Federal Court of Australia

Australia Bay Seafoods Pty Ltd v Northern Territory of Australia [2022] FCAFC 180

ORDERS

THE COURT ORDERS THAT:

1.    If and to the extent required, the appellant is granted leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

2.    The appellant is granted leave to reopen its case on the appeal to adduce further evidence, the subject of order 4.

3.    Pursuant to r 1.34 of the Federal Court Rules 2011 (Cth) (FCR), the requirement in r 36.57(2) of the FCR for the appellant to make the application dated 14 February 2022 to adduce further evidence, the subject of order 4, at least 21 days before the hearing of the appeal is dispensed with.

4.    Pursuant to s 27 of the FCA Act and r 36.57 of the FCR:

(a)    the appellant is granted leave to rely upon the evidence in the affidavit of Simon Crispin Cureton sworn 14 February 2022 in this appeal;

(b)    the first and second respondents are granted leave to rely upon the affidavit of Melissa Jane Forbes affirmed 16 March 2022 in this appeal; and

(c)    the third respondent is granted leave to rely upon the affidavits of Emily Jane Nance affirmed 15 March 2022 and Daniel Dal Piva sworn 15 March 2022 in this appeal.

5.    The appeal be dismissed.

6.    The appellant pay the respondents’ costs of the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

A.    Introduction

1    This appeal concerns contemplated changes to the regulation of two adjacent fisheries in Commonwealth waters located 15 nautical miles from the low water mark on the coast of the Northern Territory. The fisheries are currently known as the Demersal Fishery and the Timor Reef Fishery respectively. The Demersal Fishery, which covers an area of about 100,000 nautical square miles is much larger than the Timor Reef Fishery, which covers an area of 8,400 nautical square miles. The Demersal Fishery and the Timor Reef Fishery are both managed by the Northern Territory of Australia (the Territory) and the Commonwealth through the Northern Territory Fisheries Joint Authority (NTFJA). The NTFJA is a statutory body presently constituted by the second respondent, the Territory Minister for Primary Industry and Resources (Territory Minister), and the third respondent, the Commonwealth Assistant Minister for Forestry and Fisheries (Commonwealth Minister).

2    In 2014, the Department of Primary Industries and Resources in the Territory (the Department) started developing a proposed new management framework under which a new fishery covering the whole area of the Demersal Fishery and the Timor Reef Fishery would be established, to be known as the Northern Offshore Fishery (the Proposed Framework). Under the Proposed Framework, the Northern Offshore Fishery would be managed through a joint authority management plan and the licences and fishery units held in the Demersal Fishery and the Timor Reef Fishery respectively would be converted into licences and fishery units held in the Northern Offshore Fishery.

3    The appellant, Australia Bay Seafoods Pty Ltd (ABS), holds three commercial fishing licences and approximately 67% of the fishery units in the Demersal Fishery. The fishery units are valuable. In 2021 (at the time of the primary judgment), ABS indicated that the units had a value of approximately $33 million. ABS is opposed to the Proposed Framework. On 7 April 2020, ABS instituted a proceeding against the Territory, the Territory Minister and the Commonwealth Minister seeking (in broad terms):

(a)    declarations that the Proposed Framework is legally invalid (on various bases); and

(b)    permanent injunctions restraining the Territory and the Territory Minister (the Territory Respondents) from taking any step to seek the decision of the Commonwealth Minister, in effect, to implement the Proposed Framework.

4    The originating application was supported by a concise statement.

5    Since the commencement of the proceeding, the parties have been embroiled in a preliminary dispute as to whether the proceeding should be dismissed at its inception or should proceed to trial. The preliminary dispute has spawned numerous interlocutory applications before the primary judge and on appeal.

Interlocutory application to dismiss the proceeding

6    Shortly after the commencement of the proceeding, on 28 April 2020, the Territory Respondents filed an interlocutory application seeking an order under r 13.01(1)(a) of the Federal Court Rules 2011 (Cth) (the FCR) setting aside ABS’ originating application on the basis that it did not raise any “matter” within the meaning of s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act). In the alternative, the Territory Respondents sought the dismissal of the proceedings under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) on the basis that ABS had no reasonable prospect of successfully prosecuting the proceeding. The central contention advanced by the Territory Respondents was that ABS’ application to the Court was premature because the Proposed Framework had no legal effect and was not prepared or endorsed in exercise of any statutory power. Rather, the Proposed Framework was merely a policy proposal to amend the management framework for the Fisheries. The Commonwealth Minister supported the interlocutory application.

7    At the hearing of the interlocutory application on 23 June 2020, ABS was granted leave to file and serve an amended originating application seeking the following revised relief (in broad terms):

(a)    declarations that the proposed management plan as set out in the Proposed Framework is legally invalid (on various bases) and cannot be lawfully implemented;

(b)    permanent injunctions restraining (i) the Territory Minister and (ii) the Territory Minister and the Commonwealth Minister (who together constitute the NTFJA) from endorsing or approving any proposed management plan that is substantially the same as the proposed management plan as set out in the Proposed Framework; and

(c)    relief in the nature of certiorari quashing the decisions of the Territory Minister made on 6 March 2020 endorsing or approving (i) the Proposed Framework and the proposed management plan set out therein, (ii) the merger of the Timor Reef Fishery and the Demersal Fishery to create the Northern Offshore Fishery, and (iii) the drafting of a management plan for the Northern Offshore Fishery in accordance with the Proposed Framework and the proposed management plan as set out therein.

8    In a judgment delivered on 23 April 2021, the primary judge upheld the Territory Respondents’ interlocutory application and dismissed the proceeding on the basis that it did not raise any “matter” within the meaning of s 39B of the Judiciary Act: Australia Bay Seafoods Pty Ltd v Northern Territory of Australia [2021] FCA 414 (Primary Judgment or PJ). His Honour considered that the application brought by ABS was premature in seeking orders with respect to the regulation of the Fisheries before it was known whether the contemplated regulation would be made, and before its content was known. His Honour considered that the application raised matters which were hypothetical and did not involve any immediate effect on the rights, duties and liabilities of ABS. ABS appeals against that decision.

Notice of appeal

9    By its notice of appeal, ABS advances nine grounds of appeal. Grounds 1 to 5 are headed “matter” and ostensibly concern the primary judge’s conclusion that ABS’ claims in the proceeding did not give rise to a “matter” within the meaning of s 39B(1A)(c) of the Judiciary Act. Grounds 6 to 8 concern the primary judge’s conclusion that a writ in the nature of certiorari would not issue in relation to the Territory Minister’s decisions of 6 March 2020. As discussed later in these reasons, the question whether a writ in the nature of certiorari would issue in respect of the impugned decision of the Territory Minister is intrinsically part of the question whether ABS’ claims in the proceeding gave rise to a “matter”. Ground 9 concerns the primary judge’s conclusion, for the purposes of s 31A of the FCA Act, that the proceeding has no reasonable prospect of success. Grounds 4(a), (c) and (d) were not pressed on the hearing of the appeal.

Objection to competency

10    By notices dated 3 and 4 June 2021, the Territory Respondents and the Commonwealth Minister respectively objected to the competency of the appeal on the basis that the decision of the primary judge was interlocutory and ABS requires the leave of the Court to bring the appeal. On 8 June 2021, ABS filed an application for an extension of time to seek leave to appeal. The issue concerning competency and the associated application for leave to appeal were heard concurrently with the substantive appeal.

Notice of contention

11    In their written submissions filed before the hearing of the appeal, the Territory Respondents advanced a contention to the effect that the primary judge was correct to conclude that there was no “matter” before the Federal Court within the meaning of s 39B(1A) of the Judiciary Act because ABS’ claims were non-justiciable. The written submission was not supported by a notice of contention. During the hearing of the appeal on 8 November 2021, ABS informed the Court that it did not object to the Territory Respondents raising the contention and filing a notice of contention in support. On 12 November 2021, the Court made consent orders granting leave to the Territory Respondents to file the notice of contention (which was dated 11 November 2021) and for ABS to file and serve any supplementary submissions in respect of the contention. On 15 November 2021, ABS filed submissions pursuant to the Court’s order.

Application to reopen the appeal and adduce further evidence

12    On 19 November 2021, after the hearing of the appeal, the Territory Respondents wrote to the Court (with the consent of ABS) stating that they wished to clarify an aspect of their submissions. The letter informed the Court that the parties were in discussions about how the issue would be addressed. On 24 December 2021, the Territory Respondents again wrote to the Court (with the consent of ABS) stating that ABS intended to bring an application for leave to adduce evidence on the appeal, which application would likely be by consent, and within that process the Territory Respondents would seek to clarify the aspect of their submissions previously foreshadowed.

