to Mr Lodge as this was not part of Mr Gahan's job. Mr Lodge was aware of Council deliberations on 18 October 2012 because he had a phone call from Mr Gahan at the time. He was aware that these deliberations were prompted by QantasLink's decision to move to heavier planes and that increased screening would be involved. Mr Lodge was concerned to ensure that Rex was not charged. Mr Lodge expressed his views to Council because Mr Gahan told him that the airport manager may allow segregated screening but there was confusion concerning how Council would deal with this as it was a new Council.

181 Mr Lodge sent an email to Mr Dickerson on 18 October 2012 about QantasLink and airport security. Mr Dickerson called him back and summarised the discussion in an email to Mr Rogers dated 18 October 2012. Mr Lodge agreed that he told Mr Dickerson that Mr Gahan had had discussions with the airport manager. Mr Lodge expressed the view that Rex passengers did not need to be screened and if they were Rex should not have to pay, that passengers could be segregated so passengers were not interrupted. They also discussed how Rex was treated at several airports where one airline required screening and Rex did not, such as Wagga Wagga, Albury, Ballina, Port Lincoln, Mildura and another he could not recall. At Wagga Wagga, Albury and Port Lincoln passengers are segregated, at Mildura all passengers are screened but Rex is not charged, at Ballina passengers are screened where necessary but Rex is not charged. Mr Lodge could not recall whether he stated his preference about whether Rex passengers were screened, he recalled stating that Rex should not pay and QantasLink should pay. If Rex was charged it would have to reconsider its capacity and frequency of flights. Capacity in this sense means the number of seats driven by frequency, not smaller planes. The decision to provide services to Dubbo would be influenced by charges which is a decision within the purview of Rex. He could not recall whether he stated that Rex would stop flying to Dubbo. Mr Lodge also made notes of this conversation and it was relayed to Rex's management.

182 Mr Lodge knew that the purpose of the internal Council workshop was to discuss options for screening including that Rex may be required to pay. He wanted Rex's views to be conveyed to Mr Dickerson before the workshop. In his email Mr Lodge stated that his preference was for Rex passengers not to be screened because it is not required by law and that his only concern was in relation to costs. Mr Lodge was referred to an email sent to Mr Kim, owner of Rex, dated 18 October 2012 (exhibit 1) in which he stated that he shared his views about security screening with Mr Dickerson. He did not ask Mr Dickerson what the meeting on Monday 22 October 2012 referred to in his email dated 18 October 2012 was about.

183 Mr Lodge agreed that the 22 October 2012 Working Party report includes a fair summary of Rex's position (exhibit B tab 6 p 34). Mr Lodge discussed the totality of airports included in this report with Mr Dickerson. Capital city airports, Townsville and Newcastle airports were not discussed. Mr Lodge did not read the email sent to him by Mr Gahan on 24 October 2012 which included the policy adopted by the Council at the meeting on 22 October 2012 (exhibit B tab 8).

184 The letter sent by email from Mr Lodge to Mr Dickerson dated 24 October 2012 reiterates Rex's position put to Mr Dickerson on 18 October 2012 (exhibit B tab 9 p 4). A letter sent by email from Mr Lodge to Mr Dickerson dated 16 November 2012 stated that if Rex is charged for security screening it "would rigorously oppose any attempt to arbitrarily distort the competitive equilibrium by imposing on Rex's customers additional charges and inconveniences that are not mandated by law" (exhibit B tab 12 p 2). On 16 December 2012 Mr Lodge wrote again to Mr Dickerson (exhibit B tab 16).

185 Mr Lodge was not aware of the Council resolution made on 22 October 2012. If he had read the email sent by Mr Gahan on 24 October 2012, he agreed he would have been aware. Mr Lodge accepted that Rex as a company was aware of Council's resolution on 22 October 2012 since Mr Gahan had forwarded Mr Lodge the email concerning the resolution.

186 In re-examination Mr Lodge stated that Townsville and Newcastle airports are in a different category because they are much larger than the other examples Mr Lodge used. They have many operators, not just two or three.

Rex's submissions

187 Procedural fairness was not accorded to Rex before the first decision and that failure results in invalidity of that decision. The Council cannot rely on the letter of 16 October 2012. Mr Lodge on behalf of Rex has said that it was not received or read by him until 23 October 2012. Moreover, as 16 October 2012 was a Thursday, under the presumption in s 160 of the Evidence Act 1995, the Court should presume that the letter was received no earlier than Monday 23 October 2012.

188 Notice that the issue was before the Council was not enough to accord procedural fairness. As Buchanan J held in Kong v Minister for Health [2014] FCA 34; (2014) 308 ALR 522 at [41]-[44], the observations of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [38] do not warrant a conclusion that if a party is perceived as failing to act in his or her own interest, then there is no "practical injustice". Rex was never told that a decision would be made on 22 October 2012, Rex was never invited to make full submissions about that decision, and Mr Dickerson acknowledged that Rex and QantasLink were never expected at the meeting.

189 Rex accepted that procedural fairness may be accorded at a later stage of a multi-stage process. However, that is not what occurred in this case. The Council never revisited or reconsidered its resolution that screening services should be imposed and that the charge should be imposed on RPT operators spread across all RPT passengers.

