Judicial Review and Inferences about Briefing Notes

Matt Floro & Jasper Brown

29.05.19

Briefing notes play a significant role in the formation of a statutory decision-maker’s opinion. If it can be inferred that a statutory decision-maker read and considered a briefing note together with the attachments to the briefing note, and that the whole briefing note provided sufficient information on which a decision-maker could form an opinion, such an opinion may not be able to be challenged in judicial review proceedings. However, the making of such an inference is bound by legal and factual context.

This position has now been formally articulated by Preston CJ of the NSW Land and Environment Court (LEC) in the recent decision of City of Ryde Council v State of New South Wales [2019] NSWLEC 47 (City of Ryde v NSW). City of Ryde v NSW clarifies the effect of the recent Federal Court decision of Mortimer J in Stambe v Minister for Health [2019] FCA 43 (Stambe), which also concerned the interpretation of briefing notes. Accordingly, City of Ryde v NSW provides up-to-date guidance for statutory decision-makers and departmental officers on the use of briefing notes in the formation of a statutory decision-maker’s opinion.

Background to City of Ryde v NSW

Australia’s recent property and population boom has seen an explosion of housing development, particularly of low and high density, throughout much of Sydney and Melbourne.

In an attempt to deliver more medium-density housing options (the so-called “missing middle”) in Sydney, in 2018 the NSW Government implemented a “Low Rise Medium Density Housing Code” (Housing Code) comprising amendments to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) (Codes SEPP). The Housing Code classifies certain types of medium-density housing as complying development, making it easier to build one- and two-storey dual occupancies, manor houses and terraces.

The Housing Code sparked a “backlash” among many local councils, with several obtaining a deferral of its introduction until 1 July 2019. Those councils feared that the Housing Code would lead to increased population density without the associated infrastructure keeping pace. City of Ryde Council (Council) obtained a deferral of the Code’s introduction until 1 July 2020 and brought judicial review proceedings in the LEC to challenge the validity of the amendments to the Codes SEPP.

Council’s submissions

Council submitted that the Secretary of the Department of Planning and Environment (DPE) erred in her decision not to consult with the Chief Executive of the Office of Environment and Heritage (OEH) (a separate regulatory agency to DPE) before making:

• the first amendment to the Codes SEPP, being Codes SEPP Amendment (Low Rise Medium Density Housing) 2017 (first decision); and

• consequential amendments to the Standard Instrument – Principal Local Environmental Plan and to 20 local environmental plans (LEPs) to ensure the permissibility of the proposed medium-density housing categories (second decision). The Standard Instrument – Principal Local Environmental Plan is the compulsory model for LEPs throughout NSW.

Section 34A(2) (now section 3.25) of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) requires the Secretary of DPE to consult with the Chief Executive of the OEH before an environmental planning instrument is made if, in the opinion of the Secretary, critical habitat or threatened species, populations or ecological communities, or their habitats, will or may be adversely affected by the proposed instrument.

In forming her opinion that consultation with OEH was not required in relation to the first decision and the second decision, the Secretary relied on two separate briefing notes, both of which were accompanied by various attachments containing supporting documentation. Both briefing notes stated that DPE’s view was that consultation with OEH was not required because the amendments did not propose any changes to the current provisions of the Codes SEPP that “ensure that critical habitat or threatened species, populations or ecological communities or their habitats are not adversely affected by development carried out” under the Codes SEPP.

Council submitted that the briefing notes were legally inaccurate because, among other things, the Codes SEPP did not, as claimed, “ensure” that critical habitat or threatened species, populations or ecological communities or their habitats were not adversely affected by development.

Chief Judge Preston’s findings

Chief Judge Preston held that Council did not establish any of its grounds of review and dismissed the proceedings.

His Honour found that the statement in the briefing notes that the current provisions of the Codes SEPP “ensure that critical habitat or threatened species, populations or ecological communities or their habitats are not adversely affected by development carried out” should not be construed in the literal way contended for by Council.  Although the Codes SEPP did not “guarantee” protection of critical habitat or threatened species, populations or ecological communities or their habitats, Preston CJ found that it did provide a “considerable degree of protection” of which the departmental officers and Secretary would have been aware.

Chief Judge Preston found that the senior departmental officers who wrote the briefing notes, and the Secretary in considering the briefing notes for the purposes of section 34A(2), “may be assumed to bring knowledge and expertise to their consideration of the current provisions of the [EP&A] Act and the Codes SEPP concerning complying development”. Further, the departmental officers’ and Secretary’s consideration of the relevant matters was “part of a process that begun before the briefing notes were drafted”, including the publicly exhibited original departmental discussion paper and background paper.