13    On 14 February 2022, ABS filed an interlocutory application seeking leave to reopen its case on the appeal and to adduce further evidence. In support of the application, ABS filed an affidavit of its solicitor, Mr Simon Crispin Cureton sworn 14 February 2022. On 2 March 2022, the Court made orders for the respondents to file any responsive affidavits, for ABS to file submissions in support of its application, for the respondents to file responsive submissions and for ABS to file submissions in reply. The timetable for those steps was extended by further orders made on 24 March 2022. Pursuant to those orders:

(a)    on 16 March 2022, the Territory Respondents filed an affidavit of their solicitor, Ms Melissa Jane Forbes, affirmed 16 March 2022 and the Commonwealth Minister filed an affidavit of his solicitor, Ms Emily Jane Nance, affirmed 15 March 2022 and an affidavit of Mr Daniel Dal Piva, a senior government lawyer at the Commonwealth Australian Fisheries Management Authority sworn 15 March 2022;

(b)    on 25 March 2022, ABS filed submissions in support of its application;

(c)    on 6 April 2022, the Territory Respondents filed submissions in respect of the application;

(d)    on 11 April 2022, the Commonwealth Minister filed submissions in respect of the application; and

(e)    on 13 April 2022, ABS filed submissions in reply.

14    As discussed in more detail below, the further evidence concerns steps taken by the Territory Minister, approximately two months after the decision of the primary judge dismissing the proceeding, to progress the creation of the Northern Offshore Fishery and the management plan for the Northern Offshore Fishery. ABS contends that the further evidence is relevant because it shows that the Proposed Framework was not merely a “work in progress” or a “policy proposal” to amend the management framework for the Fisheries, but reflected the substance of the final management plan for the proposed Northern Offshore Fishery. It is important to note that, as far as the evidence reveals, the further steps taken by the Territory Minister have no legal effect because the implementation of a management plan for the proposed Northern Offshore Fishery requires the approval of the Commonwealth Minister as a member of the NTFJA, which has not occurred. The respondents do not seek to controvert that further evidence but contend that it is not relevant to the disposition of the appeal.

Conclusions on the appeal

15    For the reasons that follow:

(a)    it is unnecessary to determine whether the primary judge’s decision was final or interlocutory as this is an appropriate case for the grant of leave to appeal;

(b)    leave is granted to ABS to reopen its case and rely on the further evidence;

(c)    the appeal should be dismissed with costs.

B.    Legislative and factual background

Introduction

16    The reasons of the primary judge contain a detailed description of the Commonwealth and Territory fisheries legislation that govern the Demersal and Timor Reef Fisheries and the issues that arise in this proceeding. That legislation is referred to in this section.

17    The reasons of the primary judge also contain findings with respect to the historical background facts concerning the regulatory and administrative actions that have been taken with respect to the Demersal and Timor Reef Fisheries. It is also necessary to refer to those matters and they are described in this section. They are uncontroversial and there is no appeal against those findings.

18    The reasons of the primary judge also contain findings with respect to more recent actions taken by the Department toward the development of a new management framework (the Proposed Framework) under which a new fishery covering the whole area of the Demersal Fishery and the Timor Reef Fishery would be established, to be known as the Northern Offshore Fishery. As at the time of trial, the primary facts relating to the Proposed Framework were not in dispute, but there was some dispute about the inferences that arose from the primary facts and the consequences for ABS of the primary facts. Those facts are also referred to in this section.

19    As noted above, ABS has made an application to reopen its case on the appeal and adduce further evidence. The further evidence principally relates to actions taken by the Territory Minister after judgment below was delivered. That evidence, and ABS’ application, are discussed later in these reasons.

The declaration of the Demersal Fishery and the Timor Reef Fishery

20    The Fisheries Act 1988 (NT) (the Fisheries Act) is subtitled “An Act to provide for the regulation, conservation and management of fisheries and fishery resources so as to maintain their sustainable utilisation, to regulate the sale and processing of fish and aquatic life, and for related purposes”. The objects of the Fisheries Act are stated in s 2A as follows:

Objects

The objects of this Act are:

(a)     to manage the aquatic resources of the Territory in accordance with the principles of ecologically sustainable development; and

(ab)     to protect the environment, people and economy of the Territory from the introduction and spread of aquatic noxious species and diseases; and

(b)     to maintain a stewardship of aquatic resources that promotes fairness, equity and access to aquatic resources by all stakeholder groups, including:

(i)     indigenous people; and

(ii)     the commercial fishing, aquaculture and fishing tourism industries; and

(iii)     amateur fishers; and

(iv)     others with an interest in the aquatic resources of the Territory; and

(c)     to promote the optimum utilisation of aquatic resources to the benefit of the community.

21    The term “ecologically sustainable development” appearing in s 2A is defined in s 4(1) as follows:

ecologically sustainable development means using, conserving and enhancing the community’s resources so that ecological processes, on which life depends, are maintained and the total quality of life, now and in the future, can be increased.

22    The Minister administering the Fisheries Act is given a range of powers under the Act, including the power to appoint a Director of Fisheries (s 5) and Fisheries Officers (s 7).

23    Part 3 of the Fisheries Act is headed “Fishery Management Plans”. Section 21 states the purposes of Pt 3 in the following terms:

Purposes of Part

(1)     The purpose of this Part is to conserve, enhance, protect, utilise, and manage the fish and aquatic life resources of the Territory to:

(a)     promote, develop and maintain commercial and amateur fishing; and

(b)     provide for optimum yields from a fishery and maintain the quality of the yield; and

(c)    ensure that the fisheries of the Territory are not endangered or overexploited; and

(ca)     encourage tourist and scientific interest in fish and aquatic life; and

(d)     ensure that the habitats of fish or aquatic life and the general environment are not detrimentally affected.

24    Under s 22, the Minister is empowered to declare an area, place, or any waters to be a fishery management area or a fishery to be a managed fishery. On 24 October 1994, the then Minister for Primary Industries and Fisheries in the Territory declared the Demersal Fishery to be a managed fishery and, on 11 July 1995, the then Minister also declared the Timor Reef Fishery to be a managed fishery (PJ [45]). The Demersal and Timor Reef Fisheries are separate fisheries in adjacent areas, relating to the same species. As at the date of the appeal, those declarations remained in force.

25    Under s 23 of the Fisheries Act, the Director is required, as soon as practicable after the declaration of a fishery management area or a fishery, to prepare a “proposed plan” for the whole or part of the management area or managed fishery. However, the Director’s obligation under that section does not apply if the management area or managed fishery is a “Joint Authority fishery”. A “Joint Authority fishery” is defined to mean a fishery in respect of which there is in force an arrangement under which the fishery is to be under the management of a Joint Authority. A “Joint Authority” is defined to mean a Joint Authority in existence for the purposes of Pt 5 of the Fisheries Management Act 1991 (Cth) (Fisheries Management Act) that includes the Minister administering the Fisheries Act as a member. As explained below, the Demersal Fishery and the Timor Reef Fishery are Joint Authority fisheries and the preparation of management plans for those fisheries is governed by Pt 6 of the Fisheries Act.

The Northern Territory Fisheries Joint Authority

26    As stated earlier, the Demersal Fishery and the Timor Reef Fishery are both jointly managed by the Territory and the Commonwealth through the NTFJA. The NTFJA is established and receives legal authority under both Commonwealth and Territory fisheries legislation.

Commonwealth legislation

27    The NTFJA was first established in 1983 under Pt IVA of the Fisheries Act 1952 (Cth), which was the predecessor of the current Commonwealth Fisheries Management Act. Upon the Fisheries Act 1952 (Cth) ceasing to have effect on 3 February 1995, the NTFJA was continued in existence as if established under Pt 5 of the Fisheries Management Act (see ss 7(3) and (4) of the Fisheries Legislation (Consequential Provisions) Act 1991 (Cth)) (PJ [19]).

28    Part 5 of the Fisheries Management Act contains a suite of provisions concerning cooperation between the Commonwealth and the States and Territories with respect to the management of fisheries. Section 61 provides that the Commonwealth may make an arrangement with a State or Territory for the establishment of a Joint Authority consisting of the Commonwealth Minister administering the Fisheries Management Act together with the appropriate Minister or Ministers of that State or Territory. Section 62 provides that a Joint Authority has such functions in relation to fisheries in respect of which arrangements are made under Div 3 as are conferred on it by Pt 5 of the Fisheries Management Act or by a law of the State or Territory that is represented on the Joint Authority. Sections 66 to 69 govern the procedures, administration and decision-making of Joint Authorities. Relevantly, in respect of meeting procedures, s 66 provides that, at a meeting of a Joint Authority, the Commonwealth Minister is to preside and that, if the members present at a meeting are not agreed as to the decision to be made on a matter, the Commonwealth Minister may, subject to subs (6), decide that matter. Subsection (6) requires the Commonwealth Minister to submit the matter for consideration by the Australian Fisheries Council. Section 67 enables decisions of Joint Authorities to be made by means of communication outside of meetings. Section 68 empowers Joint Authorities to establish advisory committees. Section 69 requires the Commonwealth Minister to appoint a person to be the secretary of the Joint Authority.