190 Rex submitted that the first decision was made without notice to Rex because the Working Party report dated 22 October 2012 was adopted on the same day by Council. The 16 October 2012 letter from the Council did not refer to a Council meeting and it attached the report of 19 September 2012 listing options for security screening without choosing between them.

191 The Council's argument that there was no practical injustice because Mr Lodge spoke to Mr Dickerson on 18 October 2012 in any case should be rejected because relief should be granted unless there is no possibility that what Rex would have said would have changed anything relying on Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; (2004) 141 FCR 346 per Sackville J at [64].

192 Rex submitted that although Mr Lodge said some things on 18 October 2012 to Mr Dickerson which the Council took into account, Rex was still denied the opportunity to make submissions. It should be noted that in the 18 October 2012 discussion Rex referred to documents which went beyond documents before the Council, for example concerning competitive equilibrium and the practicalities of screening (as in exhibit B tab 12, 16 and 31). Submissions could have been made by Rex concerning these matters.

Council's submissions

193 Before the Council resolved on 22 October 2012 to provide passenger and checked baggage screening at the airport, and that it would like to do this on a full cost recovery basis:

(a) On 16 October 2012 Rex was sent notice of the meeting of the Working Party and a copy of the agenda and business paper that discussed full-cost recovery from all operators as being an option that might be endorsed as a policy of the Council (exhibit B tab 3). That Rex would later reveal that the notice was not received by it until after that meeting (exhibit B tab 9) does not deny the fact that notice was sent;

(b) On 18 October 2012, Mr Lodge had a telephone conversation with Mr Dickerson in which he put "Rex's position" (exhibit B tab 4 and 5, exhibit 1); and

(c) Both the Working Party and the Council were informed that screening of Rex passengers was not a legal requirement (exhibit B tab 3 p 3, 5-7, 11), that many other regional airports did not charge Rex for screening services (exhibit B tab 3 p 6-7, 11), and that Rex was "likely to be stridently opposed to paying for screening as the legislation does not require passengers or luggage flying on aircraft under 20 tonne MTO weight to be screened" (exhibit B tab 3 p 6).

194 The Council denied that the first decision was invalid for failing to provide Rex with procedural fairness because:

(a) Rex was provided notice of the intent of the Council to make the first decision, and whether or not it received that notice it made use of an opportunity before that meeting was held to put its "position" to the Council, including its commercial concerns (as in exhibit 1);

(b) Both the Working Party and the Council had a clear understanding that Rex was "stridently opposed" to the decision; and

(c) The first decision was made at a public meeting and there is no allegation that s 9(1) of the LG Act was breached.

195 In the circumstances, there was no "practical unfairness" in any failure to invite Rex to meet and present to the Working Party or the Council meeting on 22 October 2012 which would mean that the decision was invalidly made: ex parte Lam at [38], [59], [111]-[114] and [145]-[149]; Reid's Farms Pty Ltd v Murray Shire Council [2010] NSWLEC 127; (2010) 182 LGERA 1 at [79].

196 Rex's "case" was wholly and completely put to the Council before it made the first decision by the conversation between Mr Lodge and Mr Dickerson on 18 October 2012 and the acknowledgement by Mr Lodge in cross-examination that the statement of Rex's position was accurately reflected in the report to the Working Party and hence to the Council. There was nothing further that would have been put to the Council if yet further opportunities were given. This is demonstrated by the oral evidence of Mr Lodge and the documents sent by Rex to the Council, all of which were before the Council when the second decision was made.

No procedural unfairness in relation to first decision

197 In relation to the content of the duty owed to Rex, there are no statutory requirements for public notification and/or consultation in the LG Act or elsewhere relevant to the Council's first decision on 22 October 2012. Whether the common law requirement that the Council must accord procedural fairness to Rex has been satisfied arises. The evidence discloses that Rex employees Mr Gahan and Mr Lodge were aware in October 2012 that the Council was considering options for security screening of passengers at the airport and the issue of charging for these. This is apparent from Mr Lodge's oral evidence and his email dated 18 October 2012 to Mr Kim set out above in par 168. Mr Lodge spoke to the mayor Mr Dickerson by telephone on that topic and expressed Rex's opposition to being charged on 18 October 2012. The understanding of that conversation of both participants is summarised in emails from Mr Lodge dated 18 October 2012 extracted above in par 168 and from Mr Dickerson to Mr Rogers dated 18 October 2012, summarised above at par 169.

198 Two questions arise, firstly, what further procedures if any was the Council required to undertake in terms of satisfying a duty to be heard owed to Rex. Essentially Rex submitted that it should have been notified and had the opportunity to be heard by the Council before the decision on 22 October 2012 to adopt the Working Party report recommending full cost recovery for passenger screening of all passengers from all RPT operators. Secondly, was there practical unfairness in the circumstances of this case, given the representations by Rex that did occur, the contents of the Working Party report and Mr Lodge's oral evidence that the Working Party report accurately identified Rex's opposition to being charged for passenger security services.

