FEDERAL COURT OF AUSTRALIA

Maritime Union of Australia v Minister for Infrastructure and Regional Development [2015] FCAFC 187

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RARES AND JAGOT JJ

1    Maritime Union of Australia began these proceedings on 25 November 2015 to challenge the validity of the grant by the first respondent Minister of a temporary licence to the third respondent Alcoa of Australia Limited under s 34(1) of the Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth). The licence authorised Alcoa to engage in coastal trading, by ships to be nominated on the 17 voyages permitted over a 12 month period commencing on 24 October 2015.

2    On 7 December 2015, the Chief Justice directed that, because of the importance of the matter, it be heard by a Full Court in the original jurisdiction pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth). We have prepared these reasons urgently because of the importance of the issues raised and the need for the parties to know where they stand.

3    The Union contended that the grant of the licence was invalid on four bases, namely that:

(1)    each of the application for the licence and the licence identified two ports disjunctively, namely “Bunbury or Kwinana” in Western Australia, as the loading ports, so as to leave the actual port of loading to the discretion of the holder of the licence (the loading port issue);

(2)    the application was made by Alcoa Portland Aluminium Pty Ltd but, contrary to the Act, the licence was granted to another person, namely Alcoa (the correct licensee issue);

(3)    the application did not specify “how the cargo is expected to be transported” and so did not comply with s 28(2)(h) of the Act and reg 4.2.1(b) of the Coastal Trading (Revitalising Australian Shipping) Regulation 2012 (Cth) (the transport issue); and

(4)    the Minister did not cause a copy of the application to be published on the Department’s website pursuant to s 30(a) of the Act prior to granting the licence (the publication issue).

The statutory scheme

4    The Act relevantly provides:

3    Object of Act

(1)    The object of this Act is to provide a regulatory framework for coastal trading in Australia that:

(a)    promotes a viable shipping industry that contributes to the broader Australian economy; and

(b)    facilitates the long term growth of the Australian shipping industry; and

(c)    enhances the efficiency and reliability of Australian shipping as part of the national transport system; and

(d)    maximises the use of vessels registered in the Australian General Shipping Register in coastal trading; and

(e)    promotes competition in coastal trading; and

(f)    ensures efficient movement of passengers and cargo between Australian ports.

(2)    This Act aims to achieve its object by the following means:

    …

(b)    ensuring that a vessel that is used to engage in coastal trading has access to Australian waters under a temporary licence that is limited in time and to voyages authorised by the licence;

28    Application for temporary licence

(1)    A person may apply to the Minister for a temporary licence to enable a vessel to be used to engage in coastal trading over a 12-month period if the person is:

(a)    the owner, charterer, master or agent of a vessel; or

(b)    a shipper.

(2)    The application must be in writing and specify the following:

(a)    the number of voyages, which must be 5 or more, to be authorised by the licence;

(b)    the expected loading dates;

(c)    the number of passengers expected to be carried (if any);

(d)    the kinds and volume of cargo expected to be carried (if any);

(e)    the type and size, or type and capacity, of the vessel to be used to carry the passengers or cargo (if known);

(ea)    the name of the vessel (if known);

(f)     the ports at which the passengers or cargo are expected to be taken on board;

(g)    the ports at which the passengers are expected to disembark or the cargo is expected to be unloaded;

(h)     such other information as is prescribed by the regulations. (emphasis added)

5    Next, s 30(a) requires the Minister to cause “a copy of the application” for each temporary licence (after redacting information that he is satisfied is commercial in confidence or personal details of an individual) to be published on the Department’s website within two business days after its receipt. The Minister must also cause every general licence holder and body or organisation that, or whose members, he considers would be directly affected if the application were granted to be notified of it (s 30(b)).

6    A general licence holder then has two business days to give a notice in response to the Minister stating that, relevantly, it could carry under its general licence all of a particular kind of cargo specified in the application or undertake one or more of the voyages specified in the application (s 31(a)(ii) and (v)). If that occurred, s 32 prescribed a process that had to occur before the Minister could make a decision. Allsop CJ, Mansfield and Rares JJ discussed that process in CSL Australia Ltd v Minister for Infrastructure and Transport (2014) 221 FCR 165 (CSL (No 1)).

7    Third parties, such as the Union, had two business days after an application was published under s 30 to give written comments to the Minister in respect of the application (s 33). The Minister had to decide an application by either granting or refusing it under s 34(1).

8    In a situation such as the present, where no holder of a general licence gave a notice in response under s 31, s 34(2) set out matters to which the Minister could have regard, including any written comments received by the Minister in relation to the application (s 34(2)(d)) and “any other matters the Minister thinks relevant” (s 34(2)(g)). If, as explained in CSL (No 1) 221 FCR 165, a general licensee gave a notice in response pursuant to s 31, then s 34(3) set out four matters to which the Minister must have regard in deciding the application. The Minister had to decide the application within 15 business days after it was made (s 34(4)), subject to exceptions under s 34(5) not presently relevant.

9    If the Minister grants an application, under s 35(1) the licence is valid for 12 months and he must “determine the number of voyages authorised by the licence”. In addition, s 35(2) relevantly provides:

(2)    If the Minister grants an application for a temporary licence, the Minister must cause the following information to be published on the Department’s website:

…

(c)    the number of voyages authorised by the licence;

(d)    the loading dates;

…

(f)    the kinds and volume of cargo (if any) authorised to be carried under the licence;

(g)    the ports at which the passengers or cargo will be taken on board;

(h)    the ports at which the passengers will disembark or the cargo will be unloaded; (emphasis added)

10    Section 36 is a deemed approval provision. If the Minister has not decided an application by the end of the period within which a decision is required under s 34, then, at the end of the last day of that period, the Minister is taken to have granted the application and to have “determined that the matters specified in the application are authorised by the licence”.