29    Division 3 of Pt 5 of the Fisheries Management Act is headed “Arrangements with respect to management of particular fisheries”. Section 71(1) provides that the Commonwealth may make an arrangement with the State or Territory represented on a Joint Authority that the Joint Authority is to have the management of a particular fishery in waters relevant to that State or Territory. Section 71(2) provides that an arrangement with a State or Territory must provide that the fishery is to be managed in accordance with the law of the Commonwealth, or in accordance with the law of the State or Territory or in accordance with the law of the Commonwealth and the law of the State or Territory. Section 74 provides that an arrangement is to be made by instrument approved by the Commonwealth Minister on behalf of the Commonwealth and the appropriate Minister or Ministers of the State or Territory concerned.

Territory legislation

30    Part 6 of the Fisheries Act contains a suite of provisions which are complementary to those in Pt 5 of the Fisheries Management Act. Section 58(1) provides that the Territory Minister may exercise a power or perform a function conferred on the Minister by Pt 5 of the Fisheries Management Act, including a power or function of the Minister as a member of a Joint Authority. Section 60 provides that a Joint Authority has such functions in relation to a fishery in respect of which an arrangement is in force under Div 2 of Pt 6 as are conferred on it by the law in accordance with which, pursuant to the arrangement, the fishery is to be managed. Section 62 stipulates that the provisions of ss 66-68 inclusive of the Fisheries Management Act apply to the performance by the NTFJA of its functions under the Fisheries Act.

31    Division 2 of Pt 6 of the Fisheries Act is headed “Arrangements with respect to the management of fisheries”. Section 64 empowers the Territory to make an arrangement for the management of a fishery as referred to in (relevantly) s 71 of the Fisheries Management Act. Section 65 provides that, if there is in force an arrangement that provides that a fishery is to be managed in accordance with the law of the Territory, the provisions of the Fisheries Act apply to and in relation to the fishery.

The arrangement for the management of the Demersal Fishery and the Timor Reef Fishery

32    In accordance with the foregoing legislative powers, on 19 December 1994 the relevant Commonwealth and Territory Ministers, acting as the NTFJA, entered into an arrangement entitled “Arrangement between the Commonwealth and the Northern Territory in relation to the Demersal and Timor Reef Fishery” (the Arrangement) (PJ [27]). The Arrangement was published in the Commonwealth Gazette No. GN 4, on 1 February 1995. By cl 1 of the Arrangement, an earlier arrangement entered into between the Commonwealth and the Territory in relation to the Demersal Fishery, published in the Commonwealth of Australia Gazette No. S109 on 14 April 1988, was terminated. The Arrangement came into operation on 3 February 1995 and stipulated that the Demersal and Timor Reef Fisheries were to be managed by the NTFJA in accordance with the laws of the Northern Territory (PJ [28]).

33    The relevant laws of the Northern Territory are those contained in Div 2 of Pt 6 of the Fisheries Act. The following provisions are relevant to the issues that arise on the appeal.

34    Subdivision 1 of Div 2 of Pt 6 is headed “General matters”. Section 66 provides as follows:

Functions, powers and objects of Joint Authority

(1)    Where, in respect of a fishery, there is in force an arrangement under which a Joint Authority has the management of the fishery and that fishery is to be managed in accordance with the law of the Territory, the Joint Authority has the function of keeping constantly under consideration the condition of the fishery, formulating policies and plans for the good management of the fishery and, for the purposes of the management of the fishery, exercising the powers conferred on it by this Act and co-operating and consulting with the other authorities, including other Joint Authorities within the meaning of the Commonwealth Act, in matters of common concern.

(2)     A Joint Authority must, in the performance of its functions under this section, act consistently with, and seek to further, the objects of this Act.

35    It is uncontroversial that s 66 is applicable to the Demersal and Timor Reef Fisheries because there is in force an arrangement under which the NTFJA has the management of those Fisheries and those Fisheries are to be managed in accordance with the law of the Territory. By virtue of that arrangement, the NTFJA has the function of keeping constantly under consideration the condition of the Demersal and Timor Reef Fisheries, of formulating policies and plans for their good management, and, for the purposes of the management of the Fisheries, of exercising the powers conferred on it by the Fisheries Act in co-operating and consulting with other authorities in matters of common concern. The NTFJA, in the performance of its functions under s 66, must act consistently with, and to seek to further, the objects of the Fisheries Act.

36    Section 70 provides that, where a Joint Authority is to manage a fishery in accordance with the law of the Territory, the Administrator of the Territory may, for the purpose of giving effect to a decision of the Joint Authority, make regulations for the management of the fishery.

37    Subdivision 2 of Div 2 of Pt 6 is headed “Joint Authority fishery management plans”.

38    Section 70A provides as follows:

70A     Joint Authority to prepare management plans

(1)    This section applies if a management area or managed fishery that is a Joint Authority fishery is declared under section 22.

(2)     The Joint Authority must, as soon as practicable after the declaration, prepare a proposed plan for the whole or part of the management area or managed fishery for the purposes specified in section 21 and having regard to the need for coordination between management areas or between managed fisheries or among any of them.

39    Section 70B provides that a Joint Authority may, for the purpose of assisting it in preparing proposed plans and giving advice in relation to management plans, establish an advisory committee for each management area or managed fishery.

40    Section 70C governs the procedure to be adopted in relation to management plans and provides as follows:

70C    Procedure in relation to management plans

(1)    A proposed plan being prepared under section 70A must:

(a)    contain a description of the management area or managed fishery; and

(b)    make provision in relation to the managed area or managed fishery with respect to any of the matters specified in Schedule 2 that the Joint Authority considers applicable.

(2)     After preparing a proposed plan under section 70A, the Joint Authority must give notice of the proposed plan, and the place where a copy of it may be inspected, in:

(a)    the Gazette; or

(b)    a newspaper circulating throughout the Territory.

(3)     There may be included with each proposed plan prepared under section 70A, but so as not to form part of the plan:

(a)    an outline of the history and status of the fishery; and

(b)    the policy and objectives of the plan; and

(c)     any other information relating to the fishery that the Joint Authority thinks fit.

(4)     Not less than 1 month after the date of notification under subsection (2), and after considering any submissions made in respect of the proposed plan, the Joint Authority may:

(a)    make any amendments to the plan that the Joint Authority thinks fit; and

(b)     approve the plan, after advising the relevant advisory committee of any amendments and the reasons for them.

41    Schedule 2 to the Fisheries Act identifies 16 matters (some containing sub-categories) that may be provided for in a management plan.

42    Section 70D provides for the amendment of a management plan relating to a joint authority fishery.

The current management of the Demersal Fishery and Timor Reef Fishery

43    In accordance with s 70 of the Fisheries Act, management plans for the Demersal and Timor Reef Fisheries are contained in Divs 6 and 15 respectively of Pt 8 of the Fisheries Regulations 1992 (NT) (Fisheries Regulations) (having been inserted by the Fisheries Amendment (Timor Reef Fishery) Regulations 2011 (NT), which came into effect on 1 February 2011, and the Fisheries Amendment (Demersal Fishery) Regulations 2012 (NT), which came into effect from 1 February 2012) (PJ [47]).

44    Divisions 6 and 15 in Pt 8 of the Fisheries Regulations follow a similar form. They provide for licences to be issued in respect of each Fishery and for a fixed number of “fishery units” for each Fishery. A “fishery unit” is a unit which entitles the holder of the licence to which the unit is attached to a share of the total allowable commercial catch (“TACC”) of the species group in the relevant Fishery (regs 106(1) and 141F(1) respectively). The Fisheries Regulations fix the total amount of three species (or groups) of fish which may be taken annually under the respective licences in each of the Demersal Fishery and the Timor Reef Fishery (regs 107A and 141H respectively). These are goldband snapper, red snapper and grouped fish. The allowed catch is referred to by the term “quota units”, each of which allows 1 kg of the relevant species to be taken (regs 107B and 141J). The Fisheries Regulations also regulate how and when fishing operations may be undertaken and provide for a register of fishery and quota units.