199 Rex relied on Lu at [64] where Sackville J states:

It seems to me that the correct approach is that stated in Stead and adopted by the High Court in Aala. The test is whether the applicant has been deprived of the possibility of a successful outcome by the decision-maker's failure to observe the requirements of the statute. If so, the jurisdictional error could have had a bearing on the outcome and the applicant is not to be denied relief on the basis that the error was insignificant. The test must be applied by reference to the material actually before the decision-maker and, where the decision-maker's reasoning processes is known, taking into account his or her approach to the exercise of the particular statutory power. The question is not whether the decision-maker would probably have reached the same result even if the omitted consideration had been taken into account.

200 In Lu the ground of challenge arose from a failure to take into account a mandatory relevant consideration when determining the migration status of the appellant, there the misstatement of the criminal record of an applicant for a visa in a departmental issues paper before the Minister. The Court found the Minister had committed a jurisdictional error of failing to take into account a relevant consideration. The next issue to arise was should relief be denied on the ground that the failure could not have materially affected the Minister's decision citing Mason J's test in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (per Black CJ at [40] for example). Sackville J's findings quoted above by Rex's counsel referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 were made in that context. Sundberg J adopted the reasoning of Sackville J in relation to the application of Peko-Wallsend at [104]. Black CJ adopted the reasoning of Sackville J and added that where jurisdictional error has occurred it may be difficult to conclude as a matter of logic that the error did not deprive a person of the possibility of a favourable decision.

201 Rex relied on that case to support a submission that the decision should be declared invalid unless there is no possibility that what Rex would have said would not have changed the outcome, a high threshold for the Council to address and the Court to consider. That test is articulated in a particular context of a finding that there was a fundamental error in failing to take into account a mandatory relevant consideration, which is not the facts in this case as I find in the next section at par 248-249. I consider that the decision should be distinguished for that reason.

202 The Council relied on Ex parte Lam at [34] - [38] where Gleeson CJ stated:

...The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.

...The more fundamental problem facing the applicant, however, relates to the matter of unfairness. A statement of intention, made in the course of decision-making, as to a procedural step to be taken, is said to give rise to an expectation of such a kind that the decision-maker, in fairness, must either take that step or give notice of a change in intention. Yet no attempt is made to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything. Nor is it shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment.

...Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

...No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness.

203 In Lam the appellant argued that he had been denied procedural fairness in circumstances where he received a letter from the relevant departmental officer considering whether to recommend to the relevant Minister that his temporary visa be cancelled. It asked who his childrens' carer was in order that contact with that person could be made. The information was supplied. This contact did not occur before a decision to cancel his visa was made by the Minister. The High Court in separate judgments dismissed the appeal against the Minister's decision. The appellant's argument that he had a legitimate expectation that a certain course would be followed, although he could not point to any opportunity he was deprived of to put his case, was rejected. Much of the reasoning of the separate judgments considers the place if any of legitimate expectations in Australian administrative law, with comparison to UK jurisprudence, the High Court concluding the concept had less role to play here than in the UK.

204 Lam has been considered in numerous cases such as in Kong, as Rex identified. In Kong a decision of a single Federal Court judge Buchanan J Lam was held as not warranting a finding that a failure to act in a party's interest does not mean that there is no practical injustice. That finding can be accepted but does not apply to the facts of this case, as I find below. The principle in Lam is in my understanding the more orthodox approach to the question of whether there is a breach of procedural fairness and whether a remedy should be ordered.

205 Each case must be considered on its own facts in the relevant statutory context for the decision under challenge. I consider that the obligation to accord procedural fairness required that Rex receive adequate notice of the meeting on 22 October 2012, disclosure of information on which a decision would be based and have sufficient opportunity to make submissions to the Council on any matters it considered relevant before that meeting, as held in the authorities referred to by Mark Aronson and Matthew Groves, Judicial Review of Administrative Action, (5th ed 2013, Thomson Reuters) at [8.140]-[8.150]. That notice of the meeting of the Working Party on 22 October 2012 was sent on 16 October 2012 with an agenda and the Working Party report attached by letter to Mr Gahan demonstrates that an attempt was made to inform Rex about what the Council was to consider and the information it would rely on in doing so. That notice was not sent in sufficient time to enable Rex the opportunity to put written submissions to the Council beforehand. Further, as a practical matter, the notice was not received by Mr Gahan until after 22 October 2012. That it was not intended by the Council to invite Rex to address the Working Party meeting on 22 October 2012 according to the letter of Mr Dickerson dated 9 November 2012 does not embellish the failure to accord procedural fairness.

206 I do not consider that there was practical unfairness as identified by Gleeson CJ in Lam for the reasons given by the Council summarised in par 195-196. Mr Gahan of Rex was aware that a meeting of the Working Party was to be held on 22 October 2012 and told Mr Lodge. The Working Party report before the Council identified Rex's position, as summarised above in par 164 (exhibit B tab 3 p 6). Rex through Mr Lodge was able to talk to Mr Dickerson, the mayor, and make known Rex's views on 18 October 2012 as identified in par 167-169. Mr Lodge was aware that the Council was having a Working Party meeting on 22 October 2012. Mr Lodge agreed in oral evidence that the substance of Rex's concerns were reflected in the Working Party report.