11    Next, s 37(1) requires that the Minister must give the successful applicant a temporary licence and, s 37(2) requires that the licence must specify, among other matters:

(e)    the loading dates;

(f)    that the loading dates are subject to acceptable tolerance limits;

…

(i)    the kinds and volume of cargo authorised to be carried under the licence (if any);

(j)    that, if paragraph (i) applies, the volume of cargo is subject to acceptable tolerance limits;

(k)    the ports at which the passengers or cargo are authorised to be taken on board;

(l)    the ports at which the passengers are authorised to disembark or the cargo is authorised to be unloaded; (emphasis added)

12    A temporary licence is also subject to the conditions imposed by s 40, including that the holder of the licence “must comply with what is authorised by the licence, as specified in the licence under section 37” (s 40(c)), unless the holder has notified the Secretary that a particular voyage is not going to be undertaken and the reasons why it is not, under s 40(ca).

13    At least two business days before the actual loading for a voyage authorised by a temporary licence, the holder must notify the Minister in writing under s 61 of, among other matters, the vessel to be used to undertake the voyage, the date of the voyage and “the ports at which the … cargo will be taken on board” (s 61(e)).

14    Section 83 provides that a person contravenes that section if the vessel is not authorised by a licence to be used to engage in coastal trading. Contravention renders the owner, charterer, master or agent of a vessel or shipper liable to a civil penalty.

Background

15    On 12 October 2015, John Oliver, Alcoa’s director of global maritime operations sent an email to the delegate, Shipping Business Unit, of the Department. In the email he stated that he had attached an application “and supporting Statement of Certification covering a Temporary Licence application on behalf of Portland Aluminium Pty Ltd [sic]”. Mr Oliver asked for the licence, if granted, to commence on 24 October 2015. He asked the delegate to note that “the structure of the application allows for Portland [sic] to have the flexibility of loading at either the Kwinana or Bunbury terminal”. Bunbury and Kwinana are about 150 kilometres distant from each other.

16    As noted above, the application specified the expected loading dates for each of the 17 proposed voyages, each for carriage of 35,000 metric tonnes of aluminia in bulk to Portland, Victoria. Mr Oliver’s email explained that the decision on which port would be used would be made closer to the time of shipping, based on anticipated congestion levels at the two possible loading ports and the critical nature of the inventory requirements in Portland. He said that he wanted to pay the application fee using a credit card and asked the delegate to telephone him so that he could pay. Mr Oliver signed the email in his capacity as an officer of Alcoa.

17    The application was in a printed form entitled “Application for Temporary Licence or Variation to Temporary Licence for New Matters (Form No CTTLV01)”. The form was prepared by the Department. However, the form was not a form that was prescribed under the Act. Applications could also be made electronically directly on the Department’s website. The Department had the practice of issuing a customer reference number (or CRN) to persons when they first applied for a licence under the Act. Alcoa’s CRN was 0079 and the Department allocated this to Alcoa on 9 August 2013 after it had filed online a Coastal Trading Client Registration Form. Alcoa Portland had no CRN issued to it at any time.

18    The printed form that Mr Oliver attached to the email identified Alcoa Portland, by its correct name, in a box for “Entity Legal Name” under the general heading “Part 1A Organisation Details”. The space for a CRN in the application form was left blank. The application form listed the 17 proposed voyages, for various loading dates giving the vessel names as “TBA” (to be advised). It specified the category of trade as “dry bulk”, the cargo description as “alumina”, the load port as “Bunbury or Kwinana”, the discharge port as “Portland” and the volume/amount as “35,000 MT”.

19    Mr Oliver signed the application form on its last page, under a declaration that he was entitled to apply for the licence under the Act, and gave his title as “Director – Global Maritime Operations”.

20    The other annexure to Mr Oliver’s email was a certificate also dated 12 October 2015, on Alcoa’s letterhead and addressed “To whom it may concern”. It certified that Alcoa was both the shipper and producer, and Alcoa Portland was the recipient, “of the Alumina dry bulk cargoes proposed to be carried within the enclosed Application for Temporary Licence or Variation to Temporary Licence for New Matters (Form No CTTLV01)” and was signed by Mr Oliver above his title: “Director – Global Maritime Operations GBS Global Transportation Alcoa of Australia Limited”.

21    After the decision of Rares J in CSL Australia Pty Ltd v Minister for Infrastructure and Transport and Braemar Seascope Pty Ltd (2014) 227 FCR 333, the Department issued Shipping Business Unit Industry Bulletin No 5 of 2015 to inform potential applicants that s 28(1) of the Act prescribed that only persons meeting its criteria were eligible to apply for a temporary licence. The Bulletin asked all applicants to include in their application documentary evidence demonstrating their eligibility to apply for a temporary licence.

22    The delegate also had before him a Departmental note that referred to the receipt of the application on 12 October 2015. The note was headed up with Alcoa’s CRN and had Alcoa’s name as that of the applicant.

23    On 13 October 2015, Benjamin Arnold, an officer of the Department, spoke with Jan Evans of Alcoa and processed the payment of the application fee using a credit card issued in the name of Alcoa. The Department issued Alcoa a receipt dated 15 October 2015 but that was not a document before the delegate.

