FEDERAL COURT OF AUSTRALIA
CSL Australia Pty Limited v Minister for Infrastructure and Transport [2014] FCAFC 10
| IN THE FEDERAL COURT OF AUSTRALIA in admiralty | |
| Appellant | |
| AND: | MINISTER FOR INFRASTRUCTURE AND TRANSPORT First Respondent RIO TINTO SHIPPING PTY LTD Second Respondent |
| DATE OF ORDER: | |
| WHERE MADE: |
THE COURT ORDERS THAT:
Appeal NSD 2083/2012
1. Cross-appeals allowed in part.
2. Declaration 1 made by the Court on 21 November 2012 be set aside.
3. Cross-appeals otherwise dismissed.
4. Appeal allowed in part, with no consequential variation to the orders made by the Court on 21 November 2012.
5. Parties file short submissions on costs within 14 days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
| IN THE FEDERAL COURT OF AUSTRALIA in admiralty | |
| NSW DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 409 of 2013 |
| ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
| BETWEEN: | CSL AUSTRALIA PTY LIMITED Appellant |
| AND: | MINISTER FOR INFRASTRUCTURE AND TRANSPORT First Respondent RIO TINTO SHIPPING PTY LTD Second Respondent |
| JUDGes: | ALLSOP CJ, MANSFIELD J & RARES J |
| DATE OF ORDER: | 26 February 2014 |
| WHERE MADE: | SYDNEY |
THE COURT ORDERS THAT:
1. Appeal allowed.
2. Set aside orders of the Court on 1 March 2013, and in lieu thereof, order:
(a) dismiss the interlocutory application of the respondent;
(b) order a case be stated for the Full Court as to the decision of the delegate on 14 December 2012 to be heard concurrently with the appeal in appeal NSD 2083 of 2012;
(c) the costs of the proceedings be the parties’ costs in the Full Court.
3. Declare that the decision of the Minister by his delegate made on 14 December 2012 in respect of voyage 120700612 (formerly 1207006007) was affected by an error of law arising from a misunderstanding of the effect of ss 32 and 34 of the Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth).
4. Respondents pay the appellant’s costs of the appeal
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
| IN THE FEDERAL COURT OF AUSTRALIA in admiralty | |
| NSW DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 2083 of 2012 |
| ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
| BETWEEN: | CSL AUSTRALIA PTY LIMITED Appellant |
| AND: | MINISTER FOR INFRASTRUCTURE AND TRANSPORT First Respondent RIO TINTO SHIPPING PTY LTD Second Respondent |
| JUDGEs: | ALLSOP CJ, MANSFIELD J & RARES J |
| DATE: | 26 February 2014 |
| PLACE: | SYDNEY |
| IN THE FEDERAL COURT OF AUSTRALIA in admiralty | |
| NSW DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 409 of 2013 |
| ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
| BETWEEN: | CSL AUSTRALIA PTY LIMITED Appellant |
| AND: | MINISTER FOR INFRASTRUCTURE AND TRANSPORT First Respondent RIO TINTO SHIPPING PTY LTD Second Respondent |
| JUDGEs: | ALLSOP CJ, MANSFIELD J & RARES J |
| DATE: | 26 February 2014 |
| PLACE: | SYDNEY |
REASONS FOR JUDGMENT
ALLSOP CJ
1 These are appeals against orders made by two judges of the Court, Robertson J in CSL Australia Pty Ltd v Minister for Infrastructure and Transport (No 3) [2012] FCA 1261 and Katzmann J in CSL Australia Pty Ltd v Minister for Infrastructure and Transport [2013] FCA 152. They concern the operation of the Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth) (“the Coastal Trading Act” or “the Act”), which was part of a suite of legislation passed by Parliament in 2012, the aim of which was to revitalise the Australian shipping industry by reforms to the coastal trading regime, the creation of an international shipping register and by making various taxation changes and providing fiscal incentives, in respect of the industry. The Act provides for a regime of general and temporary licences for the carriage of passengers and cargo on the coastal trade. Under the regime the Minister is authorised to make decisions about the grant of temporary licences for voyages in respect of which general licence holders are interested. These appeals concern decisions made by the Minister with regard to the grant and variation of temporary licences.
Context
2 Whilst close examination of the text of the Coastal Trading Act will be necessary, the context of the Act (as part of the suite of legislation) needs to be understood. The following contextual background is to be found in a number of public documents by way of reports of inquiries that are identified below, in the second reading speech to the Bill in March 2012 and in the Revised Explanatory Memorandum to the Act.
3 The decline in the size, and the deterioration in the state, of the Australian shipping industry and of ships flying the Australian flag have been matters attracting the concern of industry and government for many years before 2012. The decline and deterioration were reflected in decreasing numbers of ocean-going vessels registered on the Australian Ship Register under the Shipping Registration Act 1981 (Cth) (“the SR Act”) and the increasing age of the vessels remaining on the Register.
4 There were, and always have been, competing economic and social pressures and interests in any policy or policies directed to the shipping industry. Australia has a large export economy of agricultural, mining and industrial exports, for the health of which economy competitive freight rates are essential. With a large coastline and a large continental land mass, coastal shipping is a potentially important means of domestic transport. The development of Australian skills and jobs in the maritime sector provides an important body of national human resources for both peace and war time.
5 One critical feature of Australian flagged shipping has been its high cost base relative to international competitors, who could run and maintain vessels at a significantly lower cost than could Australian owners and operators.
6 These forces led, for many years, to the protection of coastal shipping by a system of cabotage whereby Australian-flagged vessels or vessels that paid crew Australian wages were given preference in carriage. To the extent that Australian shippers of cargo (that is the cargo interests) could not obtain coastal carriage on internationally registered vessels, their freight rates were higher than they would have been had such foreign-flagged vessels been available.
7 Over the years from the 1980s, a number of inquiries were conducted and reports written that were directed at the appropriate governmental policy changes for the revitalisation of a competitive Australian shipping industry.
8 In the early 1980s, a committee (the Crawford Committee) comprised of shipowner and union representatives recommended a financial package for the industry involving accelerated depreciation of ships that achieved an approved crewing level and an extended investment allowance.
9 In 1985, the Minister for Transport (the Hon Peter Morris) established a Maritime Industry Development Committee which produced a report focusing on shipboard management and work practices. Legislation was introduced to provide capital assistance in the purchasing of ships.
10 In 1988, a Shipping Reform Task Force was established by the government to develop a strategy for the development of the industry. Its recommendations dealt with capital grants, accelerated depreciation, and crewing reductions.
11 In 1994, a taxation rebate scheme was introduced.
12 In 1996, the taxation rebate scheme, capital grants and accelerated depreciation were abolished. Thereafter, a “Shipping Reform Group” was established by the Minister. It reported in 1997. The recommendations of that group comprised three essential matters: (a) significant labour market reforms to address the very high Australian crewing costs (even by reference to ships using “quality” ship registers such as the Norwegian Second Register); (b) exposure of the industry to international competition by reducing, and ultimately eliminating, cabotage; and (c) taking steps to equalise the competitive position of Australian shipping by setting up a second shipping register (an Australian Second Register) as well as a suite of “reform-linked equity measures” – a PAYE tax rebate, accelerated depreciation, relief in respect of capital gains tax, company tax and payroll tax.
13 The report of another review was published in 2003, the “Independent Review of Australian Shipping”. The review was undertaken by former transport Ministers (of Liberal/National and Labor party governments) the Hon John Sharp and the Hon Peter Morris. Their recommendations were: (a) changes to the SR Act permitting Australian entities to register ships outside Australia; (b) changes to the taxation legislation concerning the taxation of Australian seafarers earned overseas, and the introduction of a tonnage tax; and (c) the development in Australia of best international practice. The review saw as essential the need for clarity and certainty of government policy and regulation and the development of shipping services at competitive prices. The report also pointed out the deleterious economic consequences for Australia of a weak, declining and uncompetitive shipping industry.
14 In October 2008, the House of Representatives Standing Committee on Infrastructure, Transport, Regional Development and Local Government published the results of its inquiry into coastal shipping and regulation, entitled “Rebuilding Australia’s Coastal Shipping Industry”. Its recommendations included reform of the regulation of coastal shipping, the development of a national approach to maritime safety, taxation changes, including a tonnage tax and taxation relief for seafarers earning wages off-shore, the reintroduction of accelerated depreciation, national port development, workers compensation reforms, and the creation of a national maritime training authority. The report reviewed the regulatory framework for the coasting trade. It is unnecessary to deal with the operation of the then system in detail. Cargo was shipped around Australia under the regime of Part VI of the Navigation Act 1912 (Cth). Vessels could be licensed thereunder to participate in the coasting trade, whether Australian flagged or not; but operators were required to pay and provide Australian rates of pay and conditions. Ships not licensed under Part VI could participate in the coasting trade by obtaining permits under Pt VI – either single voyage or continuing voyage permits. Ships operating under such permits were not obliged to have crews paid Australian wage rates or provided with Australian conditions. Ministerial Guidelines existed in relation to the issue of such permits.
15 Different participants in the industry had different views as to the operation of this system. The debate as to the liberality, flexibility, clarity and effectiveness (or otherwise) of the permit system reflected the different economic interests of those in the industry. Importantly, the Committee said the following at [3.28]-[3.31] of its report:
3.28 This debate highlights that fact that the Australian coasting shipping industry would be better served by clearer guidance reflected in the Navigation Act, its regulations and ministerial guidelines.
3.29 The current government’s stated policy is to ensure the competitiveness and sustainability of the coastal shipping sector within Australia’s domestic transport sector. Implicit within this statement is the expectation that when at all possible, Australian ships utilising Australian crew, being paid Australian wages and conditions should be employed in the carriage of domestic cargo, as the Navigation Act originally intended.
3.30 Clarification of the licensing and permitting provisions of Part VI of the Act, so that its language better reflects the Act’s intent, is the first step towards achieving the Government’s policy. This will allow the coastal shipping industry to develop and compete within Australia’s domestic transport sector without facing direct competition from international permit ships, which were intended to fill a capacity gap in the Australian shipping task rather than be utilised in favour of Australian shipping.
3.31 The Committee is aware that in 2000, the DITRDLG completed a review of the Navigation Act 1912. This review did not consider Part VI of the Act. Therefore, the Committee recommends that the Government complete the review of the Navigation Act 1912, and then amend Part VI in order to clarify the language in the Act. This will better align coastal shipping legislation with government’s policy to foster a viable coastal shipping industry in a competitive domestic transport sector.
(emphasis added)
16 The Committee continued at [3.35]:
The Ministerial Guidelines will then need to be tightened so that permits are once again used by shippers as a means of coping with fluctuations in demand, and short periods of increased demand where existing ship capacity falls short.
17 The Committee report then turned to recommendations concerning a second register, financial incentives, a possible tonnage tax, accelerated depreciation, use of visas for foreign crews, workers compensation reforms, and wages and conditions under the Workplace Relations Act 1996 (Cth).
18 After this review, the Minister for Transport convened a Shipping Policy Advisory Group comprising shippers, shipowners and unions to advise on implementation of the recommendations of the 2008 review. A discussion paper was released in 2010.
19 The discussion paper contained a section on the regulatory environment. The proposal was for general unlimited licences for Australian operated and flagged vessels and temporary licences for time limited access. The discussion paper stated:
This will be based on an assessment of a business case, which supports the long term interests of a competitive Australian Shipping Industry, including explicit consideration of the employment of Australian seafarers and numbers of vessels in the Australian trading fleet, and taking into account the proposed operations of both the individual ship and the applicant’s broader fleet.
…
Regardless of the final arrangements, the overriding test for the issue of Temporary Licences will be that applicants must demonstrate that granting the licence is in the long-term interests of a sustainable and competitive Australian shipping industry.
20 The reference to the “Australian shipping industry” is to be understood as including not only ships registered on the general register, but also those to be registered on the proposed Australian International Shipping Register also addressed in the discussion paper.
21 In late 2011 and early 2012 exposure drafts of legislation were released for public discussion, and detailed discussion with industry occurred.
22 The above very general outline, taken from the reports of the various bodies that have investigated the Australian shipping industry over the years, reveals the recognised problems with the Australian shipping industry: a declining and ageing fleet, the lack of a fiscal environment conducive to investment in shipping, high labour costs, and a lack of flexibility in crewing options. The competing interests of shippers (cargo interests) for the lowest freight rates and of remaining shipowners for freight rates high enough to provide a return above a high domestic cost base, in the context of the national interest in the development of jobs in an industry vital to an efficient domestic transport system, are self-evidently not apt for easy solution. By 2012, the problems and competing interests had concerned policy makers and governments for over 30 years.
23 It was in this broad context that in 2012 a suite of legislation was introduced into and passed by the Australian Parliament. The above context can be seen as the broad mischief against which the legislation is to be construed and interpreted.
The 2012 legislation
24 The suite of legislation in the 2012 reforms comprised the following:
(a) the Coastal Trading Act and the Coastal Trading (Revitalising Australian Shipping) (Consequential Amendments and Transitional Provisions) Act 2012 (Cth) (“the Transitional Provisions Act”);
(b) the amendments to the SR Act to create an Australian International Shipping Register by the Shipping Registration Amendment (Australian International Shipping Register) Act 2012 (Cth);
(c) taxation reforms to introduce exemptions for income tax for ship operators, accelerated depreciation, rollover relief concessions, changes to royalty withholding tax and other tax changes in the Tax Laws Amendment (Shipping Reform) Act 2012 (Cth) and the Shipping Reforms (Tax Incentives) Act 2012 (Cth). No tonnage tax was introduced.
25 Earlier, in 2010, the regulations under the Fair Work Act 2009 (Cth) were amended to require all vessels operating in the coasting trade (including international vessels) to comply with the Fair Work Act, and pay Australian wages (even to foreign crew).
26 On 22 March 2012, the Minister for Infrastructure and Transport (the Hon Anthony Albanese MP) spoke on the second reading of the suite of bills (that he called the government’s “Stronger Shipping for a Stronger Economy Reforms”) in the House of Representatives. I am conscious of the limitations of the use of second reading speeches in the construction and interpretation of the words employed by Parliament in its function of law-making. This is especially so for present purposes in the light of the amendments to s 3(1) of the Act after the second reading speech to include paras (e) and (f). Nevertheless, as an aid to understanding the context and mischief to which I have already referred, the speeches are valuable.
27 The Minister referred to the decline in fleet numbers, the large maritime task undertaken by foreign ships, the need to act to prevent the Australian shipping industry dying. He said:
This package is an integrated suite of reforms which address fiscal, regulatory and workforce aspects of our nation’s shipping industry.
This is the most far-reaching overhaul of the Australian shipping industry since 1912.
These reforms level the playing field and provide the industry with a stable fiscal and regulatory regime to encourage investment and promote our international competitiveness.
…
The lack of an Australian shipping industry that can compete in the international marketplace is a lost national opportunity.
…
I previously stated that this bill is the most significant overhaul of our coastal trading arrangements since they were introduced early last century.
Back in 1912 when those provisions were debated in the House the role of British-owned shipping companies in the Australian coastal trade was the subject of much discussion.
One hundred years later, the debate has moved on.
We have one of the most liberal coastal trading regimes in the world.
Unlike the United States, Canada or various European Union countries, Australia recognises that there is a legitimate role for foreign flagged vessels in our domestic shipping industry.
Under the provisions of this bill this will not change.
Nothing in this package of bills closes our coast.
However, we are making transparent the decision-making processes which determine a foreign vessel’s participation in Australian domestic shipping.
In support of this, a new three-tier licensing system will replace the antiquated system of licenses and permits.
…
(emphasis added)
He referred to general licences, temporary licences and emergency licences, and continued.
In creating a temporary licence we are moving away from the current system where companies apply on a permit by permit basis.
However, we have maintained the flexibility provided by the permit system, through the creation of a licence variation process.
Temporary licence holders will be able to vary their licence to increase the number of voyages that will be undertaken or to vary the details of those voyages that have already been authorised.
General licence holders will have the opportunity to nominate for these voyages.
Again, this will be an open and transparent decision-making process.
…
Transparency is a cornerstone of this new model and the bill provides for strengthened reporting and publishing arrangements, to enable all industry participants to better understand the shipping market and to support more informed decision making.
Commercially sensitive information will not be released.
…
There has been some debate regarding the industrial arrangements for vessels engaged in the domestic coastal trade.
This government made the decision in 2009 that vessels operating in the coastal trade will be subject to the provisions of the Fair Work Act.
This was implemented through the Fair Work Act Regulations 2010.
It is this government’s policy that this scope of coverage will not change.
These vessels are operating in the domestic economy and these seafarers are entitled to be paid Australian wages.
This bill is the key to the regulatory framework – a framework that supports Australian coastal shipping, while allowing for the participation of foreign vessels.
It is a framework that will enhance our participation in international trade and underpin the Australian industry with generous tax concessions that level the playing field between Australian shipping and its international competitors.
He then referred to worforce skill development and the establishment of the Maritime Workforce Development Forum.
The final element of the reform package is labour productivity.
We are committed to aligning Australian productivity practices with the best in the world.
To do this, we will need a compact between industry and unions.
This compact must include changes to work practices, a review of safe manning levels and the use of riding gangs on coastal vessels.
This compact is essential to the reform agenda.
Negotiations between industry and the unions are progressing. Before I close, I would like to thank those in the industry who share our vision for a revitalised Australian shipping industry – the ship owners, unions and shippers who have worked constructively with the government since 2007 to develop this package.
This package of legislation is the product of a long and thorough process of consultation and review.
28 A number of considerations of context and text should be considered and borne in mind in the construction and interpretation of the Coastal Trading Act. The task is to ascribe meaning to the text chosen by Parliament. Context is invaluable in order to understand the background, including the mischief, of the legislation. It is an error, however, to divine a chosen political, social or economic policy from historical contextual comments and infuse the chosen text with such chosen assumptions. This is especially so in a subject matter the regulation of which may be directed or influenced by diverse factors, which diversity reflects a range of economic interests. Nevertheless, what is clear from the public and Parliamentary debate over 30 years is a concern to revitalise an important industry by the introduction of features that were seen as likely to stimulate an Australian shipping industry: an appropriate regulatory framework, labour market reforms, a new international shipping register and taxation reform and incentives.
The Coastal Trading Act
29 In discussing the provisions of the legislation in question, I propose to make some remarks about the meaning and scope of some of the important provisions. Those remarks are made with the benefit of the arguments of the parties in both appeals.
30 The object (in the singular) of the Coastal Trading Act is to provide a regulatory framework for coastal trading that does six things set out in paras (a)-(f) of s 3(1):
(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.
31 The multifactorial aims of the regulatory framework may, to a degree, have some tension amongst them, for example, the promotion of competition in coastal trading with the maximisation of the use of General Shipping Register vessels. The notion of promotion of competition in coastal trading has a number of elements. One aspect, referred to in the report of the Parliamentary Standing Committee in 2008 is the competition between coastal shipping and road and rail transport in the domestic transport sector. This aspect is reflected also in para (c) of s 3(1). This perspective of competition would or might see (as stated at [3.29] of the Standing Committee’s Report) Australian ships, using Australian crew being employed “when at all possible” in the carriage of domestic cargo. The promotion of such domestic competition would or may see Australian ships being given the right to carry coastal trade cargo, even in the face of cheaper (or more “competitive”) freight alternatives from foreign ships. In other words, the promotion of domestic “competition” may not lead to the lowest freight rate for an Australian shipper, when set against foreign-flagged competition. That said, the reforms to the taxation system, the setting up of an Australian International Register and the pressure of foreign-flagged vessels having the opportunity to participate in the coasting trade would or may be seen to promote the efficiency of Australian shipping and to foster a greater capacity to compete realistically with foreign-flagged shipping.
32 The above considerations and the broad context that I have described lead one to think that the framework to be provided by the Coastal Trading Act is likely to be one in which a significant degree of latitude is given to the government of the day to administer any coastal trading regime informing itself of contemporary economic and social conditions and any relevant policy issues arising therefrom, by reference to up-to-date data; rather than a framework fixed in an inflexible way by reference to given or enshrined factors. Such administration of the regime would be a subject apt for the expression of government policy, conforming with the object of the Act, which policy could be publicly known.
33 The object set out in s 3(1) is sought to be achieved by the means identified in s 3(2):
(a) ensuring that a vessel that is used to engage in coastal trading under a general licence has unrestricted access to Australian waters;
(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;
(c) ensuring that a vessel that is used to engage in coastal trading under an emergency licence has the access to Australian waters required to deal with the emergency to which the licence relates.
34 The phrase “coastal trading” is defined in s 7 of the Act, in a way that does not differentiate between Australian registered shipping and foreign-flagged shipping.
General licences
35 Part 4 Div 1 deals with general licences: Pt 4 Div 2 with temporary licences; and Pt 4 Div 3 with emergency licences. Unless authorised by a licence, engagement in the coasting trade gives rise to liability for a civil penalty: s 83.
36 A general licence authorising a vessel to engage in coastal trading may be granted to the owner of, or other person relevantly interested in, a vessel registered on the Australian General Shipping Register: s 13. Each application must relate to only one vessel. All seafarers on a general ship must be Australian citizens, or permanent residents, or holders of a visa permitting performance of the work he or she does on the vessel. An application may be varied: s 14. In deciding upon an application, the Minister (under s 15 (2)) may have regard to:
(a) evidence that the vessel is registered in the Australian General Shipping Register;
(b) a statement that each seafarer working on the vessel, when the vessel is used to engage in coastal trading:
(i) is or will be an Australian citizen; or
(ii) is or will hold a permanent visa; or
(iii) is or will hold a temporary visa that does not prohibit the seafarer from performing the work he or she performs on the vessel;
(c) such information as is prescribed by the regulations;
(d) the application fee prescribed by the regulations.
37 The Act provides for prompt decision-making by the Minister in relation to such a licence - within 10 business days after the making of the application: s 15(3). In the absence of a decision within this time frame, the general licence is taken to be granted for five years: s 17, being the maximum period for a general licence: s 16(1). Once a general licence is granted, information about the licence and the licence must be placed on the Departmental website: s 16(2).
38 A general licence is subject to the conditions imposed by s 21; and the Minister may impose additional conditions on a general licence: s 22, as long as such conditions are not inconsistent with the conditions under s 21, which are:
(a) the vessel to which the licence relates must continue to be registered in the Australian General Shipping Register;
(b) when the vessel is used to engage in coastal trading, each seafarer working on the vessel must:
(i) be an Australian citizen; or
(ii) hold a permanent visa; or
(iii) hold a temporary visa that does not prohibit the seafarer from performing the work he or she performs on the vessel;
(c) when the vessel is used to engage in coastal trading, a copy of the licence must be displayed on the vessel in a conspicuous place accessible to all persons on board;
(d) the holder of the licence must comply with the reporting requirements under section 27;
(e) the holder of the licence must comply with any other condition prescribed by the regulations.
39 Each financial year, a general licence holder must report to the Department upon the numbers of passengers carried and the ports of embarkation, and disembarkation; and upon cargo carried – kinds, volume, loading and unloading ports: s 27. The Minister is to place on the Departmental website a summary of all such reports: s 27(4).
Temporary licences
40 Section 28 (in Pt 4 Div 2) provides for the application for temporary licences. An owner, charterer, master or agent of a vessel, or a shipper may apply for a temporary licence to enable a vessel to engage in coastal trading over a 12 month period. Section 28(2) identifies the following relevant information that must be specified in the application in (a)-(h).
(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.
41 Once such an application is made, the Minister must within two days publish the application on the Departmental website (deleting confidential information or personal details); and the Minister must notify every general licence holder and any body or organisation that the Minister considers would be directly affected, or whose members would be directly affected by the grant of the application. Thus, not only all general licence holders, but also such bodies as maritime unions and shipper associations would be notified.
42 Section 31 then provides for a response (a “notice in response”) by a general licence holder within two days of the publication of the temporary licence application on the website. The contents of that notice in response are provided for by paras (a), (b) and (c) of s 31, as follows:
(a) stating that:
(i) all of the passengers specified in the application could be carried under the holder’s general licence; or
(ii) all of a particular kind of cargo specified in the application could be carried under the holder’s general licence; or
(iii) all of the passengers and all of a particular kind of cargo specified in the application could be carried under the holder’s general licence; or
(iv) all of the passengers and all of the cargo specified in the application could be carried under the holder’s general licence; or
(v) one or more voyages specified in the application could be undertaken under the holder’s general licence; and
(b) if subparagraph (a)(i), (ii) or (iii) applies—identifying which passengers or cargo could be so carried; and
(c) if subparagraph (a)(v) applies—identifying which voyage or voyages could be so undertaken.
43 Sections 32 and 33 provide for the process after a notice in response. Within two days, the applicant for the temporary licence is given a copy of any notice in response: s 32(1). Within a further two days, the applicant for the temporary licence must undertake negotiations with each general licence holder who gave a notice in response and notify the Minister in writing of “the outcome of the negotiations”: s 32(2). The nature of the negotiations is described in s 32(3) and (4) as follows:
(3) For the purposes of paragraph (2)(a), the applicant must negotiate, with each holder of a general licence who gave a notice in response, in respect of the following matters:
(a) whether, and to what extent, the vessel authorised by the holder’s general licence is equipped to carry the passengers or cargo specified in the application;
(b) whether those passengers or cargo can be carried in a timely manner.
(4) If an application relates to the carriage of cargo, negotiations under subsection (3) in relation to the application must have regard to the requirements of the shipper of the cargo.
44 The word “negotiate” in s 32(3) can be understood as “confer for the purpose of arranging some matter by mutual agreement”: Shorter Oxford English Dictionary. The subject matter of the negotiations comprises the two matters in subs (3): the suitability of the vessel for carriage of the cargo, and timely carriage. The requirements of the shipper of the cargo mentioned in subs (3) relate to the matters the subject of the negotiation: suitability of the vessel and timeliness of carriage. This is because the negotiations under subs (3) (that cover only those two matters) must have regard to the shipper’s requirements, implicitly in respect of those important matters. Any requirements (or desires) of the shipper as to freight rates or as to special clauses in the contract of carriage (other than such as deal with the subject matter of the negotiations in paras (a) and (b) of s 32(3)) do not fall within the phrase “requirements of the shipper in s 32(4). Thus, the commercial attractiveness, or otherwise, of the carriage by the general licence holder, whether because of freight rates or other commercial considerations, is irrelevant to the negotiations mandated by the Act. Those negotiations concern the subject matter in paras (a) and (b) of s 32(3).
45 Section 33 provides for comments by third parties, as follows:
Within 2 business days after the day the application is published under section 30, written comments on the application may be given to the Minister by:
(a) a person (other than the holder of a general licence) who would be directly affected if the application were, or were not, granted; or
(b) a body or organisation that would be directly affected, or whose members would be directly affected, if the application were, or were not, granted.
46 Section 34 then provides for a decision by the Minister. Subsection (2) sets out the matters to which the Minister may have regard:
(a) whether the applicant has previously held, or applied for, a temporary licence;
(b) whether the applicant has previously held a licence that was cancelled;
(ba) if the application relates to cargo and a vessel registered in the Australian International Shipping Register—both:
(i) whether the applicant owns the cargo and the vessel; and
(ii) whether the cargo is to be carried on the vessel;
(c) whether the applicant has been issued with an infringement notice under this Act;
(d) any written comments received by the Minister in relation to the application;
(e) any report given to the Department by the applicant under section 62;
(f) the object of this Act;
(g) any other matters the Minister thinks relevant.
47 Subsection (3) sets out the matters to which the Minister must have regard if there has been a notice in response:
(a) the outcome of negotiations, as notified by the applicant under paragraph 32(2)(b);
(b) whether, and to what extent, the vessel authorised by the holder’s general licence is equipped to carry the passengers or cargo specified in the application;
(c) whether those passengers or cargo can be carried on the expected loading dates or within 5 days before or after the relevant date;
(d) if the application relates to the carriage of cargo—the reasonable requirements of a shipper of the kind of cargo specified in the application.