207 The Council also relied in its submissions on the circumstance that the Council meeting on 22 October 2012 after the Working Party meeting was a public meeting conducted in accordance with s 9(1) of the LG Act. The parties did not address this contention beyond that statement. I infer that the Council relied on that matter to show that Rex would have been informed as a member of the public in the ordinary course of the Council's processes. As I do not have any evidence about what those usual processes are I do not consider I can take this matter into account any further.

208 To the extent there is criticism of the Council in failing to place accurate information on the public website of the resolution of the Council on 22 October 2012 according to Mr Lodge in his first affidavit, I note that the email sent to Mr Gahan by the Council and forwarded to Mr Lodge on 24 October 2012 did accurately identify the Council's resolutions on 24 October 2012 based on the Working Party report of 19 September 2012. While Mr Lodge may not have read the email there is no dispute it was received by an employee of Rex. As this was sent after the meeting on 22 October 2013 it is not directly relevant to my determination above that there was no practical unfairness accorded to Rex.

209 Rex also submitted that there were additional issues it wished to provide documentation on to the Council before 22 October 2012 being competitive equilibrium and the practicalities of screening as found in exhibit B, tabs 12, 16 and 31. The letters in tabs 12 and 16 relied on by Rex sent by Mr Lodge to Mr Dickerson are dated 16 November 2012 and 19 December 2012. These refer to foreshadowed changes to the Security Regulations in relation to screening requirements. The change in the regulation occurred in November 2012, after the Working Party and Council meeting in October 2012. There could be no denial of procedural fairness given the change occurred after the meeting in October 2012. I further note that in any event this issue was referred to in the Working Party report of 19 September 2012 at p 6 (exhibit B tab 3). The relevance of the email dated 31 March 2013 from Mr Dickerson responding to other councillors reporting on a meeting with Rex representatives is not apparent (exhibit B tab 31).

210 Rex is unsuccessful on this ground of review.

4. Irrelevant considerations, unreasonableness and irrationality/ failure to consider relevant considerations grounds of review

211 The Council's reasons for decision filed 10 September 2013 were tendered in these proceedings (exhibit A). As these are referred to in detail in the FAS I will not set these out separately.

212 Rex alleged that the Council took into account irrelevant considerations in relation to the first decision, being:

(i) that passengers are screened at Sydney Airport regardless of aircraft size when travelling to Dubbo;

(ii) that it is a common way for the Council to do business;

(iii) that it was the easiest way to charge for screening services;

(iv) that it would lead to a better working environment for all parties.

213 The first decision was irrational, or was a decision that no reasonable decision-maker would make, by reason that it was made on the basis of reasons that had no rational grounds being:

(i) that the interests of fairness and equity required all RPT passengers and checked baggage to be screened;

(ii) that the decision promoted convenience of use of the airport for all passengers;

(iii) that all passengers utilising the airport are entitled to the same quality of safety and security where there was no material before the Council to support this conclusion;

(iv) that the decision facilitated ease of operation of the airport where there was no material before the Council to support this conclusion;

(v) that passengers are screened at Sydney Airport regardless of aircraft size when travelling to Dubbo;

(vi) that treating all RPT operators the same would mean there would be no competitive advantage to any RPT operator;

(vii) that the decision is the fairest option as there is one passenger lounge and one screening service;

(viii) that airside security would be compromised if all RPT passengers were not screened, where there was no material before the Council to support this conclusion;

(ix) that it is a common way for the Council to do business;

(x) that the fairest and most appropriate system is to screen all passengers and checked baggage and then recover the costs of those services from all RPT operators on a per passenger basis;

(xi) that screening all RPT passengers is a necessity due to the security and safety problems that have occurred around the world, where there was no material before the Council to support this conclusion;

(xii) that separate areas for screened and non-screened passengers is not a viable operational model for the airport, where there was no material before the Council to support this conclusion;

(xiii) that it is fair and equitable to share screening costs across all passengers;

(xiv) that it is the easiest way to charge for screening services, where there was no material before the Council to support this conclusion;

(xv) that it would lead to a better working environment for all parties, where there was no material before the Council to support this conclusion.

214 The decision failed to take into account relevant considerations, being:

(i) The financial or other impact of the decision on Rex, being an airline operating aircraft not required to have passenger security screening pursuant to the Federal Government's security regulations for airports;

(ii) the deprivation of a legitimate competitive advantage that Rex would have otherwise had, by virtue of being an airline operating aircraft not required to have passenger security screening pursuant to the Federal Government's security regulations for airports.

215 The same grounds were alleged in relation to the second decision. The only additional matters are as follows.

216 The Council took into account irrelevant considerations being a perceived desirability of reducing costs payable by QantasLink (relying on a letter from the mayor to QantasLink dated 20 December 2012 which stated that "as part of this public exhibition process and on the basis of all RPT passengers flying from Dubbo being screening, Council will be attempting to recover some screening costs from the other RPT operator operating from Dubbo in an attempt to reduce the cost payable by QantasLink Airlines" (exhibit B tab 18 p 3) (FAS par 11(d)(v)).

217 The decision was irrational, or was a decision that no reasonable decision-maker would make, by reason that it was made on the basis of reasons that had no rational grounds being that any other course would subject passengers to confusion and inconvenience, being a "split" screening service, where there was no material before the Council to support this conclusion.