24    On 16 October 2015, Mr Arnold emailed stakeholders, including the Union, with what he described as “the attached application for a Temporary Licence” and on the same day the Department published a copy of that attachment on its website. However, the attachment was not a copy of Mr Oliver’s email and its attachments, including the form. Instead, the attachment to Mr Arnold’s email and the website publication set out a number of details about the application, namely that its date of receipt was 14 October 2015, the voyage numbers, the loading dates of each of the voyages, the description of the category of trade as “dry bulk”, the cargo as “alumina”, the load port as “Bunbury or Kwinana”, the discharge port as “Portland”, the volume/amount and volume type as 35,000 MT and a statement that there were no dangerous goods. Importantly, the attachment and website publication did not identify who the applicant for the licence was nor did it give any information about whether or not any vessel had been proposed to perform any of the proposed voyages.

The Union’s submissions

(1)    The loading port issue

25    The Union made a number of contentions in respect of the first ground.

26    The Union relied on the text of s 28(2)(f) which provides that:

The application must be in writing and specify …

…

(f)    the ports at which the passengers or cargo are expected to be taken on board;

…

27    The Union also referred to s 37(2)(k), which provides that:

The licence must specify the following:

…

(k)    the ports at which the passengers or cargo are authorised to be taken on board;

28    The Union first stressed that the language is mandatory – the application and the licence must specify the relevant matters. “Specify” requires precision (Port Stephens Council v SS & LM Johnston (2007) 152 LGERA 193 at [54] and Tickner v Chapman (1995) 57 FCR 451 at 480). The requirement to specify the relevant matters for a temporary licence may be contrasted with the requirement that an application be accompanied by certain information for a general licence (s 13(2) of the Act).

29    It argued that the reference to “expected” in s 28(2)(f) does not assist the respondents, and that the word reflects only that it is not known at the time the application is made that the voyage will in fact occur.

30    The Union’s second point was that the surrounding context supports its construction. In particular, s 35(2) provides that:

If the Minister grants an application for a temporary licence, the Minister must cause the following information to be published on the Department's website:

…

(g)    the ports at which the passengers or cargo will be taken on board;

31    It contended that the use of the word “will” reflects the fact that a temporary licence requires passengers or cargo to be taken on board at the specified ports.

32    The Union contended thirdly that its proposed construction is consistent with the policy of the Act. The very point of a temporary licence is to ensure that specific voyages are authorised. A temporary licence is not intended to have the same flexibility as a general licence (see CSL (No 1) 221 FCR 165 at 242 [347]).

33    The fourth point was that the proposed construction advances the policy evident from ss 31, 32 and 34(3) of the Act. These provisions reflect the difference between a general licence and a temporary licence. If the precise voyage remains unspecified the Minister will not be able to discharge the function of having regard to whether a general licensee could undertake the voyage and nor will the holder of a general licence, who is able to give a notice that it can undertake the voyage, be able to make this decision.

34    The fifth point was that the extrinsic materials also support the construction. The Explanatory Memorandum refers at p 24 to temporary licences authorising “only those known voyages”. A voyage which leaves the port of loading at the discretion of the shipper is not a known voyage.

35    Sixthly, it was said that the proposed construction does not undermine the flexibility of temporary licences. This is because temporary licences may be varied under Subdivs C and D of Div 2 of the Act.

36    The seventh point was that the case is not determined by whether the singular includes the plural. It is not the Union’s case that a temporary licence cannot specify multiple ports. The issue is whether a temporary licence can specify ports disjunctively so that the voyage might or might not involve that port.

37    The final point was that an application for a licence must specify the precise port or ports at which cargo is expected to be loaded and a licence must authorise precise ports. An application and licence which fail to do so are invalid. The Union argued that the Parliament cannot be taken to have intended that a licence would be valid if granted in respect of an invalid application.

(2)     The correct licensee issue

38    The Union contended that the application, as a matter of fact, was made by Alcoa Portland not Alcoa. Accordingly, it submitted that as a matter of law (see ss 35 and 37), the Minister was only empowered to grant the temporary licence to the applicant, Alcoa Portland. However, the Minister purported to grant the temporary licence to Alcoa. Sections 35 and 37 do not authorise such a grant. Section 35 empowers the Minister to grant the application, not something else. Section 37, regulating the issue of the temporary licence, uses the same language “If the Minister decides to grant an application…”.

(3)    The transport issue

39    The Union noted that an application must specify “how the cargo is expected to be transported” (s 28(2)(h) of the Act and reg 4.2.1(b) of the Regulation). This requirement is mandatory (“must” specify is the language used). The Explanatory Memorandum also reflects the mandatory nature of this requirement (“[t]he Act requires that the application should specify…”), as does the Explanatory Statement for the Regulation which states that the requirement to identify how the cargo is expected to be transported is “necessary to enable a general licence holder to determine whether it has the appropriate vessel to undertake the voyage specified in the temporary licence application”.

40    The Union submitted that the application in the present case does not comply with these mandatory requirements. It gives only a description of the category of trade (dry bulk) but no information as to how it is to be transported (such as the examples in the Explanatory Statement – in containers, in bulk … etc). Even if the description is one of mode of transport of the cargo it is far too vague to constitute a specification of how the cargo will be transported.

41    It contended that the application is thus invalid on this ground also, with the consequence that the licence must be invalid.

