Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95

Court / Tribunal: Supreme Court
Date of decision: 5 May 2023
Type of proceeding: Judicial review
Human Rights Act sections: 23 (participate in public life), 24 (right to property), 31 (fair hearing), 58 (obligations on public entities)

Summary

Three groups applied for judicial review of a decision made by the Deputy Premier to ‘call-in’ a development application made by Wanless Recycling Park to establish a new resource and recovery and landfill facility west of Ipswich. The Deputy Premier may call-in a development application where a ‘state interest’ is involved. The call-in meant the decision on whether to approve the application would be made by the Deputy Premier, rather than through the usual development application process. The Deputy Premier had not yet decided whether to approve or reject the application itself.

One group of local residents alleged that the call-in decision was incompatible with their human rights under the Human Rights Act 2019 (HR Act). The Court considered the nature of their right to participate in public life, the right to property and the right to fair hearing in the planning process. The Court concluded that the Deputy Premier’s decision did not limit human rights, and even if it did, any limitation was reasonable and proportionate.

In reaching this conclusion, the Court considered the meaning of the term ‘without discrimination’ in the HR Act. The expression ‘discrimination’ is defined as including direct or indirect discrimination under the Anti-Discrimination Act 1991, which protects people on the basis of certain attribute such as age, impairment, political belief or activity, race, religious belief or religious activity, sex and sexuality. The residents argued that they were not given the same representation opportunities based on political association, meaning they were discriminated against because of their political belief or activity. However, the court found there was no evidence to support this argument.

The court found analogous grounds to those in the Anti-Discrimination Act 1991 would also be protected under the HR Act. However, there was nothing in the factual material to demonstrate that the residents had been discriminated against on a relevant analogous ground.

The Court also concluded the Deputy Premier had given proper consideration to human rights, and therefore had not contravened his obligations as a public entity. However, even if he had, a contravention of those obligations would be a non-jurisdictional error and so may not have assisted the applicants.

All other grounds of challenge including allegations of apprehended bias were also dismissed, and the applications refused.

Full case note for Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95 (PDF File, 269.8 KB)