48 Subsection (3) is substantially directed to the negotiations that were mandated under s 32. Paragraph (a) deals with the outcome of those negotiations; para (b) deals with the suitability of the ship, the subject of the negotiations in s 32(3)(a); para (c) deals with a central aspect of timeliness of carriage that was the subject of negotiation in s 32(3)(b) – the loading dates; and para (d) deals with reasonable requirements of a shipper of the kind of cargo specified in the application. The requirements of the shipper to which the negotiations under s 32(3) must have regard are substantially directed to the suitability of the vessel and timeliness of carriage. Such matters, of course, would be affected by the kind of cargo. A ship may not be equipped for cargo of a particular kind or may not be able to carry a kind of cargo in a timely manner that is critical for the kind of cargo in question. The coherence of the subjects in s 34(3) with the subjects of negotiation in s 32(3) and (4), and the central place of suitability of a vessel for carriage of specified cargo and timeliness of carriage in shipping make it understandable that these matters are the subject of compulsory negotiations in s 32 and of mandatory regard by the Minister in his or her decision-making.
49 Section 32(4) refers to “the requirements of the shipper” (that is the shipper in question); whereas s 34(3)(d) refers to “the reasonable requirements of a shipper of the kind of cargo specified in the application”. This difference does not disengage s 34(3)(d) from s 32(3) and (4). Section 34(3)(d) does not refer to any requirements of a shipper. What is being addressed are reasonable requirements of a shipper of that kind of cargo. The words “of the kind of cargo” play an important role in qualifying the subject of the reasonable requirements. Different cargoes have different requirements attending safe and expeditious carriage. Such requirements will generally relate to the suitability of the ship in terms of state, characteristics and equipment, and timely carriage. It is important to recognise that the terms of s 34(3)(d) provide for mandatory consideration by the Minister. So construed, it limits such reasonable requirements to these crucial considerations regarding carriage, such matters being clearly apt for mandatory consideration.
50 If a shipper has a requirement or a desire (which may be reasonable) that does not relate to the suitability of the vessel for that kind of cargo, such as some commercial consideration such as the rate of freight or such as might concern some aspect of the carriage that is unrelated to the kind of cargo specified, that requirement will not be a mandatory consideration under s 34(3)(d). That does not mean, however, that the Minister cannot take that matter into account. It may be a matter that the Minister thinks relevant under s 34(2)(g). Further, the shipper may not be related in any way to the applicant for the temporary licence (unlike the position here with Rio Tinto and Pacific Aluminium). When there is no such relationship the shipper’s views about freight rates and any other commercial terms will be made known under s 33.
51 The application is to be decided within 15 business days: s 34(4); if it is not, the licence is taken to be granted: s 36.
52 If the licence is granted, the Minister must notify the holders of general licences who gave notices in response: s 37(3) and publish relevant information about it on the Departmental website: s 35(2).
53 If an application for a temporary licence is refused, the Minister must give the applicant reasons and must cause the decision to be published on the Departmental website.
54 A temporary licence is subject to the conditions imposed by s 40, and any additional conditions imposed by the Minister under s 41.
55 A temporary licence may be varied under subdivision C of Div 2 (ss 43-49) (variation of matters authorised by a temporary licence) and under Subdiv D of Div 2 (ss 50-58) (variation to include new matters). The latter provisions are relevant to this appeal.
56 The application to vary the temporary licence to include new matters must specify the same matters as required by s 28(2) to be specified in the original application. (See [39] above): s 51(2).
57 Sections 30 to 34 apply in relation to an application to vary: s 53.
58 The Minister must decide an application for variation within seven business days: s 54; in default of which decision the variation is taken to be granted: s 56.
59 If an application for variation is refused, the Minister must give reasons and publish them on the Departmental website: s 58.
60 At least two business days before the actual loading date for a voyage authorised by a temporary licence, the holder must notify the Minister of details of the voyage set out in s 61(a)-(g). Further, the holder must give to the Department a report of each voyage within 10 days of completion of the voyage containing the details set out in s 62.
61 The Minister has the power to cancel a temporary licence after the giving of a show cause notice: s 59. The basis for such a notice is the belief by the Minister on reasonable grounds that a condition of a temporary licence has been contravened: s 59(1). A show cause notice may also be issued under s 63, which is in the following terms:
(1) The Minister may give a written notice (a show cause notice) to the holder of a temporary licence under subsection 59(1) if the Minister considers that, having regard to:
(a) the number of voyages authorised by the temporary licence; and
(b) the loading dates authorised by the temporary licence; and
(c) the ports at which passengers or cargo are taken on board; and
(d) the ports at which passengers disembark or cargo is unloaded; and
(e) whether the licence has been varied under Subdivision C or D of this Division, and if so, how many times; and
(f) the provisions of Division 1 of this Part for the grant of a general licence;
the temporary licence is being used in a way that circumvents the purpose of the general licence provisions or the object of this Act.
(2) If subsection (1) applies, paragraph 59(3)(b) applies as if it required the Minister, after considering any written statement given in accordance with the show cause notice, to be satisfied that the temporary licence is being used in a way that circumvents the purpose of the general licence provisions or the object of this Act.
(emphasis added).
62 There are two concepts referred to in subss (1) and (2): the purpose of the general licence provisions, and the object of the Act. The latter is expressly stated in s 3(1). The former is not expressly stated in terms. The following, however, can be gleaned from the Act in its historical context. First, ships under general licences were to have authority to engage in the coastal trade: s 13(1). Secondly, para (d) of s 3(1) reveals an element of the object of the Act is to maximise the use of general licences. Thirdly, the general licence holders are intended to have the opportunity to undertake voyages proposed to be undertaken by vessels under temporary licences. These considerations assist in coming to a conclusion that the purpose of the general licence provisions is to further the unrestricted access of such vessels to the coasting trade and to assist in maximising the use of such vessels in the coasting trade, subject to the other aspects of the object of the Act.
63 Sections 64 to 74 deal with emergency licences. It is unnecessary to discuss these provisions.
64 Sections 76 and 77 deal with the Minister requesting further information to decide an application for a general or emergency licence (s 76) and for a temporary licence or a variation thereof (s 77). Section 77(4) suspends the running of time under s 34(4) and 54(1), as follows:
(4) A day is not to be counted as a business day for the purposes of subsection 34(4) or 54(1) if it is:
(a) on or after the day the Minister asks a person for further information under subsection (1); and
(b) on or before the day the Minister notifies the person that the further information provided satisfies the Minister’s request.
65 As with general licences, the Act requires prompt decision-making by the Minister in respect of any application for a temporary licence. The timeframes are tight: for publication and notification of an application for a temporary licence (two days: s 30); for the giving of a notice in response (two days: s 31); for the undertaking of negotiations between the applicant and the general licence holder (two days: s 32); for the comments of third parties (two days: s 33); for the making of the decision (15 days from the making of the application: s 34 subject to the period between the notice in response and the end of the negotiation period, not counting: s 34(5) and subject to operation of s 77); and for the deciding upon a variation (seven days: s 54).
66 Before turning to the applications and decisions here, one further matter should be noted. Subject to the breadth of available considerations in s 34(2)(g), no provision of the Act makes freight rates (proposed by the general licence holder or the temporary licence applicant) an identifiable consideration. No information about freight rates (or any other aspect of the commercial terms of any proposed carriage) is required in the application under s 28; it is not the subject of compulsory negotiation between the general licence holder and the applicant under s 32(2)-(4); it is not an aspect of the requirements of the shipper under s 32(4), or of the reasonable requirements of a shipper of the kind of cargo specified in the application: s 34(3)(d); it is not part of the information which the Minister must cause to be published on the Departmental website under s 35(2) after grant of a temporary licence; and it is not part of the information required to be specified in the licence: s 37(2).
The applications and decisions here
67 In July 2012, the second respondent, Rio Tinto Shipping Pty Ltd (“Rio Tinto”) applied for a temporary licence for a number of voyages. The appellant, CSL Australia Pty Ltd (“CSL”) gave a notice in response in respect of the voyages. A body of communications between Rio Tinto and CSL and the delegate of the Minister took place up to the issue of the temporary licence on 30 July 2012. The proceedings before the two primary judges do not concern the granting of the temporary licence, but rather the granting of an application to vary the temporary licence that was made by Rio Tinto on 6 August 2012. The application for variation was made under s 51, in respect of new matters, for five voyages for the carriage of alumina from Gladstone to Bell Bay, in volumes of 25,000 mt per voyage for expected loading dates in October, November and December 2012 and January and February 2013. Some of the voyages were covered by the temporary licence that had already been granted, but nothing turns on that.
68 On 10 August 2012, CSL gave a notice in response in respect of all five voyages: 1207006003 for loading date 11 October 2012, 1207006004 for loading date 11 November 2012, 1207006005 for loading date 4 December 2012, 1207006006 for loading date 4 January 2013, and 1207006007 for loading date 1 February 2013. (I will refer to these as voyages 003, 004, 005, 006, and 007.) In relation to voyage 003, CSL nominated CSL Melbourne. In relation to voyages 004, 005, 006 and 007, CSL nominated CSL Brisbane to perform the voyages. Both CSL Melbourne and CSL Brisbane were the subject of an application for a transitional general licence, which licences were granted on 8 August 2012.
69 Later, CSL withdrew its challenge to voyage 004.
70 At this point, it is convenient to refer to some of the communications that had taken place after the application for the temporary licence and before its issue. After CSL had submitted a notice in response to the temporary licence application, Rio Tinto, by email on 10 July 2012, asked CSL for its freight indication for the cargo CSL had challenged, assuming the use of CSL Brisbane. The email made reference to another ship, CSL Melbourne. The email stated:
As you know, CSL Melbourne is unsuitable for Bell Bay due to her LOA [length overall] so we expect you to withdraw your challenge on the early October cargo …
71 By email the same day, CSL said that it would not be withdrawing its notice in response in respect of the voyage to which CSL Melbourne had been nominated. The email continued:
CSL acknowledged that there may be an issue with the length overall…of the vessel. However, as you know, we have previously used this vessel for a Bell Bay discharge and dealt with safe access form the ship to the berth. We maintain that the CSL Melbourne can carry 25,000 mt +/- 5% without loading in hold #1.
72 CSL then provided a freight rate for both CSL Melbourne and CSL Brisbane voyages of $29.70 pmt.
73 Rio Tinto then questioned this freight rate.
74 On the following day, 11 July 2012, CSL emailed Rio Tinto and said that it was not in a position to revise the freight rate quoted the day before, the rate reflecting the high costs of operating an Australian vessel on the Australian coast with Australian crews.
75 On 11 July 2012, Pacific Aluminium on behalf of Bell Bay Aluminium (companies to which Rio Tinto was related) as an affected party under s 33 of the Act, wrote a letter to the Minister. That letter stated that small changes in costs per tonne could have significant impact on the operating costs of Bell Bay Aluminium. The letter also referred to the reliability of alumina supply as a central concern. The letter said that Bell Bay Aluminium was concerned that CSL had only one vessel which was able to perform the charters then under consideration and stated that, in the past, charter services provided by CSL had been unreliable. Also on 11 July 2012, Rio Tinto sent an email to the delegate of the Minister, putting matters the subject of s 34 of the Act in relation to the requirements of Pacific Aluminium.
76 On 23 July 2012, Rio Tinto sent an email to the delegate saying that CSL Melbourne was considered by the terminal operator (Pacific Aluminium) to be too big for the Bell Bay terminal facility No 1 berth because of its length overall.
77 On 24 July 2012, this email of Rio Tinto, together with its attachments, was forwarded to the Deputy CEO of the Australian Maritime Safety Authority (“AMSA”). Also on that day, the delegate forwarded to CSL by email the material provided by Rio Tinto by email of 23 July 2012 saying that she was providing CSL with an opportunity to respond to this material.
78 By email the following day, 25 July 2012, CSL made a submission to the then delegate responding to the concerns of Rio Tinto. CSL stated that vessels with a length overall of greater than the maximum length overall stated by Rio Tinto had been berthed at Bell Bay on the basis that one hold would not be loaded. The email stated that CSL Melbourne had discharged 26,250 mt of alumina at Bell Bay in August 2010, and cargo was not loaded in hold No 1. The email attached drawings identifying the position of CSL Melbourne on the relevant wharf, leaving one hold (with a No 1 or No 5 empty). The email also dealt with safe access to the vessel, identifying that CSL Melbourne had an aft gangway, or, in the alternative, a brow that could be placed anywhere along the ship’s side to provide safe access at all times.
79 On 6 August 2012, Rio Tinto made the application for variations of the temporary licence. This was sent to CSL on 8 August 2012.
80 On 10 August 2012, CSL provided the notice in response referred to at [65] above, which was provided to Rio Tinto on 13 August.
81 On 14 August 2012, Rio Tinto sent an email to CSL asking for freight indications for the cargoes challenged, saying “we expect the same to be in line with the market.” The email also asserted CSL Melbourne’s unsuitability for Bell Bay due to her LOA. The email also gave notice of a requirement for a liquidated damages clause said to be necessary to cover Bell Bay Aluminium’s loss should the general licence ship be unable to perform a voyage, without Bell Bay Aluminium having a back up temporary licence.
82 CSL responded the following day, 15 August, giving freight rates for CSL Brisbane for the second to fifth voyages. The email stated that CSL Melbourne would not be available for the first voyage. So, at this point the debate about her suitability for berthing at Bell Bay because of her LOA was not pursued.
83 Not all the documents referred to above from 10 July to 25 July 2012 were considered by the delegate dealing with Rio Tinto’s application for variation of the temporary licence. The emails on 10 and 11 July 2012 were not so taken into account.
84 On 16 August 2012, Rio Tinto informed the general manager that it had concluded negotiations with CSL. During those negotiations, CSL led Rio Tinto to believe that CSL Melbourne would not be nominated by CSL for voyage 003. This was because of her anticipated employment on another voyage of which Rio Tinto was aware. Rio Tinto arranged a chartered vessel to undertake that voyage before CSL, in early October, restated its desire for CSL Melbourne to undertake voyage 003, the arrangements for the other voyage having changed. I will return to this when examining the events of early October 2012.
85 The email sent by Rio Tinto to the General Manager stating that negotiations had concluded stated that the challenge was only in relation to the last four voyages concerning CSL Brisbane. The proposed freight rates were identified. The unacceptability of CSL’s position to Rio Tinto was stated and explained by reference to their earlier position outlined when the application for a temporary licence was being considered. There were two aspects to the opposition to CSL Brisbane. The first was an assertion that on a previous occasion CSL Brisbane (though a suitable vessel) had presented in an unclean condition and outside the laycan period causing delay. The second was a complaint about the freight rate. A comparison was made with freight rate charged under the earlier permit system. The earlier rates were said to be “almost competitive” and the comment was made that CSL “appears to believe that it holds a more dominant position” under the new licence system. Rio Tinto provided a comparative quote (implicitly from a foreign-flagged owner) of USD 17.50 pmt compared to CSL’s AUD 29.70 pmt. Rio Tinto also cited a July 2012 loading (of an unnamed ship) fixed at USD 16.35 pmt. The email also referred to the liquidated damages clause. This was explained as a consequence of the change from the prior permit system under which an emergency permit could be obtained. The email also referred to the viability of operations at Bell Bay, a subject that was taken up in a submission under s 33 of the Act attached to the email.
86 Before turning to that attached submission, it should be noted that the primary judge (Robertson J) at [47] of his reasons discussed the question of whether all of the email could be characterised as the notification of the “outcome of the negotiations” for the purposes of s 32(2)(b). His Honour said:
[47] … I interpolate that what is within s 32(2)(b) is the outcome of the negotiations. It is not clear which parts of the 16 August 2012 email are to be so described. I do not accept the applicant’s suggestion that the outcome should be described in one word, either “failed” or “succeeded”. In my view notifying the Minister of the outcome of the negotiations would extend to a report of why the negotiations succeeded or failed. On that approach paragraphs numbered 1 (including the table), 2, 3, 4 and possibly 5 of Rio Tinto’s email of 16 August 2012 would describe the outcome. The balance of the email seems to me, on the scant evidence limited to the terms of the document, to be submissions rather than a notification of the outcome of the negotiations. Thus I do not accept the more expansive approach of the respondents. The only possible relevance of the point is to the issues of procedural fairness. But I observe that the basic scheme of the Act is that the notification of the outcome of negotiations under s 32(2)(b) may enable a decision to be made within the principal time limits in s 34(4) or s 54(1): to the extent that material is submitted outside that notification, being material not limited to the outcome of negotiations, additional procedural fairness obligations are more likely to arise.
87 Paragraphs 1, 2, 3, 4 and 5 dealt with the following subject matters: a statement of the proposed voyages (1); the nature of CSL’s offer (including freight rates) (2 and 3); the unacceptability of CSL Brisbane because of past performance issues (4 and 5). Paragraphs 6-10 insofar as they dealt with complaints about the freight rate were not considered by Robertson J to be a description of the outcome. I agree. I would add in addition to the reasons the reasons given by him that the relevant negotiations that are to be undertaken for the purposes of s 32 (and s 34(3)) do not include the subject of freight rates.
88 The attached letter of 16 August 2012 was from Pacific Aluminium (the parent company of Bell Bay Aluminium) and was said to provide “further economic context”. The letter then went on to assert the economic impact on the operations at Bell Bay of the quoted freight rate. The primary judge described the relevant contents of the letter at [48] as follows:
[48]… BBA had been considering a number of key impacts which, it said, on the basis of the offers put forward by CSL to date, would add at least AUD $4,000,000 to the annual cost of production on freight alone. It specified the percentage of BBA’s controllable costs represented by these additional costs together with $4,000,000 in additional costs already being absorbed by BBA since the loss of a direct international container service from the Bell Bay Port. The letter annexed two Figures dated July 2012, one being the cash costs of smelters in Australia and the other being the London Metal Exchange aluminium price history in Australian dollar terms.
89 On 17 August 2012, the General Manager made a request under s 77 for information from Rio Tinto. The enquiry concerned the freight rate put forward by CSL and the earlier freight rate in 2010. Rio Tinto replied on the same day, confirming CSL’s present offer and setting out the 2010 CSL freight rate of USD 17.30 pmt, from an opening offer of USD 19.95 pmt. Rio Tinto reiterated the competitive price from a foreign-flagged owner of USD 17.50 pmt. Reference was also made to a fixture in July 2012 of an unnamed vessel at USD 16.35 pmt.
90 On 22 August 2012, the General Manager wrote to CSL also seeking further information under s 77. In the context of referring to the outcome of the negotiations under s 32, she referred to the request for a liquidated damages clause and the changed regulatory environment. CSL responded the next day, 23 August, saying they could provide an alternative vessel at commercially acceptable terms.
91 Also on 22 August, the General Manager wrote to Rio Tinto informing it of her intended enquiries of CSL and asking Rio Tinto to confirm that she could share the 2010, 2011 and 2012 “prices” that included those of the foreign-flagged vessels, with CSL. The following day, 23 August, Mr Mannion of Rio Tinto approved the use of the information but said “provided there is no obvious reference to the identity of the shipowner/carrier”. To this, the General Manager replied on the same day:
My intention is to remove all references to the international rates offered and by whom, and focus on why CSL has increased its own rate by 67% in one year.
92 Mr Mannion then responded almost immediately qualifying his earlier response about disclosure:
Sorry, I jumped to the wrong space: thinking ‘market’ comparisons. I am surprised CSL haven’t already shared with you the rates they were prepared to offer and did in the end take, when doing this business last.
If they weren’t going to give that information to you, I see no reason why we shouldn’t; indeed, it’s the foundation of our argument.
They were ‘relatively’ competitive under the old regime, we don’t understand why they still can’t be or what might have changed?
The difference then was only $1-$2 different on the freight rate, now it’s upward of $12. The demurrage rate is also cause for concern.
93 On 23 August 2012, the General Manager wrote to CSL seeking further information under s 77. Again, expressed as in the context of referring to the outcome of the negotiations under s 32, she referred to freight rates previously charged by CSL in 2010 and 2011 of AUD 17.30 and AUD 18.20 for CSL Melbourne and CSL Brisbane which information had been provided by Rio Tinto. The email requested that CSL:
1. confirm that the rates advised by Rio, as outlined above, are correct; and
2. if they are correct, could you advise what factors have caused the increase in your current offer over the rates agreed with Rio in 2010 and 2011.
94 The assumption that appears to have been made in this request was that freight rates were part of the subject matter for compulsory negotiation under s 32. For the reasons discussed above, they were not.
95 CSL responded to this on 27 August 2012. The primary judge described the content of the email at [57]:
[57] … In relation to the rates agreed with Rio Tinto in 2010 and 2011, CSL said that those cargoes were considered trial cargoes and therefore CSL had been willing to compromise on the freight rate and corresponding revenue return. However, the email continued, on the CSL Brisbane voyage CSL made a cash loss of A$300,000, not including capital return and depreciation on the vessel, and on the CSL Melbourne voyage CSL made a loss of A$200,000, including capital return and depreciation. CSL added that the freight and demurrage rates as offered to Rio Tinto during negotiations for the temporary licence cargoes were reflective of owning and operating General Licence Vessels on the Australian coast.
96 It is to be recalled that on 23 August 2012, the General Manager indicated to Rio Tinto that she was not going to make any reference to any comparative international freight rates but would “focus on why CSL has increased its own rate by 67% in one year”.
97 On 3 September 2012, the General Manager sought further information from CSL about the 2010 and 2011 voyages. She asked whether Rio Tinto was made aware of the trial status of the earlier voyages and that CSL was losing money on its freight rates then charged.
98 CSL responded on 5 September 2012 in terms quoted by the primary judge in [58] of his reasons:
Both voyage negotiations were conducted on a spot basis relative to market. Whilst Rio Tinto understands the real costs of Australian shipping, they made it clear during the spot negotiations that they required CSL to be close to market rates in order to conclude negotiations. While CSL had the option at the time of objecting to an SVP application if negotiations failed, the internal decision was made to accept a close to market rate in order to prove the vessel capability of the CSL Melbourne and CSL Brisbane discharging at Bell Bay and ensure a good ongoing customer relationship with Rio Tinto.
The CSL Brisbane hybrid self unloading system was designed for the carriage of Alumina and the Bunbury-Bell Bay voyage was the first opportunity to trial this type of cargo. It is not unusual for a new self unloading vessel to meet market rates and therefore price below cost in order to prove the vessel’s capabilities on a new cargo/trade.
The decision to conclude both voyages on the CSL Melbourne and CSL Brisbane on freight rates that did not cover costs was an internal strategic decision on the part of CSL to enable the vessels to perform on a trade that CSL was struggling to gain access to. Whilst Rio Tinto was verbally advised that these freight rates were below the cost of Australian vessels, it was not an explicit condition of the voyages.
99 On 7 September 2012, the General Manager sought further information from Rio Tinto under s 77. It put CSL’s responses on the liquidated damages clause and the 2010 and 2011 freight rates to Rio Tinto for comment. Rio Tinto responded on the same day. The primary judge summarised the response at [60] and [61] of his reasons:
[60] Rio Tinto responded to those queries by email dated 7 September 2012. As to the liquidated damages point Rio Tinto said it was not satisfied with CSL’s offer. Applications for variations would take too much time and would not adequately protect Rio Tinto without a liquidated damages clause as was proposed. It said that working through CSL to cover their own failure would be even less efficient and certainly more time-consuming, which was in neither party’s interests.
[61] As to the rates question, Rio Tinto said it was aware of the trial nature of the 2010 and 2011 voyages to the extent that the trials related to the physical capabilities/compatibilities of the vessels proposed. It said, however, the parties did not want to consider further commitment until those capabilities/compatibilities were assessed. It said there was no logic or relevance to the argument that because these were trial voyages the rates were obviously/necessarily lower or more competitive. Rio Tinto added it was not made party to the internal strategic decisions of CSL: negotiations with CSL at the time included an insistence on the part of Rio Tinto for competitive freight rates. CSL may well have alluded to their high operating costs, however, at the time of fixing those voyages, there was no agreement that those rates were at once off levels, which were below the operating costs of Australian vessels. The trial nature related to the physical fit of the vessels to the trade, not the freight rates charged.
100 During September, Rio Tinto sought confirmation from the General Manager that it could fix a vessel under the temporary licence for voyage 003 given the lack of opposition expressed by CSL in relation to CSL Melbourne.
101 On 28 September 2012, CSL dropped its challenge to the November voyage by CSL Brisbane, voyage 004.
102 On 2 October 2012, the delegate asked CSL for confirmation of the correctness of information that had been received from Rio Tinto (in the email describing the outcome of the negotiation and in the communications in September) that CSL was not challenging voyage 003 (for which CSL Melbourne had originally been nominated). This withdrawal of challenge by CSL had been earlier communicated to Rio Tinto by CSL. By email of the same date, CSL advised that it now pressed its challenge to voyage 003. Rio Tinto had assumed that it could charter a vessel for that voyage. The explanation of CSL was described by the primary judge in [66] of his reasons. Rio Tinto was informed of CSL’s position on 3 October 2012. The vessel that Rio Tinto had secured was on its way to Gladstone. Objection to CSL Melbourne was then made on 4 October by Rio Tinto by reviving the concern about LOA of the vessel and the concern about her suitability for berthing at Bell Bay that had been taken up in Rio Tinto’s email of 23 July.
103 On 6 October 2012, the delegate contacted AMSA about the Bell Bay berthing issue for CSL Melbourne The primary judge described this in [71] of his reasons:
On 6 October 2012 the delegate spoke to the Deputy CEO of AMSA. She sought confirmation of the advice previously provided to the Department in response to the information provided by Rio Tinto on 23 July 2012 regarding the safety risks associated with an oversize vessel, such as the CSL Melbourne, berthing at Bell Bay Terminal Facility 1. The Deputy CEO of AMSA confirmed that he reviewed the material provided to him in July 2012 and also confirmed that operations involving an oversize vessel at that berth “can pose safety issues of the kind described by Rio Tinto. He advised that the manoeuvres required to move an oversize vessel up and down the berth to facilitate loading can put excessive load on lines, bollards and dolphins placing personnel, the vessel and the berth at risk.”
104 As referred to at [77] above, AMSA and CSL had, on 24 July 2012, been supplied with the Rio Tinto email of 23 July; but AMSA was never given CSL’s response of 25 July referred to at [78] above.
105 On 6 October 2012, the delegate sent to CSL an email containing a preliminary view that the temporary licence should be varied. The substance of the email was set out by the primary judge at [72] of his reasons, as follows:
I am a delegate of the Minister for the purposes of making decisions under the Act, including decisions in relation to applications for variations of temporary licences. Having considered the information submitted by both Rio Tinto and CSL, I propose to grant the application for a variation to the TL to include new matters, being voyages 120700603, 120700604, 120700605, 120700606, and 120700607 [sic]. In reaching this preliminary view, I have considered a range of information provided by both the applicant and the general licence holder. The key factors I have taken into account in forming my present view as to a decision are as follows:
Voyage 120700603 [sic] - Gladstone to Bell Bay - Vessel proposed by CSL - MV CSL Melbourne
Information provided to me by the applicant indicates that the MV CSL Melbourne is considered by the terminal operators (Pacific Aluminium) to be too big for the berth (Bell Bay Terminal Facility No 1) for safety, berthing and operational reasons. This information indicates that MV CSL Melbourne is too large to berth safely at Bell Bay Terminal Facility No 1 and may be refused permission to unload at the berth. The information provided by the applicant in regard to this issue was forwarded to CSL for response on 24 July 2010 [sic]. The Australian Maritime Safety Authority (AMSA) have confirmed that berthing a vessel of the size of the CSL Melbourne at Bell Bay Terminal Facility No 1 would pose safety concerns of the kind described by the applicant. I consider that these safety considerations are significant, and that they suggest that the MV CSL Melbourne does not meet the reasonable requirements of the shipper.
There was then a paragraph dealing with CSL’s withdrawal of the notice in relation to voyage number 1207006004.