(4)    The publication issue

42    The fourth ground is that the Minister failed to publish the application as required by s 30. The requirement in s 30(a) is that the Minister must:

cause to be published on the Department's website a copy of the application, but must delete from the copy information that the Minister is satisfied:

(i)    is commercial in confidence; or

(ii)    consists of personal details of an individual;

43    The Union argued that failure to comply with this requirement will invalidate the licence. The requirement is mandatory. The language (“must cause to be published”) reflects the mandatory nature of the requirement. It is fundamental to the temporary licence scheme, as it is the basis for submissions by general licensees (s 31) and others (s 33) which are the basis for the Minister’s consideration (s 34). Publication is not a burdensome requirement.

44    It contended that in the present case the Minister did not publish the application. Nor did the Minister publish the information in the application. The information published does not include the applicant for the licence. Nor did it disclose that the vessel to be used was “TBA” as set out in the application. The identity of the vessel might be critical to those making submissions. What was published in the present case did not comply with the requirements. It follows that the licence is invalid.

Consideration

(1)    The loading port issue

45    The Union’s argument that the licence was invalid because it did not specify a single port of loading must be rejected. Section 37(2)(k) does not require the licence to specify a single port at which cargo must be taken on board. To the contrary, it requires the licence to specify “the ports at which the passengers or cargo are authorised to be taken on board”.

46    In other words, s 37(2)(k) creates an authority, but not a requirement, for the licensee to take cargo on board at each port specified for that purpose. The Parliament identified in s 3(1) that the object of the Act was to provide a regulatory framework for coastal trading in Australia. A temporary licence had to remain in force for 12 months and cover a number of expected, but not necessarily certain, future events that s 28(2) required the application to specify as matters of expectation, including whether cargo might be available at one or more ports, when the ship ultimately nominated for a particular voyage was ready to commence it. A proposed voyage in Australia’s coastal trade need not necessarily be between just two ports. A proposed voyage may involve a ship calling at a number of ports at which cargo may both be loaded and discharged or passengers may both be taken on board or disembark. Hence, the authorisation in s 37(2)(k) reflected the applicant’s then state of mind, identified in s 28(2)(f), of the ports at which the cargo is “expected to be taken on board”. The expectation that the applicant must specify, as s 28(2)(f) requires, occurs in the context that, as s 28(2)(ea) recognises, the vessel may not be known at the time.

47    In the revised explanatory memorandum for the Bill that became the Act, the Minister stated, in discussing cl 28 (at p 24), that it was proposed during industry consultations that an applicant:

be allowed to nominate multiple ports of discharge (referred to as a port range). The law will allow this and so an application may specify a range of ports where a particular kind of cargo is expected to be discharged. (emphasis added)

48    Of course, the same considerations apply to nominating a port range where cargo is expected to be loaded. The revised explanatory memorandum gave as an example (at p 27) of what an application may contain, the nomination of “port of loading” as being “Brisbane Townsville”, without any conjunction or disjunction joining the two ports.

49    These requirements of s 28(2) reflect commercial convenience and common sense, that complete certainty about these matters is not necessary or always practical at the time of making an application for a licence that will be operative for 12 months in respect of at least five proposed voyages. Logistical considerations arising from time to time, including the availability of berths, shipping channels, weather conditions, industrial circumstances or the availability of cargo at one port rather than the other, may mean that when the actual voyage comes to be performed, the ship needs to load at one, rather than another, port at which it is authorised to load.

50    The Union accepted that the Minister could specify in s 37(2)(k) that he authorised both of Bunbury and Kwinana as ports at which cargo could be loaded, but it contended that the authorisation of Bunbury or Kwinana was beyond power. Given the objects of the Act and the commercial context in which it operates, this is an unattractive proposition. As Alcoa submitted, it is but a small step from multiple ports specified conjunctively to multiple ports specified disjunctively and nothing in the legislation indicates that such a step is beyond power.

51    The Union also referred to the Act’s definition of a voyage, in ss 6 and 7(1), and contended that there could not be disjunctive loading ports in an application or licence for the movement of a vessel from one port to another and, relevantly, the loading or discharge of cargo at such a port. However, the singular can include the plural and vice versa under s 23(b) of the Acts Interpretation Act 1901 (Cth). The flexibility of the language of expectation reflected in s 28(2)(f) suggests that the precise voyages, as opposed to the expected ones, are not essential to a valid application. This reflects the aspect of the object of the Act in s 3(1)(f), to ensure the efficient movement of passengers and cargo between Australian ports.

52    The Union also argued that the purpose of s 61 is to report to the Minister, nothing more. However, s 61 contemplates that the licensee, when reporting under it, may, and probably will, give the Minister new information about the actual details of the voyage that is going to be performed. Once logistical and practical considerations become clearer, s 61 requires the licensee to give not less than two business days’ notice of, among other matters, the actual vessel that will undertake the voyage (s 61(a)), the date of the voyage (s 61(ba)) and “the ports at which the … cargo will be taken on board” (s 61(e)). There would be no need for a notice to specify what s 61(e) requires if, as the Union asserted, that had already been conclusively stated in the licence itself in s 37(2)(k). Nor do the provisions enabling variation of a temporary licence provide much assistance to the Union. If it is expected that cargo will be taken on at one port or another nothing is served by requiring the applicant to elect between them at a time before s 61 applies. The capacity to vary a licence does not alter this proposition.