218 The decision failed to take into account relevant considerations namely that the only other operator of RPT services at the airport QantasLink had agreed to pay or be responsible for all security screening fees at the airport (also relying on the letter dated 20 December 2012 from the mayor to QantasLink) (FAS par 11(f)(iii)).

Rex's submissions

Irrationality, unreasonableness, irrelevant considerations

219 According to the Council's reasons, the Council (through one or more of its members) took into account a list of matters in coming to the first decision and the second decision. Many of those grounds had no rational basis. Irrationality was identified as a ground of judicial review in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 by Crennan and Bell JJ at [130].

220 To the extent that particular fact-finding steps are challenged, present authority indicates that the proper challenge is for illogicality or irrationality: in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 at [83] per McKerracher J, Reeves J agreeing.

221 Where a finding, unsupported by evidence, is critical to the ultimate decision, it is impossible to sustain the decision: Luu v Renevier (1989) 91 ALR 39 at 47-48. The full Federal Court went on to say in that case that the resultant situation may be expressed in a number of ways, including unreasonableness or taking into account an irrelevant consideration. Having regard to the manner in which the conclusions are irrational (described below), Rex's position is that they are either irrational (so that a decision based on them is unreasonable in the Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680 sense) or amount to irrelevant considerations.

222 Rex in its written submissions in chief at par 59 and 60 set out in detail an itemised list of why it submitted that the reasons given by the Council were irrational for the first and second decisions, largely going to the merits or that the Council did not have any material before it to support such a reason. Some of the asserted grounds are irrational on their face. Others are irrational when it is appreciated that the Council had no material before it on which to base the relevant conclusion. It is important to note, in this regard, the limited material on which the Council (or its members) relied in reaching the first decision and the second decision. Rex served a notice to produce seeking any documents relied on by any individual councillor of the Council in forming the conclusions that constitute the challenged grounds in the reasons. The Council produced no documents in response to this request. The Court should infer that, in relation to the grounds that have been challenged, the Council (or its members) relied on no documents other than those that were formally before the Council.

223 Some of the grounds, if not actually irrational, should be rejected as irrelevant to the Council's decision. The relevant aspect of the Council's decision was the decision to impose the screening (and concomitant fee) on Rex as well as QantasLink, despite that not being required by the Security Regulations.

Failure to take into account relevant considerations

224 In relation to the failure to take into account relevant considerations, Rex accepted that in order to succeed the matter must be one the Council is bound to take into account under the statutory scheme per Peko-Wallsend (1986) 162 CLR 24 at 39. When considering whether to exercise the power under s 608, a council must be obliged to take into account the impact of the decision on specially affected persons and to take into account the extent to which the imposition of services and concomitant fee would deprive any specially affected person of a competitive advantage in his, her or its business. As a matter of statutory construction, the imposition of services and fees must require consideration of these aspects of the business of a specially affected party. Rex is such a specially affected party, not only would it be one of the only two current airline operators subjected to the fee, but it would be the only airline operator subjected to the fee when the services were not made necessary by the Security Act and Security Regulations.

225 In relation to the financial or other impact of the decision on Rex, being an airline operating aircraft not required to have passenger security screening, in the context of a decision to impose screening services and charge Rex a fee for doing so, this was a consideration that the Council needed to take into account. In relation to the first decision, there is nothing to suggest that the Council turned its mind in any way to the financial or other impact on Rex having regard to its aircraft not requiring security screening according to the relevant federal regulation. None of the grounds provided in the reasons suggests that this was taken into account.

226 In relation to the deprivation of a legitimate competitive advantage that Rex would have otherwise had, by virtue of being an airline operating aircraft not required to have passenger security screening, in the context of a decision to impose screening services and charge Rex a fee for doing so, this was a consideration that the Council needed to take into account. One of the grounds relied on by the Council in relation to both the first decision and the second decision was that treating all RPT operators the same would mean there would be no competitive advantage to any RPT operator. As explained above, this misstates the position. Rex is deprived of a legitimate competitive advantage, while the decision ensures that QantasLink has the full benefit of its competitive advantage in flying larger aircraft. Given the inclusion of this misconceived ground in the reasons, the Court can conclude that the relevant consideration was not taken into account.

Council's submissions

227 Merits review of a decision is not permissible in judicial review proceedings. The allegations of irrationality are not based on the statutory scheme. Councils are inherently political bodies with wide discretionary powers in relation to the provision of services and raising finances. The charter in s 8 of the LG Act confirms that it should take a long term view and be responsible as the custodian of public assets. Fees must be fair and social justice principles must be maintained. The financial powers of councils under Ch 15 should be broadly construed in light of their political purpose and nature. A local council is not required to act fairly when imposing new rates Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67 at [75]. The Council acted rationally in deciding to screen all passengers rather than creating separate areas for screened and non-screened passengers.

228 The Council submitted that it was acting rationally when it chose to make the service cost-neutral so that the cost of passenger screening would not be borne by ratepayers but by users of the airport. The question is then whether there is something in imposing that fee on RPT operators (and specifically Rex) that is so irrational that no reasonable decision-maker able to provide services and charge and recover fees would ever do it: SZMDS at [130]. The Court should not make that finding.