Voyages 120700605, 120700606 and 120700607 [sic] - Gladstone to Bell Bay - Vessel proposed by CSL - MV CSL Brisbane
In deciding an application object [sic] of the Act (s 34 (2)(f)) is a relevant consideration. Section 3 (1) of the Act states that “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”. I am presently of the view that, having regard to the freight rates offered by CSL for use of the MV CSL Brisbane to undertake the 3 voyages listed above, refusing to grant the variation of the TL to include these three voyages would not be consistent with the object of the Act. It is acknowledged that a direct comparison between the freight rates offered for a vessel under a general licence and those for a vessel operating under a temporary licence is not determinative because the underlying cost structures are different. Nevertheless, it is apparent from the information provided by the applicant and confirmed by CSL, that the freight rates proposed by CSL are significantly higher, not only than those offered by a vessel operating under a temporary licence, but also than those previously offered by CSL to Rio Tinto to undertake the same voyage. The applicant has provided probative information about the impact that rates of the magnitude of those offered by CSL for this voyage [sic] would have on the future viability of aluminium operations in Bell Bay. The aluminium industry in Australia is experiencing unprecedented challenges to its viability due to depressed aluminium prices and the continued strength of the Australian dollar. The cost of alumina and the associated freight costs are significant to all smelters but particularly to the operations at Bell Bay because of its location. Small changes in cost per tonne can have a significant impact on overall operating costs. I am presently of the view that refusing to grant the variation to the TL in respect of this voyage [sic] would be likely to contribute to the undermining of the future viability of operations of Bell Bay Aluminium and thus would not contribute to the broader Australian economy or the long-term viability of the Australian shipping industry.
106 The email concluded:
I expect to make a decision in relation to this application on Tuesday, 9 October 2012. Should CSL wish to make submissions in relation to the contents of this email, these must be received by email to myself with a copy to ShippingBusinessUnit@infrastructure.gov.au by 5.00pm on Monday, 8 October 2012.
107 By email dated 8 October 2012 from its managing director, CSL responded in over 2 ½ pages. The primary judge summarised the matters put at [74]-[78].
108 The delegate made the decision on 9 October 2012, and in communicating this to CSL, answered some of the criticisms of CSL made in its email of 8 October as set out by the primary judge at [80], as follows:
In the email to CSL, the delegate included the following:
In reaching this decision I have considered information provided by the applicant and by CSL in this and other correspondence with the Department. In relation to your email below [CSL’s email dated 8 October 2012], I provide the following information:
AMSA has not made any ‘determination’ of the suitability of a vessel to berth in Bell Bay. AMSA, as the statutory maritime safety regulator, was consulted as an independent source of expert advice in relation to the advice provided to us by the applicant regarding safety concerns associated with berthing a vessel the size of the CSL Melbourne at the Bell Bay Terminal Facility No 1. The content of AMSA’s advice has been provided to you in my email of 6 October (below).
The information provided by Rio Tinto concerning freight rates and their impact on the overall operating costs for aluminium operations at Bell Bay was, to the extent that it is not commercial-in-confidence, provided to CSL, including in summary in my email of 6 October 2012. Similarly all information relating to freight rates, to the extent that it was not commercial-in-confidence, was provided to CSL and CSL have been afforded the opportunity to respond (refer email from Pauline Sullivan to Emily Gross dated 23 August 2012).
The first decision: Robertson J
109 The judgment of Robertson J concerned the attack by CSL upon the decision of the delegate to vary the temporary licence.
Findings of fact
110 The primary judge made the following findings of fact:
(a) As to voyage 003, the delegate granted the application to vary the temporary licence because CSL Melbourne did not meet the reasonable requirement of the shipper on the basis of safety. This was the basis of the decision, not the issue of freight rates.
(b) AMSA did not receive CSL’s response of 25 July to Rio Tinto’s email of 25 July 2012.
(c) As to voyages 005, 006 and 007, the delegate granted the application to vary the temporary licence because to refuse it would have been inconsistent with the object of the Act to provide a regulatory framework for coastal trading that promotes a viable shipping industry that contributes to the broader Australian economy in the circumstances of the significantly higher freight rates in 2012, compared with 2010 and 2011. Those higher freight rates would be likely to contribute to the undermining of the future viability of Bell Bay Aluminium and would thus not contribute to the broader Australian economy on the long-term viability of the Australian shipping industry.
(d) No one in the Department, including the delegate, provided to CSL:
(i) the international (foreign-flagged) freight rates that Rio Tinto had said were available to it for the voyages;
(ii) Rio Tinto’s email of 7 September 2012 that answered what CSL put about the 2010 and 2011 freight rates;
(iii) the detail of the material that the delegate considered relating to the viability of aluminium operations at Bell Bay.
Preliminary considerations
111 Before the primary judge turned to the particular criticisms of the delegate’s decision, he made some preliminary observations which are relevant to note for this appeal. First, the primary judge (at [94]-[95]) rejected the submission that the second reading speech assisted in finding a single or primary purpose of the Act that would or should predispose the Minister to decide such applications in favour of any general licence holder.
112 Secondly, the primary judge (at [96] and [98]) saw significance in the absence of the word “Australian” before the phrase “shipping industry” in s 3(1)(a). In this regard, the primary judge saw significance in the fact that the definition of “coastal trading” in s 7 of the Act did not distinguish between Australian shipping and other shipping. This was of particular significance for the operation of s 3(1)(a): the promotion of “competition in coastal trading”.
113 Thirdly, the primary judge found that CSL Melbourne and CSL Brisbane were not “vessels registered in the Australian General Shipping Register” for the purposes of s 3(1)(d) because of the terms of the transitional legislation.
114 Fourthly, the primary judge (at [100]) expressed the view that the vesting in the relevant power in the Minister (although capable of delegation) and the terms of s 34(2)(g) (“any other matters the Minister thinks relevant”) supported a broad approach to the construction of the permissible considerations: Minister v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 42 citing Murphyores Inc Pty Ltd v Commonwealth [1976] HCA 20; 136 CLR 1 at 12-13 and 24-25.
115 Fifthly, the primary judge (at [101]) noted that the grant of the licence did not determine (as a matter of law) which vessel was to undertake the voyage.
The attack by CSL on the decision and the approach of Robertson J
116 The application had 10 grounds of review in relation to the one voyage for which CSL Melbourne was proposed. One ground was successful: a failure to accord procedural fairness.
117 The first ground was expressed as follows:
[The delegate] failed to take into account the considerations required by ss 34(3)(b), 34(3)(c) and 34(3)(d) of the Act, being the fact that CSL’s vessels were equipped to carry the cargo specified in the application, that those vessels could carry the cargo on the expected loading dates, and that those vessels met the reasonable requirements for a shipper of alumina, being the kind of cargo specified in the application;
118 The primary judge rejected this at [107], saying:
As to ground 1, in my opinion the delegate did not fail to take into account the mandatory relevant considerations in s 34(3)(b), (c) or (d) of the Act… As to the first of those two mandatory relevant considerations, it was not in issue that the CSL Melbourne, authorised by CSL’s general licence, was equipped to carry the cargo specified in the application. Neither was it in contention that the cargo could be carried on the expected loading dates or within five days before or after the relevant date. As to paragraph (d), the delegate expressly based her decision on the reasonable requirements of the shipper of a specified kind of cargo. I reject the first ground in relation to this voyage. No point was taken in this context between “the shipper”, referred to in s 32(4), and “a shipper”, referred to in s 34(3)(d).
119 It is appropriate to make some comments on these paragraphs at this point. To the extent that the ground of attack involved the proposition that the matters in s 34(3)(a) and whether the vessel was “equipped to carry the … cargo” did not encompass berthing issues concerning the safety of the ship, on-shore equipment and people attending the vessel, I would reject that proposition. Further, to the extent that [107] of the primary judge’s response to the attack proceeds on an assumption that the reasonable requirements of a shipper of the kind of cargo specified in the application in s 34(3)(d) go beyond the matters in s 32(3) or requirements arising from the kind of cargo and thus in some way concerned with the suitability of the ship, I do not agree. The requirements of the shipper here to which the primary judge referred were as to the suitability of the vessel (from the point of view of safety and related issues dealt with in the emails of 23 and 25 July and in AMSA’s view given on or after 6 October 2012) for berthing at Bell Bay. Those were requirements that were intimately connected with the equipping of the vessel to carry the cargo, because of the essential need for safety to persons and of the ship in and about the loading of the ship, including its berthing. In some shipping contexts, such as the analysis of the stages of a voyage charter, a keen and precise delimitation is made between the carriage and loading stages of the voyage. That is because in such a context the end of one stage and the beginning of another have important commercial consequences as to legal responsibility: see EL Oldendorff & Co GmbH v Tradex Export SA (The ‘Johanna Oldendorff’) [1974] AC 479 at 556. In such a context the phrase “equipped to carry…the cargo” may have a meaning limited to the undertaking of that part of the contractual arrangements limited to the physical carriage of the cargo by the shipowner. The context here, however, of the phrase “equipped to carry the … cargo” in s 32(3)(a) is the suitability of the vessel for the whole voyage and the carriage of the cargo. Intimately connected with such a state of affairs is safety and suitability of the ship for on-shore equipment, crew and on-shore workers, in the necessary preliminary tasks of berthing and loading.
120 The second ground was expressed as follows:
[The delegate] failed to take into account a relevant consideration under s 34(2)(f), being the objects of the Act stated in ss 3(1)(a), (b), (c), (d), (e) and 3(2)(a) and/or misconstrued the said objects by taking into account the economic interests, profitability and costs of the shipper/receiver of the cargo;
121 The primary judge rejected this at [108]-[109], saying:
[108] Ground 2 is that the delegate erred in law by failing to take into account a relevant consideration under s 34(2)(f). As framed this part of the ground must fail because the matters in s 34(2) are not mandatory relevant considerations. This is made clear by the contrast in language between s 34(2) on the one hand, listing matters the Minister may have regard to, as against s 34(3) listing matters the Minister must have regard to. This ground also alleges an error in taking into account the economic interests, profitability and costs of the shipper/receiver of the cargo. In my view, this ground fails because the delegate did not so proceed in relation to this voyage. If I am wrong in my conclusion as to the delegate’s reasons in relation to this first voyage, then my reasoning and conclusions on this ground in relation to the challenge to the variation for the balance of the voyages apply.
[109] Insofar as it is submitted that the delegate’s real consideration in respect of this voyage was the freight rate being sought by CSL, I do not draw that inference and I reject that submission. This conclusion is supported by the fact that no freight rates were the subject of the statutory negotiation procedure since, at the time of that procedure, CSL had indicated that the CSL Melbourne was not available for this voyage and by the consideration I refer to at [66] above that, as at 2 October 2012, CSL stated it was willing to negotiate freight terms with Rio Tinto for voyage number 1207006003. I reject ground 2 in relation to this voyage. If I am wrong in my conclusion as to the delegate’s reasons in relation to this first voyage, then my reasoning and conclusions on this ground in relation to the challenge to the variation for the balance of the voyages apply.
122 The rejection of the submission that the object of the Act was a mandatory consideration to have regard to was also dealt with at [134] in relation to the later three voyages.
123 The reasoning and conclusions in relation to the taking into account of the economic interests, profitability and costs of the shipper/receiver in relation to the other three voyages mentioned in [108], which were relevant here on the alternative hypotheses, were in [135] of the reasons as follows:
It is pleaded, in the alternative, that the delegate misconstrued the object of the Act in s 3(1) by taking into account the economic interests, profitability and costs of the shipper/receiver of the cargo. CSL’s submission is that those matters are legally prohibited considerations. I do not accept that submission on the facts of this case. I also reject the associated submission that the object of the regime is to allow general licence holders to nominate to carry particular trade if their vessels are able to meet the requirements for the proposed voyage. So to construe the Act would be to ignore s 34(2) and s 32(4), and to marginalise the prescribed negotiation process and the outcome of negotiations as notified, which is a mandatory relevant consideration by s 34(3)(a). It is true that one of the paragraphs set out in s 3(1) of the Act is to provide a regulatory framework for coastal trading in Australia that maximises the use of vessels registered in the Australian General Shipping Register, but even when the CSL Melbourne and the CSL Brisbane become so registered that object will not dictate the result of the exercise of the Minister’s or delegate’s discretion. I do not of course rule out that the exercise of that discretion may in a particular case have the result that an application for a temporary licence or for a variation of a temporary licence will be refused.
124 It is appropriate to say something at this point about some aspects of the primary judge’s comments at [109] and [135] above. To the extent that his Honour can be taken as expressing a view that either the compulsory negotiations for the purposes of s 32 or the “reasonable requirements of a shipper” for the purposes of s 34(3)(d) could include freight rates or the economic interest, profitability and costs of the shipper, or commercial terms such as a liquidated damages clause (that subsequently became important in the later delegate’s decision), for the reasons that I have earlier expressed, I disagree. That conclusion, however, does not make such matters necessarily legally irrelevant considerations. The terms of s 3(1)(e) and (f) and ss 33 and 34(2)(g) support a broad scope of legally available relevant considerations.
125 The third ground was expressed as follows:
[The delegate] took into account irrelevant considerations, being;
i. the effect of the Variation on the aluminium industry or on aluminium operations at Bell Bay separate from its effect in promoting a viable Australian shipping industry;
ii. the assertion by Pacific Aluminium that increased freight costs would threaten the viability of aluminium operations at Bell Bay; and/or
iii. the freight rates Rio Tinto proposed for the voyages, as compared to the freight rates offered by CSL for equivalent voyages;
126 The primary judge rejected this ground at [110] on the basis that these matters were not taken into account at all in relation to voyage 003. If he was wrong about that, he would have rejected the argument for the reasons that he did so in relation to the other voyages, which reasoning was at [137], as follows:
In my view these are not irrelevant considerations for the same reasons I have given in relation to ground 2 at [135] above. Promoting a viable Australian shipping industry is not the only or dominant object of the Act so as to make any other considerations legally impermissible. To the extent that this ground involved a contention that there was no, or insufficient, material to support the delegate’s finding because it was based on a mere assertion by Pacific Aluminium as to the threats to its viability rather than “real evidence”, I reject the contention as erring into the merits.
127 The fourth ground was expressed as follows:
[The delegate] denied procedural fairness to CSL by failing to give CSL an opportunity to consider and make submissions about:
i. the information received by the delegate from Rio Tinto as to the viability of aluminium operations at Bell Bay;
ii. the information received by the delegate from Pacific Aluminium as to the viability of aluminium operations at Bell Bay;
iii. the freight rates of other “international” shipowners provided by Rio Tinto to the delegate; and/or
iv. Rio Tinto’s response to CSL’s explanation that CSL’s freight rates in 2010 and 2011 were lower than CSL’s current proposed freight rates because the 2010 and 2011 voyages were trial voyages;
128 Once again, at [111], this was rejected in relation to voyage 003, because they were not taken into account. In the alternative, his Honour adopted his reasoning in relation to the other voyages, at [139]-[143] in which he did find a denial of procedural fairness to CSL:
[139] In my view, the first and second of these matters do not establish a denial of procedural fairness. CSL was given an opportunity to be heard on the topic of its proposed freight rates for the voyages on the future viability of aluminium operations at Bell Bay. Further, the applicant CSL took advantage of that opportunity in its email to the delegate dated 8 October 2012 and said that it “acknowledges that the aluminium industry in Australia is experiencing unprecedented challenges to it’s [sic] viability due to depressed prices, and high Australian dollar.” The complaint here is as to the level of detail, in that CSL did not have an opportunity to test the veracity of the information. CSL made reference in submissions to it not having been given any detail of profitability or any analysis identifying why that profitability gave rise to a lack of viability. However, viability as such was not the issue but the undermining of viability. This was not an insolvency case. In my view, having regard to the statutory scheme, procedural fairness did not require CSL to be given that opportunity: CSL was given an opportunity to respond to the substance of the matter, and did so: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at [27].
[140] As to the third of these matters, in my view, a fair reading of the material shows that the delegate did not decide the application by reference to the freight rates offered by vessels operating under a temporary licence or international rates. By email dated 23 August 2012 the General Manager said that her intention was to remove all references to the international rates offered and by whom. The delegate acted on the basis of the significantly higher freight rates proposed by CSL than those previously offered by CSL to Rio Tinto to undertake the same voyage. Put differently, the delegate took it as a given or constant that the freight rates proposed by CSL would be significantly higher than those offered by a vessel operating under a temporary licence and did not act on that factor. I refer to the email from the General Manager dated 22 August 2012, the email of 23 August 2012, the further email of 23 August 2012 from the General Manager to CSL asking what factors had caused the increase in CSL’s current offer over the rates agreed with Rio Tinto in 2010 and 2011, and the further emails on that topic of 3 September 2012 and 5 September 2012 between the General Manager and CSL. I also take into account the delegate’s reference to the different underlying cost structures for vessels operating under a general licence and vessels operating under a temporary licence in her email of 6 October 2012. I accept the submission on behalf of the delegate that she indicated that she would not have regard to the rates proposed by operators of non-general licence vessels and did not do so.
[141] The fourth of these procedural fairness matters raised by ground 4 involves the material in Rio Tinto’s response dated 7 September 2012 to the delegate’s email of the same date: see [59]-[61] above. The issue of the significantly higher rates for these voyages compared to the rates previously offered by CSL to Rio Tinto to undertake the same voyage was at the centre of the delegate’s reasoning. I accept CSL’s submission that Rio Tinto’s response made detailed assertions about CSL’s rates on the earlier voyages and about the dealings between CSL and Rio Tinto. These assertions involved new matters that related directly to CSL’s individual position in the relevant trade. For example, there was a live issue as to the nature of the trial involved in the earlier voyages and whether the rates had been lower by reason of the nature of the trial, the issue being the cogency of the comparison between the 2010/2011 rates and the present rates and whether the two sets of rates were in truth comparable. The delegate did not indicate in her email of 6 October 2012 to CSL that she had put CSL’s material to Rio Tinto or that she had received a detailed response to that material from Rio Tinto.
[142] On the state of the evidence, it must be assumed that the delegate took the matters in Rio Tinto’s response dated 7 September 2012 into account when making the finding which, as I have said, was at the centre of her reasoning. That finding involved an implicit rejection of CSL’s material. In my view the delegate, in her email of 6 October 2012 to CSL in which she outlined her present view in relation to these three voyages, should have, at least, indicated that Rio Tinto disagreed with CSL’s statements as to the nature of the 2010/2011 voyages and the consequent effect on rates and the basis of that disagreement, thus providing to CSL the substance, if not the text, of Rio Tinto’s response of 7 September 2012. The delegate did not do so and thereby denied procedural fairness to CSL.
[143] To the extent that the respondents submitted that a denial of procedural fairness was not established because there was nothing CSL could have said on this issue or because CSL had not put on evidence setting out what it would have said if given the opportunity, I reject that submission. In my view, on this aspect of the case the denial of procedural fairness is not close to the borderline where a court may assume that the applicant for judicial review had nothing to say and where evidence as to what the applicant could or would have said is for that reason important or crucial.
129 The fifth ground was expressed as follows:
[The delegate] made a decision that was illogical or irrational having regard to:
i. the objects of the Act;
ii. the availability of CSL’s vessels to perform the voyages;
iii. the suitability of CSL’s vessels for the reasonable requirements of a shipper of alumina, being the kind of cargo specified in Rio Tinto’s application;
iv. the absence or insufficiency of probative evidence about the impact of CSL’s proposed freight rates on the viability of aluminium operations in Bell Bay;
v. CSL’s explanation as to why its freight rates in 2010 and 2011 were lower than the applicant’s current proposed freight rates;
vi. the absence of evidence about competition between general licence holders or transitional general licence holders;
vii. the significantly higher operating expenses of vessels that are the subject of a general licence or a transitional general licence under the Act.
130 Once again, this was rejected at [112] in relation to voyage 003 because of the primary judge’s findings as to the basis of the decision. In the alternative, this was rejected for the reasons relevant to the other three voyages, at [144]:
In my opinion, it follows from my rejection of the other grounds that this ground constitutes an impermissible appeal to the merits. The Court is engaged in judicial review not merits review, which is the province of the Administrative Appeals Tribunal under the Act. I reject this ground.
131 The sixth to tenth grounds related only to the first voyage (voyage 003) and the proposed use of CSL Melbourne. Ground 6 was expressed as follows:
[The delegate] took into account an irrelevant consideration, being the fact that the applicant’s vessel (the CSL Melbourne) was longer than the proposed berth in Bell Bay Terminal 1, in circumstances where the same vessel had attended the same berth in August 2010;
132 The primary judge rejected this at [113], as follows:
As framed this is a merits point. The delegate was entitled or obliged to take into account up to date information. I would not infer that she failed to evaluate the material. I reject ground 6 in relation to this voyage. I refer also to my consideration below of grounds 8 and 10 in relation to the first voyage.
133 The seventh ground was expressed as follows:
[The delegate] took into account an irrelevant consideration, being asserted safety concerns as to length in relation to the CSL Melbourne berthing in Bell Bay Terminal 1;
134 The primary judge rejected this at [114]-[115], as follows:
[114] In my view it was not an irrelevant consideration to take that matter into account. I would not conclude that a matter of safety going to the reasonable requirements of the shipper were prohibited considerations under the Act; that is, that such a matter was one which the decision maker lawfully may not think to be relevant in terms of s 34(2)(g). The requirements of the shipper is also a mandatory relevant consideration under s 34(3)(a) when read with s 33(4) and the reasonable requirements of a shipper of the kind of cargo specified in the application is a mandatory relevant consideration under s 34(3)(d). For these reasons I reject ground 7 in relation to the first voyage. It follows that I also reject the submission that treating the asserted safety concerns about the LOA of the CSL Melbourne as the reasonable requirements of a shipper of the kind of cargo specified in the application to vary the temporary licence involves an error of law.
[115] To the extent that a separate ground of review is that the decision as to this voyage involved an error of law by treating the asserted safety concerns about the LOA of the vessel as the reasonable requirements of a shipper of the kind of cargo specified in the application, within the meaning of s 34(3)(d) of the Act, I do not accept the applicant’s emphasis on the words “the kind of cargo” as a relevant limitation on the reasonable requirements of a shipper. Put differently, those words do not limit the requirements of a shipper to matters specific to the cargo in question. I reject that ground. If there is a difference between the content of the expression “other requirements of the shipper of the cargo” in s 32(4) and the content of the expression “the reasonable requirements of a shipper of the kind of cargo” in s 34(3)(d) it is that a more objective element is injected by the latter provision. In the present case it seems to me to make no difference as the requirements of Rio Tinto were not said to be idiosyncratic.
135 For the reasons expressed earlier, safety issues are sufficiently clearly connected to the question of the ship being equipped to carry the cargo, for the purposes of s 32(3)(a). If not, it is plainly a matter open to be taken into account under s 34(2)(g). As to the comments of his Honour in [115] as to the importance of the words “the kind of cargo”, I disagree with his Honour. I refer to what I said at [48], [49] and [119] above.
136 The eighth ground was expressed as follows:
[The delegate] failed to take into account relevant considerations as to the CSL Melbourne being equipped to carry the cargo and as to the vessel meeting the reasonable requirements of a shipper of the kind of cargo specified in the application, being the following matters:
i. the CSL Melbourne had attended the same berth in August 2010;
ii. fifteen vessels, which were identified and set out in the further amended originating application, had been approved by Rio Tinto for a voyage to Bell Bay despite being longer than 172 metres, in some cases with the notation that cargo must be in holds 2, 3 and 4;
iii. Rio Tinto’s checklist for Bell Bay identified the length overall of the CSL Melbourne as “Too long” but had no similar note in relation to each of 11 of the 15 ships already referred to;
iv. the Alltrans performed Bell Bay alumina voyages for 25 years prior to 2008, despite being 2 metres longer than the CSL Melbourne;
v. Rio Tinto’s internal material recorded the CSL Melbourne as satisfying Rio Tinto’s LOA criteria with the qualification that cargo for Bell Bay must be in holds 2, 3 and 4;
vi. the Bell Bay wharf has a fixed hopper, and all multi-hold vessels must warp up and down the wharf in front of the fixed hopper to discharge cargo;
vii. the advice received from the Australian Maritime Safety Authority about safety was hypothetical as to oversized vessels and involved nothing that related specifically to the CSL Melbourne;
viii. the Australian Maritime Safety Authority provided advice to the delegate about safety without having received the applicant’s detailed response in relation to safety concerns dated 25 July 2012; and
ix. Rio Tinto had already fixed a non-General Licence vessel for the proposed voyage at a substantially reduced freight rate, indicating that the second respondent's real objection was based on freight rates and not on safety concerns.
137 The primary judge rejected this at [116] as an appeal to the merits, saying:
In my view this ground, with its nine subparagraphs, is a barely disguised appeal to the merits. The level of generality in relation to the pleaded mandatory relevant considerations is fixed by the Act, in particular s 34(3): see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [9]. Further, in my view, there is a disconnect between the nine subparagraphs and the mandatory relevant considerations identified in the Act. I reject ground 8 in relation to the first voyage. I return to related questions in my consideration of ground 10 in relation to the first voyage, below.
138 It is convenient to turn to the tenth ground before dealing with the ninth. Ground 10 was expressed as follows:
[The delegate] made a decision that was illogical or irrational, having regard to:
i. the objects of the Act;
ii. the considerations set out under paragraph 8 above.
139 The primary judge rejected this at [128]-[130] as an appeal to the merits:
[128] CSL contended that “an overwhelming volume of material that was placed before the Minister’s delegate, which should have been taken into account … indicated the asserted safety concerns were not legitimate.” In my opinion, those are matters of the merits. I reject the submission that the fact-finding process, in concluding that there were safety concerns, was irrational or illogical and I also reject a related submission that the ultimate exercise of discretion was unreasonable. I also reject the submission that “the weight of this evidence means that it was impossible to treat the asserted safety concerns as the “reasonable requirements of a shipper of the kind of cargo specified in the application”, as contemplated by s 34(3)(d). In my opinion, that submission errs into the merits.
[129] There was no expert evidence tendered before me to prove that the facts on which the delegate acted did not exist. Indeed, subject to the question of procedural fairness, the expert evidence which was before the delegate showed that the safety concerns were legitimate and, it follows, that the fact-finding process was not irrational or illogical or that the ultimate exercise of discretion was unreasonable. The same material necessitates the rejection of the contention that the weight of that material, for the purposes of judicial review, could not form the basis of a finding as to the reasonable requirements of a shipper or the shipper.
[130] Quite apart from these matters, it is plain that the factual material, and the evaluation of it, was contestable and indeed contested, as the competing emails of July 2012 demonstrate. As I have said, it is not appropriate for the Court to go into the factual details, far less to attempt to evaluate them, but I observe that there were differing views on whether the attendance of the CSL Melbourne at the same berth in August 2010 constituted a precedent or a failure. I also observe that there was a basis for discounting or distinguishing the approval by Rio Tinto of the other sixteen vessels referred to by CSL in its application for judicial review. On the material before the delegate, most of those approvals had preceded the change of the LOA restriction from 225 metres to 172 metres in July 2012. The CSL Melbourne had an LOA of 187.5 metres. The material as to the remaining five vessels was equivocal and does not found a claim of unlawful decision-making. It is to be recalled that the immediate question was the safety of the CSL Melbourne using the Bell Bay berth and as to that CSL had said in its email of 25 July 2012 no more than that the CSL Melbourne overhanging by a maximum of 59 metres “should present no problems for safe mooring.”
140 The ninth ground was expressed as follows:
[The delegate] denied procedural fairness by:
i. failing to provide all relevant safety information to the Australian Maritime Safety Authority in the course of seeking its advice and in particular failing to provide CSL’s detailed response in relation to safety concerns dated 25 July 2012 (including its attachments); and/or
ii. failing to disclose to CSL the material that had been provided to the Australian Maritime Safety Authority so that CSL could make submissions about that material and submissions about what other material should be put before the Authority; and/or
iii. misstating the substance of the advice from the Australian Maritime Safety Authority to CSL.
141 The primary judge concluded at [118]-[119] that it was a denial of procedural fairness not to provide to AMSA the response of CSL of 25 July to Rio Tinto’s email of 24 July about the LOA of CSL Melbourne at the asserted attendant berthing issues. At [119], the primary judge said:
Although the CSL material was available to the delegate, it was not the subject of the expert consideration by the Deputy CEO of AMSA which was a factor in the delegate’s decision in relation to the first voyage. It is not to the point that AMSA had not made any “determination” of the suitability of a vessel to berth in Bell Bay: it is enough that AMSA was consulted as an independent source of expert advice but only in relation to the material provided by Rio Tinto. Telling CSL of the fact of AMSA’s expert advice in the delegate’s email of 6 October 2012 did not, in the circumstances, cure this procedural defect: by then time did not permit and no opportunity was given or taken for the CSL material to be the subject of the expert consideration by the Deputy CEO of AMSA.
142 The primary judge (at [120]-[121]) rejected the submission of the respondents that AMSA was only being used as a source of comfort, rather than as expert assistance, and that the CSL memorandum was too slight to matter.