53    The Union’s argument, that the use of the word “will” in s 35(2)(g) supported its construction that the Minister could not specify loading ports disjunctively, must be rejected. The controlling section must be that which contains the grant of the licence, namely s 37, not that which requires the Minister to give the public information about what he has granted, namely s 35(2). The information that s 35(2) requires to be published consists of what is specified in the licence, but does not include the name of the holder of the licence (s 37(2)(b)) or details of acceptable tolerance limits required by s 37(2)(f), (h) and (j). Thus, s 35(2)(g) is not the leading provision and it must give way to s 37(2)(k), which specifies what the licence permits the licensee to do in relation to the ports at which cargo is authorised to be loaded: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 [70] per McHugh, Gummow, Kirby and Hayne JJ. As their Honours said, the question is whether a purpose of the legislation was that an act done in breach of the provision is invalid (194 CLR at 390).

54    Nothing in the language of any of the relevant provisions supports the Union’s submission that “ports” must be identified conjunctively, not disjunctively. The expectation, in s 28(2)(f) and the authorisation in s 37(2)(k), may relate to one port or more than one port, specified conjunctively or disjunctively. The Parliament did not use the expression “will be taken on board” in s 35(2)(g) to convert into a certainty what s 28(2)(f) had required the applicant to specify as its expectation. Rather the expression should be read harmoniously with both ss 28(2)(f) and 37(2)(k), as referring to the ports at which the licensee expects (at the date of grant), and is authorised, to load cargo.

(2)    The correct licensee issue

55    The Union’s argument that the Act did not permit the Minister to grant Alcoa the licence fails on the facts. An application could be made only by a person who met one of the criteria in s 28(1). Reading the application that Mr Oliver submitted as a whole, it was open to the delegate to conclude that as the attached certificate that was incorporated into the application stated in terms, first, Alcoa was the shipper, secondly, Alcoa Portland had no status to make an application, and thirdly, since Mr Oliver was the controlling mind of both Alcoa and Alcoa Portland in the process of making of the application, he was doing so on behalf of the shipper, Alcoa, and that it, in fact, was the applicant for the licence.

56    Alcoa had the status of a shipper for the purposes of s 28(1). It provided the certificate as evidence of its status to apply as part of the application. The Department had issued the Bulletin earlier in 2015 to inform persons, such as Alcoa and Portland, that they should include material to demonstrate their eligibility to apply for a licence, in light of the decision in Braemar 227 FCR 333. The certificate was obviously intended to do so and named Alcoa as the shipper of all of the cargoes for the proposed voyages. Read in light of the certificate, Mr Oliver’s email and the attached application form and certificate conveyed to an objective reader that while he was wearing two hats, one for each of Alcoa and Portland, the capacity in which he was seeking to apply for a temporary licence was on behalf of the shipper (as opposed to the status of any other applicant in s 28(1)(a)) and only Alcoa could fit that description on the material, including what he had submitted, that was before the delegate.

57    At the hearing, the Union objected to evidence that the Minister, Portland and Alcoa had sought to rely on for the purpose of establishing, as a matter of jurisdictional fact, that Alcoa was the applicant as opposed to Portland. Yet, the Union argued that, on the material before the delegate as decision-maker, it was not open to him to grant the application to Alcoa because, as a matter of jurisdictional fact, it was not the applicant. The Union submitted that the status of an applicant was not a matter that the Act authorised the Minister to determine, but was a jurisdictional fact as explained by Dawson, Gaudron, McHugh, Gummow and Kirby JJ in Australian Heritage Commission v Mount Isa Mines Ltd (1977) 187 CLR 297 at 303-304.

58    An administrative decision-maker can never determine conclusively that a jurisdictional fact exists, for that involves the exercise of judicial power. And, when a court considers whether an administrative decision-maker had power to make a decision as to a fact going to its jurisdiction, the Court can do so on evidence that was not before the person whose exercise of power is challenged: City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 152-155 [43]-[48] per Gleeson CJ, Gummow, Kirby and Hayne JJ. They approved what Brennan J had said in Waterford v The Commonwealth (1997) 163 CLR 54 at 77, namely that there is no “error of law simply in making a wrong finding of fact” (199 CLR at 154 [44]).

59    The Minister only had power under the Act to grant an application made by, relevantly, a shipper, and so the delegate could conclude, as was the fact, that Alcoa was applying for the licence. Mr Oliver’s use of the incorrect corporate name “Portland Aluminium Pty Ltd” (instead of Alcoa Portland Aluminium Pty Ltd) in his email showed that the precise identity of the applicant was uncertain, leaving it to the Minister to identify the actual applicant. The facts that Alcoa paid the application fee, and on 12 October 2015 the Department identified Alcoa as the applicant and used its CRN in its processing of the application, show that the Minister, by his delegate, correctly identified the applicant as Alcoa and not either the non-existent company “Portland Aluminium Pty Ltd” referred to in Mr Oliver’s email, or Portland, as named in the attached form.

60    It follows that the delegate’s decision about Alcoa being the applicant was within his jurisdiction and was reasonably open on the facts. Even if the fact of the identity of the applicant was a jurisdictional fact as the Union contended, we are satisfied for the reasons above that Alcoa was the applicant. It has not been necessary for us to rely on the further evidence on this aspect to which the Union objected. However, that further evidence would confirm this finding.

61    Accordingly, the Minister did not make a jurisdictional or other error in granting the licence to Alcoa.

(3)     The transport issue

62    The Union’s argument that the application did not specify “how the cargo is expected to be transported” within the meaning of reg 4.2.1(b) is without substance. The application described the cargo as “alumina” and the category of trade as “dry bulk”.

63    The argument was that the word “alumina” in the application identifying the cargo, and that it was in the “dry bulk” category of trade, somehow did not inform the Minister, whose Department is responsible for this vital part of the national economy, about how the alumina was expected to be carried.