229 A challenge to the decisions of the Council on the basis that any part of it "lacked evidence" to support it is also difficult to sustain when councillors are expected to bring their own understanding of the political and social needs of the community to the process: compare Marrickville Metro (CA) at [98]-[103], [110], especially [127]-[130].

230 Rather, consistent with the scope, intent and purpose of the LG Act such matters as were considered by the councillors were done so rationally and by a lawful process of weighing and balancing multiple considerations as they saw fit, with no legal consequences for putting, for example, practical considerations of passenger security and airport efficiency over preserving a competitive advantage for Rex.

231 To the extent that Rex alleged that there was "no evidence" the matters considered were beyond the documents before the Council. Findings of fact are not necessary or a pre-condition to the exercise of power under s 24 or s 608(1) of the LG Act.

No irrelevant matters considered, no unreasonableness or irrationality in Council decisions

232 The nature of elected councils and the powers being exercised by them under the LG Act in relation to the provision of services and charging for these must be considered in resolving these grounds of review. The broad nature of the power of a council to provide services has already been canvassed above in considering the first ground of review in relation to s 7 (purposes of the LG Act), s 8 (the council's charter), s 24 (power to provide services) and s 608 (power to charge for services), of the LG Act. The nature of council decision-making in this statutory context has not received much judicial consideration.

233 Under s 610D the matters a council must take into account when determining the amount of a fee for service are specified as the cost to the council of providing the service, the price suggested for the service by any relevant industry body or in any schedule of charges published from time to time by the Department (none were before the council), the importance of the service to the community and any factors specified in the regulations (none were specified in the regulations). Under subsection (2) the cost to the council of providing a service in connection with the exercise of a regulatory function need not be the only basis for determining the approved fee for that service.

234 As the Council submitted the range of matters which a council may otherwise take into account is wide given the broad purposes in the LG Act, the council's charter and s 24. In this context the Council was able to consider security and safety matters and ease of administration of the service which are the basis for most of the Council's fifteen reasons identified by Rex as unreasonable or irrational (namely (i), (ii), (iii), (iv), (v), (vii), (viii), (ix), (x), (xi), (xii), (xiv) and (xv)) in relation to the first and second decisions. Fairness in equal treatment of passengers and charging of RPT operators is identified in (vi), (vii), (x) and (xiii) also in relation to the first and second decisions. One additional matter is identified by Rex in relation to the second decision (par 217) of there being no evidence to support the statement that passengers would be confused by split screening service.

235 The Council's submissions at par 229 relying on Marrickville Metro (CA) properly reflect the nature of the Council's decision-making processes in this case, namely that councillors bring their own understanding of the needs of the community to bear in decisions of this kind. It is useful to set out several paragraphs from Marrickville Metro (CA) as they pertain to the parties' arguments. Tobias JA (Basten and Handley JJA agreeing) held:

97 It cannot be gainsaid that where the exercise of a statutory power by a body such as a council is dependent upon the existence of a fact or the holding of a particular opinion, then the absence of any evidentiary basis upon which that fact can be found to exist or that opinion held would vitiate a council's decision. Pestell was such a case. But it is not this case. As her Honour observed (at [106]) there is nothing in the scope of the Act or the rate setting scheme in relation to the fixing of an ad valorem rate that suggests that it is an irrelevant consideration giving rise to illegality to seek to impose a greater rate burden on one category or sub-category than another category or sub-category. Equally, the fact that the statute permits such a form of discrimination militates against any finding of manifest unreasonableness founded on that consideration.

98 The Council submitted that in the absence of any criteria in the Act for the setting of an ad valorem rate, it had a wide discretion allowing it to take into account whatever matters it regarded as relevant, but that it was not obliged to act judicially. It did not require "evidence" before it made its decision. As long as the Act permitted it to do what it did, its decision must be allowed to stand.

99 The Council was a collegiate body made up of community representatives who were relevantly performing in the present instance a quasi-legislative function. It was setting a tax, but one in which the empowering statute permitted differentiation and/or discrimination. It was not acting as a decision-maker determining some form of dispute between parties. There were no relevant statutory criteria that were required to be satisfied before it exercised the power.

100 Nevertheless, it was submitted by the appellant that the Council's decision, at least to set the ad valorem amount applicable to the sub-category of Business-Marrickville Metro, was based on an arbitrary choice as to what particular amount in the dollar to adopt. But in the present case the Council had before it the various reports of the General Manager, the relevant portions of which I have extracted earlier in these reasons as well as the benefit of the views of the various councillors during the course of the debate before a vote was taken.

...

102 ... However, in my view, no such probative evidence in the sense in which that concept is used in the context of a decision-maker who is required to make findings of fact or form an opinion as a condition of exercising a power, was required in the present case.

103 In any event the councillors must be taken to have local knowledge as to the success or otherwise of the Centre and in fact there are references in the material that I have extracted as to the drawing power of the Centre. The councillors were aware of the amount of the increase which, for the 2002/2003 year, appears to be less than $50,000 over and above what otherwise the Centre would have paid had its land remained in the Business-General sub-category. After all, this was a complex containing some 101 tenancies. It is the only such complex in the LGA which thus gave it a degree of monopolisation.