The Proposed Framework

45    It is uncontroversial that, since 2014, the Department has been developing a new management framework for the Demersal Fishery and the Timor Reef Fishery (PJ [52]). This has culminated in the Proposed Framework. It contemplated: the creation of a new fishery (the Northern Offshore Fishery) to cover the whole of the areas of the existing Demersal and Timor Reef Fisheries; to relate to the same species; to be managed through a Joint Authority management plan under Subdiv 2 of Div 2 of Pt 6 of the Fisheries Act; and for the licences and fishery units currently held in the Demersal and Timor Reef Fisheries to be “transitioned” into licences and fishery units held in the Northern Offshore Fishery.

46    On 16 January 2020, the Chief Executive of the Department provided a memorandum to the Territory Minister with the subject “Draft Management Framework for Northern Offshore Fishery” (PJ [53]). The memorandum commenced with a statement of its purpose as follows:

To provide you [the Minister] with a briefing on progress of a review of the management arrangements in the Northern Territory (NT) Timor Reef Fishery (TRF) and Demersal Fishery (DF); seek your ‘in principle’ support for the draft management framework for the Northern Offshore Fishery (NOF); and seek your approval to draft a management plan for the NOF.

47    The memorandum then recorded: matters of background to the review, the consultation and negotiation which had occurred between the Department and various entities and licence holders; the support for the proposal by all but one member of an advisory committee; the opposition of ABS; some implications of the adoption of the Proposed Framework; and reminded the Minister of the arrangements between the Territory and the Commonwealth through the NTFJA (PJ [54]).

48    Attached to the memorandum was the Proposed Framework, being a document extending over 68 pages entitled “Northern Offshore Fishery Management Framework – December 2019” (PJ [55]). The document is marked by a “draft” watermark and the front page is also marked “confidential draft” and “for review”.

49    The memorandum included the following explanation of the legislative and regulatory arrangements governing the Demersal and Timor Reef Fisheries and the steps required for establishing the Northern Offshore Fishery as follows:

JOINT AUTHORITY ARRANGEMENTS

The Northern Territory and Australian Governments work together to provide strategic direction for the DF and TRF through the NT Fisheries Joint Authority (NTFJA). The Department of Primary Industry and Resources (DPIR) undertakes day-to-day management of the Joint Authority fisheries, in accordance with the Act and its regulations.

NT Fisheries has been engaging with officers at the Australian Fisheries Management Authority and Department of Agriculture and Water Resources on this matter, and sought their feedback during the development of the proposed arrangements.

At the most recent NTFJA meeting on 28 November 2019, delegates noted DPIR's progress towards introducing new management arrangements for the offshore snapper fisheries.

NEXT STEPS

In accordance with s.22 of the Act, you may declare a fishery to be a managed fishery. As such, your endorsement of the draft management framework is sought as well as your 'in principle' support to declare the NOF to be a managed fishery.

Subsequently, subject to your approval, preparation of a draft management plan for the NOF, on behalf of the NTFJA, in accordance with s.70A of the Act will involve:

1.     Drafting the legal instruments to implement the new management plan and undertake the necessary regulatory impact assessment process within Government; and,

2.     Simultaneously draft amendments to the Fisheries Regulations to revoke those regulations relevant to the DF and TRF.

At the appropriate time (i.e. when the draft management plan is available), your support with be sought to request the NTFJA for formal approval to:

1.     Give notice of the proposed management plan and release it for one (1) month public consultation in accordance with s.70C of the Act and, subject to NTFJA consideration of comments received;

2.    Implement the new management plan (following consultation) with approval by the Executive Council of Government and Gazettal notice.

50    The memorandum concluded with a series of recommendations to the Minister as follows (PJ [55]):

RECOMMENDATIONS

It is recommended that you:

1.    note the independent review of proposed management arrangements for the Timor Reef and Demersal Fisheries with particular regard to implications for resource sharing and procedural fairness (Attachment A);

2.     indicate 'in principle' support to declare the Northern Offshore Fishery be a managed fishery;

3.     endorse the Draft Management Framework for the Northern Offshore Fishery to provide the merger of the Timor Reef Fishery and Demersal Fishery (Attachment B);

4.     note the Summary of Submissions provided by the Advisory Committee members in relation to the Draft Management Framework for the Northern Offshore Fishery (Attachment C);

5.     note the Director of Fisheries' Draft Statement of Reasons outlining how the merger pursues the objects of the Act, to be released as a publicly available document (Attachment D);

6.     note the Director of Fisheries' Draft Statement of Reasons outlining the methodology for allocating entitlement in the Northern Offshore Fishery proposed under the Draft Management Framework (Attachment E);

7.     approve drafting of a management plan for the Northern Offshore Fishery; and

8.     approve drafting of an amendment to the NT Fisheries Regulations 1992 to revoke those regulations relevant to the NT Demersal Fishery and Timor Reef Fishery (subject to NTFJA approval of the new management plan).

51    On 6 March 2020, the Minister “noted” the matters which were the subject of recommendations 1, 4, 5 and 6, indicated his support for the subject matter of recommendation 2, endorsed the Proposed Framework and gave his approval for the drafting of the documents which were the subject of recommendations 7 and 8, including the drafting of a management plan for the proposed Northern Offshore Fishery (PJ [56]).

C.    The claims made by ABS

52    In its amended originating application, ABS claimed relief on the grounds stated in its concise statement and in the affidavit of Chauncey Craig Hammond of 15 May 2020.

53    The concise statement recites the background facts referred to in the preceding section. However, there is one point of difference. The concise statement states that the framework presently proposed by the Department for the Northern Offshore Fishery is set out in a document entitled “Northern Offshore Fishery Management Framework” produced by the Department and dated March 2020. The concise statement refers to that document as the “Proposed Framework” (which definition is incorporated by reference into the amended originating application). As set out in the preceding section, the memorandum from the Chief Executive of the Department to the Territory Minister dated 16 January 2020 contained a version of the Proposed Framework dated December 2019. The primary judge’s reasons refer to that document, and indicate that the Territory Minister’s decision on 6 March 2020 was made on the basis of that document. While the Proposed Framework dated March 2020 was produced on the appeal, no submissions were directed to that document. ABS did not contend that the primary judge’s findings with respect to the December 2019 document were in error; nor did ABS identify any differences between the December 2019 version and the March 2020 version. In the circumstances, although the concise statement refers to the Proposed Framework as contained in the document dated March 2020, it is necessary to proceed on the basis that there is no material difference between the two versions of the document in either content or legal status (both being Departmental draft documents).

54    The concise statement then states that the applicant has opposed the proposed merger of the Demersal and Timor Reef Fisheries (referred to in the concise statement as the merger proposal) for the following alleged reasons:

(a)    a proper biomass survey of the two Fisheries has not been undertaken since 1990 and there is no current, reliable information as to the stocks of fish in the two Fisheries, which information is essential for forming a valid opinion as to the likely impact of the merger proposal and the Proposed Framework;

(b)    there is no reliable evidence that the two Fisheries have any, and if so what, common stocks (being a premise on which the merger proposal and the Proposed Framework are based);

(c)    there is no sufficiently reasonable basis for concluding that the decisions made by the NTFJA in about 2010 and 2011 to manage the fisheries separately are no longer valid and must be abandoned (being a premise on which the merger proposal and the Proposed Framework are based); and

(d)    there is further evidence that the quota for the Timor Reef Fishery was fixed by the NTFJA and incorporated into Pt 8 Div 15 of the Fisheries Regulations at an unsustainably high and damaging level and that, as a result, the Timor Reef Fishery has been and continues to be over-fished and otherwise damaged and the merger proposal and the Proposed Framework are likely to cause fishers to use this unused quota in the Demersal Fishery and thereby to expose the Demersal Fishery as well as the Timor Reef Fishery to the risk of over-fishing and of exposure to other damaging actions.

55    The concise statement then contains the following allegations:

(a)    The merger proposal and the Proposed Framework will not promote the objects in s 2A of the Fisheries Act, including the principles of ecologically sustainable development and the precautionary principle and there is no reasonable basis for concluding otherwise. On the contrary, the merger proposal and the Proposed Framework are inconsistent with and will tend to defeat these principles. Accordingly, they cannot be brought into law under the Fisheries Act.

(b)    The Proposed Framework has been developed by the Department, and not by the NTFJA in the performance of its functions under s 66(1) of the Fisheries Act as controlled by s 66(2) of that Act. The Proposed Framework therefore cannot be the subject of a valid opinion on the part of NTFJA formed for the purposes of s 70D(1) of the Fisheries Act or a decision to give notice under s 70D(1)(b).