64    Dry bulk cargo is carried in ships’ holds as a well-known and internationally recognised cargo. The application disclosed all that reg 4.2.1(b) required.

65    About 10% of the world’s sea trade by volume is carried into and out of Australia, much of it as dry bulk cargoes in ships’ holds. It is inconceivable that any person involved in the Australian shipping industry and dealing in the operation or licensing of commercial ships to which the Act applied would have had any difficulty in understanding from the application that the alumina was intended to be carried as dry bulk cargo in the holds of the vessels performing the voyages to be authorised by the licence.

(4)    The publication issue

66    We do not accept the Minister’s submission that what was published complied with s 30(a). That is because the publication on the Department’s website relating to the application omitted material matters that formed part of the application (namely that the name of the vessel was “TBA”, and the material from which the delegate decided that the applicant was Alcoa). That said, we accept that the statutory scheme does not require an exact “copy of an application” to be published. More importantly, in the present case, the Act contains a number of indications that the Parliament did not intend that a failure by the Minister to cause to be published on the Department’s website either an exact “copy of the application” as a whole, or all information contained in the application, would invalidate a temporary licence. The following factors support these propositions.

(1)    There is no prescribed form that an application must take. The form of an application is thus unimportant in the statutory scheme; only the content of the application is potentially important.

(2)    Accordingly, an application may take any form, provided that it is made by a person with a status prescribed in s 28(1), it is in writing, and it includes the information required by s 28(2). There is no prescribed means to lodge an application: it can be done by email or electronically, in which latter event there will be no physical record a “copy” of which can be published in any conventional sense. Here, the application was made by email and incorporated attachments, being the form and the certificate.

(3)    The Act requires the Minister to delete certain information from what he or she causes to be published, as set out in s 30(a). As such, the Act expressly contemplates that an exact and complete copy of the application need not be published on the Department’s website.

(4)    “Copy” is not a defined term in the Act. A “copy” is not necessarily a photocopy or scanned image of a document. A copy may be handwritten, re-typed, placed in a different format or even re-arranged. The Union accepted that, provided all information in the original application is present, the thing published will be a “copy”.

(5)    The persons with a primary interest in being notified of the application are general licence holders and any body or organisation that, or whose members, the Minister considers would be directly affected if the application were granted. The entitlement of these persons to information about the application is dealt with by s 30(b) which does not require that these persons be given a “copy” of the application. Rather, s 30(b) requires that they be “notified of the application”. It would be odd to construe s 30 as requiring an exact copy of the application to be placed on the Department’s website under s 30(a), given that s 30(b) only requires notice of the application to be given to potentially critical stakeholders.

(6)    The Act specified the considerations that the Minister had to take into account in s 34(3) and those he was free to consider or not as he saw fit (s 34(2)). It is inconsistent with that legislative choice that any failure to comply strictly with s 30 in respect of matters that the Minister was not bound to take into account necessarily would result in a licence being invalid. Indeed, s 83 creates a liability to a civil penalty if a person, who could be an applicant under s 28(1), uses a vessel to engage in coastal trading that is not authorised by a licence. Again, the presence of s 83 in the Act suggests that, read as a whole, the Parliament did not intend a consequence that a licence could not validly be granted if there had been any failure to comply strictly with s 30 despite its use of the word “must” in the section: Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 at 640 [35] per French CJ, Gummow, Hayne, Crennan and Bell JJ.

(7)    The statutory scheme involves a deemed approval of applications after the time period of 15 days expires (ss 34(4) and 36). Such a deemed approval occurs even if the Minister does nothing. This indicates that the Act intended that licences be granted relatively speedily.

(8)    Accordingly, there would be significant inconvenience and potentially serious consequences, including liability to civil penalties under s 83, if the Act were construed to entail that a licence would be invalid by reason of any failure to comply with s 30, such as omitting irrelevant or immaterial details in the publication of an application on the Department’s website.

67    These considerations indicate that the Parliament did not intend that any or every failure to publish an exact and complete copy of an application under s 30(a) would result in invalidity of any licence subsequently granted. In the present case, the requirements in s 30 were not overlooked. The Minister caused publication on the website of material from the application. The Union pointed only to, first, the omission of the name of the vessel (in circumstances where the name of the vessel was not known when the application was made and thus was referred to as “TBA”) and, secondly, the material relating to identity of the applicant.

68    However, the omission of this material did not render the licence invalid. As to the name of the vessel, s 28(2)(ea) contemplates that the name may be unknown, in which event the application need not identify the vessel. This indicates that the name of the vessel is not a critical or fundamental fact, at least not in this case where there is no dispute that the vessel was not known at the time the application was made. Accordingly, the publication of the fact that the vessel had not been named in the application, where the vessel was not known, is not a jurisdictional pre-condition to the grant of the licence.

69    As to the name of the applicant, it is true that s 28(1) requires there to be an applicant of a particular kind. But, under s 28(1) an applicant may be within one of five classes of persons. The identity of an applicant may change after lodgement but before grant, for example, if the applicant was a charterer or a master who subsequently became the ship’s owner. Again, it would be inconvenient and inconsistent with the objects of the Act to treat those circumstances as requiring a fresh application. Further, the identity of the applicant is not a matter specified in s 28(2)(a)-(h) as something which must be specified in a written application, although ordinarily it will be. In contrast, the holder of the licence must be specified in the licence (s 37(2)(b)).