...

127 I have already expressed the view that in the context of the particular statutory provisions which relevantly invested the Council with what was essentially an unconfined power, there was no requirement that before that power was exercised the Council must have had before it probative material that would "justify" the decision it proposed to make. What would "justify" the decision to one person would not necessarily "justify" it to others. It would not be difficult to infer that the increase in the rates payable by the appellant would meet with the acclaim of those ratepayers whose rate burden was reduced. Of course, there would be limits even though there was no mandatory requirement to impose rates "fairly" (whatever that might mean in the present context). Thus to increase the rate burden on one ratepayer to the point where all other ratepayers or a significant class of them paid only nominal rates, would probably demonstrate irrationality. Such a conclusion would be justified if the purpose of the Council was to place such a financial burden on the Centre so as to force it out of business. But that is not this case.

...

130 At the end of the day the real complaint of the appellant is that the Council's decisions, including those in 2007 and 2008, were "unfair": but even if that be so, it does not support a finding of Wednesbury unreasonableness. To make the challenged decision the Council was not required by the Act to find any facts or form any opinion. The councillors were elected to, amongst other things, exercise their function to declare categories and sub-categories of rateable land and to fix the ad valorem rate to be applied to the land values of that land within those categories and sub-categories. This they did and the Act did not prevent them from doing so. They were therefore entitled to pass the resolutions they did. Accordingly, I would reject the appellant's challenge to the 2007 and 2008 rate setting decisions.

236 As Tobias JA identified the council is a collegiate body made up of community representatives, performing in that case a quasi-legislative function where the statute permitted discrimination with no statutory criteria required to be satisfied in relation to rate setting. While this matter raises the charging of fees for a service rather than rate setting the observations of Tobias JA apply equally by parity of reasoning to this circumstance given the wide discretion in providing services and charging for these under the LG Act. Considering [97], [130] the LG Act does not specify the existence of a fact or the holding of an opinion by a council is required before a service is implemented and a fee charged. It is not a decision where facts must be found to exist in order to exercise a power validly by the Council.

237 Rex's submissions on lack of rationality in the Council's first and second decisions appear to be based largely on the assertion of lack of evidence before the Council in relation to each of the numerous reasons given by the Council. A challenge based on the lack of probative evidence to support a local council decision was considered in Marrickville Metro at [97]-[100] as set out above. As the Council submitted there is no statutory requirement that certain facts must be found before the exercise of power in s 24 or s 608(1) of the LG Act. The Council had before it the Working Party report which it resolved to adopt in October 2012 and further reports before it when it determined to charge a fee in February 2013. These reports were in evidence and canvassed a number of operational issues pertinent to the decision. It is not necessary for a valid decision for the Council to identify for every reason given a factual circumstance which could be said to underpin it.

238 The statutory scheme for the provision of services by an elected council is not able to be equated with a tribunal or court process where fact finding is an essential part of the discharge of the decision-maker's function, often directed to a singular statutory precondition being satisfied in order to exercise power, for example. The collegiate decision-making of the Council on an issue with many variables such as the decision to implement this service and charge for it is a decision of a quite different nature. Rex's lack of probative evidence argument relied on Luu v Renevier, however the decision-making context of that matter was entirely different. There a minister's delegate was determining whether to allow a person to remain in Australia under the Migration Act 1958 (Cth). One factual issue was key to the delegate's determination. The Federal Court found his conclusion was not based on probative evidence on that key factual issue. Council's decision-making processes are different being far more multifaceted with many variables potentially relevant and the broad discretion in the LG Act. Luu should be distinguished for this reason.

239 As the Council identified there is no requirement that a council be fair when rate-setting citing Marrickville Metro (CA) at [127]. The same can and should be said for providing a service or charging a fee for service by parity of reasoning. In any event the Council explicitly considered its approach of treating all passengers and RPT operators the same way as being fair, as identified above in par 234. That is a judgment open to the Council.

240 The nature of the Council's decision-making outlined above does not require a finding of jurisdictional fact and that is what the irrationality ground identified in SZMDS is directed to. It is not necessary to consider the case law referred to by Rex on irrationality in decision-making such as SZOOR given an inevitable finding that there is no such error in fact finding in the circumstances of this case.

241 Rex also submitted that the decisions were so irrational that they were unreasonable in the Wednesbury sense. The principle of unreasonableness as found in Wednesbury which requires the exercise of discretionary power in making a decision to be so unreasonable that no reasonable council could reach it, a high hurdle to overcome, has been broadened by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225. In Li Hayne, Kiefel and Bell JJ held that the legal standard of unreasonableness is not limited to what is irrational at [68]. The degree of unreasonableness depends on the statutory context particularly where discretions are ill-defined at [67]. French CJ held at [28] decision-making under the relevant statute cannot be capricious or arbitrary or contrary to common sense. Gageler J held the stringency of the Wednesbury unreasonableness approach remained and was met in the circumstances of that case, at [113]-[124]. That decision has been the subject of comment: Theresa Baw, "Illogicality, Irrationality and Unreasonableness in Judicial Review" in Neil Williams (ed), Key Issues in Judicial Review (2014 Federation Press) 72-76, Mark Aronson, "Jurisdictional Error and Beyond" in Matthew Groves (ed), Modern Administrative Law in Australia - Concepts and Context (2014 Cambridge University Press) at 259, and further judicial consideration by the Full Federal Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280 at [43]-[52]. As this case is simply not close to being arbitrary or capricious or lacking in common sense (to adopt French CJ in Li) in the context of the LG Act I do not need to further examine these authorities or other sources.