143 The primary judge (at [122]-[126]) also rejected submissions of the respondents that the structure and necessary practical operation of the Act truncated the obligations of procedural fairness. His Honour recognised that the context of procedural fairness was governed in part by the statutory context. Specifically, he rejected the submission that s 77 and the obtaining of further information would not be employed to satisfy obligations of procedural fairness.
144 The primary judge then, at [147]-[154], considered various matters going to the discretion whether to grant declaratory relief. By the time of the final hearing, the voyage 003 had been completed (interlocutory relief having been refused). The fairness of the judgment of the suitability of CSL Melbourne to berth at Bell Bay was seen by the primary judge as important for the future. The primary judge was not persuaded that CSL had deliberately misled Rio Tinto about its (CSL’s) change of attitude to undertaking voyage 003 with CSL Melbourne. The primary judge was not prepared to withhold relief on the basis that merits review under the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) was available.
The orders of the primary judge
145 For these reasons, the primary judge made:
(a) a declaration that the decision in respect of voyage 003 involved a failure to observe the requirements of procedural fairness;
(b) a declaration that the decision in respect of voyages 005, 006 and 007 involved a failure to observe the requirements of procedural fairness;
(c) an order that the decision in respect of voyages 006 and 007 (being the remaining two voyages) be set aside and remitted to the delegate.
The appeal by CSL
146 There were six grounds of appeal set out in the notice of appeal.
Ground 1: whether the object of the Act is a mandatory consideration – see [108] and [134] of the primary judge’s reasons
147 CSL submitted that despite the language of s 34(2) (“may have regard to”) the general law and s 15AA of the Acts Interpretation Act 1901 (Cth) required the object of the Act to be considered in the making of any decision. This was so because the general extent of a discretionary power was to be ascertained by reference to the scope and purpose (ie object) of the enactment: FAI Insurance v Winneke [1982] HCA 26; 151 CLR 342 at 368 and Minister v Peko Wallsend [1986 HCA 40; 162 CLR 24 at 40. Reference, of course, may also be made to Swan Hill Corporation v Bradbury [1937] HCA 15; 56 CLR 746 at 75 and Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505.
148 To a degree, the submission can be accepted as uncontroversial – certainly as to the proper construction of the Act and the injunction contained within s 15AA. Section 34, however, is dealing with what the Minister may or must have regard to in the making of a particular decision. The object of the Act is, as a matter of language, not made mandatory. The mandatory considerations in s 34(3) are the outcome of the negotiations and the subject matters set out in s 34(2) which reflect the subject matters of the negotiation in s 32. The Parliament has required those negotiations to be central and mandatory and otherwise permitted a degree of freedom to the Minister in making any particular decision. That is not to say that, in the Minister’s appreciating for himself or herself the meaning of the Act, he or she could ignore its object. Once one recognises this distinction between construing the Act and making a particular decision under it, any superficial attraction of the submission disappears. Further, it is necessary to bear in mind the terms of the object. There are not multiple objects of the Act. The maximisation of the use of vessels on the Australian General Shipping Register is not an object of the Act. The object is to provide a regulatory framework for coastal trading (that involves general and temporary licensed vessels and Australian-registered (whether on the General or International Register) and foreign-flagged vessels) that does the things in s 3(1)(a)-(f). The means to this end are set out in s 3(2). The regulatory framework is a broad one giving the Minister a wide discretion to take into account any matter he or she thinks relevant (of course, consistent with the boundaries of the Act properly construed, including by reference to its scope and purpose).
149 The submission of CSL contained a premise that the object of the Act required a predisposition to the general licence holder in any decision under s 34. To put it in the context of the secondary material, it was effectively submitted that the decision-making process under s 34 should reflect the government policy described in [3.29], [3.30] and [3.35] of the report of the 2010 Standing Committee set out at [15] and [16] above.
150 The difficulty with that submission is that the Act does not say that. What the Act does is give a broadly framed discretion to award licences. It can be accepted that the purpose of the general licence provision is to further the unrestricted access of such vessels to the coasting trade and to assist in maximising their use in the coasting trade, but subject to the other aspects of the object of the Act.
151 I see no error in the primary judge’s approach in [108] and [134].
Ground 2: whether the object of Pt 4 Div 2 of the Act is to allow general licence holders to nominate to carry particular cargo, if their vessels are able to meet the requirements for the voyage, in the absence of exceptional or unusual circumstances – [94]-[99] and [135] of the primary judge’s reasons
Ground 3: in particular the primary judge made the following errors in relation to the “objects” of the Act:
(a) the view that “shipping industry” in s 3(1)(a) was not the “Australian Shipping Industry” – see [96] of the reasons;
(b) holding that “the object” in s 3(1)(d) had no relevance to vessels under transitional general licences – see [97] of the reasons;
(c) failing to construe “competition” in s 3(1)(e) as competition between general licence holders.
152 CSL’s submissions on these grounds began with propositions about the objects of the Act, that is, in the plural. The stated object is in the singular. That is important. The object is the provision of a regulatory framework that promotes, facilitates, enhances, maximises and ensures various states of affairs set out in s 3(1)(a)-(f).
153 The terms of s 3(1), and the reconciliation of paras (a)-(f) as the matters promoted (using that word in the broad sense to cover all the verbs in (a)-(f)) by the regulatory framework provided for, must be construed on the prima facie basis that they are intended to give effect to harmonious goals. As McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky v ABC [1998] HCA 28; 194 CLR 355 at 381-382 [70]:
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
154 The three particular errors asserted by CSL are those set out in ground 3.
155 The first particular error was the primary judge placing significance upon the absence of the adjective “Australian” in the phrase “viable shipping industry”. It can be accepted that the context and background to the Act (as part of the suite of legislation in 2012), and the terms of the Revised Explanatory Memorandum make plain that the mischief to which the Act was directed was the decline and weakness of the Australian shipping industry. The short title says as much (though the limitations of the use of the short title are to be recognised: DC Pearce and RS Geddes, Statutory Interpretation in Australia, 12th ed at [4.47] 135). The absence of a second “Australian” in the one clause may perhaps be seen as much stylistic as substantive. It can also be accepted that there is no basis to contemplate that an object of the regulatory framework was to promote a foreign shipping industry. However, the shipping industry that is to be promoted is to be one that contributes to the broader Australian economy. The shipping industry that will do that will include general licensed vessels that are on the Australian general register (para (d)), temporary licensed vessels that are on the Australian International Register and foreign-flagged temporary licensed vessels. The shipping industry that contributes to the broader Australian economy that is contemplated has within its operation Australian ships (on both registers) and foreign ships. In that way, the regulatory framework is not to promote a foreign industry, but to promote a shipping industry of a makeup and character that of necessity includes foreign-flagged vessels and is not limited to domestic carriage on the coastal trade that contributes to the broader Australian economy. At one level one can accept that it is an Australian industry that is to be promoted in that it is an industry that services and contributes to the Australian economy. That does not deny, however, that the promotion by the regulatory framework may not include the participation of foreign-flagged vessels. The distinction is subtle but real.
156 Whilst no rigid hierarchy is to be seen in s 3(1)(a)-(f), the following can be seen. Para (a) focuses on the contribution (not only in the long term) to the broader Australian economy, by a shipping industry, which may involve (as it has in the past) some utilisation of foreign-flagged vessels. Paragraph (b) refers to the long-term growth of the Australian shipping industry (with ships on both registers). Paragraph (c) focuses on the efficiency and reliability of the Australian shipping as part of the national (domestic) transport system (and thus its viability to compete against road and rail). Paragraph (d) is clear and focuses on the maximisation of the use of vessels on the General Register in coastal trading. Paragraph (e) cannot be limited to Australian shipping (on both registers). The definition of “coastal trading” in s 7 and the text and structure of the Act contemplate the use of foreign-flagged vessels in such trade. “Competition” in para (e) is “in” coastal trading; that is among the participants within that trade. Para (f) focuses on efficiency of movement of passengers and cargo between Australian ports, that is in the coastal trade.
157 The states of affairs to be promoted (in the broad sense) in s 3(1)(a)-(f) reflect living elements of a healthy industry and economy. The proposition that the revitalisation of the Australian shipping industry demands the construction of the Act to provide for a predisposition to Australian-flagged shipping, except in exceptional circumstances, ignores the subtle and multifactorial structure of s 3(1) and the balancing of interests amongst the different sectors of the economy reflected in the 30 or more years of history to the legislation. The Act is not to be construed as demanding a bias towards General Registered vessels in the absence of exceptional circumstances. The regulatory framework provided for permits the Minister of the day, taking into account all relevant circumstances, to deal with licences in the way best able to promote the states of affairs in s 3(1). With what predilection or perspective those discretionary decisions are made, will be affected by policy and the national interest. Those kinds of judgments are best made from time to time in the light of changing circumstances by persons knowledgeable of the current and contemporary state of the shipping industry and the economy, not by Parliament once and for all at the time of passing legislation. Parliament has recognised that. Undoubtedly a clear and stable approach by way of policy setting is advisable in order to facilitate investment. That, however, is the responsibility of the Executive to promulgate and publicise.
158 Thus, I do not think that the primary judge erred in [96] in his construction of s (3)(1)(a).
159 The second particular error referred to in ground 3 was the primary judge’s view of the lack of relevance of para (d) in s 3(1) to the circumstances here. At [97] of his reasons, the primary judge concluded that, because the two vessels were not yet on the General Register, para (d) did not apply.
160 Under Sch 2 of the Transitional Provisions Act the phrase “new law” is defined to mean the Coastal Trading Act.
161 Item 16 of Sch 2 provided (subject to matters that are irrelevant) that the new law and any other law of the Commonwealth apply in relation to a transitional general licence as if it were a general licence. CSL Melbourne and CSL Brisbane were the subject of transitional general licences from 8 August 2012.
162 Thus, it was submitted, the transitional general licence holder should have the same benefits as the general licence holder.
163 The answer of the respondents (and the proposition that underpinned the primary judge’s conclusion) was that whether or not CSL had a transitional general licence for CSL Melbourne and CSL Brisbane those ships were not on the Australian General shipping Register and no provision deemed them as such.
164 Robertson J was correct at [97] in saying that para (d) was not directly applicable. That would not, however, in appropriate circumstances, prevent the Minister from having regard to the fact that a ship was in the process of registration on the General Register and from giving weight to a consideration akin to s 3(1)(d) under the latitude given by s 34(2)(g). The clear intention of Parliament was to have the Act apply to transitional general licence holders as it applied to general licence holders supports that approach. In these circumstances, there was no demonstrable operative error in the primary judge’s reasons.
165 The third particular error referred to in ground 3 was the failure to read para (e) in s 3(1) as referable only to competition between general licence holders (including transitional general licence holders) in coastal trading. It was submitted that only such a reading is consistent with paras (a)-(d) of s 3(1) and the regime in ss 30-34 of the Act.
166 I cannot agree. The object of the Act is to provide a regulatory framework to promote (in the broad sense) the states of affairs in (a)-(f) of s 3(1). Those matters reflect the considerations, to a degree competing, attending the interests of all of those in the Australian community in relation to shipping. Section 3(1) does not reflect a unitary theme of protective cabotage. It seeks to provide for a regulatory framework that promotes (in the broad sense) the states of affairs which include the development and long-term growth of Australian shipping, including maximising use of General Register ships, whilst promoting competition in the coastal trade that is open to foreign-flagged vessels, enhancing efficiency and reliability of shipping and ensuring efficient movement of cargo.
167 CSL submitted that commercial considerations such as freight rates or the viability of other kinds of industry were “either altogether extraneous or matters on which very little weight should be placed”.
168 As I have already pointed out, freight rates are not mentioned in the Act as expressly relevant considerations. Yet such a central commercial consideration cannot be seen to be irrelevant and outside the scope of s 34(2)(g). The enhancement of the efficiency of Australian shipping in para (c), the promotion of competition “in coastal trading” in para (d), and ensuring the efficient movement of cargo in para (f) can be seen to be affected by freight rates.
169 Once one accepts that freight rates are a consideration that is not irrelevant, the potential relevance of consequences of higher freight rates to shippers generally, or to a particular shipper, logically follows. Further, the persons who may make submissions under s 33 could, as Pacific Aluminium did here, concern themselves with the effect of freight rates on their business.
170 I will come in due course to the proper construction of para (a) of s 3(1); but it is impossible, in my view, to exclude freight rates and their impact on industry anxious to keep costs down, as legally irrelevant. How much weight to put on freight rates in any particular case will generally be a matter for the decision-maker. There may, however, be circumstances that display such a weight being given to a legally relevant circumstance that it so distorts the operation of the Act beyond and outside the intended operation of the regulatory framework intended by s 3(1) as to be legally unreasonable and inconsistent with the Act. This Act was part of a suite of legislation to revitalise Australian shipping. It was not a piece of legislation to ensure the lowest possible freight rates set by foreign-flagged vessels to shipper interests in Australia and thereby make the development of Australian-owned or registered vessels very difficult. The balance of competing considerations is one for the decision-maker armed with contemporaneous and up-to-date information and chosen government policy.
171 Thus, I see no operative error in the primary judge’s approach in the impugned parts of his reasons under grounds 2 and 3.
Ground 4: that the decision was legally unreasonable if the only consideration in favour of granting a temporary licence relate to the consequences of higher freight rates of general licence holders
172 As the submission of CSL recognised, the submissions as to grounds 2 and 3 informed grounds 4 and 5.
173 The proper approach to the Act and its object which I have discussed undermined any force in the central proposition embedded within ground 4: that where the general licence holder has a vessel otherwise suitable and where the only consideration that might favour the temporary licence holder is the freight rate involved, the starting position is that the Minister would refuse the temporary licence. There is no warrant in the Act for such a rigid approach.
174 Of significant importance to the General Manager was not so much a comparison of foreign-flagged freight rates with a rate provided by a foreign-flagged vessel, but rather, the very large increase (over 60%) in rates for these vessels in two years. There was an explanation for that by CSL. The explanation does not appear to have been accepted by the decision-maker. There was and is no basis for Robertson J or this Court correcting that factual conclusion, even if it can be demonstrated to be erroneous.
Ground 5: whether the primary judge erred in law by having regard to irrelevant considerations being:
(a) the economic interests, profitability and costs of the shipper receiver [135];
(b) the effect of the decision on Bell Bay Aluminium, separate from its effect on promoting a viable shipping industry [137];
(c) the freight rate proposed by the temporary licence holder compared with the freight rates offered by the general licence holder.
175 None of these considerations can be seen as legally irrelevant and outside the possible scope of s 34(2)(g). So to conclude would need a foundation or premise of the kind that I have rejected: that the Act should be construed having one coherent object – to provide for the maximum possible use of general licensed shipping, if vessels are available, irrespective of costs.
Ground 6: the primary judge failed to consider a submission that the delegate misconstrued s 3(1)(a) of the Act in a manner raised by para 6(a) of the Further Amended Originating Application (FAOA) [146].
176 At [146] of his reasons, the primary judge said:
I add that the oral submissions on behalf of CSL referred briefly to what was said to be an error by the delegate in construing paragraph (a) of s 3(1) which sets out the object of the Act. I would not grant relief on that ground as in my view it was neither pleaded nor developed in CSL’s written outline of submissions. I would however indicate that if regard is had only to paragraph (a) of s 3(1) it is difficult to see that the object of promoting a viable shipping industry that contributes to the broader Australian economy supports reasoning that high freight rates would undermine the future viability of operations of Bell Bay Aluminium and thus would not contribute to the broader Australian economy or the long term viability of the Australian shipping industry. I express that view tentatively, in the absence of argument.
177 Paragraph (a) of ground 6 in the FAOA was in the following terms:
misconstruing the object of the Coastal Trading Act stated in sections 3(1)(a), 3(1)(b), 3(1)(c), 3(1)(d), 3(1)(e) and/or 3(2)(a) of that Act by taking into account the economic interests, profitability and costs of the shipper/receiver of the cargo …
178 The question of s 3(1)(a) was dealt with in oral address by senior counsel for CSL on day 1 (at TP 28 ll4-14) as follows:
That (a), your Honour, has nothing to do with the viability of a receiver or Pacific Aluminium or Rio Tinto, and it has nothing to do with it in relation to promoting that viability. It is intended to promote the viable ship-owning industry so that it can contribute to the broader Australian economy. When we come, your Honour, in due course to the reasons of the delegate, it’s crystal clear that the delegate assumed that this object – and misconstrued this object – misconstrued the object in relation to the jurisdiction that was being exercised, misconstrued it as having work that it doesn’t have.
See also Pt C tab 78 T p 45.
179 I am not persuaded that the matter was so lightly touched on that it could be put to one side. It was part of an argument of substance. With respect, the primary judge should have dealt with it.
180 As to the merits of the point, I tend to agree with the proposition, implicit in the primary judge’s brief comments at [146], that the delegate may have misconstrued s 3(1)(a). The scope and extent of such a generally expressed aspect of the object is not straightforward to identify. Paragraph (a) in s 3(1) refers to a dual concept: promoting a viable shipping industry that contributes to the broader economy. Para (a) is concerned with matters at a high level of generality and deals with the relationship between a viable shipping industry and the broader Australian economy, the former contributing to the latter. The fact that the decision on a particular application for or concerning a temporary licence may affect the operation of a particular factory or plant (as in the material provided by Pacific Aluminium on 11 July and 16 August 2012 – at [75] and [88] above) is distinct from, and likely unrelated to, such a broad objective of a viable shipping industry contributing to the broader economy. Thus, it is inapt to say, as the delegate did, that to refuse the temporary licence would be inconsistent with that paragraph.
181 Thus, the way the delegate phrased her preliminary views as set out at [105] above reflects a misunderstanding of s (3)(1)(a) and an extraction of particularity from a necessarily general aspect of the object in s 3(1).
182 The central concern to the delegate was the comparison of the freight rate to that charged by CSL but two years before, and the effect that the rates would have on an industry. Whilst that is not an aspect of a viable shipping industry’s contribution or not to the broader economy, it cannot be said that such matters are legally irrelevant considerations. They are matters which Pacific Aluminium addressed in its submission contemplated by s 33. The effect on an industry is a commercial consequence of freight rates, which are considerations available under s 34(2)(g).
183 What can be said, however, is that these matters may be seen to have been given a weight or importance consistent with their relevance to para (a) of s 3(1). In other words, the misconstruction of s 3(1)(a) by the delegate could well have led to greater weight being put on these matters than otherwise would have been because to reject the variation of the temporary licence in the face of the effect on the position of the aluminium operations at Bell Bay was seen as inconsistent with the first paragraph in the expression of the object of the Act.
184 Section 34(2)(g) is not without limits. It is in part informed by the object of the Act. A concern about unexplained high freight rates (beyond those charged in the recent past) having a deleterious effect on an industry of substance could be said to be relevant to the promotion of competition in the coastal trade for para (e) (by not precluding competition for high and potentially damaging freight rates) and the efficient movement of cargo for para (f).
185 Thus, while consideration of the effect on the aluminium operations was legally available, it was framed in a way, and likely given weight in a manner, that derived from a misunderstanding of the Act.
186 I consider the misunderstanding of s 3(1)(a) material and would set aside the decision dealing with voyages 005, 006 and 007 for this reason.
The cross-appeals by the respondents and the Notice of Contention by CSL
187 The respondents both cross-appealed. The two grounds challenged the two conclusions of the primary judge that the delegate had denied CSL procedural fairness by: (a) failing to provide AMSA with a copy of CSL’s email of 25 July 2012 that set out its position on the suitability of CSL Melbourne for berthing at Bell Bay; and (b) failing to provide to CSL Rio Tinto’s response in its email of 7 September 2012 concerning the comparison of the freight rates with the 2010 and 2011 rates of CSL.
188 In its notice of contention; CSL argued that even if the cross-appellants were successful on the cross-appeal, the orders that were made should remain on foot because of other asserted failures to afford CSL procedural fairness. These matters were the failure of the delegate to provide to CSL: (a) the material that had been supplied to AMSA so that CSL could put submissions as to what should be provided to AMSA (see [117]-[126] of the primary judge’s reasons; and (b) the information received by the delegate as to the viability of aluminium operations at Bell Bay, and the freight rates of “international” shipowners provided by Rio Tinto to the delegate.
189 There was no debate about the applicable principles. The question is whether there has been unfairness. The context of procedural fairness depends on the context and the statutory framework. The Minister emphasised the despatch required by the Act in the context of registration having already taken place. Those matters can be accepted. The content and the level of detail that should be provided to a person in CSL’s position depends upon, amongst other things, the nature of the particular point being considered. That the decision should be made promptly can be accepted; but if the decision-maker comes to the view that a factor such as the viability of a particular plant or industry is relevant, it may be that fairness requires the provision of significantly more detail than in respect of a less complex point. The despatch required in the Act does not mean that essential fairness is done away with or truncated.
190 As to the seeking of views of AMSA, I agree with the Minister’s submission that there was no denial of procedural fairness. CSL was treated procedurally fairly: it received Rio Tinto’s views; it responded to them; it received AMSA’s views and responded to them. That the delegate may not have fully briefed AMSA with all the facts may be the equivalent of the delegate failing to get all relevant information, but I do not see any unfairness to CSL. Nor did fairness require submissions from CSL as to what should be supplied to AMSA. I would therefore uphold ground 1 of each cross-appeal and reject ground 1 of the notice of contention.
191 The Minister and Rio Tinto in ground 2 of the cross-appeal challenged the finding of procedural unfairness by Robertson J that the substance of the email of Rio Tinto of 7 September should have been put to CSL. This was Rio Tinto’s answer to CSL’s explanation of the difference in freight rates from 2010/2011 to 2012. This was a matter of “focus” for the delegate: see her email to Mr Mannion of Rio Tinto of 23 August 2012. Mr Mannion’s response on the day is set out at [92] above.
192 The delegate then, on the same day, emailed CSL with the 2010/2011 rates and asking for the information set out at [93] above. CSL’s response was given on 27 August 2012.
193 Further questions were asked of CSL by the delegate on 3 September 2012. CSL gave its response on 5 September 2012.
194 On 7 September, Rio Tinto answered CSL’s submissions. This answer was not shown to CSL.
195 It can be accepted that in circumstances such as this, the process of iteration of submission, reply, and further reply, must stop at some point. But this was a central issue. It lay at the core of the delegate’s thinking. Fairness dictated, as the primary judge thought, that the material be given to CSL for comment. There is no doubt that CSL were aware of the issue and put submissions on it. But they were not given Rio Tinto’s submissions, in circumstances where there was no pressing time constraint not to, and where the point was central. The ascertainment of what is fair in these circumstances is one of judgment. I agree with the primary judge’s conclusion of unfairness.
196 I would therefore reject ground 2 of the cross-appeals.
197 This conclusion makes it strictly unnecessary to deal with ground 2 of the notice of contention. For completeness, I will, however, do so.
198 There were two aspects to ground 2 of the notice of contention. The first concerned the failure of the delegate to provide CSL with the information as to the viability of the alumina operations at Bell Bay. The reasoning of the primary judge was at [139]: see [128] above. With respect, I do not agree with his evaluation. I have earlier expressed the view that the impact of freight rates on the profitability of an industry was not necessarily a legally irrelevant consideration, though it was not a mandatory consideration. How a decision-maker might regard the effect of freight rates upon a particular industry (or, as here, upon a particular industrial concern) would no doubt vary with the circumstances. Assuming that the consideration does not distort the operation of the Act in a manner that was legally unreasonable, the degree of disclosure of information that fairness requires to be disclosed to the general licence holder, will depend on the nature of the fact or facts being considered and their importance to the decision. Here the impact of the freight rates on the operation at Bell Bay was an important aspect of the preliminary view communicated on 6 October, and in my view fairness dictated some opportunity to CSL to comment on the underlying material. There would be no reason why that opportunity would need to be lengthy.
199 The second aspect of ground 2 of the notice of contention concerned the failure of the delegate to provide CSL with the freight rates of other international shipowners provided by Rio Tinto to the General Manager. Connected with this was a complaint that the primary judge erred in making the finding that he did at [140] of his reasons that the delegate did not have regard to those freight rates in making the decision.
200 With respect to the primary judge, I doubt whether the material supports the conclusion that the delegate did not have regard to the freight rates of other international shipowners. The General Manager (Ms Sullivan), not the delegate (Ms Power), said in her email to Mr Mannion of 23 August that she would not make any reference to comparative international freight rates and would focus upon the 67% increase in CSL’s own rates from 2010/2011. That said, the email of 6 October outlining the delegate’s preliminary view took international rates into account:
… the freight rates proposed by CSL are significantly higher, not only than those offered by a vessel operating under a temporary licence, but also than those previously offered by CSL…
(emphasis added)
201 The international rates that Rio Tinto had supplied to the General Manager were not supplied to CSL. That, however, did not necessarily cause any unfairness. That international freight rates would be substantially below those to be offered by a general licence holder would be expected. The disparity in cost structures of foreign-flagged and Australian-flagged vessels was notorious. Also, the general level of charter rates (though perhaps not specific rates) would be tolerably well-known market information. Nevertheless, in the 2½ page email of 8 October in which CSL addressed the delegate’s email of 6 October setting out the preliminary view, Mr Metcalfe on behalf of CSL did complain (without any elaboration) that CSL had not been given the rates in question.
202 In her email of 9 October informing CSL of the decision, the delegate put the proposition, in effect, that the international rates were “commercial in confidence”. This was not the case. Mr Mannion had said in August that as long as there was no “obvious reference to the identity of the shipowners/carrier” the General Manager could give the earlier temporary licence rates to CSL.
203 Unless there was some particular importance about these freight rates of foreign-flagged vessels, which was not put by CSL, I see no basis to conclude that CSL suffered any real unfairness in not being given the specific foreign-flagged freights in question. No unfairness has been demonstrated.
Conclusion and orders in appeal NSD 2083/2012
204 As to voyage 003, I would allow the cross-appeal and set aside the declaration made by the Court on 21 November 2012 in paragraph 1 of the orders made on that date.
205 As to voyages 005, 006 and 007, I have rejected the Minister’s and Rio Tinto’s complaints about the conclusion by Robertson J that CSL was denied procedural fairness in relation to Rio Tinto’s email of 7 September. I have also concluded that CSL was denied procedural fairness in relation to the information concerning the impact of freight rates on the Bell Bay operation (ground 2 of the notice of contention). No variation to the declaration in paragraph 2 needs to be made in respect of this matter.
206 Further, as to voyages 005, 006 and 007, I have concluded that the delegate misunderstood s 3(1)(a) of the Act and that the decision concerning these voyages should be set aside for these reasons also. Given the form of the orders made on 21 November 2012, no change or addition needs to be made to the orders.
The second decision: Katzmann J
207 On 21 November 2012, the Federal Court (through the orders made by Robertson J) set aside the decision in relation to voyages 006 and 007. These were the voyages that had not yet taken place. On 13 December 2012, CSL withdrew its notice in response in relation to voyage 006.
208 On 26 November 2012, the delegate wrote to CSL and Rio Tinto providing the further information being the email from Rio Tinto dated 7 September 2012. The delegate also identified the material which would be taken into account. Submissions were invited.
209 On 28 November 2012, CSL provided a submission of some six pages in relation to voyages 006 and 007. Detailed submissions were put in relation to freight rate components, the trial voyages in 2011, and Rio Tinto’s email dated 7 September 2012.
210 The material put in relation to freight rate components reveals starkly that CSL was, at all times, in a position to deal fully with the comparative operating costs and thus freight rates of international shipping compared to Australian flagged shipping. Further submissions were put to the delegate.
211 On 14 December 2012, the delegate granted Rio Tinto’s variation in respect of voyage 007. On 3 January 2013, after a request from CSL, the delegate furnished CSL with a statement of reasons under s 13(1) of the Administrative Decisions (Judicial Review) Act 1975 (Cth) (“ADJR Act”). Those reasons, after preliminary matters, comprised 38 paragraphs (16 to 53). In those reasons, the delegate found the following: first, that Rio Tinto and CSL were unable to reach agreement through negotiation. This was uncontroversial. Secondly, the delegate reached the conclusion that CSL Brisbane was equipped to carry the cargo specified in the application. This was also uncontroversial. Thirdly, the delegate concluded that CSL Brisbane was available to load cargo on the dates identified. This was also uncontroversial.