70    Sections 31 and 32 do not suggest to the contrary. The purpose of the publication or notification required by s 30 is to enable the various classes of persons who may be affected by the grant of the licence to exercise their rights as either a general licensee under s 31 or to comment under s 33. A general licence holder does not need to know the identity of the applicant for the temporary licence to give a notice under s 31. This is disclosed by the terms of s 31(a)-(c). The Minister must give any notice from a general licence holder to the applicant pursuant to s 32. This is not something the general licence holder is to do. Once the Minister gives such notice, then the applicant must negotiate with the general licensee by dint of s 32(2). At that point, the general licence holder will necessarily know who the applicant is. None of these processes would be defeated if the name of the applicant were not published under s 30(a).

71    The same considerations apply to giving notice to persons referred to in s 30(b)(ii) so that they can decide whether to make comments on the application pursuant to s 33. Nor does s 35(2) require the Minister to publish the names of a temporary licensee or the vessel to perform the voyages when he grants the licence.

72    Here, the material published by the Minister on the website gave all the information necessary for any person whose interests were directly affected, including a general licensee, either to give a notice in response under s 31 or to comment under s 33. The name of the applicant was unnecessary for either purpose. Moreover, the Union received that information directly by the Department’s email of 16 October 2015, that it did not read. It contained the same information as was published on the Department’s website. The Union did not lose the chance to make comments under s 33. Indeed, the evidence of Kristian Bolwell, the Union’s senior national legal officer, demonstrated that, had the Union read the 16 October 2015 email, when it was received, it would have immediately been able to identify Alcoa as the applicant, or involved in the application, because Alcoa ships alumina from both Bunbury and Kwinana.

73    Further, the Minister will always know who the applicant is. Thus, the requirements of s 34(2) and (3) (the matters the Minister may and must consider, respectively) also provide no support for treating publication of the name of the applicant under s 30 as a jurisdictional pre-condition to the grant of the licence.

74    As the Minister submitted, it is true that a licence cannot be granted to a person who is not a person nominated in s 28(1). The status of that person as a person within s 28(1) is thus a critical fact on which power to grant a licence is conditioned. However, the publication requirement in s 30 is different. In the present case, there is no dispute that the licence was granted to a shipper as provided for in s 28(1). The alleged contravention is the lack of identification of the applicant in the publication which occurred under s 30, not that Alcoa was not a person within s 28(1) entitled to apply for a licence. Nothing in the provisions of the Act indicates that publication of the identity of the applicant is an essential pre-condition to the grant of the licence. This may be contrasted with the essentiality of the status of the applicant under s 28(1) to make an application. An application made by a person who does not have the required status under s 28(1) will be invalid on this ground irrespective of publication under s 30.

75    It follows from these matters that while the existence and status of an applicant as required in s 28(1) is fundamental to the Act, the identity of the applicant for the purposes of publication of a copy of the application under s 30 is not.

76    The Union does not suggest that it was denied procedural fairness as a result of the non-compliance with s 30 in this case. As noted above, the Union did not make submissions on the application because its email alert system did not identify the Department’s 16 October 2015 email to it as something it needed to read. In the circumstances set out above, we do not accept that the failure to comply with s 30(a) in this case – by not publishing an exact copy of the application on the Department’s website – results in invalidity of the licence: Project Blue Sky 194 CLR at 392 [97]; SZIZO 238 CLR at 640 [35].

Conclusion

77    For these reasons, the application must be dismissed with costs.

Associate:    

Dated:    17 December 2015

REASONS FOR JUDGMENT

REEVES J

78    I have had the opportunity to read, in draft form, the reasons prepared by Rares and Jagot JJ. I agree with their Honours’ reasons for rejecting the first three bases for invalidity of the licence as contended by the Union (see at [3] of the joint reasons). I also agree with the orders proposed by their Honours (see at [77] of the joint reasons). However, I respectfully disagree with their Honours’ reasoning on the fourth basis for invalidity of the licence, or what has been described as “the publication issue” (at [66]–[76] of the joint reasons). Having said that, I have ultimately reached essentially the same conclusion as their Honours, namely that the Minister breached s 30 of the Act, but that breach did not result in the invalidity of the licence. Accordingly, I have set out hereunder the reasoning process I have employed to reach that conclusion. In doing so, I gratefully adopt the outline of the factual background and the relevant provisions of the Act contained in the joint reasons.

79    It is well-established that text, context and purpose are the critical considerations in construing a statutory provision: see, for example, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47] and Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39].

80    Turning first to the text of s 30, it relevantly requires the Minister to cause to be published on the Department’s website a “copy of the application”. Since there is no statutory definition of the word “copy”, it must take its ordinary meaning. That is, in this context, “a transcript, reproduction, or imitation of an original”: see Macquarie Dictionary, 4th ed, sense 1.

81    Next, it is to be noted that the text of s 30 expresses this requirement in obligatory language: that the Minister “must” cause a copy of the application to be published. Conversely, the text does not use any discretionary language, nor language that obliges the Minister to publish something other than a copy of the application, for example, the relevant contents of the application, or particulars of the application, or the information contained in the application.

82    The text of s 30 does, however, allow the Minister to “delete from the copy” to be published certain information. Nonetheless, that information is precisely defined in s 30(a)(i) and (ii) and it can only be deleted from the copy if the Minister is “satisfied” it meets that description. Thus, these further features of the text of the section indicate that the Parliament intended to place strict limits on the Minister’s powers to alter the copy of the application that he was required to publish.

83    In my view, it follows from these textual considerations that, with the exception of the information that the Minister is satisfied must be deleted from the copy of the application under s 30(a)(i) or (ii), s 30 obliges the Minister to publish on the Department’s website a reproduction or imitation of the original written application that the applicant submitted to him.