242 In light of these findings the fifteen grounds in the FAS set out in par 213, reflecting the Council's stated reasons, are not irrational or unreasonable. Nor is the additional ground raised in relation to the second decision that a split screening service would cause confusion and inconvenience.

243 The ground of taking into account an irrelevant consideration presents Rex with a high hurdle as there is no fixed list of matters described as irrelevant for these decisions under the LG Act. As stated by Mason J in Peko-Wallsend at 40, in order to succeed on a challenge based on a decision-maker considering irrelevant matters those matters must be either expressly or by implication matters which the decision-maker must ignore. The determination depends on the statutory framework, including the objects and purposes of a particular Act. The applicant must demonstrate that having regard to that framework a certain matter is irrelevant. There are no matters which were specifically referred to under the LG Act which the Council had to ignore in making the decision to provide security screening services under challenge. Accordingly, in order to succeed Rex must establish that the matters it says are irrelevant had to be ignored as a matter of statutory interpretation in light of the objects and purposes of the legislation.

244 Demonstrating there was an error by the Council in taking into account irrelevant matters is a difficult task for Rex, particularly given the broad policy nature of the decision to provide a service and charge for it. Five matters are cited as taking into account irrelevant considerations, that passengers are screened at Sydney Airport, that Council commonly does business this way, that it is the easiest way to charge for screening services and that it would lead to a better working environment for all parties. Apart from Rex asserting, essentially, that in its opinion these are irrelevant that is not a self evident matter.

245 In an amendment to the FAS in relation to the second decision in par 216 Rex identified a further matter said to be irrelevant, namely the desirability of reducing costs to QantasLink. The same comment applies to this matter also. Rex has not demonstrated as a matter of statutory construction that this matter is an irrelevant consideration. I consider this is attempting to raise matters of merit about which there may be genuine differences of subjective opinion which I cannot consider in judicial review proceedings.

No failure to take into account relevant considerations in Council decisions

246 The allegation of a failure to consider a mandatory relevant consideration also entails a consideration of the statutory scheme. The test for whether a matter is a mandatory relevant consideration is identified by Mason J in Peko-Wallsend (1986) 162 CLR 24 at 40 (Gibbs CJ, Brennan, Dawson and Deane JJ concurring with this formulation):

In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [33], adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury [34] , and Water Conservation and Irrigation Commission (NSW) v Browning [35] . By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.

247 The relevant mandatory matters alleged by Rex as not having been taken into account by the Council must be inferred as they are not identified explicitly in s 610D. That section specifies matters which must be taken into account when determining the fee for a service. As already identified above, the factors are the cost to the council of providing the service, the price suggested for that service by any relevant industry body inter alia, and the importance of the service to the community. No factors are specified in the regulations (subsection (1)(d)). Subsection (2) states the cost to the council need not be the only basis for determining the approved fee in relation to the exercise of a regulatory function. As operating an airport is not a regulatory function this subsection does not apply. Subsection (3) also does not apply.

248 The matters relied on by Rex set out in par 214 and 218 concern the financial impact on Rex's business of charging for passenger screening where this is not required by the Security Act and Security Regulations, and that Rex will be deprived of a competitive advantage. This underpinned the submission that Rex was a specially affected person and therefore the statutory scheme required that its interests be considered. The evidence in fact shows that Rex's submissions were considered by the Council before the decision to charge a fee was made so that the strength of this submission, assuming it is otherwise maintainable, is somewhat undermined. An additional ground alleged in relation to the second decision was that QantasLink had agreed to pay or be responsible for all the fees for passenger screening.

249 Apart from asserting these considerations were relevant and that this was supported by the statutory scheme there was little basis provided to support that submission. In a sense there cannot be because there are no provisions in the LG Act which can impliedly support these submissions. No part of s 7 (purpose) or s 8 (charter) of the LG Act is relied on, for example, to underpin Rex's submission that the Council was required to consider Rex's competitive advantage or the exercise of discretion in providing services at an airport was fettered in some way by the Security Act and Security Regulations. I have found above in relation to the first ground of review that there was no breach of any common law right of Rex in the Council's decision to charge RPT operators the fee. Given the broad charter of councils in s 8, a council's powers to provide services for the community under s 24 and the broad nature of the matters in s 610D the impact of a charge on the competitive advantage of an individual is not readily identifiable as a mandatory relevant consideration. This finding is consistent with the approach to statutory construction I took in relation to whether s 610F(1)-(3) was complied with.

250 Rex is unsuccessful on this ground of review also. Rex's summons should be dismissed. I will reserve the question of costs.

Orders

251 The Court makes the following orders:

(1) The Applicant's Further Amended Summons dated 24 February 2014 is dismissed.

(2) Costs are reserved.

(3) Exhibits to be returned.

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Decision last updated: 27 June 2014