(c)    As units in the Demersal Fishery have a value which is more than double the value of units in the Timor Reef Fishery, if the Fisheries Regulations are amended to bring the Proposed Framework into law, it will affect a transfer of substantial value from the holders of units in the Demersal Fishery to the holders of units in the Timor Reef Fishery without compensation. If brought into law, the Proposed Framework therefore would purportedly effect an acquisition of ABS’ property otherwise than on just terms contrary to s 50(1) of the Northern Territory (Self-Government) Act 1978 (Cth) (NT Self-Government Act). Accordingly, it cannot be a valid law of the Northern Territory.

56    At the hearing of the appeal, ABS made passing reference to the affidavit of Mr Hammond in support of a contention that its case was broader than as articulated by the primary judge. ABS did not, however, refer the Court to any particular aspect of the affidavit. The affidavit contains evidence on the following topics: the current management framework for the Demersal and Timor Reef Fisheries; ABS’ investment in the Demersal Fishery and the current value of its fishery units; the comparative value of units in the Demersal Fishery and the Timor Reef Fishery; the required approvals of the Demersal and Timor Reef Fisheries under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act); the conduct of a review of the current management framework for the Demersal and Timor Reef Fisheries by NT Fisheries from 2018, including communications between NT Fisheries (or the NT Government solicitors) and ABS; communications between the relevant Commonwealth Minister (as a member of the NTFJA) and ABS; and ABS’ concerns about the proposed merger and the Proposed Framework. It is not apparent how the affidavit enlarges ABS’ case beyond that articulated in its amended originating application and concise statement.

57    The relief sought by ABS as stated in its amended originating application was in the following terms:

1.     Declarations that:

a.    the proposed management plan as set out in the Proposed Framework has not been formulated or prepared by the Second and Third Respondents as the Northern Territory Joint Authority, validly or at all:

i.    in the discharge of the functions under s.66(1) of the Fisheries Act 1988 (NT); and further

ii.     in the discharge of the duty under s.70A(2) of the Fisheries Act 1988 (NT);

b.     the proposed management plan as set out in the Proposed Framework or any amendment thereof cannot lawfully be the subject of any validly formed opinion or validly made decision of the Second and Third Respondents as the Northern Territory Joint Authority pursuant to s.70C(2) or s.70C(4) of the Fisheries Act 1988 (NT);

c.    the proposed management plan as set out in the Proposed Framework:

i.    has not been formulated or prepared in a way which is consistent with and which furthers; and

ii.     does not further, and is not consistent with,

the objects of:

iii.     managing the aquatic resources of the Territory in accordance with the principles of ecologically sustainable development, which include the precautionary principle, within the meaning of s.3(1)(b) and s.3A of the Fisheries Management Act 1991 (Cth) and s.2A(a) of the Fisheries Act 1988 (NT);

iv.     maintaining a stewardship of aquatic resources that promotes fairness and equity within the meaning of s.2A(b) of the Fisheries Act 1988 (NT); and

v.     promoting the optimum utilisation of aquatic resources to the benefit of the community within the meaning of s.2A(c) of the Fisheries Act 1988 (NT).

d.     the proposed management plan as set out in the Proposed Framework will effect an acquisition of the Applicant’s property otherwise than on just terms contrary to s.50(1) of the Northern Territory (Self-Government) Act 1978 (Cth), and accordingly cannot be made a valid law of the Northern Territory.

2.    Permanent injunctions restraining:

aa.    the Second Respondent, as a member of the Northern Territory Fisheries Joint Authority, from endorsing or approving any proposed management plan or amendments to the Fisheries Regulations 1992 (NT) to give effect to the Proposed Framework or a framework substantially the same as the Proposed Framework;

a.    the First Respondent and the Second Respondent from seeking the decision of the Third Respondent as a member of the Northern Territory Joint Authority to endorse or approve any proposed management plan or amendments to the Fisheries Regulations 1992 (NT) in accordance with the Proposed Framework or a framework substantially the same as the Proposed Framework for the purposes of giving notice pursuant to s.70C(2) of the Fisheries Act 1988 (NT).

2A.    Relief in the nature of certiorari quashing, or a declaration declaring invalid, the decision of the Second Respondent of 6 March 2020 endorsing or approving:

a.    the Proposed Framework and the proposed management plan as set out therein;

b.     the merger of the Timor Reef Fishery and the Demersal Fishery to create the Northern Offshore Fishery;

c.     the drafting of a management plan for the Northern Offshore Fishery in accordance with the Proposed Framework and the proposed management plan as set out therein.

D.    Reasons of the primary judge

58    As noted earlier, by their interlocutory application the Territory Respondents sought an order setting aside ABS’ originating application on the basis that it did not raise any “matter” within the meaning of s 39B of the Judiciary Act. In the alternative, the Territory Respondents sought the dismissal of the proceedings under s 31A(2) of the FCA Act on the basis that ABS had no reasonable prospect of successfully prosecuting the proceeding. The primary judge addressed both limbs of the application, albeit only briefly in respect of the second limb.

Absence of jurisdiction under s 39B of the Judiciary Act

59    The primary judge observed that the jurisdiction of the Court with respect to the present matter must be found in s 39B(1A)(c) of the Judiciary Act which provides (relevantly) that the original jurisdiction of the Federal Court of Australia includes jurisdiction in any matter arising under any laws made by the Parliament (other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter) (PJ [65]). His Honour continued:

66     As is apparent, the Court has jurisdiction under s 39B(1A) only in respect of a “matter”: Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591 at [31] and see the authorities cited therein. The term “matter” is used in its constitutional sense: Re Australian Securities and Investments Commission; Ex parte Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559 at [50]-[51]. The “matter” is the justiciable controversy between the parties arising out of a substratum of facts and claims representing, or amounting to, the dispute or controversy between or amongst the parties: Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1 at [17].

67     In Palmer v Ayres [2017] HCA 5; (2017) 259 CLR 478, Kiefel, Keane, Nettle and Gordon JJ said of the concept of a “matter”:

[26]    A “matter”, as a justiciable controversy, is not co-extensive with a legal proceeding, but rather means the subject matter for determination in a legal proceeding – “controversies which might come before a Court of Justice” … It is identifiable independently of proceedings brought for its determination and encompasses all claims made within the scope of the controversy …

[27]     The requirement that, for there to be a “matter”, there must be an “immediate right, duty or liability to be established by the determination of the Court” reinforces that the controversy that the court is being asked to determine is genuine, and not an advisory opinion divorced from a controversy, and, further, that only a claim is necessary. A matter can exist even though a right, duty or liability has not been, and may never be, established.

(Citations omitted and emphasis in the original)

68     In support of these propositions, the plurality in Palmer v Ayres referred to Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 in which Gleeson CJ and McHugh J said:

[32]    The existence of a “matter”, therefore, cannot be separated from the existence of a remedy to enforce the substantive right, duty or liability. That does not mean that there can be no “matter” unless the existence of a right, duty or liability is established. It is sufficient that the moving party claims that he or she has a legal remedy in the court where the proceedings have been commenced to enforce the right, duty or liability in question. It does mean, however, that there must be a remedy enforceable in a court of justice, that it must be enforceable in the court in which the proceedings are commenced and that the person claiming the remedy must have sufficient interest in enforcing the right, duty or liability to make the controversy justiciable …

(Citation omitted)

69     The requirement that there be a “matter” in order to found the jurisdiction of this Court was explained by French J in IMF (Australia) Ltd v Sons of Gwalia Ltd [2004] FCA 1390; (2004) 211 ALR 231 at [43]:

The jurisdiction of the Federal Court is entirely statutory and is conferred in relation to ‘matters’ whose content derives from the statute conferring the jurisdiction … The definition of ‘federal jurisdiction’ by reference to ‘matters’ is necessary because the Constitution, which gives authority to the Parliament to confer and define federal jurisdiction, requires it to be conferred and defined in those terms. That constraint means that when the jurisdiction of the Court is invoked the party invoking it must be seeking the determination of rights, duties, liabilities or obligations. That is ‘Central to the notion of a ‘matter’’ … Where declaratory relief is sought the question to be determined must be real, and not abstract or hypothetical. That is because the availability of declaratory relief is confined by the boundaries of judicial power … The fact that declaratory relief relates to the lawfulness of future conduct does not place it beyond the reach of judicial power nor thereby beyond the bounds of federal jurisdiction. A declaration sought upon the basis of an hypothetical situation or facts which are contingent or may never occur has the character of an advisory opinion which does not relate to a real question. Therefore it does not relate to a matter and is outside the jurisdiction of the Court.

(Citations omitted)

60    After considering the submissions of the parties, the primary judge concluded that ABS was seeking relief from the Court in respect of the Proposed Framework before it was known whether the NTFJA would adopt it (with or without amendments) and that, in effect, ABS was seeking to challenge a process of law making before the law had been made and indeed before knowing whether the law would be made (PJ [103]). His Honour observed that those matters suggested that ABS’ proceedings were premature and that there was considerable force in the submissions of the respondents that the Court was being asked to make orders with respect to matters which are hypothetical (PJ [104]).