84    This construction of the text of s 30 is also supported by a number of aspects of its statutory context. In considering that context, it is convenient to begin by noting that, while there is no prescribed form for an application, s 28(2) requires that it must be in writing. This means that an application can take the form of a letter, an email, or even a document lodged electronically online. Consistently with those observations, in this case, the application was made by email and the email contained two attachments, namely a form and a certificate. Nonetheless, whatever form the application takes, it must still be in writing. For this reason, even if the writing is in an electronic form, the Minister should have no difficulty in publishing a copy, reproduction or imitation of that writing on his Department’s website. This flexibility in the form an application may take is therefore not inconsistent, in my view, with the construction of s 30 set out above.

85    The critical role that the application has in the statutory scheme of Div 2 of Part 4 of the Act also serves to reinforce the above construction of s 30. Under s 34(1), it is “the application” that the Minister is required to decide and, under s 37, the consequence of deciding to grant “the application” is that the Minister must issue a temporary licence to the applicant. Moreover, under s 36, if the Minister fails to decide “the application” within the 15 business days’ period fixed by s 34(4), the Minister is taken to have granted “the application” and “determined that the matters specified in the application are authorised by the licence” (emphasis added): see s 36(b). Since this provision could lead to the automatic grant of a licence, it is of great importance, in my view, that the Minister should be required to publish the application so that any members of the public who may be affected can see what “matters specified in the application” could be automatically authorised under s 36.

86    In this respect, it is also significant that the Act does not place any obligation on the Minister to vet the application to ensure that it complies with the requirements of s 28. The statutory scheme appears to leave that task to those persons who may be affected by the grant of the application. In my view, this provides another reason why the Minister’s obligation under s 30 should be construed as requiring him to publish a copy of exactly what it was that the applicant included, or did not include, in the application so that those persons who may be affected by it can determine whether the applicant has complied with those requirements.

87    Further, by examining a copy of the application, those persons will be able to see, among other things, who it is that made the application under s 28, the status of that person vis-à-vis the jurisdictional prerequisites in s 28(1) (see CSL Australia Ltd v Minister for Infrastructure and Transport (2014) 227 FCR 333; [2014] FCA 1160 per Rares J at [69]) and the information the applicant supplied to comply with its obligations under s 28(2). All of this information will obviously be of importance to those persons in assessing how the application may affect their interests and, if they assess it does, in determining what action, if any, they should take to protect those interests. That may include giving a notice under s 31, or making comments under s 33 or, in an appropriate case, seeking to challenge the validity of the application in the courts.

88    It is correct, as the joint reasons point out (see at [66(5)] above), that s 30(b) of the Act does not require the Minister to provide a copy of the application to the general licence holders, or the identified third parties, and only requires those persons to be “notified of the application”. However, to my mind, this underscores the importance of the publication of a copy of the application under s 30(a) of the Act because that is the only means provided for in the Act for those persons to obtain a copy of the application and therefore obtain access to the s 28 information identified above that is contained in the application.

89    Based on this construction of s 30 of the Act, I do not therefore consider the material the Minister caused to be published on the Department’s website constituted a copy of the application. In this regard, it is to be recalled that the application comprised three parts: the email and its two attachments. What the Minister caused to be published was a single page document which set out in table format some of the contents of the application. Significantly, that table did not include a number of material matters. It did not include the fact that, in the application, Alcoa had stated that the name of the vessel was “TBA”, nor did it include the material in the application from which the Minister’s delegate decided that the applicant was Alcoa. On this latter aspect, the published table had the effect of sanitising the widespread confusion that was present in the application itself. It follows that by publishing part, even most, of the contents of the application in this form, the Minister did not comply with his obligation under s 30 of the Act. Put differently, by not publishing a copy of the application as required by that provision, the Minister committed a breach of the Act.

90    However, as indicated at the outset of these reasons, in the circumstances of this matter, I do not consider the Minister’s breach of his obligation under s 30 of the Act resulted in the invalidity of the temporary licence that was issued to Alcoa. The joint reasons have identified a number of factors to support this conclusion. I am content to rely solely on the civil penalty liability created in s 83 of the Act. On this point, I would respectfully agree with and adopt the observations in the joint reasons at [66(6) above]. To those observations I would add that s 83 not only applies to the shipper, but also, among others, to the owner and master of a vessel. Furthermore, by s 93 of the Act, liability for a breach of that section is extended to any person who aids and abets the commission of such an offence. I do not consider the fact that the Secretary of the Minister’s Department is the only person who can commence proceedings under s 83 provides a suitable answer to this conclusion.

91    To sum up, I consider the Minister committed a breach of his obligations under s 30 of the Act in relation to the publication of a copy of the application but, in the circumstances of this case, that breach did not result in the invalidity of the licence issued to Alcoa. While it involved a somewhat different factual situation, namely, the failure of the Australian Broadcasting Authority to comply with certain “general policies”, I consider the position in this case is similar to that identified in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [100], as follows:

In a case like the present, however, the difference between holding an act done in breach of s 160 is invalid and holding it is valid is likely to be of significance only in respect of actions already carried out by, or done in reliance on the conduct of, the ABA. Although an act done in contravention of s 160 is not invalid, it is a breach of the Act and therefore unlawful. Failure to comply with a directory provision “may in particular cases be punishable”. That being so, a person with sufficient interest is entitled to sue for a declaration that the ABA has acted in breach of the Act and, in an appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action.

(Footnote omitted)

Associate:    

Dated:    17 December 2015