212 The delegate then commenced a section dealing with the mandatory consideration contained within s 34(3)(d). Under this heading, two matters were considered: first, “freight rates” and, secondly, “liquidated damages clause”. For convenience, I set out as an annexure to these reasons paras 25 to 50 which concern these two topics.
213 Finally, the delegate referred to the consideration identified in s 34(2)(f) (the object of this Act). The reasons thereunder in paras 51 to 53 have also been annexed to these reasons.
214 Section 107 of the Coastal Trading Act provides for review of decisions under the Act by the Administrative Appeals Tribunal (“AAT”). No application was made to the AAT for any such review and no application therefore was made for any expedited review. Rather, 27 days after the decision, on 30 January 2013, and a week after loading had begun on 23 January 2013, CSL commenced proceedings in the Federal Court. The matter came before Katzmann J on 20 February 2013. Discharge was completed on 12 February 2013, thus voyage 007 had been fully concluded prior to the hearing before the primary judge (Katzmann J).
215 The proceeding was described by Katzmann J in [15] – [23] of her reasons. The application was brought under the ADJR Act as well as under s 39B(1) and s 39B(1A)(c) of the Judiciary Act 1903 (Cth). The orders sought by CSL included the quashing of the decision of 14 December and the remaking of it. As a matter of practicality, these orders were, by the time the matter came before Katzmann J, moot. CSL also sought declarations that the decision was invalid as in excess of jurisdiction, as in breach of the Coastal Trading Act, and involving errors of law. Katzmann J described the bases for these orders succinctly in para [21] of her reasons, as follows:
[21] … [The delegate]
(a) had regard to the following irrelevant considerations in exercising the power under s 34(1) of the Coastal Trading Act:
(i) the economic interests, profitability and costs of the shipper/receiver;
(ii) the freight rates that the applicant for a temporary licence proposes, as compared with the freight rates offered by a general licence holder for equivalent voyages; and
(iii) whether or not the contractual arrangements offered by a general licence holder for equivalent voyages include a provision for liquidated damages of the kind before the Minister’s delegate.
(b) failed to treat the object in s 3(1)(e) of the Coastal Trading Act as meaning competition between general licence holders;
(c) misconstrued the object in s 3(1)(d) of the Coastal Trading Act as having no relevance when considering vessels the subject of transitional general licences under Part 3, Schedule 2 of the Coastal Trading (Revitalising Australian Shipping) (Consequential Amendments and Transitional Provisions) Act 2012 (Cth);
(d) misconstrued s 34(3)(d) of the Coastal Trading Act by concluding that contractual arrangements that did not include a provision for liquidated damages of the kind before the Minister’s delegate were contractual arrangements that did not meet the reasonable requirements of a shipper of the relevant kind of cargo;
(e) misconstrued s 34(3)(d) of the Coastal Trading Act by treating the content and outcome of negotiations contemplated by s 32(2) of the Act as being relevant to assessing the reasonable requirements of a shipper of the relevant kind of cargo.
…
216 As her Honour noted elsewhere in [22] of her reasons, grounds (a) (i) and (ii), (b) and (c) raise similar, if not identical, issues to those with which I have dealt above. My reasons in relation to the primary appeal from Robertson J deal with all these matters. Grounds (a)(iii), (d) and (e) were not directly dealt with in my reasons in relation to the appeal from Robertson J, but my reasoning (in particular at [48] – [50] and [119] above) would be foundational in addressing those grounds. The matters concerning freight rates and liquidated damage claims are not subject matters falling within s 34(3)(d). To the extent that the delegate viewed them as part of the negotiations and properly the subject of mandatory consideration, she erred. In doing so, however, she was following the reasoning of Robertson J. Such an error may well have given these matters an importance and weight drawn from their perceived central place in s 34(3)(d) as the subject of mandatory consideration.
217 The Minister brought an application for a hearing of a preliminary issue as to whether relief should be denied to CSL on discretionary grounds, particularly because of the availability of merits review under the AAT Act. Alternatively, the Minister sought summary dismissal of the proceedings as an abuse of process.
218 The primary judge decided to hear the question as to whether relief should be granted under discretionary grounds as a preliminary issue. No complaint is made about her Honour’s conclusion that she should do so. The primary question is whether her Honour fell into error in relation to the conclusion which she reached that there was an adequate remedy by way of merits review under the Coastal Trading Act administered by the AAT, and, for that reason, the application should be dismissed on discretionary grounds. It was therefore unnecessary for her Honour to deal with the abuse of process ground.
219 Her Honour correctly approached this question on the premiss that CSL’s contentions in the application would be made out. The errors that I have identified give a degree of practical reality to that assumption. Her Honour recognised that under s 10(2)(b)(ii) of the ADJR Act there was a discretion to refuse to grant an application for review if there was “adequate provision” by another law under which the applicant is entitled to seek review of the decision. Her Honour also referred to the discretion available in relation to constitutional writs (for present purposes s 39B(1)) where there is a more convenient and satisfactory remedy if no useful result could ensue: R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; 78 CLR 389 at 400 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [33].
220 Her Honour found these tests satisfied in the circumstances by the availability of merits review under s 107(5)(a) of the Coastal Trading Act. In doing so, her Honour dealt with CSL’s substantive arguments as follows.
221 First, CSL pointed to the inability of the AAT to grant declaratory relief and the fact that appeals from the AAT were limited to questions of law. In relation to this, Katzmann J noted the wide powers of the AAT and its ability to express itself, both on questions of fact and questions of law. Her Honour also recognised that a provision for review could be adequate, although it does not allow for every conceivable remedy, in this case, the exercise of judicial power by the making of a declaration.
222 In these circumstances, her Honour found the powers of the AAT under the AAT Act and the full merits review, in all the circumstances, adequate within the meaning of s 10(2)(b)(ii) of the ADJR Act and a more convenient and satisfactory remedy for the purposes of Ex parte Ozone.
223 The second argument of CSL was that there is every prospect that a review in the AAT would be dismissed as vexatious under s 32B of the AAT Act. The voyages were completed and CSL was out of time to bring an application. Her Honour pointed out, however, that the discretion to refuse relief did not rest on the fact that another proceeding is pending, nor did it matter that the time in which to appeal had elapsed. The remedy had been available to CSL and was not applied for. If CSL had moved promptly in the AAT, it may have persuaded the AAT of the commercial urgency of the matter.
224 Thirdly, CSL contended that the AAT would simply follow the decision of Robertson J. The primary judge accepted that it was probable, if not inevitable, that the AAT would follow Robertson J where there were common issues. That, however, was unpersuasive since CSL could appeal.
225 In argument, CSL contended that the case raised important questions of statutory interpretation, not all of which would be determined in the appeal from Robertson J. In answer to this, Katzmann J referred to a number of decisions, and in particular, Cooper J in Civil Aviation Safety Authority v Administrative Appeals Tribunal [2001] FCA 1319; 33 AAR 439. His Honour said that it was insufficient that the Civil Aviation Authority had a genuine interest in having the legal issues resolved for the benefit of its administration of the Act in future cases. Her Honour accepted that CSL and Rio Tinto will probably have similar issues in the future under the Coastal Trading Act and there may be some broad utility in deciding these kinds of questions. Thus, it was said by CSL that there was “a real and practical utility in granting declaratory relief”. In this respect, CSL submitted before her Honour (as it submitted before this Court) that bringing the application to the Court was preferable to the disruption of trade and commerce by a review application in the AAT prior to the voyages taking place.
226 In all the circumstances, her Honour dismissed the application.
227 The appeal to this Court was brought on the following grounds that the primary judge erred:
(a) in concluding that the merits review in the AAT was adequate and/or suitable and sufficient, having regard to the relief sought;
(b) by failing to take into account that there was no other relevant remedy available in the AAT;
(c) treating as irrelevant certain factual matters being:
(i) the factual and legal overlap with the appeal from Robertson J;
(ii) that the appeal proceedings were set down;
(iii) that the applicant sought a stated case to be heard by the Full Court;
(d) in concluding that there was no real practical utility in granting the declaratory relief;
(e) in failing to conclude that the questions sought to be raised in relation to liquidated damages were likely to arise in future proceedings between the parties and would not be resolved by the Full Court in the appeal from Robertson J;
(f) in failing to take into account the decision of Robertson J as supporting the utility of the declarations.
228 A formal stated case was then propounded to this Court and this Court was urged to deal with the stated case in full.
229 CSL identified, as a central error, the asserted failure of Katzmann J to recognise the absence of declaratory relief in the AAT as the factor making that Tribunal not suitable or sufficient. It was submitted that CSL brought proceedings without seeking declaratory relief in order to vindicate its position for the benefit of future dealings between the parties. A claim for injunctive relief may have disrupted trade and created commercial uncertainty.
230 It was submitted by CSL that, although the voyage had passed, the relief in the nature of certiorari and prohibition had an ongoing relevance because of the terms of s 34(2)(a) of the Act and thus the subject of prohibition was not exhausted.
231 The absence of declaratory relief in the Tribunal does not prevent the Tribunal in a merits review application, brought with such urgency as was thought to be appropriate, from dealing with questions of law. It is also plain that her Honour examined the utility of the AAT appeal in the context of the case as required by s 10(2)(b)(ii) of the ADJR Act: see [49] – [53] of her Honour’s reasons.
232 The remedy in the AAT, had it been sought, could have proceeded before the voyage in question. There was power to stay the implementation of the decision. It can be accepted that such was an unsatisfactory course to take. Given, however, the commercial exigencies of the matter, there is no reason to think that the AAT was not able to deal with the matter promptly and decisively. Parliament has given a full merits review in the AAT. The need for despatch would have been clear to Parliament as it would have been to the AAT.
233 It is also clear that, from a number of paragraphs of her Honour’s judgment (in particular, [1], [10], [22], [57], [62] and [72] the matters referred to in ground 3 were addressed by her.
234 The force of CSL’s submissions depends upon how one views the utility of a declaration by this Court compared with the full merits review, with any necessary legal reasoning of the AAT, in these particular circumstances. As a preliminary comment, I would say that this Court should be slow to exercise the discretion of the kind that was before Katzmann J on the implied basis of some fundamental inadequacy of remedy in the AAT for the correction of administrative error because it cannot issue declarations. A recognition of this can be seen, rightly, to permeate her Honour’s reasons. The existence of a power in the Court (and not the AAT) to make declarations, does not necessarily make the AAT other than a fully suitable remedy. As Gyles J said in Kamha v Australian Prudential Regulation Authority [2007] FCA 1422; 98 ALD 49, the discretion not to grant relief is a large one, affected by the practical and legal exigencies of the circumstances in question.
235 CSL focused upon what it referred to as the clear error of the delegate in her approach to the question of freight rates and the liquidated damages provision. CSL, correctly, in my view, identified these considerations as not matters that fell within the negotiations contemplated by ss 32 and 34 as a part of the requirements of the or a shipper in ss 32 and 34. Further, viewing the liquidated damages clauses as incentives for performance was to view them as penalties.
236 The question before Katzmann J was whether there was utility in the correction of these errors by declaration, or whether merits review was a fair and adequate avenue of relief. These questions were matters liable to come up in future applications of the Act. Robertson J had construed ss 32 and 34 in a way which not only permitted but in a sense required, the delegate to conclude, as she did, that the question of freight rates and liquidated damages were mandatory considerations. Thus, the utility of the AAT proceedings was significantly undermined by the recognition that (if CSL were correct in its submissions) that error of construction of the Act made the issues appropriate for an application for judicial review, rather than merits review. The merits review in the AAT would be predicated on a construction of the Act implicit in Robertson J’s reasons said by CSL to be flawed. Thus, if CSL were correct (as it is), merits review would only perpetuate the error and correction would only occur as by appeal from the Tribunal (by single judge not following Robertson J or by the Full Court on appeal from a single judge).
237 On balance, I have concluded that the primary judge erred in not recognising the utility in a proceeding under the ADJR Act and s 39B for a declaration as to the operative error of the delegate in the misconstruction of the Act. That process would have vindicated CSL in its position that the decision-maker had misconstrued the Act. It would have central and practical utility in the future administration of the Act. Because of the reasoning of Robertson J, which would have been followed by the AAT, CSL would in all likelihood have faced the problem of needing to correct the merits review by application to the Court for judicial review in connection with the proper construction of the Act. That course was already available with the appeal from Robertson J being on foot. This is not merely a disagreement with the decision of the primary judge in an area of legitimate disagreement. Rather, with respect, I consider her Honour failed to give the necessary weight to the utility of the opportunity of the Full Court to deal with the questions of principle in the appeal from Robertson J that were at the heart of the decision by the delegate. I would thus allow the appeal from Katzmann J.
238 Thus, in my view, the stated case should be dealt with, at least to a point which deals with the fundamental construction issue as to the content of the matters that comprise mandatory consideration under s 34.
239 The stated case was annexed to the orders of Rares J dated 25 March 2013. For the reasons that I have already given, the delegate erred in considering that the content of negotiations on freight rates and on liquidated damages were matters falling within either or both s 32(4) and s 34(2)(d) and that they were mandatory to take into account. Such involved a misconstruction of the Act. A declaration should be made in terms that the decision to grant the application to vary the temporary licence in respect of voyage 120700612 (formerly 1207006007) made by a delegate of the Minister on 14 December 2012 was affected by an error of law arising from a misconstruction of ss 32 and 34 of the Act.
Orders
Appeal NSD 2083/2012
1. Cross-appeals allowed in part.
2. Declaration 1 made by the Court on 21 November 2012 be set aside.
3. Cross-appeals otherwise dismissed.
4. Appeal allowed in part, with no consequential variation to the orders made by the Court on 21 November 2012.
5. Parties file short submissions on costs within 14 days.
Appeal NSD 409/2013
1. Appeal allowed.
2. Set aside orders of the Court on 1 March 2013, and in lieu thereof, order:
(a) dismiss the interlocutory application of the respondent;
(b) order a case be stated for the Full Court as to the decision of the delegate on 14 December 2012 to be heard concurrently with the appeal in appeal NSD 2083 of 2012;
(c) the costs of the proceedings be the parties’ costs in the Full Court.
3. Declare that the decision of the Minister by his delegate made on 14 December 2012 in respect of voyage 120700612 (formerly 1207006007) was affected by an error of law arising from a misunderstanding of the effect of ss 32 and 34 of the Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth).
4. Respondents pay the appellant’s costs of the appeal.
| I certify that the preceding two hundred and thirty-nine (239) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Allsop CJ. |
Associate:
| IN THE FEDERAL COURT OF AUSTRALIA in admiralty | |
| NSW DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 2083 of 2012 |
| ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
| BETWEEN: | CSL AUSTRALIA PTY LIMITED Appellant |
| AND: | MINISTER FOR INFRASTRUCTURE AND TRANSPORT First Respondent RIO TINTO SHIPPING PTY LTD Second Respondent |
| JUDGEs: | ALLSOP CJ, MANSFIELD J & RARES J |
| DATE: | 26 February 2014 |
| PLACE: | SYDNEY |
| IN THE FEDERAL COURT OF AUSTRALIA in admiralty | |
| NSW DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 409 of 2013 |
| ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
| BETWEEN: | CSL AUSTRALIA PTY LIMITED Appellant |
| AND: | MINISTER FOR INFRASTRUCTURE AND TRANSPORT First Respondent RIO TINTO SHIPPING PTY LTD Second Respondent |
| JUDGEs: | ALLSOP CJ, MANSFIELD J & RARES J |
| DATE: | 26 February 2014 |
| PLACE: | SYDNEY |
REASONS FOR JUDGMENT
MANSFIELD J
240 I have had the benefit of reading the reasons for decision of the Chief Justice. I agree with his Honour’s reasons and the orders which he proposes.
| I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. |
Associate:
Dated: 26 February 2014
| IN THE FEDERAL COURT OF AUSTRALIA in admiralty | |
| NSW DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 2083 of 2012 |
| ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
| BETWEEN: | CSL AUSTRALIA PTY LIMITED Appellant |
| AND: | MINISTER FOR INFRASTRUCTURE AND TRANSPORT First Respondent RIO TINTO SHIPPING PTY LTD Second Respondent |
| JUDGEs: | ALLSOP CJ, MANSFIELD J & RARES J |
| DATE: | 26 February 2014 |
| PLACE: | SYDNEY |
| IN THE FEDERAL COURT OF AUSTRALIA in admiralty | |
| NSW DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 409 of 2013 |
| ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
| BETWEEN: | CSL AUSTRALIA PTY LIMITED Appellant |
| AND: | MINISTER FOR INFRASTRUCTURE AND TRANSPORT First Respondent RIO TINTO SHIPPING PTY LTD Second Respondent |
| JUDGEs: | ALLSOP CJ, MANSFIELD J & RARES J |
| DATE: | 26 February 2014 |
| PLACE: | SYDNEY |
REASONS FOR JUDGMENT
RARES J
241 A new coastal trading licensing regime commenced in Australia on 1 July 2012 when the Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth) (the Act) and associated legislation came into force. The Act created general licences for ships. A general licence authorises the use of a ship registered in the Australian General Shipping Register (the general register) to engage in coastal trading where the holder of the licence is her or agent owner, charterer or master (s 13). The new regime also provided for the Minister to grant, and vary, temporary licences for ships not on the general register to engage in coastal trading in certain circumstances. The Act set out a specific process that regulated how the Minister has to consider an application for a temporary licence.
242 These two matters are an appeal and an application for leave to appeal by CSL Australia Pty Ltd that raise important issues of construction of the new legislative regime particularly in respect of the grant of temporary licences. CSL held transitional general licences at all relevant times that, as will be explained shortly, gave it most of the rights of a general licensee in respect of CSL’s ships to which they applied. It contended that on 9 October 2012 the Minister, by his delegate, erroneously varied a temporary licence granted to the second respondent, Rio Tinto Shipping Pty Ltd, by taking into account commercial considerations, such as freight rates and CSL’s unwillingness to agree to a liquidated damages clause in favour of the shipper of cargo intended for voyages authorised by the temporary licence (the first decision). The shipper, Rio Tinto Aluminium Ltd, operated Pacific Aluminium’s Bell Bay aluminium smelter in Tasmania.
243 Robertson J decided that the delegate had denied CSL procedural fairness by failing to provide CSL with Rio Tinto’s response to certain information provided by CSL. His Honour made declarations that this denial had affected four voyages authorised by the temporary licence. However, two of those voyages had been undertaken by the time of his Honour’s decision. His Honour set aside the licence in respect of the two unsailed voyages and remitted consideration of the application for those voyages to the Minister in accordance with law: CSL Australia Pty Ltd v Minister for Infrastructure and Transport (No 3) (2012) 297 ALR 289. CSL’s appeal from that decision seeks declarations in wider terms than his Honour granted, based on his construction of the way in which the process for consideration of temporary licences operated under the Act. The Minister cross-appealed against his Honour’s findings of denial of procedural fairness.
244 Subsequently, Katzmann J summarily refused to grant CSL any relief by way of judicial review when it sought to challenge the Minister’s decision, by his delegate, on the remitter, made on 14 December 2012 to grant a temporary licence for one of the two unsailed voyages, CSL having by then withdrawn its opposition to the other voyage (the second decision). Her Honour held that even though the voyage had taken place by the time of the hearing, the Act gave CSL an adequate remedy in the form of a merits review of the second decision in the Administrative Appeals Tribunal. A judge of the Court (Rares J) ordered that the application for leave to appeal from Katzmann J’s orders be heard with full argument on all issues and on a draft stated case the terms of which were settled, in the event that the Full Court granted leave and allowed the appeal pursuant to s 25(6) of the Federal Court of Australia Act 1976 (Cth).
The issues
245 There are four principal issues raised in these two matters, namely whether in exercising his discretion to grant (under s 34) or vary (under s 53) the temporary licence, the Minister was:
(1) bound to have regard to the object of the Act in s 3(1);
(2) bound by s 34(3)(a) to have regard only to the outcome of negotiations between Rio Tinto, as applicant, and CSL as a general licence holder, in respect of whether, and to what extent, each of CSL’s ships was equipped to carry cargo specified in the application and whether the cargo could be carried in a timely manner under s 32(3);
(3) entitled also to have regard pursuant to s 34(3) or s 34(2)(f) or (g):
(a) to other considerations including CSL’s freight rates;
(b) CSL’s failure to agree to pay liquidated damages to Pacific Aluminium if CSL’s ship was not ready to load within the time provided in the proposed charterparty terms; and
(c) the impact of the higher freight rates sought by CSL on the shipper’s, Pacific Aluminium’s, overall commercial viability of its Bell Bay smelter operation;
(4) in breach of his obligation to accord procedural fairness to CSL in respect of the delegate’s failure to inform CSL that first, she had not informed the Australian Maritime Safety Authority (AMSA) of information provided by CSL about the suitability of CSL Melbourne, one of the ships it had nominated to load cargo at Bell Bay when the delegate sought AMSA’s views on that issue, and secondly, she proposed to make the first decision on information as to freight rates that Rio Tinto had provided but of which CSL had no knowledge.
The statutory scheme
246 The object of the Act is stated in s 3 as follows:
“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:
(a) ensuring that a vessel that is used to engage in coastal trading under a general licence has unrestricted access to Australian waters;
(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;
(c) ensuring that a vessel that is used to engage in coastal trading under an emergency licence has the access to Australian waters required to deal with the emergency to which the licence relates.” (emphasis added)
247 Part 4 of the Act deals with licences. Division 1 of Pt 4 deals with general licences. A person may apply to the Minister for a general licence or its renewal under s 13. The general licence authorises a vessel to be used to engage in coastal trading if it is registered in the general register that is established under the Shipping Registration Act 1981 (Cth) and the person is the owner, charterer, master or agent of the vessel or a person of the kind described in the regulations (s 13(1)).
248 In deciding whether to grant an application, the Minister may have regard to any previous cancellation of a licence held by the applicant or any infringement notice issued to it under the Act, together with the object of the Act or any other matters that the Minister thinks relevant (s 15(2)). Each of those criteria, together with a number of others, is also relevant to the exercise of the Minister’s discretion in granting a temporary licence under s 34. When the Minister grants an application for a general licence, he must also determine the period, of not more than five years, for which it is granted and publish details of the licence on the Department’s website (s 16).
249 A general licence is subject to a number of conditions imposed by force of s 21 including, relevantly, that the vessel to which the licence relates must continue to be registered in the general register (s 21(a)), when she is used to engage in coastal trading, each seafarer on the vessel must be an Australian citizen or hold a permanent or temporary visa permitting him or her to work on the vessel (s 21(b)) and the licensee must report to the Department annually on the passenger and cargo activities of the vessel in the coastal trade under s 27 (s 21(d)).
250 Division 2 of Pt 4 deals with temporary licences. First, s 28 deals with an application for a temporary licence as follows:
“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.”
251 Then, s 28(2) specifies the requirements for such an application in a list of matters that identifies the number voyages to be authorised by the licence, which must be five or more, the expected loading dates, the expected number of passengers (if any), the expected kinds and volumes of cargo (if any), the type, size or capacity and name of the vessel (if known), the ports at which she is expected to load and discharge the passengers or cargo and any other information prescribed in the regulations.
252 An application for a temporary licence can be withdrawn at any time before the Minister decides it pursuant to s 29. Within two business days after receiving an application for a temporary licence, the Minister must cause a copy of the application to be published on the Department’s website, after deleting any information that the Minister is satisfied is either commercial-in-confidence or consists of the personal details of an individual (s 30(a)), and the Minister must give notice of the application to every general licence holder as well as any body or organisation that the Minister considers would be directly affected, or whose members would be directly affected, if the application were granted (s 30(b)).
253 A general licence holder can give a written notice, called a notice in response, under s 31 to the Minister within two business days of any publication of an application under s 30. The notice in response must state that all of the passengers and or either all of the cargo, or all of a particular kind of cargo, specified in the application could be carried under the holder’s general licence, or state that one or more of the voyages specified in the application could be undertaken under the holder’s general licence. The notice in response must also identify which passengers, cargo and or voyage could be so carried or undertaken (s 31).
254 That step brings into operation a process under ss 32-34. Those sections are critical to the issues and relevantly provide:
“32 Process if notice in response received
Minister to give copy of notice in response to applicant
(1) If the Minister receives one or more notices in response in relation to an application, the Minister must, as soon as practicable after the end of the 2 business day period mentioned in section 31, give a copy of each notice in response to the applicant.
Negotiation between applicant and holder of general licence
(2) Within 2 business days after the day the applicant receives a copy of each notice in response, the applicant must:
(a) undertake negotiations in accordance with subsection (3); and
(b) notify the Minister, in writing, of the outcome of the negotiations.
(3) For the purposes of paragraph (2)(a), the applicant must negotiate, with each holder of a general licence who gave a notice in response, in respect of the following matters:
(a) whether, and to what extent, the vessel authorised by the holder’s general licence is equipped to carry the passengers or cargo specified in the application;
(b) whether those passengers or cargo can be carried in a timely manner.
(4) If an application relates to the carriage of cargo, negotiations under subsection (3) in relation to the application must have regard to the requirements of the shipper of the cargo.
33 Comments by third parties
Within 2 business days after the day an application is published under section 30, written comments on the application may be given to the Minister by:
(a) a person (other than the holder of a general licence) who would be directly affected if the application were, or were not, granted; or
(b) a body or organisation that would be directly affected, or whose members would be directly affected, if the application were, or were not, granted.
34 Minister to decide applications
(1) The Minister decides an application by:
(a) granting the application; or
(b) refusing the application.
(2) In deciding an application, the Minister may have regard to the following (whether or not the Minister receives a notice in response in relation to the application):
(a) whether the applicant has previously held, or applied for, a temporary licence;
(b) whether the applicant has previously held a licence that was cancelled;
(ba) if the application relates to cargo and a vessel registered in the Australian International Shipping Register–both:
(i) whether the applicant owns the cargo and the vessel; and
(ii) whether the cargo is to be carried on the vessel;
(c) whether the applicant has been issued with an infringement notice under this Act;
(d) any written comments received by the Minister in relation to the application;
(e) any report given to the Department by the applicant under section 62;
(f) the object of this Act;
(g) any other matters the Minister thinks relevant.
(3) If the Minister receives one or more notices in response in relation to an application, the Minister must have regard to the following in deciding the application:
(a) the outcome of negotiations, as notified by the applicant under paragraph 32(2)(b);
(b) whether, and to what extent, the vessel authorised by the holder’s general licence is equipped to carry the passengers or cargo specified in the application;
(c) whether those passengers or cargo can be carried on the expected loading dates or within 5 days before or after the relevant date;
(d) if the application relates to the carriage of caro–the reasonable requirements of a shipper of the kind of cargo specified in the application.
(4) The Minister must decide an application for a temporary licence within 15 business days after the day the application is made.
(5) A day is not to be counted as a business day for the purposes of subsection (4) if it is:
(a) on or after the day the Minister receives a notice in response in respect of the application; and
(b) on or before:
(i) the day the applicant notifies the Minister under paragraph 32(2)(b); or
(ii) if the applicant fails to notify the Minister under that paragraph–the last day of the period within which the applicant was required to notify the Minister under that paragraph.
Note: The period within which an application is to be decided may also be affected by section 77.”
(bold emphasis added)
255 The Minister must determine the number of voyages authorised by any temporary licence he grants and the licence is valid for 12 months (s 35(1)). Next, s 35(2) provides that if the Minister grants an application for a temporary licence, he must cause specific information to be published on the Department’s website as to the temporary licence number, the day the licence commences and the matters that are also specified in s 37(2)(g), (i), (k), (l), (o) and (p) namely, the date that the licence commences, the loading dates the number of passengers, and or the kinds and volume of cargo authorised to be carried under the licence, the authorised ports of loading and discharge, that the licence is subject to the conditions set out in s 40, and any additional conditions imposed under s 41 and any matters prescribed in the regulations.
256 If the Minister does not make a decision within the time period provided in s 34(4) and (5), then s 36 deems the Minister to have granted the application for a temporary licence and to have “determined that the matters specified in the application are authorised by the licence”. As soon as practical after an application is actually, or deemed to have been, granted the Minister must give the applicant a temporary licence (s 37(1)) and, relevantly, the licence must specify the date that the licence commences, the loading dates, the number of passengers and or the kinds and volume of cargo authorised to be carried under the licence, all of which are “subject to acceptable tolerance limits”, the authorised ports of loading and discharge, that the licence is subject to the conditions set out in s 40 and any additional conditions imposed under s 41 and any matters prescribed in the regulations (s 37(2)(e)-(p)).