61    The primary judge did not accept ABS’ characterisation of the Proposed Framework as a management plan or even as a draft management plan (we interpolate, as that expression is used in the Fisheries Act) (PJ [107]). Nor did the primary judge accept the submission of ABS that the Proposed Framework should be regarded as “practically final” because the NTFJA is committed to it (PJ [121]). In that regard, his Honour was not prepared to infer or assume that the NTFJA would not comply with its statutory obligations for public consultation under s 70C of the Fisheries Act, but rather would assume that the NTFJA would conduct itself in accordance with the law (PJ [121]).

62    In that regard, his Honour concluded that:

123     I consider that the Territory Respondents’ submission that the Proposed Framework is in the nature of a policy document should be accepted, although I would prefer to use the description which the document bears, namely, it is a framework document. What is clear, is that it does not contain the detailed prescriptions and proscriptions of the existing Regulations concerning the DF and TRF … . It is also clear that it has not been developed in the exercise of a particular statutory power.

124     It follows that the Proposed Framework is not a management plan, nor even a proposed management plan. It has no status beyond that given to it by the Minister on 6 March 2020, namely, an endorsed draft management framework. It is in substance a work in progress. Whether it will be subject to further amendment and, more significantly, whether it will be approved by the NTFJA, is not presently known.

63    In respect of ABS’ claim for prerogative relief, the primary judge concluded that the Minister’s decisions of 6 March 2020 were not decisions in respect of which a writ in the nature of certiorari would issue (PJ [138]). His Honour noted the following principles applicable to certiorari:

139     In Ainsworth, the High Court considered the availability of certiorari to quash a report prepared by the Criminal Justice Commission and tabled in Parliament under the Criminal Justice Act 1989 (Qld) containing adverse recommendations about certain persons involved in the poker machine industry. The plurality (Mason CJ, Dawson, Toohey and Gaudron JJ) said at 580:

The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review. The report made and delivered by the Commission has, of itself, no legal effect and carries no legal consequences, whether direct or indirect. It is different when a report or recommendation operates as a precondition or as a bar to a course of action, or as a step in a process capable of altering rights, interests or liabilities. A report or a recommendation of that kind may be quashed, that is to say its legal effect may be nullified by certiorari.

140     To like effect, Brennan J said at 595 that “quashing annihilates the legal effect of an act or decision that has been reached in breach of a condition of its validity but, if an act or decision has no legal effect, there is nothing to quash”.

141     In Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149 at 159, the majority (Brennan CJ, Gaudron and Gummow JJ) referred to these passages in Ainsworth and continued:

Thus, for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing.

This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue: (1) where the decision under challenge is the ultimate decision in the decision-making process and the question is whether that ultimate decision sufficiently “affects rights” in a legal sense; (2) where the ultimate decision to be made undoubtedly effects legal rights but the question is whether a decision made of a preliminary or recommendatory stage of the decision-making process sufficiently “determines” or is connected with that decision.

64    The primary judge concluded that the decisions made on 6 March 2020 by the Territory Minister are not of either kind of decision amenable to certiorari; the decisions do not have legal effects upon rights, and are not conditions precedent to the exercise of power affecting legal rights (PJ [142]). The primary judge concluded:

143     The decisions made on 6 March 2020 by the Minister are not of that kind. ABS did not point to any statutory power being exercised by the Minister in making the decisions other than the exercise of his general Ministerial authority over the Department. The NT Fisheries Act did not require that the Minister make any of the eight decisions made on 6 March 2020 and none of them is a precondition to the exercise of the NTFJA’s functions under Subdiv 2 of Div 2 in Pt 6 of the NT Fisheries Act. The Minister’s decisions are more accurately characterised as a form of Ministerial endorsement for the Department continuing with the development of the Proposed Framework with a view to it, and documents which may be appropriate to give effect to it, being considered by the NTFJA in due course. The decisions may also be understood as an acceptance by the Minister of political responsibility for the steps recommended in the Chief Executive’s memorandum. But whatever the appropriate characterisation, none of the Minister’s decisions on 6 March 2020 had any legal effect. None was a condition precedent to the NTFJA’s consideration of the matter, and none was a matter which the NTFJA was obliged to take into account.

65    For those reasons, the primary judge determined that the Territory Respondents’ application should be upheld and the proceeding dismissed because ABS was seeking to agitate matters which are hypothetical and which have no real or immediate impact on its rights or interests, with the result that there was not a “matter” before the Court within the meaning of s 39B(1A) of the Judiciary Act (PJ [147]).

Summary dismissal under s 31A of the FCA Act

66    In relation to the Territory Respondents’ summary dismissal application under s 31A of the FCA Act, the primary judge concluded as follows:

148    The conclusion expressed above makes it unnecessary to consider the application of the Territory Respondents under s 31A of the FCA Act. I indicate, however, that, had it been necessary to do so, I would have accepted the submissions of the respondents that the proceedings have no reasonable prospect of success.

E.    Leave to appeal

67    Section 24(1A) of the FCA Act provides, relevantly, that an appeal shall not be brought from a judgment of the Court constituted by a single Judge exercising the original jurisdiction of the Court that is an interlocutory judgment unless the Court or a Judge gives leave to appeal. Section 24(1D)(b) stipulates that a decision granting or refusing summary judgment under s 31A is taken to be an interlocutory judgment.

68    The respondents submitted that ABS cannot appeal from the judgment below as of right because the judgment was interlocutory, not final. However, none of the respondents opposed leave to appeal being granted.

69    ABS submitted that it does not require leave to appeal as the primary judgment is not an interlocutory judgment within the meaning of s 24(1A). It argued that this is a case like Lloyd Werft Bremerhaven GmbH v Owners of Ship “Zoya Kosmodemyanskaya” (1997) 79 FCR 71 (Zoya Kosmodemyanskaya) where the finding of want of jurisdiction flows from a finding on the merits, in this case, the absence of an immediate right, duty or liability to be established by the determination of the Court and therefore the absence of a matter for the purposes of s 39B(1A). Hence, “there may be said to be a final judgment”: SZAJB v Minister for Immigration & Citizenship (2008) 168 FCR 410 (SZAJB) at [23]. ABS further submitted that, if leave is required, it should be granted because there is a serious question for argument whether the dismissal of the proceeding was correct.

70    The test for determining whether a judgment or order appealed from is final or interlocutory is whether the judgment or order, as made, finally determines the rights of the parties: Cubillo v Commonwealth of Australia (2011) 112 FCR 455 at [182] per Sackville, Weinberg and Hely JJ, applying Carr v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246 (Carr) at 248 per Gibbs CJ and at 253-254 per Mason J and Sanofi v Parke Davis Pty Ltd (No 1) (1982) 149 CLR 147 at 153 per Gibbs CJ, Stephen and Mason JJ. The test depends on whether the legal, not the practical, effect of the judgment is final; the legal effect of a judgment is not final where it would be open to a party to bring a second application, even if it would be doomed to fail: Carr at 248, 256; see also Brouwer v Titan Corp Ltd (1997) 73 FCR 241 at 242.

71    While the test is readily stated, its application in some contexts can be difficult. One such context is the dismissal of a proceeding for want of jurisdiction. The authorities show that whether the dismissal is to be characterised as final or interlocutory will depend on the basis for the dismissal. A number of the authorities were discussed by French J (as his Honour then was) in SZAJB at [15]-[23]. Justice French expressed the following conclusions based on the authorities (at [23]):

Where a court holds that it lacks jurisdiction to entertain an application and that the application is to be dismissed as incompetent, the dismissal order effectively disposes of the proceedings in the court in which the application is brought. The order does not “finally dispose of the rights of the parties” in the sense necessary to characterise it as a final judgment. It simply means that the court in which the proceeding is brought lacks the authority to deal with it. It says nothing about the rights which the party seeks to vindicate. It may be that an application has been brought in the wrong court. So an application may be brought in the Federal Magistrates Court which exceeds the subject matter value by which the relevant jurisdiction of that court is defined. An order dismissing the application as incompetent would not finally dispose of the rights of the parties to it. They would simply have to go somewhere else. Similarly, an application brought before the Federal Court may be dismissed as incompetent on the basis that it lies outside the jurisdiction conferred by statute upon this Court. In the case of judicial review proceedings it may be that the matter could be entertained in the High Court in the exercise of the original jurisdiction conferred upon it by s 75(v) of the Constitution. The character of the order dismissing an application as incompetent is illustrated by these examples. It does not for that reason alone decide the rights or liabilities in issue. There may be a case like Zoya Kosmodemyanskaya 79 FCR 71 where the finding of want of jurisdiction flows from a finding on the merits. So if the finding of want of jurisdiction depends upon findings of jurisdictional fact fatal to the merits of the claim, then it may be said to be a final judgment.