Moreover, Preston CJ found that “the impugned statements in the briefing notes need to be read fairly and in the context of the discussion in the whole of the briefing notes” (emphasis added). Importantly, his Honour found that it was “appropriate to infer that the Secretary read and considered the briefing notes and the attachments to the briefing notes” (emphasis added). Such an inference was “consistent with the purpose and practice of briefing notes” and was considered by Mortimer J in Stambe v Minister for Health [2019] FCA 43 (Stambe), in which her Honour noted at [74]:

As a general principle, I consider it reliable and appropriate to infer, consistently with the purpose and practice of ministerial briefing notes, that a Minister reads a briefing note with which she or he is provided, where that briefing note is intended to provide the Minister with sufficient information to make a decision about whether or how to exercise a statutory power. Sometimes there may be evidence which assists the drawing of such an inference, such as handwriting, or marks such as circles or underlining, by the Minister on the contents of a briefing note itself. Such evidence is not necessary for the inference to be available and drawn, but it may be persuasive.

Chief Judge Preston found that the inference was supported in the present case by the Secretary’s circling of the word “Approved” and signing and dating both briefing notes.

As to the content of the attachments to the two briefing notes, Preston CJ noted that they “contained a fuller consideration of the current provisions of the [EP&A] Act and the Codes SEPP concerning complying development” and the proposed amendments. Both briefing notes contained a consideration of the requirement to consult under section 34A of the EP&A Act. In addition:

• the first briefing note attached an Explanation of Intended Effect and the draft Medium Density Design Guide; and

• the second briefing note attached an analysis (including a table) of LEPs requiring consequential amendments.

His Honour found that the attachments were referred to in the briefing notes and were provided to the Secretary for consideration. Effectively, “the discussion and information in the attachments were incorporated by reference into the briefing notes”.

A comparison with Stambe

City of Ryde v NSW may be contrasted with the outcome in Stambe, in which Mortimer J was not prepared to infer that the Federal Health Minister considered the attachments to a briefing note for a decision to approve a pharmacy under section 90A(2) of the National Health Act 1953 (Cth). Nor was her Honour prepared to infer that the Minister had considered the attachments to a subsequent briefing note, provided after the decision was made, providing a draft statement of reasons for the Minister’s consideration.

Stambe may be distinguished because of its different statutory and jurisprudential context. Moreover, her Honour’s ability to make inferences about the Minister’s reasoning process was constrained in factual circumstances where (at [77]):

the reasons are on the evidence drafted by departmental officers and lawyers well after the exercise of power and in anticipation of legal proceedings, and the connection with the Minister’s actual reasoning process is an ex post facto adoption of a document as drafted.

In such circumstances, Mortimer J stated (at [72]):

I consider it is more difficult for inferences to be drawn about what the repository of the power “considered” or read, or did, at the time the power was exercised, unless that is plain from other evidence, or plain from the reasons themselves. Without other evidence, the level of independent thought and consideration applied by a repository of the power at the time the power was exercised will remain unknown to the Court.

Accordingly, it will be difficult to infer that a statutory decision-maker considered a briefing note (including attachments) where the decision-maker’s reasoning process involves an “ex post facto adoption” of later relevant documents.

Conclusion

City of Ryde v NSW formally articulates the position that a statutory decision-maker’s opinion may not be able to be challenged in judicial review proceedings in circumstances where it can be inferred that the decision-maker read and considered a briefing note (including attachments) that provided a sufficient basis upon which to form a statutory opinion before making the decision.

In light of City of Ryde v NSW and Stambe, statutory decision-makers and departmental officers should take into account three key points:

• The relevance of a briefing note is a necessary but not sufficient condition to properly inform a statutory opinion. The Court must be able to ascertain that the briefing note was considered, or must be able to infer from the context that the briefing note was considered, in the formation of the decision-maker’s opinion;

• Relevant to the context will be the time at which the briefing note was provided to the statutory-decision maker (preferably before or at the time the decision was made) and the knowledge and expertise of departmental officers and the statutory decision-maker; and

• It is possible for the Court to infer that the whole of the briefing note (including attachments) was considered by a statutory decision-maker and the briefing note has informed the decision-maker’s opinion, if the context allows for such an inference.

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Matt Floro is a Solicitor at EDO NSW. Jasper Brown is a volunteer researcher at EDO NSW. This article reflects the personal views of the authors, and the authors take responsibility for any errors contained herein.

Suggested citation: Matt Floro and Jasper Brown, ‘Judicial Review and Inferences about Briefing Notes’ on AUSPUBLAW (29 May 2019) <https://auspublaw.org/blog/2019/05/judicial-review-and-inferences-about-briefing-notes/>