257 A temporary licence is subject to a number of conditions imposed by s 40, including that any vessel used to undertake a voyage authorised by it must be registered either in the Australian International Shipping Register (the international register) maintained under the Shipping Registration Act or under the law of a foreign country (s 40(a)). The Minister, by force of s 41, may impose and vary additional conditions that are not inconsistent with s 40. And s 37(3) provides that if the Minister grants a temporary licence, he must give written notice of the decision to each general licence holder who gave a notice in response under s 31 as soon as practicable.
258 Subdivision C of Div 2 of Pt 4 of the Act (which is not presently relevant) deals with the right to apply to the Minister for variations of matters authorised by a temporary licence. Subdivision D applies where a temporary licence holder seeks a variation to include a matter not already authorised by its licence (s 50). The holder must apply in writing to the Minister under s 51(1) for the variation and, relevantly, s 51(2) requires the applicant to provide the same information as specified in s 28(2) except that it need not provide the name of the vessel, if known (cp: s 28(2)(ea)). The process under ss 30-34 also applies to an application under s 51(1) by force of s 53.
259 Importantly, the matters that ss 28(2), 35(2), 37(2) and 51(2) require an application or temporary licence to specify do not include any freight or charter rates or other monetary obligations in respect of the performance of the activities sought to be, or actually, authorised under the temporary licence or variation.
260 Next, under s 61, a temporary licensee must notify the Minister, at least two business days before the actual loading date, of the name of the vessel that will undertake any voyage under the licence together with evidence of its register and details of the cargo and voyage.
261 The Minister may give a temporary licence holder a notice to show cause why the licence should not be cancelled if he considers that “the temporary licence is being used in a way that circumvents the purpose of the general licence provisions or the object of this Act”, having regard to the number of voyages and loading dates authorised, the loading and discharging ports, any variation or number of variations of the temporary licence together with the provisions of Div 1 of Pt 4 that deal with the grant of general licences (s 63(1)).
262 An applicant under ss 28 or 51 and the holder of a general licence who gave a notice in response under s 31 can apply to the Tribunal under s 107 to review a decision of the Minister to refuse or grant an application for a temporary licence within 20 business days.
263 The Coastal Trading (Revitalising Australian Shipping) (Consequential Amendments and Transitional Provisions) Act 2012 (Cth) (the Transitional Act) provided that a person could apply for a transitional licence authorising a vessel to be used to engage in coastal trading in certain circumstances (Sch 2 item 10). The Transitional Act provided that the process in Div 1 of Pt 4 of the Act applied to such an application (Sch 2 item 11), but Sch 2 item 13(1) specifically excepted the requirement in s 21(a) of the Act that a vessel to which a general licence related had to continue to be registered in the general register. Instead, Sch 2 item 13(2) imposed a condition that a vessel to which a transitional general licence related had to continue to be registered under the law of the relevant foreign country (i.e. its flag State).
264 The Transitional Act required the Minister to ignore s 15(2) of the Act when deciding whether to grant a transitional general licence and required him instead to have regard to, among other matters, whether the owner intended to register the ship under the Shipping Registration Act but was unable to do so immediately because of commercial obligations or requirements of foreign law (Sch 2 item 12(1) and (2)(a)). The Transitional Act also provided that, relevantly, subject to Sch 2 items 13-15, the Act applied in relation to a transitional general licence as if it were a general licence (Sch 2 item 16).
265 The Shipping Registration Act was amended at the same time as the Act came into force so as to create and provide for, inter alia, the general register and the international register. Relevantly, only Australian-owned ships (i.e. wholly or majority Australian-owned as defined in s 8) or ships under demise charter to a wholly or majority Australian-owned operator (as defined in s 9) can be registered in the general register (s 14). Importantly, s 15A of the Shipping Registration Act (which was enacted in amendments passed at the same time as the Act) provides:
“15A Objects of the International Register
The objects of the International Register are to:
(a) facilitate Australian participation in international trade; and
(b) provide an internationally competitive register to facilitate the long term growth of the Australian shipping industry; and
(c) promote the enhancement and viability of the Australian maritime skills base and the Australian shipping industry.” (emphasis added)
266 Relevantly, trading ships (i.e. ships used for commercial carriage of passengers or cargo and of a particular minimum size) owned or under demise charter to persons who were Australian owners or operators (as defined in ss 8 or 9) can be registered in the international register (s 15B). A ship registered in the general register cannot be also registered in the international register, or vice versa, nor can a ship registered under the law of a foreign country be registered in either Australian register (s 17(1)). And, if a ship is registered in the international register, then s 61AA of the Shipping Registration Act provides that the Fair Work Act 2009 (Cth) does not apply to her when she is used in international trading (i.e. not in coastal trading as defined in the Act or in intra-State trading) and no Australian seafarers or worker’s compensation legislation applies to her in any circumstances.
The Parliamentary extrinsic material
267 The Bill for the Act was introduced into the Parliament by the Minister on 22 March 2012 and debated cognately with the Bills for what became the Transitional Act, the Shipping Registration Amendment (Australian International Shipping Register) Act 2012 (Cth), the Shipping Reform (Tax Incentives) Act 2012 (Cth) and the Tax Laws Amendment (Shipping Reform) Act 2012 (Cth). The Minister explained that the amendments to the Shipping Registration Act were intended to facilitate Australian participation in international trade, to provide an internationally competitive register to facilitate long term growth of the Australian shipping industry and to promote enhancement and viability of the Australian maritime skills base and the Australian shipping industry.
268 The Minister said that in the previous decade the Australian fleet had shrunk from 55 ships to 21, with only 4 operating on international routes. He said that the package of 5 Bills was an integrated suite of reforms addressing fiscal, regulatory and workforce aspects of Australia’s shipping industry. The Minister explained that the reforms “level the playing field and provide the industry with a stable fiscal and regulatory regime to encourage investment and promote our international competitiveness … The lack of an Australian shipping industry that can compete in the international marketplace is a lost national opportunity”. He said that in the absence of a domestic shipping capacity, Australia would be unable to train its own seafarers. The Minister said (Hansard, House of Representatives, 22 March 2012 at 3934-3935):
“However, we are making transparent the decision-making processes which determine a foreign vessel's participation in Australian domestic shipping.
In support of this, a new three-tier licensing system will replace the antiquated system of licenses and permits.
General license holders, who will be Australian flagged, will have unrestricted access to the coastal trade. These vessels will also have access to the tax incentives, including the income tax exemption. This will address the cost disadvantages that Australian vessels experience when competing against subsidised foreign vessels.
Temporary licence holders, who may be foreign flagged or registered in the Australian International Shipping Register, will have restricted access to the coastal trade. This access will be provided through an open process, which enables general licensed operators and transitional general licence holders to nominate to carry this trade if they are able to meet the criteria. Third party comments will be accepted as part of the decision-making process.
Emergency licences will provide restricted access to the coastal trade in terms of major emergencies and natural disasters.” (emphasis added)
269 He added that the crewing and labour provisions comprised a key element of the Bill. Vessels on the international register would have to employ a minimum of two Australian crew members, preferably the master and chief engineer, be exempt from the Seafarers Rehabilitation and Compensation Act 1992 (Cth) and would obtain limited access to the coastal trade under temporary licences. He added that the Fair Work Act would apply to vessels operating under temporary licences (Hansard, op cit at 3939-3940). He also explained that the two taxation Bills were to provide tax exemption certificates to companies with a substantial proportion of commercial, technical, strategic or crew management based in Australia, creating a regime for mandatory training requirements for those companies, providing a zero tax rate for Australian shipping companies with ships on the general or international registers here, accelerated depreciation for vessels, tax relief on sale of vessels and charter hire, and a refundable tax offset for employers of Australian resident seafarers (Hansard, op cit, at 3941-3942).
270 The Minister said that the Transitional Act would provide for transitional general licences and that vessels operating under them would be required to pay wages consistent with their current obligations under the Fair Work Act. He said foreign flagged vessels operating under the then existing permit system would not be allowed to apply for a transitional general licence (Hansard, op cit at 3937-3938).
271 Later, during the course of debate, the Government accepted an Opposition amendment to add the elements in pars (e) and (f) to s 3(1) (Hansard: House of Representatives 31 May 2012 at 6518-6159). The Deputy Leader of Opposition said that the amendments would make clear that Australia both had no intention of closing its coast and supported competition in shipping to promote the efficient and cost effective movement of freight. The Minister responded saying:
“What these reforms are all about is creating competition. At the moment there is no competition because Australian ships are disadvantaged against foreign ships.”
He also said despite par (f) not being necessary, he supported its addition “because the whole package is about having a stronger, more competitive, more efficient industry”.
272 The revised explanatory memorandum for the Bill that became the Act stated that cl 34(3)(d) (now s 34(3)(d)) was intended to require the decision-maker to “consider the reasonable requirements of a shipper who ordinarily ships that kind of cargo specified in the application, and not merely the requirements of the specific shipper concerned in that particular application” (at p 27).
273 The Parliamentary materials do not contain any references to the freight rates or contractual terms proposed by either a general licensee or an applicant for a temporary licence as being considerations involved in the new decision making process. There was no discussion of the Minister or decision-maker being involved in evaluating those matters beyond considering the outcome of the negotiations on the subject matter prescribed in s 32(3) and comments by third parties under s 33.
The events leading to the first decision
274 The facts below have been taken largely from Robertson J’s findings. The Minister’s delegate did not provide a statement of her reasons for the first decision and his Honour was left to draw inferences from the evidence.
275 In early July 2012, Rio Tinto applied to the Minister for a temporary licence. On 6 July 2012, after being notified of that application under s 30 of the Act, CSL submitted a notice in response under s 31. Exchanges of emails between and among the officers of the Department, CSL and Rio Tinto followed over the next month. Relevantly, in the email exchanges with the Department, CSL and Rio Tinto discussed freight rates for the cargoes and CSL’s proposal to nominate CSL Melbourne for voyage 3. In addition, Pacific Aluminium made submissions to the Minister under s 33 as a party affected. Pacific Aluminium asserted that small changes in the cost per tonne could have significant impact on total operating costs.
276 On 23 July 2012, Rio Tinto emailed the then delegate saying that the terminal operator at Bell Bay, Pacific Aluminium, considered CSL Melbourne to be far too big for the berth. The email asserted that the berth’s mooring standard restricted it to vessels with an LOA (length overall) of 172m, although special consideration could be given to vessels with an LOA of 175m and an aft gangway. The email stated numerous, detailed concerns of Pacific Aluminium about the safety of berthing a ship as long as CSL Melbourne at Bell Bay and included a schematic of that berth, the terminal’s mooring standard, guidelines and checklist of operational parameters for berthing alumina vessels.
277 On 24 July 2012, the then delegate forwarded Rio Tinto’s email of 23 July and its attachments to Mick Kinley, the Deputy Chief Executive Officer of AMSA. Subsequently that day, the delegate also forwarded the same material to CSL and offered CSL the opportunity to respond to it. However, the delegate did not inform CSL of his communications with AMSA at that time.
278 On 25 July 2012, CSL emailed its response to the Minister. CSL noted that although her LOA was 187.5m, in August 2010 Pacific Aluminium had accepted CSL Melbourne berthing and discharging 26,250 mt at Bell Bay. CSL observed that on that occasion there had been no cargo in hold No 1 and it also enclosed documents showing that two other ships with an LOA greater than 172m had discharged cargoes at Bell Bay when they too had no cargo in hold No 1. CSL provided drawings depicting CSL Melbourne at the wharf with either hold No 1 or No 5 empty. The email discussed the terminal layout configuration and asserted that even though CSL Melbourne would overhang the wharf by a maximum of 59 metres, this would cause no problems for safe mooring. It also said that the ship had an aft gangway and that if it did not provide safe access to the wharf, she carried a ship’s brow that could be placed anywhere along her side to provide safe access to the wharf at all times. His Honour found that although the then delegate (who was not the same person as the delegate who made both the first and second decisions) took CSL’s email of 25 July 2012 into account, it was not forwarded to AMSA.
279 The Minister issued a temporary licence on 30 July 2012 to Rio Tinto.
280 On 6 August 2012, Rio Tinto applied for a variation of its temporary licence, under s 51(2)(a), in respect of “new matters”. Rio Tinto sought a variation authorising five voyages for the carriage of cargoes of 25,000 mt of alumina in bulk from Gladstone to Bell Bay. The voyages were described in the evidence as voyages 1207006003, 1207006004, 1207006005, 1207006006 and either 1207006007 or 1207006012. (In these reasons those voyages are called, for simplicity, respectively voyages 3, 4, 5, 6 and 7.) Only voyages 3, 5, 6 and 7 are presently relevant. The loading dates for those voyages were respectively 11 October 2012, 4 December 2012, 4 January 2013 and 1 February 2013.
281 The Department notified general licence holders of the variation application on 8 August 2012. On the same day, the Minister granted CSL transitional general licenses in respect of CSL Melbourne and CSL Brisbane. CSL held those licences at all relevant times.
282 On 10 August 2012, CSL gave a notice in response nominating CSL Melbourne for voyage 3 and CSL Brisbane for voyages 4, 5, 6 and 7. That notice confirmed that each ship was equipped to carry the cargo specified in the variation application, could do so in a timely manner and met the requirements of the shipper, as required by s 34(3)(b)-(d). On 13 August 2012, the then delegate notified Rio Tinto of CSL’s notice in response as required by s 32.
283 On 14 August 2012, Rio Tinto emailed CSL and sought an indication of its freight rates saying that: “We expect the same to be in line with the market.” The email asserted that CSL Melbourne was unsuitable for Bell Bay because of her LOA. It concluded by informing CSL that any agreement would have to include, unconditionally, a liquidated damages clause that applied to a situation where CSL’s nominated ship was unable to perform the voyage because, if it did not have a temporary licence, Rio Tinto would not have a substitute vessel available for that voyage.
284 The next day, 15 August 2012, CSL withdrew its nomination of CSL Melbourne for voyage 3 in October 2012 and provided freight rates to Rio Tinto for the other voyages. CSL offered to use the terms of a charterparty the parties had recently agreed for an earlier proposed voyage to Bell Bay. CSL’s email also rejected Rio Tinto’s requirement for an unconditional liquidated damages clause.
285 On 16 August 2012, Rio Tinto emailed the then delegate and stated that it had concluded negotiations with CSL. The email noted that CSL had withdrawn its notice of response in respect of voyage 3. It set out CSL’s offer of 15 August 2012 and then addressed arguments as to why each of the commercial terms was unacceptable. Rio Tinto asserted that CSL had sought a significant uplift in its freight rates above the “almost competitive” rates CSL had offered before the Act came into force. Rio Tinto submitted to the delegate that CSL, as a general licence holder under the new licence system, “appears to believe that it holds a more dominant position.” It complained that the new rates were not market related and attached a letter from Pacific Aluminium to the Minister dated 16 August 2012.
286 Rio Tinto’s email of 16 August 2012 then noted that CSL had refused to agree to Rio Tinto’s attempt to include a liquidated damages clause in any proposed charterparty. Rio Tinto asserted that it had sought this to protect itself if the general licence holder failed, or was unable, to perform the voyage “leaving the shipper, without a temporary licence and having no recourse to the [Department] under the Act to seek relief and/or obtain the use of an authorised vessel”. Rio Tinto submitted that CSL’s refusal to accept or agree to a liquidated damages clause had exposed itself or Pacific Aluminium to an unacceptable risk that previously did not exist. Next, the email argued that for the reasons in Pacific Aluminium’s 16 August 2012 letter, the failure to find “appropriately priced freight will compound the already difficult situation at Bell Bay”. It contended that this result appeared contrary to the purpose of the new legislation because it would not enhance or encourage the use of general licensees’ vessels. The email then resubmitted Rio Tinto’s email of 11 July 2012 that had emphasised that Pacific Aluminium was critically dependent on deliveries being on time and did not have the capacity to withstand stock delays.
287 Pacific Aluminium’s letters to the Minister of 11 July 2012 and 16 August 2012 made submissions as to, first, the impact on the commercial viability of the Bell Bay smelter that would result from the additional $4 million in costs that Pacific Aluminium estimated it would incur from the higher freight rates proposed by CSL, and secondly, its requirement for reliability of supply of alumina, given the limited storage capacity at Bell Bay. The second letter referred to announcements in May 2012 of the closure of the Kurri Kurri smelter in New South Wales and June 2012 of a Commonwealth and Victorian Government support package for the Point Henry smelter.
288 On 17 August 2012, the Department emailed Rio Tinto seeking clarification of the freight rate that CSL was offering for the four relevant voyages (4, 5, 6 and 7). Rio Tinto replied with that information later that day.
289 Next, on 22 August 2012, the Department emailed CSL stating that Rio Tinto had informed it of the outcome of the negotiations under s 32 of the Act and sought CSL’s response concerning Rio Tinto’s requirement for a liquidated damages clause. The Department noted that a person in Rio Tinto’s position would not be able to seek an urgent single voyage permit for a replacement vessel if the vessel of a general licensee failed to perform a charter, unlike the position under Pt 6 of the repealed Navigation Act 1912 (Cth). The Department sought CSL’s reasons for refusing to include a liquidated damages clause in any charterparty. The Department informed Rio Tinto later that day that it would ask CSL to explain both the 69% price increase in its offered rates since September 2011 and why it would not agree to a liquidated damages clause in light of the changed regulatory regime. The Department sought Rio Tinto’s permission to use the price information for 2010, 2011 and 2012 that Rio Tinto had provided in its submissions in its communications with CSL.
290 The Department then engaged in a protracted process of seeking and receiving information and submissions from CSL and Rio Tinto on the issues of freight rates and a liquidated damages clause.
291 Critically for Robertson J, on 7 September 2012 the Department sought Rio Tinto’s response to CSL’s email of 5 September 2012 concerning, among other matters, the freight rates CSL had offered Rio Tinto in 2010, 2011 and 2012. Later that day Rio Tinto emailed its reply. That accepted CSL’s contention that the negotiations with CSL for voyages to Bell Bay in 2010 and 2011 had been on a trial basis, assessing the physical capacities and capabilities of CSL Melbourne and CSL Brisbane. Rio Tinto asserted that it had not wanted to consider any further commitment until it had assessed those matters. It claimed that CSL’s argument that its rates for those trial voyages were lower and competitive with the then market rates was not logical or relevant. Rio Tinto said that it was not party to CSL’s internal strategic decisions. Rio Tinto also asserted that it had insisted, at that time, on CSL’s rates being competitive and that while CSL may have alluded, in those negotiations, to its high operating costs, there was no agreement that CSL’s then rates were offered at once off levels, below the operating cost of Australian vessels. It also contended that the purpose of the trial was to determine the physical fit of the vessels to the trade, and not to deal with the freight rates charged. Neither Rio Tinto’s email of 7 September 2012 or its substance was disclosed to CSL at any time before the first decision was made.
292 On 25 September 2012, CSL had made arrangements for CSL Brisbane to carry a cargo of sugar that made her unable to meet the laycan for voyage 4. Then, on 2 October 2012, CSL withdrew its notice in response in respect of voyage 4 but maintained that its notice still operated in respect of voyage 3.
293 On 3 October 2012, Rio Tinto informed the Department that the vessel it had secured to perform voyage 3 was underway for the port of loading, Gladstone. It sought confirmation that the temporary licence now authorised Rio Tinto to perform voyage 3. Rio Tinto also told the Department that another “critical issue is related to the November cargo”. Unsurprisingly, given the delay since early July 2012, Rio Tinto said that it had now to go to market to fix a vessel for that voyage without further delay in order to secure its supply chain and asked for a decision urgently.
294 On 5 October 2012, Rio Tinto responded to the delegate’s requests of 3 October 2012 as to whether voyage 3 could be performed by CSL Melbourne. Among other responses Rio Tinto reiterated its objection that CSL Melbourne was too long for Bell Bay and that the process had taken an “inordinate length of time”.
295 On 6 October 2012, the delegate spoke to Mr Kinley of AMSA seeking confirmation of his advice of 23 July 2012 to the previous delegate as to suitability of CSL Melbourne for berthing at Bell Bay. Mr Kinley told her that he had reviewed the material from Rio Tinto provided to him earlier. He said that operations involving an oversize vessel at the Bell Bay berth could pose safety issues of the kind described by Rio Tinto. He also told the delegate that “the manoeuvres required to move an oversize vessel up and down the berth to facilitate loading can put excessive load on lines, bollards and dolphins, placing personnel, the vessel and the berth at risk”. However, as Robertson J found, the delegate did not inform Mr Kinley of any of the information in CSL’s email of 25 July 2012 including that concerning the previous safe berthing of CSL Melbourne at Bell Bay.
296 Later on 6 October 2012, the delegate emailed CSL to inform it that she proposed to grant Rio Tinto’s application for a temporary licence for voyages 3, 4, 5, 6 and 7. She then identified the key factors that she had taken into account in forming those views. She stated that information provided by Rio Tinto in its email of 23 July 2012 indicated that CSL Melbourne was too large to berth safely at Bell Bay. She also stated that AMSA had confirmed that berthing the ship at Bell Bay would pose safety concerns of the kind that Rio Tinto had described. She wrote that she considered that those safety requirements were significant and suggested that CSL Melbourne did not meet the reasonable requirements of the shipper.
297 Next, the delegate wrote that element (a) in the object of the Act in s 3(1), (namely that the regulatory framework promotes a viable shipping industry that contributes to the broader Australian economy) was a relevant consideration in accordance with s 34(2)(f). She stated that she was presently of the view that “having regard to the freight rates offered by CSL for use of the MV CSL Brisbane to undertake the 3 voyages [5, 6 and 7], refusing to grant the T[emporary] L[icence] to include these three voyages would not be consistent with the object of the Act”. She found that the freight rates offered by CSL were “significantly higher, not only than those offered by a vessel operated under a temporary licence, but also than those previously offered by CSL to Rio Tinto to undertake the same voyage”. The delegate referred to “probative” material that Rio Tinto had provided that showed difficulties that the aluminium industry was then experiencing in Australia and the magnitude of the impact of CSL’s rates on the future viability of the Bell Bay smelter. She said that the costs of alumina and associated freight were particularly significant to Bell Bay because of its location. She concluded:
“I am presently of the view that refusing to grant the variation to the TL in respect of this voyage [sic] would be likely to contribute to the undermining of the future viability of operations of Bell Bay Aluminium and thus would not contribute to the broader Australian economy or the longterm viability of the Australian shipping industry.”
298 CSL replied to the delegate by email on 8 October 2012 (1/71, RJ 73-78). CSL asserted that AMSA had no jurisdiction to determine the suitability of a vessel to berth and operate in Bell Bay. It also said that it was unaware of any study as to CSL Melbourne’s suitability performed by AMSA and sought a copy. CSL referred to the responsibility of the port authority at Bell Bay for safe operation of vessels there and to several earlier safe berthings there of over-long vessels whose No 1 hold had no cargo, including two in 2012, and a vessel, MV Alltrans, that was 2 metres longer than CSL Melbourne, that had carried alumina to Bell Bay for 25 years prior to 2008.
299 CSL’s email then referred to s 3(1)(a) of the Act and asserted that a grant of a temporary licence would not promote a viable shipping industry. It argued that CSL could only operate vessels on the Australian coast if they were utilised fully throughout the year and could not be expected to have its vessels left idle for prolonged periods. It contended that if its vessels could not operate profitably on the coastal trade, they would have to be removed from the general register. CSL said that it had not seen the information from Rio Tinto relating to the viability of the Bell Bay smelter but argued that the grant of its temporary licences would not contribute to the broader Australian economy. It also made submissions saying that Rio Tinto had not been willing to enter into negotiations as to freight rates for the cargoes. CSL’s email argued that challenges faced by the Australian aluminium industry due to market and economic conditions were similar to those of local steel and manufacturing industries and of CSL itself. Importantly, the email expressed CSL’s concern that the Department appeared to be taking in account material that had not been provided to CSL.
The first decision
300 On 9 October 2012, the delegate granted Rio Tinto’s variation application made on 6 August 2012 and issued a varied temporary licence to it. On the same date she emailed CSL advising it, under s 57(3) of the Act, of the decision. In her email to CSL the delegate stated that she had considered information provided by Rio Tinto, CSL and other correspondence provided to the Department. She stated that AMSA had not made any determination as to the suitability of a vessel to berth at Bell Bay but had been consulted as the statutory maritime safety regulator “as an independent source of expert advice in relation to the advice provided to us by [Rio Tinto] regarding safety concerns associated with berthing a vessel the size of CSL Melbourne at Bell Bay”. The delegate said that the content of AMSA’s advice had been provided in her email of 6 October 2012. The delegate also wrote that CSL had been given all non commercial-in-confidence information provided by Rio Tinto concerning freight rates and their impact on overall operating costs for the Bell Bay smelter’s operations.
Roberston J’s decision
301 Robertson J delivered his principal reasons on 16 November 2012 in which he found that the delegate had denied CSL procedural fairness in respect of her decision on each of voyages 3, 5, 6 and 7.
302 His Honour found that the basis on which the delegate arrived at the first decision on 9 October 2012 was as follows:
As to voyage 3: First, she had concluded that CSL Melbourne did not meet the reasonable requirements of the shipper on the basis of safety. Secondly, the delegate did not take in account, for this voyage, issues of freight rates and consequence economic considerations. Thirdly, although Mr Kinley of AMSA did not have CSL’s email and attachments of 25 July 2012, he had Rio Tinto’s email of 23 July 2012 and attachments. However, the delegate had, and considered, both sets of emails.
As to voyages 5, 6 and 7: First, the delegate granted the application on the basis that its refusal “would be inconsistent with the object of the Act to provide a regulatory framework for coastal trading in Australia that promotes a viable shipping industry that contributes to the broader Australian economy”. She acted on the basis of the information provided by Rio Tinto, and confirmed by CSL, that the latter’s freight rates were significantly higher than those CSL had previously offered to undertake the same voyage and so would be likely to undermine the future viability of the Bell Bay smelter operations, and that this would not contribute to the broader Australian economy or the long-term viability of the Australian shipping industry. Secondly, his Honour found that no-one on behalf of the Minister, including the delegate, had provided CSL with any of the international freight rates that Rio Tinto had submitted were available for the three voyages, the information in Rio Tinto’s email of 7 September 2012 concerning what it had said about CSL’s 2010 and 2011 agreed freight rates or the material that the delegate had considered relating to the viability of the aluminium operations at Bell Bay. However, Robertson J also found that in her email to CSL of 6 October 2012 the delegate had referred to CSL’s freight rates as being significantly higher than those offered by a vessel under a temporary licence.
303 His Honour found that “it is not possible to discern from the six express objects of the Act a single or primary purpose to the achievement of which every exercise of a discretion under the Act must bend”. He observed that s 3(2) set out the means by which the object in s 3(1) was to be achieved. The primary judge noted that the definition of “coastal trading” in s 7 did not discriminate between Australian and other shipping, and that while elements (b) and (c) in s 3(1) referred to “Australian” shipping, element (a) referred to a viable shipping industry. Robertson J found that the omission of “Australian” in s 3(1)(a) had significance. He found that as at 11 October 2012, although each was the subject of a request to be registered, neither CSL Melbourne nor CSL Brisbane had been registered on the general register and, so, s 3(1)(d) was not directly applicable to either ship because there was no relevant applicable deeming. Accordingly, his Honour rejected CSL’s suggested construction of the Act that s 3(1) ought lead to the exercise of the discretion not to grant a temporary licence whenever a general licensee’s vessel was available. That was because Robertson J concluded that s 3(1) contemplated that choices would have to be made between what may be competing and opposing objects.
304 He held that it was appropriate to adopt a broader, rather than narrower, approach to construction of the Act in relation to permissible considerations. That was because, his Honour reasoned, first, the grant of a power in s 111 for the Minister to delegate any or all of his functions under the Act other than his power under s 11, to exempt vessels and persons from the operation of the Act and, secondly, the power of the Minister, in deciding an application for a temporary licence under s 34(2)(g) to have regard to “any other matters the Minister thinks relevant”. He also noted that the effect of the grant of a temporary licence under the Act lifted a prohibition but did not determine which vessel would perform any voyage.