72    In SZAJB, French J concluded (Allsop and Tracy JJ agreeing at [68] and [114] respectively) that orders made by the Federal Magistrates Court dismissing applications for review of certain migration decisions as outside time limits prescribed by the Migration Act 1958 (Cth) were interlocutory in character. While Allsop J agreed with that conclusion, his Honour noted (at [68]) the observations of Merkel J in Fifita v Minister for Immigration and Multicultural Affairs [2001] FCA 1695 that there is some tension between the Full Court decisions in Minogue v Williams (2000) 60 ALD 366 (Minogue v Williams) and Zoya Kosmodemyanskaya at 80 (an authority to which the Full Court in Minogue v Williams was not referred). Justice Allsop commented that, at some point, how Zoya Kosmodemyanskaya “fits into this analysis harmoniously may need to be addressed”.

73    It is unnecessary for the determination of this appeal to attempt any reconciliation between Minogue v Williams and Zoya Kosmodemyanskaya. The parties did not address substantive submissions to that question. Subsequent authorities would need to be considered, including the reasons of Edelman J in Plaintiff S164/2018 v Minister for Home Affairs [2018] HCA 51; 361 ALR 8. Recent decisions of the Full Court of this Court support the conclusion that, where a proceeding has been dismissed for want of jurisdiction on the basis that the claims advanced are not justiciable, the dismissal is a final judgment, not interlocutory: see Luck v Chief Executive Officer of Centrelink (2017) 251 FCR 295 at [29] (considering the existence of jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth)) and Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union (2018) 264 FCR 342 at [46]-[48] per Rares and Barker JJ.

74    In circumstances where leave to appeal was not opposed, the practical effect of the judgment below is to conclude ABS’ application on the basis on which it was brought (challenging the legality of the Proposed Framework) and there is a serious question raised, if leave to appeal is required it should be granted. To the extent it is separately required, leave is also extended in respect of the primary judge’s judgment based on s 31A(2) of the FCA Act.

F.    Application for leave to reopen and adduce further evidence

Introduction

75    As noted earlier, the appeal was heard by the Full Court on 8 November 2021. The Court reserved its decision on that date. On 19 November 2021, the Solicitor for the Northern Territory wrote to the Court to advise that the Territory Respondents sought to clarify an aspect of their submissions, that the parties were in discussions about this, and that the Solicitor anticipated writing to the Court substantively about the matter. On 24 December 2021, the Court received a further letter from the Solicitor advising that it was understood that ABS intended to bring an application for leave to adduce evidence on appeal, the process would likely be consented to by the other parties, and within that process the Territory Respondents would clarify the aspect of their submissions that had been foreshadowed.

76    On 14 February 2022, ABS filed an interlocutory application seeking leave to reopen its case on the appeal and adduce further evidence. ABS sought the following orders:

1.     Leave for the Appellant to reopen its case on this appeal in the respects set out below.

2.     An order pursuant to rule 1.34 of the Federal Court Rules 2011 (Cth) (FCR) dispensing with the requirement in rule 36.57(2) of the FCR for the Appellant to make this application at least 21 days before the hearing of this appeal.

3.     An order pursuant to section 27 of the Federal Court of Australia Act 1976 (Cth) and rule 36.57 of the FCR giving the Appellant leave to rely upon the evidence in the affidavit of Simon Crispin Cureton made on 14 February 2022 in this appeal.

4.     Orders for the determination of the Appellant’s application for orders in terms of 1 to 3 above and, if those orders are made, for the appeal as reopened in the following terms:

(a)    the Respondents to file and serve any affidavit in response to the affidavit of Simon Crispin Cureton made on 14 February 2022 within 10 working days from the date of order;

(b)     the Appellant to file and serve written submissions limited to 10 pages in support of its application for orders in terms of 1 to 3 above and, if those orders are made, for the appeal as reopened by reference to the material in the affidavits filed in accordance with paragraphs 3 and 4(a) above within 10 working days thereafter;

(c)     the First and Second Respondents to file and serve written submissions limited to 8 pages in response to the Appellant’s submissions within a further 8 working days;

(d)     the Third Respondent to file and serve written submissions limited to 4 pages in response to the Appellant’s submissions within a further 3 working days;

(e)     the Appellant to file and serve any submissions in reply to the Respondents’ submissions limited to 4 pages within a further 3 working days; and

(f)     directions for the listing of a further oral hearing, should the Court so require.

5.     Costs of these applications and any further hearing of the appeal are reserved.

77    Justice Besanko held a case management hearing on 2 March 2022. At that hearing, his Honour made orders timetabling the dates by which the parties should file their submissions and evidence in respect of the orders 1 to 3 sought by ABS and, if those orders were made, in respect of the appeal as reopened by reference to the material in the affidavit of Mr Cureton. Those dates were subsequently extended by further orders of 24 March 2022.

78    As set out earlier, evidence and submissions were filed by each of the parties in respect of the application. The Court determined that there was no need for a further hearing and that the matter could be determined on the papers. For the reasons that follow, leave is granted to ABS to reopen its case and adduce further evidence

The further evidence

79    The further evidence sought to be adduced by ABS on the appeal was set out in Mr Cureton’s affidavit. The further evidence discloses steps taken by the Territory Minister in respect of the proposed Northern Offshore Fishery, and communications between the Territory Minister and the Commonwealth Minister, which largely occurred after the delivery of judgment below and before the hearing of this appeal. The key events occurred on 20 July and 27 August 2021. However, it is relevant to note that, by a memorandum dated 28 February 2021, the CEO of the Department sought approval from the then Minister for Agribusiness and Aquaculture in the Territory, Nicole Manison, to continue drafting a management plan for the Northern Offshore Fishery and consequential amendments to the Fisheries Regulations to revoke those regulations relevant to the Demersal Fishery and Timor Reef Fishery. We infer that, at that time, the Minister for Agribusiness and Aquaculture in the Territory was the Minister responsible for the administration of the Fisheries Act. On 3 March 2021 (shortly before the primary judge delivered the judgment below), the Minister gave that approval by signing a copy of the memorandum.

June 2021 Memorandum

80    On or about 4 June 2021, the CEO of the Department sent a further memorandum to the then Minister for Agribusiness and Aquaculture in the Territory, Nicole Manison (June 2021 Memorandum). A copy of the June 2021 Memorandum was an annexure to Mr Cureton’s affidavit. The Memorandum recorded the following matters under the heading “Issues” (emphasis in original):

8.     On 6 March 2020, the then Minister approved drafting of a management plan for the Northern Offshore Fishery (NOF) (draft Management Plan) for consideration of the NT Fisheries Joint Authority (Joint Authority) (refer Attachment C).

9.     Subsequently, Australia Bay Seafoods Pty Ltd (ABS), a licence holder in the Demersal Fishery, initiated a legal challenge to prevent the implementation of the draft Management Plan with the matter heard in the Federal Court on 23 June 2020.

10.     On 23 April 2021 the Court ordered that the proceedings be dismissed, concluding that the case did not present a "matter" before the Court within the meaning of the Judiciary Act 1903 (Cth).

11.     Your approval is now sought to progress the proposed arrangements for the NOF.

12.     In accordance with s22 of the Fisheries Act 1988 (NT) (Fisheries Act), your approval is sought to declare the NOF a managed fishery by signing a notice to be published in the Gazette.

13.     In accordance with s70A of the Fisheries Act, the Joint Authority must, as soon as practicable after the declaration of a managed fishery, prepare a proposed management plan for the managed fishery.

14.     The draft Management Plan has been drafted by the Office of Parliamentary Counsel and is provided for your consideration at Attachment A.

15.     In accordance with s70C of the Fisheries Act, the Joint Authority must give notice of the draft Management Plan and release it for a public consultation period of no less than one month.

16.     Subject to your endorsement of the draft Management Plan, your signature is sought on the Gazette notice to give notice of the draft Management Plan and the public consultation period.

17.     Noting that the NOF is to be a Joint Authority managed fishery, a copy of the draft Management Plan must also be provided to the Commonwealth Joint Authority member for consideration.

18.     If Senator Duniam endorses the draft Management Plan, his signature is sought on the notice to be published in the Gazette to notify that the draft Management Plan will be released for a public consultation period.

19.     Once the public comment period has closed, and any necessary amendments to the draft Management Plan have been made, approval of the settled NOF Management Plan will be sought from both Joint Authority members to implement the new management plan.