305 Robertson J found that the delegate had failed to afford CSL procedural fairness in respect of her decision on voyage 3 because she had not provided to AMSA CSL’s email of 25 July 2012 and attachments, dealing with its response to Rio Tinto’s email of 23 July 2012. Thus, CSL’s response had not been available to AMSA for its consideration in formulating its advice to the delegate as to the suitability of CSL Melbourne, even though that response was considered by the delegate. He held that CSL was not aware that in giving its advice, AMSA had not considered its submissions in the 25 July 2012 email.
306 Next, his Honour found that the delegate had also failed, on different bases, to afford CSL procedural fairness in respect of her decision on voyages 5, 6 and 7 (and, if he were wrong in his finding that she had no regard to these bases in respect of voyage 3, that voyage as well). That was because Rio Tinto’s response to the Department of 7 September 2012 had made assertions about new matters in relation to CSL’s previous freight rates for Bell Bay cargoes and CSL’s individual position in the coastal trade, that CSL was not aware of and which were at the centre of the delegate’s reasoning.
307 However, Robertson J rejected CSL’s argument that because of the object in s 3(1) it was not open to the delegate to take into account the economic interests, profitability and costs of the shipper or receiver of the cargo. He rejected CSL’s submission that the object of the Act, as referred to in s 34(2)(f), was a mandatory relevant consideration for the delegate and that she must have misconstrued that object. His Honour also rejected CSL’s contention that the subject matter of the negotiations required by s 32(3) was limited to the suitability of the general licensee’s vessel for the intended cargo and its carriage of the cargo in a timely manner. He said (at 297 ALR at 322 [135]):
“I also reject the associated submission that the object of the regime is to allow general licence holders to nominate to carry particular trade if their vessels are able to meet the requirements for the proposed voyage. So to construe the Act would be to ignore ss 34(2) and 32(4), and to marginalise the prescribed negotiation process and the outcome of negotiations as notified, which is a mandatory relevant consideration by s 34(3)(a).”
308 His Honour also rejected CSL’s complaint that the delegate erred by failing to provide it with the detail of Rio Tinto’s and Pacific Aluminium’s submissions as to their assertions about the impact of CSL’s freight rates on the viability of the Bell Bay operation. He found that CSL had been heard on those matters and that the statutory scheme did not require that CSL be given an opportunity to do more than respond to the substance of that matter.
309 Robertson J then did not accept CSL’s contention that the delegate had decided the application by reference to freight rates offered by vessels operating under a temporary licence or international rates. Rather, he found that the delegate acted on the basis of the significantly higher rates CSL proposed as compared to those it had previously offered Rio Tinto in 2010 and 2011. He found that the delegate did so on the basis of Rio Tinto’s email of 7 September 2012 in which it had disagreed with CSL’s statements as to the nature of the 2010 and 2011 voyages, the consequent effect on rates and the basis of that disagreement. His Honour found that the delegate never put, but should have put, to CSL, the substance of Rio Tinto’s response of 7 September 2012 and that she should have done so in her email to CSL of 6 October 2012. He found that it could not be assumed that CSL would not have been able to respond meaningfully to that material and accordingly, the delegate had denied CSL procedural fairness.
310 Subsequently, his Honour gave brief reasons and made orders on 21 November 2012 that declared that the delegate had failed to observe the requirements of procedural fairness in respect of each of the four voyages, set aside the decision in respect of voyages 6 and 7, being the only voyage remaining to be performed, and remitted to the Minister the determination of the application for variation in respect of voyages 6 and 7 in accordance with law.
The second decision
311 Following Robertson J’s order remitting to the Minister’s consideration Rio Tinto’s application to vary its temporary licence to include voyages 6 and 7, the delegate received further submissions from CSL and Rio Tinto. On 13 December 2012, CSL withdrew its notice in response in respect of voyage 6. On 14 December 2012, the delegate granted the application in respect of voyage 7 and on 3 January 2013 gave a statement of reasons for her decision (the second decision).
312 Relevantly, the delegate made the following findings:
CSL and Rio Tinto had not been able to reach agreement through negotiations under s 32(2);
CSL Brisbane was authorised by CSL’s transitional general licence, was equipped to carry the cargo specified for voyage 7 in Rio Tinto’s application and was available to load within 5 days of either side of 1 February 2013, being the date nominated in that application;
CSL’s offered freight rates did not meet the reasonable requirements of a shipper of the kind of cargo to be carried, particularly when viewed in the context of the impact on the Bell Bay smelter;
CSL’s failure to agree to include a liquidated damages clause of the kind the shipper sought, did not meet the reasonable requirements of the shipper;
having regard to the object of the Act, pursuant to s 34(2)(f), a refusal to grant the variation would not further the elements of the object in s 3(1)(a), (b), (c) and (e) (the element in s 3(1)(d) was not relevant because CSL Brisbane was not then registered in the general register) because:
“a decision refusing the temporary licence application would in practical effect give the shipper little option other than commercial arrangements which:
• are likely to undermine the viability of the shipper’s (and the general licence holder’s customer’s) operation, which is an outcome that does not contribute to promoting a viable shipping industry that contributes to the broader Australia economy or the long term growth of the Australian shipping industry;
• would not be optimal in terms of enhancing the efficiency and reliability of the service; and
• do not contribute to competition in coastal trading.”
313 The delegate elaborated on why she regarded freight rates as a reasonable requirement of the shipper for the purposes of s 34(3)(d) as follows:
“Overall, I formed the view that at the very least it would appear that there was likely to have been some room for negotiation on the freight rate and a capacity for CSL Australia to make a more acceptable offer to Rio Tinto. However, it is clear from the outcome of negotiations as communicated by Rio Tinto on 16 August 2012, and the emails between CSL Australia and Rio Tinto (ref emails between [CSL] and [Rio Tinto] dated 10-11 July 2012) that CSL Australia was not prepared to negotiate in relation to the freight rate offered.” (emphasis added)
314 She also explained why she considered that the shipper’s requirement for a liquidated damages clause was reasonable for the purposes of s 34(3)(d) as follows:
“In regard to the liquidated damages clause I accepted the information provided by CSL Australia that the inclusion of a clause of this kind has not been normal shipping practice and that current contracts do not include this clause. However, a decision to refuse the application for a variation (if made) would in practical effect mean that the shipper has limited options other than the general licensed ship to carry the cargo. In this context, given the changed regulatory environment that is now in place by virtue of the implementation of the Act, it is a reasonable requirement of a shipper of this kind of cargo to seek the inclusion of contractual provisions, such as a liquidated damages clause, which operate as an incentive on the general licence holder to ensure that a general licensed vessel is in fact able to meet the required laycan and to carry the cargo in question. It is apparent that CSL Australia were unwilling in negotiations relating to these voyages, to address Rio Tinto’s concern that should CSL Australia be unable to meet the required laycan they would have limited options available to them. CSL’s proposed solution to source a foreign flagged vessel operating under a temporary licence does not address the fact that a) Rio Tinto is itself a temporary licence holder, and b) a variation to a temporary licence, held by either Rio Tinto or CSL Australia, would be required to authorise the voyage and that processing timeframes would necessitate a delay before a voyage could be rescheduled.” (emphasis added)
Katzmann J’s decision
315 CSL only began proceedings on 30 January 2013 (the second proceedings) to challenge the second decision under s 39B of the Judiciary Act 1903 (Cth) and s 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). It applied to Katzmann J for the second proceedings to be referred to the Full Court by way of a stated case so that they could be heard and determined with the appeal from Robertson J’s decision. The Minister and Rio Tinto opposed that course.
316 In addition, the Minister filed an interlocutory application on 13 February 2013 seeking that her Honour dismiss the second proceedings in the exercise of the Court’s discretion or as an abuse of process. That was in the context that loading of cargo for voyage 7 had commenced on 23 January 2013 and the cargo had been discharged on 12 February 2013.
317 Her Honour accepted the Minister’s submission that under r 30.02 of the Federal Court Rules 2011 (Cth) she should determine separately and before all other issues whether the proceedings under s 16 of the ADJR Act should be dismissed as a matter of discretion on the ground that s 107 of the Act gave CSL an adequate remedy in the form of a right to apply to the Tribunal for a review of the second decision. She rejected as unpersuasive CSL’s arguments that the Tribunal, first, had no power to give declaratory relief, secondly, would probably have dismissed any application as vexatious since voyage 7 had been completed and, thirdly, would have been likely to have followed Robertson J’s reasoning. Her Honour said that the Tribunal would give its interpretation of the law and its decision would bind the parties.
318 Katzmann J found that such a review by the Tribunal was adequate for CSL, even though it could not grant declaratory relief and the Tribunal would also be able to consider the liquidated damages clause issue on its merits. Her Honour held that it was beside the point that CSL was out of time to apply to the Tribunal, because it could have done so within time. She accepted that the Tribunal would follow Robertson J’s decision on common issues but said “if CSL did not like the result, it could appeal”.
319 Her Honour considered that it would be futile to order that the application be remitted to the Minister for reconsideration and that the appeal was moot. She accepted that there would be further applications under the Act involving CSL and Rio Tinto but said that the second decision would not bind the parties in the future. Katzmann J said that she was unable to see any practical utility in the grant of declaratory relief. Her Honour distinguished Robertson J’s reasons for granting declaratory relief on bases that CSL had not sought urgent interlocutory relief, his Honour had now determined the questions of law and the Full Court’s decision on appeal would resolve most of those raised which were also in the second proceedings. She found that the issues raised in the second proceedings were largely factual and, while it was difficult to see what relief the Tribunal might grant in the circumstances, the second proceedings, unlike those before Robertson J, did not raise any issue of a denial of procedural fairness.
320 Her Honour did not consider that CSL’s position was advanced because similar issues were raised in the Full Court appeal. And, because of the existence of the right to seek review in the Tribunal, she did not consider that CSL’s reliance on s 39B of the Judiciary Act made any difference. Accordingly, her Honour dismissed the second proceedings in the exercise of her discretion.
The draft stated case
321 The draft stated case comprised CSL’s originating application in the second proceedings, the delegate’s decision, those documents that were before the delegate that were relevant to the questions for the Full Court and the following agreed facts:
the loading date for voyage 7 had passed, the vessel had commenced loading on 23 January 2013, and had completed discharge of the cargo on 12 February 2013;
Rio Tinto had performed voyage 7;
at the time of the hearing before Katzmann J on 20 February 2013, CSL was one of 13 general licence holders and there were 28 general licensed vessels.
322 The parties agreed that it was not necessary to decide questions that were already raised in the appeal from Robertson J as to the relevance of economic interests, profitability and costs of the shipper or receiver, or the freight rates put forward by the applicant for a temporary licence as compared to those offered by the general licence holder, the meaning of the word “competition” in s 3(1)(e) or the relevance of s 3(1)(d) in respect of transitional general licence holders.
323 The draft stated case raised questions as to:
(1) whether, in deciding to grant the temporary licence for voyage 7, the delegate was entitled to have regard to:
whether CSL should have offered to include a contractual provision to pay liquidated damages under s 34(2)(g) or 34(3)(d);
the content of negotiations on freight rates and or liquidated damages;
(2) what orders should be made.
Should the Full Court deal with the issues in the second proceedings?
324 Because of the potential overlap of issues arising from the construction of the Act and the facts, it is convenient to deal with the application for leave to appeal and appeal from Katzmann J’s decision at this point. Rio Tinto neither opposed nor consented to CSL being granted leave to appeal.
The Minister’s submission
325 The Minister argued that CSL had not established any error in the exercise by Katzmann J of her discretion. He contended that her Honour’s decision was correct for the reasons she gave. He argued that CSL’s right to seek merits review by the Tribunal of the second decision under s 107(5)(a) was a sufficient or suitable remedy rendering proceedings under the ADJR Act or s 39B of the Judiciary Act inappropriate. He contended that her Honour correctly identified the purpose underlying ss 32 to 34 of the Act was to give the holder of a general licence the opportunity to persuade the Minister that the application should be refused so that it could undertake the voyage instead. The Minister argued that there was no practical utility in the second proceedings.
Consideration as to the second proceedings
326 The issues raised in the second proceedings were closely connected to those that were already the subject of the appeal from Robertson J. Both proceedings raised important questions of law affecting the construction of the Act and the appropriate approach that the Minister should take in dealing with applications for temporary licences. Moreover, the delegate gave reasons for the second decision, whereas Robertson J had to infer what the delegate had considered in arriving at the first decision.
327 The Act implemented an important new regulatory regime for Australian coastal trading. If the Minister, by his delegate, had proceeded in a legally incorrect way in making the second decision, it is likely that that error would be repeated in subsequent decisions. More fundamentally, the Tribunal would be bound by what Robertson J had decided. The critical issues that CSL wished to have resolved in the second proceedings were whether and on what basis, contrary to Robertson J’s decision, the Minister was entitled to have regard to the commercial disputes concerning issues such as freight rates, contractual terms and liquidated damages clauses in negotiations between a general licence and an applicant for a temporary licence under ss 32 or 34.
328 A review before the Tribunal could not have resolved those questions of law. At best, such a review could only have arrived at the correct and preferable decision as to whether Rio Tinto should have been granted a temporary licence to conduct voyage 7. But, since voyage 7 had been performed, it is difficult to see what purpose would be served by a review of the delegate’s decision in the Tribunal. Moreover, such a review could not have resulted in a resolution of the broader disputes between CSL and both the Minister and Rio Tinto while the legal issues remained unresolved. Nor could a review in the Tribunal have assisted CSL, Rio Tinto, the Minister and importantly, the nation’s commercial and shipping industries in reaching a legally binding decision of a Court as to how the new legislation operated in a real controversy.
329 CSL’s complaint in the second proceedings, as a general licence holder, was that the Minister had granted a temporary licence for voyage 7 in a manner contrary to law. Even if the Minister had not granted that licence, Rio Tinto had no legal obligation to contract with CSL. The dispute was not about whether CSL should have carried the cargo. It was about whether the Minister, by his delegate, had exercised his power to grant a variation of the temporary licence according to law, in the context that Robertson J had left open the possibility that the Minister could have regard to CSL’s freight rates and preparedness to include a liquidated damages clause in any contract to carry alumina to Bell Bay.
330 The second decision, in fact, was made on the basis of those considerations and presented a real controversy that could conveniently be heard and determined in the associated appeal proceedings from Robertson J’s decision. The present position is likely to be different from what would be the situation were these not the first cases involving the construction of critical sections in the Act. In subsequent situations the question of whether it is more appropriate for a party aggrieved to pursue merits review before the Tribunal or judicial review of a decision to grant or vary a temporary licence can be evaluated on their own merits and against the existence of any precedent set by the outcome of these appellate proceedings.
331 With respect, Katzmann J erred in concluding that CSL had a suitable and sufficient remedy of merits review in the Tribunal under s 107 of the Act. In the above context that did not provide an appropriate remedy and its pursuit would be unlikely to serve any useful purpose. CSL claimed that it was aggrieved by the second decision because the Minister’s delegate made substantive errors of law in arriving at her decision in a way that, unless corrected by the Court, is likely to be repeated in future decisions. Those errors of law, if established, can be exposed in a declaration of right made by the Court for, as French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said in Plaintiff M61/2010E v The Commonwealth (2011) 243 CLR 319 at 359 [102]:
“The power to grant declaratory relief is a power which “[i]t is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise” [Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437; Ainsworth (1992) 175 CLR 564 at 581-582]. As pointed out in Ainsworth v Criminal Justice Commission [(1992) 175 CLR 564 ata 582. See also Pape (2009) 238 CLR 1 at 68 [152]], it is a form of relief that is confined by considerations which mark out the boundaries of judicial power.”
332 It cannot be said that a declaratory order made by the Full Court will produce no foreseeable consequences for the parties. Rather, such an order will decide a real legal controversy. There is nothing abstract or hypothetical in determining whether the Minister, by his delegate, varied Rio Tinto’s temporary licence in accordance with the Act. CSL has a real interest in raising the questions to which a declaration will go, namely the proper administration of the Minister’s power to grant and vary temporary licences. And, there is a considerable public interest in the observance of the application of a lawful method of consideration of applications for such grants in accordance with the new procedure created by the Parliament in the Act: Plaintiff M61 243 CLR at 359-360 [103]; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582 per Mason CJ, Dawson, Toohey and Gaudron JJ.
Conclusion as to the second proceedings
333 For these reasons, Katzmann J erred in finding that merits review in the Tribunal was suitable or sufficient and that no useful result would ensue from hearing and determining the second proceedings. CSL would suffer serious injustice if the order summarily dismissing the second proceedings were allowed to stand. The draft stated case raised the real issues that CSL wished to have resolved concurrently with its appeal to the Full Court from Robertson J’s decision. Accordingly, CSL should be granted leave to appeal, its appeal should be allowed with costs, the orders made by Katzmann J on 1 March 2013 should be set aside and in lieu thereof, it should be ordered that a case be stated for consideration by the Full Court in the original jurisdiction in the form of the draft stated case annexed to the orders made by Rares J on 25 March 2013 and that the costs of the proceedings before Katzmann J be the parties’ costs in the Full Court.
The parties’ submissions as to the substantive issues in the appeal from Robertson J
334 CSL contended that Robertson J erred in holding that, because s 34(2)(f) was permissive and not mandatory, the Minister was not obliged to have regard to the object of the Act in s 3(1) when making decisions on the grant or variation of a temporary licence. It argued that the operation of s 15AA of the Acts Interpretation Act 1901 (Cth) required an interpretation of statutory provisions that preferred achievement of the purpose or object of an Act. CSL also submitted that his Honour misconstrued s 3(1) in a number of respects, first, by considering that the omission of “Australian” before “viable shipping industry” in s 3(1)(a) was significant, secondly, by holding that s 3(1)(d) did not apply directly to CSL because at the time it was a transitional general licensee, thirdly, by construing “promotes competition in coastal trading” in s 3(1)(e) as referring to competition between general licensees and foreign-owned vessels, and fourthly, by failing to give adequate weight to s 3(2).
335 CSL argued that s 3(1), read with s 3(2), expressed a cognate object of establishing a regulatory framework that promoted a viable shipping industry. It contended that such an industry would be based on a viable fleet operated through the general register, so that general licensees could nominate to carry particular trade if their vessels were able to meet the requirements of the proposed voyage. CSL argued that Robertson J erred, as had the delegate in the second decision, in holding that s 34(2) and (4) enabled the Minister to have regard to commercial matters, such as freight rates or liquidated damages clauses, because, it contended those matters were not part of the negotiation process mandated in s 32(3). CSL also submitted that his Honour should have found that the first decision was manifestly unreasonable in the sense explained (after his Honour had made his decision) by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at 249-250 [72]-[73], [76]. That was because the first decision frustrated or undermined the object of the Act in light of the facts that CSL’s ships were equipped and able to carry the alumina cargoes, and so met the reasonable requirements of a shipper of the kind of cargoes specified in Rio Tinto’s application.
336 The Minister and Rio Tinto argued that Robertson J did not make any of the errors alleged by CSL and decided those matters correctly for the reasons he gave. The Minister and Rio Tinto argued that CSL’s reliance on s 3(1) as stating the object of the Act sought to achieve a construction of ss 32-34 that was not within the clear meaning of those provisions. The Minister contended that there was nothing in the Act that supported a construction requiring him to ignore economic or commercial considerations, including freight rates, the effect of freight rates on shippers, the need for contractual protections or the effect on a person in Pacific Aluminium’s position. In addition, Rio Tinto argued that the Minister was authorised to consider those matters by s 34(2)(g) if he thought them relevant. The Minister submitted that he was not bound to take the object of the Act into account, but could do so, if he wished, under s 34(2)(f). Indeed, he argued that the permissive nature of s 34(2)(f) demonstrated that CSL’s argument that he had to have regard to s 3(1) was contrary to the express terms of the Act. The Minister and Rio Tinto submitted that CSL’s irrationality ground amounted to an attempt at merits review, as Robertson J had found. Both respondents also argued that s 3(1) did not identify a single “target” but rather contemplated the existence of multiple and sometimes conflicting goals. They also contended that Robertson J was correct not to have considered a new argument briefly elaborated in CSL’s oral reply submissions to him, that s 3(1)(a) did not refer to promoting a regulatory framework that contributed to the broader Australian economy generally.
337 The Minister argued on his cross appeal that Robertson J erred in his findings that the delegate had denied CSL procedural fairness by failing to provide, first, AMSA’s Mr Kinley with CSL’s responsive email of 25 July 2012 and, secondly, CSL with details of Rio Tinto’s assertions about CSL’s previous freight rates for Bell Bay cargoes and CSL’s individual position in the coastal trade.
338 First, the Minister contended that the delegate spoke to Mr Kinley on 6 October 2012 because of the urgency created by the need for the delegate to make a decision about whether to grant Rio Tinto a variation of its temporary licence. That urgency, he submitted, arose because of Rio Tinto’s advice to the delegate on 3 October 2012 that the vessel it wished to perform voyage 3 was then sailing to Gladstone to load. He contended that the delegate had taken CSL’s response of 25 July 2012 into account when considering Rio Tinto’s assertions concerning CSL Melbourne in its email of 23 July 2012 and Mr Kinley’s comments on that email. The Minister also argued that because CSL was informed of Rio Tinto’s 23 July 2012 assertions and had responded to them in its email to the Minister of 25 July 2012, CSL had been accorded procedural fairness. And, he submitted that the urgent need to make a decision under s 34 attenuated any need to afford CSL procedural fairness by putting to Mr Kinley its 25 July 2012 response to Rio Tinto’s assertions. Moreover, the Minister argued that Robertson J should not have found any denial of procedural fairness in his consulting a third party, being AMSA, about CSL’s response because the Minister had no duty to inquire or initiate inquiries.
339 Secondly, the Minister argued that there was no denial of procedural fairness on the second basis found by Robertson J. He contended that this was because the delegate’s email of 6 October 2012 had informed CSL that a comparison of the freight rates currently and previously offered by CSL to Rio Tinto for the same voyage was a significant issue on which her decision may turn, and Rio Tinto’s new assertions in its email of 7 September 2012 did not alter the gravamen of the issue concerning the disparity in those freight rates. Thus, he submitted, those new assertions by Rio Tinto were not adverse information that was credible, relevant and significant to the decision to be made and, so, did not need to be disclosed to CSL.
Consideration – principles of statutory construction
340 The purpose or object of an Act, as an essential element of ascertaining its meaning, is emphasised in s 15AA of the Acts Interpretation Act 1901 which provides:
“15AA Interpretation best achieving Act’s purpose or object
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.”
341 The parties debated the relevance and use that could be made of extrinsic materials in arriving at the construction of the Act. It is well to bear in mind what French CJ, Hayne, Crennan, Bell and Gageler JJ said in Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257 at 268-269 [39], namely:
“‘This court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’ [Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.” (emphasis added)
342 The role of context is, and always has been, vital in construing statutes, as the Barons of the Exchequer said in Heydon’s Case (1584) 3 Co Rep 7a at 7b (76 ER 637 at 638):
“… for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law,) four things are to be discerned and considered:-
1st. What was the common law before the making of the act.
2nd. What was the mischief and defect for which the common law did not provide.
3rd. What remedy the parliament hath resolved and appointed to cure the disease of the commonwealth.
And, 4th. The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the act, pro bono publico.”
(footnotes omitted ) (emphasis added)
343 Now, s 15AB of the Acts Interpretation Act has expanded the scope of material that may be considered as contextual. However, the common law also authorised, as an application or extension of Heydon’s Case 3 Co Rep at 7b, that the Court can have regard to reports of law reform bodies to ascertain the mischief that a statute was intended to cure: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 per Brennan CJ, Dawson, Toohey and Gummow JJ who then explained at 408:
“… the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy [Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461, cited in K & S Lake city Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, 315]. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd [(1986) 6 NSWLR 363 at 388], if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent [Cooper brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320-321].” (emphasis added)
344 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: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69] per McHugh, Gummow, Kirby and Hayne JJ. Their Honours then emphasised the importance of context (and see too Wilson v State Rail Authority of New South Wales (2010) 78 NSWLR 704 at 707-710 [12]-[15] per Allsop P with whom Giles, Hodgson, Tobias and Macfarlan JJA agreed) saying (194 CLR at 381-382 [69]-[70]):
“In Commissioner for Railways (NSW) v Agalianos [(1955) 92 CLR 390 at 397], Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed [Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315 per Mason J; at 321 per Deane J].
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals [Ross v The Queen (1979) 141 CLR 432 at 440 per Gibbs J]. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions [See Australian Assliance Assurance Co Ltd v Attorney-General (Q) [1916] St R Qd 135 at 161 per Cooper CJ; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574 per Gummow J]. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other” [Institute of Patent Agents v Lockwood [1894] AC 347 at 360 per Lord Herschell LC]. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.” (emphasis added)
The construction of the Act
345 The Parliament identified in s 3(1) its object in enacting the Act so that the construction of its other provisions could be approached having regard to the achievement of that object, consistently with s 15AA of the Act Interpretation Act. The chapeau to s 3(1) is critical for it crystallises in a few words that the object of the Act is to create a regulatory framework for coastal trading in Australia with the particular elements that are then set out in pars (a)-(f).
346 Next, s 3(2) specifies how the Parliament structured the Act in order to achieve the regulatory framework, namely by the creation of a licensing system for vessels used to engage in coastal trading (as defined in s 7) that would ensure unrestricted access to Australian waters to vessels used under a general licence (s 3(2)(a)). In comparison, s 3(2)(b) emphasised that the object was also to be achieved by ensuring that vessels used under a temporary licence had their access to Australian waters restricted in time and to the specific voyages that were authorised by the licence, and those used under an emergency licence were only to have access required to deal with the particular emergency. Thus, the Act was intended to create a regulatory framework for coastal trading in which general licensees had unrestricted access and other vessels, which could be their competitors, would have their access limited in time and to particular voyages or emergency situations.
347 The word “ensuring” that introduced each aim in s 3(2) indicated the importance of the width of access to engage in coastal trading differentially given by each available licence. The elements of the desired regulatory framework are spelt out in s 3(1)(a)-(f). Elements (b), (c) and (d) in s 3(1) are focused on a regulatory framework to achieve the development of long term growth and utilisation of an Australian shipping industry. That aim can be discerned by the recognition of the need for the regulatory framework to facilitate that industry’s long term growth (element (b)), enhance its efficiency and reliability as part of a national transport system (element (c)) and maximise use of vessels with general licences (i.e. on the general register: element (d)).
348 However, elements (a), (e) and (f) in s 3(1) are not as clearly directed, if considered literally. Robertson J saw element (a) as applying to a broader shipping industry than one that was merely Australian, i.e. as including ships with temporary licences and to that industry contributing to the economy by its direct impact on the economic position of, among others, Australian consignors and consignees of cargo. Similarly, competition in coastal trading and efficient movement of cargo and passengers between Australian ports may not be seen as readily promoted or ensured by restricting cheaper alternatives to general licensees (as in elements (e) and (f)).
349 Nonetheless, the ordinary and natural meaning of element (a) in s 3(1), read in its context in s 3 and in the Act as a whole, is that the regulatory framework should promote a shipping industry in Australia that will itself contribute to the broader Australian economy. And, the Act aims to achieve this under s 3(2), particularly by encouraging ships to be under general licences so that they will have unrestricted access to Australian waters. That contribution to the nation’s economy was contemplated by the cognate legislation enacted as a package with the Act. Similarly, it is unlikely that a regulatory framework to promote competition in coastal trading, as contemplated by element (e) in s 3(1), would be achieved, principally, by issuing ships with temporary licences that restricted their access to Australian waters. Rather, the promotion of the competition referred to in element (e) is more likely to be advanced by a viable Australian shipping industry that utilises ships on the general register, but with the opportunity for temporary licensees’ vessels to compete for coastal trading opportunities. Similarly, the efficient movement of passengers and cargo between Australian ports (element (f)) is more likely to be ensured if there is a larger number of vessels under general licensees with unrestricted access plying the coastal trade than with a regulatory framework that has more vessels under temporary licensees that restrict their access to Australian waters in terms of time and numbers of authorised voyages.
350 The nature of the regulatory framework envisaged by s 3(1) is also informed by, and interacts with, the conditions that the Act creates for the issue of the three classes of licence through which vessels can have access to Australian waters to engage in coastal trading. A general licence can be issued for up to five years (s 16(1)). And, the importance of the place of general licences in the achievement of the object can be seen in s 63(1). That gives the Minister power to give a temporary licensee a notice to show cause in given circumstances why its licence should not be cancelled if he considers it “is being used in a way that circumvents the purpose of the general licence provisions or the object of the Act”. Importantly, s 21(a) and (b) provides that a general licence must contain conditions that the ship be on the general register and that each seafarer working as part of her crew has the right to undertake such work in Australia, either because of his or her Australian citizenship or capacity to do so under a visa issued by the Australian Government. And, s 13(2)(a) and (b) prescribe complementary preconditions for a valid application for a general licence.
351 In contrast, a temporary licence has a condition that the ship be on the international register, but has no conditions as to a ship’s crew (s 40). The three objects of the international register identified in s 15A of the Shipping Registration Act complement, in part, the single object in s 3(1) of the Act. There is an interrelationship in the two Acts between the object in s 15A(b) (providing an internationally competitive register to facilitate the long term growth of the Australian shipping industry) and element (b) in s 3(1) (providing a regulatory framework for coastal in Australia that (b) facilitates the long term growth of the Australian shipping industry).
352 What is striking about the process identified in the Act in ss 30-37 and the criteria in s 63(1), is the absence of any reference to prices or freight rates (for carriage of passengers or cargo) or the costs that the applicant, general licence holder or shipper will incur to perform the voyages. The prescribed subject of matter of the negotiations under s 32(3) and (4) concerns only the physical characteristics of the general licensee’s vessel’s equipment to carry the cargo and her degree of availability to do so. When s 32(4) refers to the negotiations under s 32(3) having regard to the requirements of the shipper of the cargo, it means what it says – namely, those requirements of the shipper that relate to the vessel’s equipment and availability. There is no requirement for the negotiations under s 32(3) that the applicant and general licensee discuss commercial issues such as freight rates or contractual terms. Rather, the regulatory regime is concerned with whether the general licensee’s unrestricted access to Australian waters to provide its cargo services should be affected by the issue of a temporary licensee permitting the applicant to be able to perform a voyage or voyages that the general licensee’s vessel is capable of undertaking. Hence, the power in s 63(1) to cancel a temporary licence is also actuated by its use in respect of voyages, loading dates, loading and discharge ports, previous variations and the provision relating to the grant of a general licence. Again, s 63(1) does not deal with freight rates or commercial terms as a possible mechanism for misuse of a temporary licence.
353 Third parties who either become aware of the application through the Department’s website or by the Minister’s direct notification under s 30(b)(ii), also have two business days to make “written comments on the application” if they are directly affected by it (s 33). The Minister is given power in s 34 to decide the application and must do so (subject to any extensions under ss 34(5) or 77) within 15 business days after the application was made (s 34(4)): i.e. ordinarily within nine business days of being notified of the outcome of the negotiations under s 32(2)(b).
354 Critically, s 34(3) prescribes four mandatory considerations to which the Minister must have regard in making his decision on whether to grant a temporary licence, namely, first, the outcome of the negotiations as notified by the applicant under s 32(2)(b), and his objective assessment of each of the three matters that were substantially the subject of those negotiations. That is, s 34(3) requires the Minister to consider the applicant’s report to him of whether it agreed with the general licensee as to the extent to which its vessel was equipped to carry the cargo and it could do so in a timely manner, having regard to the actual shipper’s requirements, if any, and then to consider for himself, whether the vessel is, in fact, so equipped, whether, in fact, it can carry the cargo or can do so within five days of the expected loading dates having regard to the reasonable requirements (as to the two subject matters in s 32(3)) of a shipper of the kind of cargo specified in the application.
355 The task under s 34(3) involves the Minister considering objectively whether the general licensee’s vessel could perform the voyage, and do so within the particular timeframe of five days before and after the expected loading dates, having regard to the reasonable requirements of a shipper of the kind of cargo in question. Such reasonable requirements could involve issues such as the ship’s cargoworthiness, the characteristics of the proposed cargo, (e.g. whether it consists of perishable goods), the capacity of a vessel to handle specialised cargo, or whether there are possible residues or contaminants from prior cargoes that may adversely affect the kind of cargo to be carried. However, the reasonable requirements referred to in s 34(3)(d) that the Minister must consider are those specified in ss 32(3) and 34(3)(b) and (c), and do not extend to commercial issues such as freight rates or contractual terms or the economic position of a shipper, such as Pacific Aluminium. The mandatory considerations in s 34(3) concern, and only concern, the subject matter of the specific negotiation topics prescribed in s 32(3) and (4).
356 However, the Minister is also entitled, pursuant to s 34(2), to have regard to other matters, whether or not he receives a notice in response to an application from a general licence holder. Those include matters going to past conduct of the applicant (s 34(2)(a), (b), (c)), whether any proposed vessel is on the international register, any ownership relationship between the applicant with both the vessel and cargo to be carried on her (s 34(2)(ba)), any written comments provided to the Minister under s 33 (s 34(2)(d)), any reports as to the applicant’s performance under previous temporary licences that the applicant had provided under s 62 (which requires such reports to be given to the Department no later than 10 business days after the end of each voyage authorised by a temporary licence) (s 34(2)(e)), and critically, the object of the Act and “any other matters the Minister thinks relevant” (s 34(2)(f) and (g)).
357 There is a fundamental difference between the operation of ss 34(2) and (3). That is because the former is permissive while the latter is mandatory in relation to matters to which the Minister must or may have regard. This difference will be examined below in these reasons.
358 The provisions of s 63(1) are instructive on how the Minister will have regard to matters under s 34(2)(f) and (g). That is because an application for the grant or variation of a temporary licence cannot be used, anymore than such a licence if issued could be used, to circumvent, as s 63(1) provides, “the purpose of the general licence provisions or the object of this Act”. The transparency of the process for the grant, variation and utilisation of a temporary licence involves publication of details of the voyages, loading and discharge dates and ports and cargo carried. None of the mandatory steps in the process is concerned with commercial terms or freight rates. Moreover, ss 34(3) and 63(1) direct attention to the importance, in the regulatory framework, of the general licence provisions and the capacity of a general licensee’s vessel to perform, in a timely manner, the carriage of the cargo sought by the applicant for a temporary licence.
359 If the Minister decides to grant a temporary licence, s 35(2) identifies the details of the licence that must be published on the Department’s website, s 40 specifies the conditions to which it is subject and s 37(2) identifies the matters that the licence itself must specify, none of which relate to commercial terms or freight rates. If the Minister decides to refuse the application for the temporary licence he must give written notification of that decision to the applicant with his reasons, and must publish his decision (but not reasons) on the Department’s website (s 39(2)).
360 The process for a variation of a temporary licence prescribed by Subdiv D of Div 2 of Pt 4 of the Act is similar to that in Subdiv A, and specifically follows ss 30-34, except that, as s 53 provides, the Minister can also have regard to any prior applications for a variation of a temporary licence made by the applicant. Thus, s 51(2) requires the applicant to specify similar details of the proposed voyages as are required by s 28(2), and s 57(2) requires any varied licence to specify the matters set out in s 37(2), none of which concern commercial terms or freight rates.
361 Where a statute requires a decision-maker to have regard to one or more particular matters, he or she must take each such matter into account and give it weight “as a fundamental element in making his determination”: R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J; R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333 per Gibbs CJ, 338 per Mason J; Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 at 181 [103], [105] per Rares J, applied in Telstra Corporation Ltd v Australian Competition Tribunal (2009) 175 FCR 201 at 242 [267] per Jacobson, Lander and Foster JJ.
362 Here, s 34(3) requires the Minister to consider the matters it specifies as the central elements in his deliberative process. He may also have regard, and give weight, to matters referred to in s 34(2), mindful that the weight given to those matters could not justify the grant of a temporary licence that would be used, as s 63(1) indicates, in a way that circumvents the purpose of the general licence provisions or object of the Act. Thus, the purpose of power to grant a temporary licence is not available to be used a means for an applicant to circumvent the purpose of the general licence provisions or the object of the Act.
363 The purpose of the general licence provisions is to enable a general licensee to seek to carry any cargo available in the coastal trade and to give it unrestricted access to Australian waters to do so. The general licensee will have employed a crew on its vessel and become subject to the obligations of an employer under the Fair Work Act and the Seafarers’ Rehabilitation and Compensation Act, none of which will apply to any ship the subject of the temporary licence. The mandatory criteria, the subject of negotiations required under ss 32(2)-(4) and fundamental to the Minister’s deliberative process under s 34(3), deal with the capacity of the vessel in terms of equipment, time and suitability of any general licensee(s) who has (or have) given a notice in response to an application for a temporary licence to carry the identified cargo having regard to the reasonable requirement of a shipper of that kind of cargo in respect of those subjects. Ordinarily, if the general licensee’s vessel is equipped, available and suitable to carry the cargo as required, the Minister would give those matters weight as a fundamental element in his consideration of whether to grant a temporary licence that would have the consequence of supplanting the general licensee from using its ship to do so.
364 The legislation passed cognately with the Act contemplated that there would be two markets for Australian shipping – the coastal trade and the international market (see s 3(1)(c), (d), (e) and (f) of the Act and s 15A(6) of the Shipping Registration Act). Moreover, element (d) in s 3(1) of the Act makes maximisation of the use in coastal trading of vessels in the general register an integral part of the regulatory framework: i.e. the use of a general licensee’s vessels where it is available and satisfies the criteria in s 34(3). That construction is reinforced by s 63(1). If the Minister considers that, under s 34(3), a general licensee’s vessel is ready and able to perform the carriage of cargo that is the subject of a temporary licence application, the central elements in the statutory deliberative process will have been determined adversely to the applicant.
365 Nonetheless, the Minister can still exercise a discretion to grant the application having regard to considerations in s 34(2), but not in such a way that the purpose of the unrestricted access of the general licensee to perform the carriage or the object of the Act is circumvented (s 63(1)). Thus, s 34(2)(ba) allows the Minister to give weight to the consideration that the applicant owns both the vessel, which is also in the international register, and cargo and the cargo will be carried on that vessel. Ordinarily, the use of an applicant’s own ship to carry cargo it also owns would not be likely to circumvent the purpose of the general licence provisions or the object of the Act. That is because such an applicant would be proposing to use its own ship in the course of its own business, as opposed to bringing into Australian waters or the coastal trade a ship not on the general, or perhaps the international, register for a purpose that, prima facie, would infringe the entitlement of the general licensee to use its ship to perform the carriage.
366 Similarly, s 34(2)(d) enables the Minister to have regard to any comments he receives under s 33 from persons, other than a general licensee including the shipper, including, unions or business associations who, or whose members, are directly affected by the determination of the application. In addition, the Minister may also have regard to the object of the Act and any other matters he thinks relevant under s 34(2)(f) and (g). The potential scope of matters available for the Minister’s consideration, particularly under s 34(2)(d) and (g), is broad. However, the discretion to decide whether to grant a licence and the subject matter to which the Minister may have regard are not completely at large as s 63(1) demonstrates. The factors in s 34(2) permit the Minister to have regard, for example, to the economic consequences for a shipper or consignee of the alternatives presented by use of the general licensee’s or applicant’s vessel for the carriage of the cargo.
367 The decision whether to grant a temporary licence is, after all, that of the Minister, or his delegate. It may have political consequences, hence the flexibility offered to the Minister by the authority in s 34(2)(d) and (g) to have regard to comments of persons directly affected or other matters he thinks relevant.
368 Nonetheless, the Minister must exercise the discretions to grant or refuse an application or variation in ss 34(1) or 53 reasonably, having regard to the matters in s 34(3) and such, if any, of the matters in s 34(2) as he considers appropriate in the circumstances, including the object of the Act. This involves a weighing process. There is a well recognised division between the role of an administrative decision-maker to assess the merits of a proposed exercise of a statutory power or discretion by weighing criteria properly open to him or her and the function of the Court in judicially reviewing the lawfulness of that exercise. The Court does not have the function of considering whether it agrees with the merits of the decision-maker’s choice. Rather, the function of the Court in such a judicial review is to consider whether the decision-maker acted lawfully in accordance with the process and statutory criteria that conferred the power on him or her to do so. But, sometimes, the weighing process undertaken by the decision-maker can itself miscarry.
369 Recently (and after Robertson J gave his reasons) the High Court explained the applicable principles in Li 297 ALR 225. There, Hayne, Kiefel and Bell JJ said (297 ALR at 247 [67]; and see too at 236 [23]-[24] per French CJ, 257-258 [109]-[112] per Gageler J):
“In Klein v Domus Pty Ltd [(1963) 109 CLR 467 at 473], Dixon CJ said that where discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky [194 CLR 355], requires nothing less. The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused [H W R Wade and C Forsyth, Administrative Law, 10th ed, Oxford University Press, Oxford, 2009, p 296].” (emphasis added)
Their Honours said that a decision-maker must understand his or her statutory powers and obligations (297 ALR at 248 [71]) and continued (297 ALR at 249-250 [72], [75]-[76]):
“[72] … Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [(1986) 162 CLR 24 at 41], Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is “manifestly unreasonable”. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.
...
[75] In Peko-Wallsend, [162 CLR at 41-2; referring, inter alia, to Wednesbury Corporation [1948] 1 KB at 230; and Parramatta City Council v Pestell (1972) 128 CLR 305 at 328; [1972-73] ALR 811 at 825-6] Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that “guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion”. House v R [(1936) 55 CLR 499 at 504-5] holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent.
[76] As to the inferences that may be drawn by an appellate court, it was said in House v R [55 CLR at 505] that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.” (emphasis added)
Consideration – the first decision
370 Robertson J considered that element (d) in s 3(1) did not apply to the making of the first decision because neither CSL Melbourne nor CSL Brisbane was registered in the general register. That was because CSL held only a transitional general licence for each ship and, as such, there was no provision in any of the legislation that enabled either ship to be registered in the general register. The Transitional Act altered the process for applying for general licences under Div 1 of Pt 4 of the Act, but Sch 2 item 16 deemed that the Act and any other law of the Commonwealth “apply in relation to a transitional general licence as if it were a general licence”. One purpose of the Transitional Act was to provide a transitional general licence for a person who intended to obtain a general licence for a ship but could not do so immediately (Sch 2 item 12(2)).
371 The literal reading of element (d) in s 3(1) of the Act, adopted by Robertson J, creates a substantive distinction between the general licence provisions of the Act depending on whether a ship is registered on the general register or is intended to be so registered. However, that distinction was not intended because the Transitional Act deemed the Act to apply to a transitional general licence issued for a ship “as if it were a general licence”. The reference to maximising the use in coastal trading of vessels registered in the general register in element (d) of s 3(1), although expressed to apply to the Act when fully operational, was clearly intended when read in the context of the Act and the Transitional Act as a whole, including s 63(1), to refer to vessels with general licences but to include, during the implementation phase for the Act, those with transitional general licences. The purpose of the general licence provisions of the Act would not be served by the literal construction of element (d) of s 3(1) adopted by his Honour: Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 at 338 [34]-[35] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ.
372 The delegate was wrong to have had regard to the fact that CSL Melbourne and CSL Brisbane were not registered in the general register in arriving at the first decision. She should have had regard to the transitional general licences as if they were general licences and treated the two ships as if they were registered in the general register for the purposes of the first decision.
373 His Honour also considered that the omission of “Australian” before “viable shipping industry” in element (a) of s 3(1) had significance. The Act contemplates that ships on the general and international registers will be engaged in coastal trading in Australia. The regulatory framework for which the Act provides deals particularly with the licensing of ships in both those registers. The use of ships under emergency licences is an exceptional situation to which element (a) of s 3(1) was not directed. His Honour was correct to reject CSL’s argument that sought to read down the identity of the expression “viable shipping industry” to being simply one of Australian nationality. Element (a) is concerned with promoting a shipping industry on a sound commercial footing that can contribute to the broader Australian economy. The Act leaves at large the nature of that contribution, no doubt for good reason. It envisages the existence of an industry that enables Australia to transport goods and passengers by sea in coastal trading, internationally and in intra-State trade. The regulatory framework for coastal trading is intended as a means to promote such a viable industry. His Honour was correct to give element (a) a broad construction.
374 The several elements in s 3(1) constitute aspects of the Parliament’s intention for the purposes to be achieved by the new regulatory system in the Act. They deal with various issues of policy that will not always tend in the same direction but rather will require the Minister or other decision-maker to balance sometimes competing aspects in reaching a decision. For example, the maximisation of use of vessels under general licences (element (d)) is likely to lead to the general licensee seeking higher freight rates to recoup the higher overheads caused by the application of Australian employment laws, crew wage rates and the cost of supplies in Australia as compared to foreign flagged ships or those in the international register. On the other hand, the promotion of competition in coastal trading (element (e)) may be achieved by allowing more temporary licences with cheaper freight rates to compete with general licensees’ vessels for work. That element is not limited in the way CSL contended to competition between general licensees. There is no reason to read element (e) in any sense other than its natural and ordinary meaning: DB Management 199 CLR at 338 [34]-[35].
375 Against those factors, the promotion of a viable shipping industry that contributes to the broader Australian economy and the facilitation of the long term growth of the Australian shipping industry (elements (a) and (b)) may require the Minister to strike a balance or different balances over time. For example, the Minister may favour a period of dominance for general licences over temporary ones so as to enable the general licensees to establish themselves and their enterprise, before a later opening up that market to more temporary licences in ordecenses to establish themselves and their enterprise, before a later opening up of that market to more tempr to encourage price competition. The reconciliation of tensions between each of the six elements is a matter of political responsibility for the Minister in administering the Act.
376 Accordingly, CSL’s argument that, in effect, the object in s 3(1) necessarily favoured general licensees fails to accommodate the potential interaction of the broad range of elements it comprises. The Act provides for a regulatory framework that requires the Minister to give weight, as a fundamental element in making his determination, to the position of a general licensee whose ship meets the mandatory criteria in s 34(3): Sean Investments 180 CLR at 329. However, the Act, as recognised in the object in s 3(1), the means to achieve that object set out in s 3(2) and the discretionary considerations listed in s 34(2), provided that the Minister can also have regard to, and be swayed by, other considerations that he considers merit the grant of a temporary licence in all of the circumstances.
377 However, his Honour erred to the extent that he considered that the prescribed negotiation process and the notification of its outcome under s 34(3)(a) included other requirements of the or a shipper that were outside the topics specified in ss 32(3) or 34(3)(b) and (c). He correctly rejected CSL’s unqualified submission that the object of the Act was to allow the general licensee to nominate to carry particular cargo if its ship met the requirements for the proposed voyage. As his Honour observed, that construction would ignore s 34(2) of the Act. However, he also considered that CSL’s construction ignored the role of s 32(4) and the notification of the outcome under s 34(3)(a). With respect, the purpose served by s 32(4) is not to extend the subject matters in s 32(3) beyond the equipment and availability of the general licensee’s vessel’s suitability to carry the shipper’s cargo. That is why s 34(3)(d) creates an objective criterion for what a reasonable shipper of the kind of cargo specified in the application could require.
378 Sometimes the fact that a ship has just had one cargo in its hold may make the hold unsuitable for another kind of cargo that, ordinarily, she reasonably could load. There is no reference to contractual terms or freight rates in any of the statutory criteria relevant to an application, consideration and grant of a temporary licence. A shipper inevitably will want a cheaper freight rate if it can find one. This cannot be a “requirement” of the kind referred to in s 32(3) and (4) which the Minister must have regard to when informed of the outcome of the negotiations under s 34(3)(a). Robertson J was correct to find, however, that ss 33, 34(2)(d) and (g) did allow the Minister to receive information about and consider matters of concern to a shipper such as commercial terms and freight rates and to take into account the impact of his decision on a person in Pacific Aluminium’s position. But, when the Minister considers those matters they are not mandatory, and, ordinarily, would not have or be given the weight of considerations that form a fundamental element in the making of his decision.
379 The evidence before Robertson J showed that the statutory process was diverted for an extraordinarily long time in exploring the issues of commercial terms (concerning the liquidated damages clause) and freight rates, when those were matters that had no express place in that process. The Act does not contemplate that, ordinarily, the Minister can or should determine whether to grant a temporary licence depending on what two commercial parties might wish to achieve in a negotiation about contractual matters. However, the Minister could have regard under s 34(2)(d), for example, to a complaint that a general licensee was seeking to exploit its position by demanding excessive freight rates or taking unreasonable stances on contractual terms. But, the evaluation of the consequences of issues raised under s 34(2)(d) or (g) is a matter for the Minister to assess on the merits. In doing so, he will only be constrained by the considerations of reasonableness in his weighing and evaluative process as explained in Li 297 ALR at 247 [67], 249-250 [72], [75]-[76].
The disposition of the appeal
380 It is now possible to summarise the appropriate conclusions on the grounds of appeal. First, his Honour erred in concluding that the Minister was not obliged to have regard to the object of the Act in s 3 (Ground 1). Secondly, he was correct to hold that the expressions “shipping industry” and “competition” in elements (a) and (e) of s 3(1) should be understood in their natural and ordinary meanings (Ground 3(a) and (c)). However, he erred in holding that element (d) in s 3(1) did not apply to a vessel the subject of a transitional general licence (Ground 3(b)). Thirdly, CSL was only partly successful in its criticism of his Honour’s construction of how the power in s 34(1) is affected by the mandatory considerations in s 34(3). Contrary to his Honour’s view, the Minister is not required to have regard to the outcome of any negotiations on matters other than the two specified in s 32(3) as affected by the requirements of the shipper in respect of those two matters. However, the Minister may have regard, under s 34(2)(d), and (g), to other matters including freight rates, the economic interests, profitability and costs of the shipper or receiver, the effect of his decision on Pacific Aluminium’s aluminium operation at Bell Bay and freight rates (Grounds 2, 4, 5 and 6).
381 His Honour remitted to the Minister the application for a variation of the temporary licence in respect of voyages 6 and 7. The delegate made the second decision in respect of voyage 7 in light of his Honour’s reasons. In those circumstances, it is not necessary to formulate additional declarations in respect of the first decision when the declarations made by his Honour dealt adequately and correctly with the relevant errors that he found the delegate had made. Rather, it is appropriate to consider the errors in the second decision, for which the delegate gave her reasons in order to determine what declarations are appropriate.
The Minister’s cross-appealrms (concd, ordinarily,
382 The Minister’s cross-appeal must be dismissed. Robertson J was correct to find that the Minister denied CSL procedural fairness in failing to provide AMSA with CSL’s email of 25 July 2012. As he found, the delegate relied on AMSA’s Mr Kinley’s expert advice given to her on 6 October 2012 on only part of the information before her, without taking into account CSL’s material dealing with the previous safe berthing of CSL Melbourne at Bell Bay. His Honour found that the delegate had considered that material. However, when she communicated AMSA’s advice to CSL she failed to tell it that AMSA had not known of, or expressed a contrary view about, the substance of CSL’s email of 25 July 2012. Accordingly, CSL was unaware of that omission. The procedural unfairness of asking for an expert’s opinion on only some of the relevant material relating to an important issue, omitting to brief the expert with the material put by the party adversely affected, and then asking it, in ignorance of that omission, to comment on the expert’s opinion or view is self-evident. How was CSL to know how to respond when not properly apprised of what material the decision-maker or expert had considered?: cf Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 95-97 [16]-[18] and see too at 97 [19] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
383 Here, Robertson J found that the delegate told CSL in her email of 6 October 2012 that she had regard to CSL’s freight rates being “significantly higher than those offered by a vessel under a temporary licence”. But, he found that this unspecific assertion did not communicate to CSL the substance of Rio Tinto’s disagreement, in its email of 7 September 2012, with CSL’s statements as to the nature of the 2010 and 2011 voyages, the consequent effects on rates and the basis of that disagreement. Hence, his Honour found, correctly, that the delegate had denied CSL procedural fairness.
384 The Minister’s cross-appeal on that finding of a denial of procedural fairness must also be dismissed. His Honour’s finding that it was possible for CSL to respond to, had it been told of, the substance of Rio Tinto’s assertions in its email of 7 September 2012 was correct for the reasons he gave. As he found, there had been a live issue as to whether the rates were lower in 2010 and 2011 as a result of the trial involved in the earlier voyages. That occurred in the context of the issue generated in the emails up to Rio Tinto’s email of 7 September 2012. This concerned the cogency of the comparison between the trial rates and those CSL sought in 2012 and whether, in fact, those rates were comparable at all. The delegate did not indicate to CSL in her email of 6 October 2012 that she had put its material to Rio Tinto or that she had received the latter’s 7 September 2012 detailed response.
385 Accordingly, CSL was not in a position to offer a meaningful response to Rio Tinto’s most recent submission that the delegate had taken into account, because CSL had not been told of the substance of that submission or given an opportunity to respond to it. Contrary to the Minister’s argument, there was no sufficient urgency to excuse the delegate from providing CSL with procedural fairness on this issue. It is not necessary to deal with CSL’s notice of cross-contention.
The Minister’s and Rio Tinto’s submissions on the stated case
386 The Minister argued that the delegate was entitled under s 34(2)(g) to have regard to Pacific Aluminium’s requirement for CSL to provide an unconditional liquidated damages clause and that such clauses can be seen to address elements (a), (c) and (e) in s 3(1) of the Act. He contended that it was open to the delegate to consider, as a question of fact, that such a clause would operate as an incentive for CSL to perform any contract for carriage of the shipper’s cargo in the circumstances. In contrast, Rio Tinto argued that the delegate did not consider this question under s 34(2)(g) but rather did so under s 34(3)(d): i.e. as a mandatory consideration. It contended that the scope of permissible considerations was very broad. The Minister and Rio Tinto argued that the delegate was entitled to consider that a liquidated damages clause could be a reasonable requirement of a shipper of the cargo in question for the purposes of s 34(3)(d). In addition, the Minister argued that s 34(2)(f) and (g) enabled the Minister to have regard to whether CSL would offer the shipper such a clause. The Minister contended that if the delegate mistook her source of power as s 34(3)(a) rather than s 34(2)(g), that did not invalidate the second decision since the power to grant a variation existed in either case.
387 Next, both respondents submitted that the delegate was entitled to have regard to the outcome of the negotiations in respect of freight rates under s 34(3)(a) or as a matter that she thought relevant under s 34(2)(g).
Consideration – the stated case
388 The second decision was invalid because the delegate had regard to both the liquidated damages and freight rates issues as mandatory considerations under s 34(3)(d). For the reasons given above, neither of those matters was capable of being a requirement of a reasonable shipper and neither had any place in the statutory negotiation process under s 32(3) and (4).
389 The delegate’s mistake in identifying the source of her power to have regard to those two matters meant that she addressed their consideration on the erroneous premise that she was required to give each of them weight as a fundamental element in making the second decision: Sean Investments 180 CLR at 329. That was not what the Act required or authorised. The delegate could have considered those matters under s 34(2)(d) or (g) as explained above, but she did not have to do so. Her reasons made clear that she regarded herself as bound to consider each of those matters and did so. It is not possible for the Court to disentangle or leave undisturbed that erroneous thought process. The point is that if the delegate had not had the incorrect understanding that s 34(3)(d) required her to consider each or one of those matters, she may or may not have chosen to have regard to them or it under s 34(2)(d) or (g).
390 The second decision involved the delegate making an error of law by identifying a wrong issue, namely what s 34(3)(d) required her to have regard to in making her decision: Craig v South Australia (1995) 184 CLR 163 at 176; Kirk v Industrial Court (New South Wales) (2010) 239 CLR 531 at 572 [67] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
391 For these reasons, declarations should be made reflecting that the second decision was invalid because of the delegate’s jurisdictional errors arising from her erroneous construction and application of s 34(3)(d).
Conclusion
392 CSL has been partially successful in the appeal from Robertson J on its substantive arguments and in resisting the Minister’s cross-appeal. The cross-appeal should be dismissed with costs. Although it was not appropriate to make additional declarations in the appeal from Robertson J, the issues of the proper construction of the Act and cognate legislation were necessarily relevant to both matters before the Full Court. Since preparing these reasons, I have had the privilege of reading the Chief Justice’s reasons. Save for an order reflecting my conclusion that the cross appeals should be dismissed, I agree with the other orders that he has proposed.
| I certify that the preceding one hundred and fifty-two (152) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. |
Associate:
Dated: 26 February 2014