20.     Consultation: The public consultation period provides an opportunity for all stakeholders to provide comment on the draft Management Plan for the consideration of the Joint Authority.

21.     Media: The release of the draft Management Plan presents an opportunity to highlight the NT Government's progress to implement best practice fisheries management based and the opportunity for stakeholder feedback. The Executive Director Fisheries has prepared a statement of reasons for recommendation, outlining how the merger pursues the objectives of the Fisheries Act, to be released as a publically available document at the time the draft Management Plan is released for public consultation.

22.     Risks: ABS is likely to oppose the draft Management Plan and may take further legal or media action. The Department will continue to liaise with its legal and communication teams on this matter to mitigate these risks

81    The June 2021 Memorandum also recorded the following matters under the heading “Background”:

23.     The Timor Reef Fishery and Demersal Fishery are jointly managed by the Territory and the Australian Governments (under the Joint Authority), with day to day management vested with the Territory.

24.     The development of the management framework for the NOF was undertaken in consultation with key stakeholders, led by science and designed in-line with best practice fisheries management to address identified ecological risks.

25.     ABS was the only party to oppose the draft management framework, forwarding their submission directly to the (then) Minister. Their opposition relates primarily to the proposed merging of the Demersal Fishery, which they hold 66% of quota, with the Timor Reef Fishery to form the NOF.

26.     On 6 March 2020, your predecessor gave in-principle support to declare the NOF a 'managed fishery', endorsed the Management Framework, and approved drafting of a draft Management Plan.

27.     On 3 March 2021, you approved that the Department continue drafting a management plan for the NOF (refer Attachment D).

28.     Other licence holders have written to you, your predecessor and the Department over the past 12 months advising of their support of the proposed arrangements for the NOF.

82    The June 2021 Memorandum made the following recommendations:

1.    Sign the Gazette notice to declare the Northern Offshore Fishery a Managed fishery.

2.     Endorse the draft Northern Offshore Fishery Management Plan at Attachment A.

3.     Sign the Gazette notice to give notice of the draft Northern Offshore Fishery Management Plan and the statutory public comment period.

4.     Sign the draft letter to Senator the Hon Jonathon Duniam, Assistant Minister for Forestry and Fisheries, in his capacity as Commonwealth member of the NT Fisheries Joint Authority, seeking his consideration of the draft Northern Offshore Fishery Management Plan and endorsement to release for public consultation by signing the Gazette notice.

5.     Note that, subject to Senator Duniam's endorsement of the draft Northern Offshore Fishery Management Plan, the Gazette notices will be published to declare the fishery, and release the draft Management Plan for public consultation.

6.     Endorse the Director's reasons for recommendation (refer Attachment B) to be released with the draft Management Plan.

7.     Note that subject to consideration of any submissions received during the public consultation period, approval of the settled draft Northern Offshore Fishery Management Plan will be sought from both Joint Authority members to implement the new management plan.

83    Attachment A to the June 2021 Memorandum was a draft management plan titled “Northern Offshore Fishery Management Plan 2021” (Draft Management Plan) which took the form of draft subordinate legislation. A copy was annexed to Mr Cureton’s affidavit.

Territory Minister’s approval on 20 July 2021

84    It appears from the June 2021 Memorandum that it was received by the Territory Minister’s office on 7 June 2021. It also appears from the document that Ms Manison, as Minister for Agribusiness and Aquaculture in the Territory, signed the Memorandum on 20 July 2021 in order to signify that she had determined to take each of the steps that were the subject of the “recommendations” in the June 2021 Memorandum.

85    Steps 1, 3 and 4 of the recommendations required certain documents to be signed by the Minister. Each of those documents was signed by the Minister on 20 July 2021 and copies were annexed to Mr Cureton’s affidavit.

Declaration of the Northern Offshore Fishery

86    The first document was a “Gazette notice” titled “Declaration of Northern Offshore Fishery” signed by the Minister on 20 July 2021. That document states that the Minister “under s 22(b) of the Fisheries Act, declare[s] gold band snapper, red snapper and grouped fish, each as defined in regulation 3(1) of the Fisheries Regulations 1992, in the demersal waters described in the Schedule to be a managed fishery known as the Northern Offshore Fishery”. The Schedule describes the waters as “All demersal waters within the adjacent area in respect of the Territory, as defined in section 3(1) of the Coastal Waters (Northern Territory Powers) Act 1980 (Cth), bounded by an imaginary line situated 15 nautical miles from the Territorial Sea Baseline of the Territory and extending seaward to the outer boundary of the Australian Fishing Zone.”

87    As noted earlier, s 22(b) of the Fisheries Act empowers the Territory Minister, by Gazette notice, to declare a fishery to be a managed fishery. That is a statutory power able to be exercised by the Territory Minister independently of the NTFJA. The phrase “Gazette notice”, when used in Territory statutes, is defined in s 17 of the Interpretation Act 1978 (NT) as a notice published in the Government Gazette of the Territory (as to which, see also s 66A). Paragraph 5 of the June 2021 Memorandum indicates that it is intended that the Gazette notice declaring the Northern Offshore Fishery to be a managed fishery and signed by the Minister on 20 July 2021 will not be published in the Territory Gazette until the proposed creation of the Northern Offshore Fishery and until the proposed management plan has been approved by the Commonwealth Minister. As far as the evidence reveals, that is yet to occur. As a consequence, the Northern Offshore Fishery has not yet been declared to be a managed fishery under s 22(b).

Draft Northern Offshore Fishery Management Plan

88    The second document was a “Gazette notice” titled “Notice of proposed Northern Offshore Fishery Management Plan 2021”. The document is a notice to be given by the NTFJA under s 70C(2) of the Fisheries Act of the proposed Northern Offshore Fishery Management Plan 2021. The notice includes information as to where a copy of the proposed plan can be inspected in person and online, where submissions can be made and the date by which submissions are required to be made. The notice contemplates signature by both the Territory Minister and the Commonwealth Minister. The notice was signed by the Territory Minister on 20 July 2021 and a place has been left for the Commonwealth Minister’s signature.

89    Again as noted earlier, s 70A of the Fisheries Act provides that, after a Joint Authority fishery is declared under s 22, the Joint Authority must, as soon as practicable after the declaration, prepare a proposed plan for the whole or part of the managed fishery. Section 70C(2) stipulates that, after preparing a proposed plan under s 70A, the Joint Authority must give notice of the proposed plan, and the place where a copy of it may be inspected, in the Gazette or a newspaper circulating throughout the Territory. Section 70C(4) requires the Joint Authority to consider submissions made in respect of the plan before approving it (with or without amendment).

Letter to the Commonwealth Minister

90    Also on 20 July 2021, the Territory Minister wrote to the Commonwealth Minister (as the other member of the NTFJA) in the following terms:

I write to you as my counterpart member of the Northern Territory Fisheries Joint Authority (Joint Authority), in relation to the proposed management arrangements for the Northern Territory's Timor Reef Fishery and Demersal Fishery.

I am pleased to provide you with an update on the proposed arrangements for the Northern Offshore Fishery. The Department of Industry, Tourism and Trade (DITT) has prepared a draft Management Plan for the Northern Offshore Fishery in accordance with the Fisheries Act 1988 (NT Fisheries Act) for consideration of the Joint Authority. I have considered the draft Management Plan and am confident that, in conjunction with the management framework, it will:

•    provide a robust regulatory arrangement to manage target species stocks within the geographical boundaries of those stocks;

•    encourage greater utilisation of issued red snapper quota within sustainable limits; and

•    streamline and remove duplication in administrative/approval processes and reporting requirements, reducing costs for government and industry participants.

To progress the arrangements, I have signed a Gazette notice to declare the Northern Offshore Fishery a 'managed fishery'. In accordance with the NT Fisheries Act, the Joint Authority must, as soon as practicable after the declaration of a managed fishery, prepare a proposed management plan for the managed fishery.

I now provide you with the draft Management Plan for the Northern Offshore Fishery for your consideration (Attachment A).

Subject to your endorsement of the draft Management Plan, I seek your signature on the Gazette notice to release the plan for a statutory consultation period. After consideration of any submissions made in respect of the proposed management plan we, as the Joint Authority, may approve the new Management Plan.

DITT has been engaging with officers at the Australian Fisheries Management Authority and Department of Agriculture and Water Resources on this matter, however I would be happy to arrange a more detailed briefing for your officers if considered necessary.

I look forward to continuing to work closely with you in ensuring the sustainable development of the Territory's acquatic resources.

Commonwealth Minister’s reply

91    On 27 August 2021, the Commonwealth Minister sent a letter to the Territory Minister in the following terms:

Thank you for your letter of 20 July 2021 enclosing a copy of the draft management plan for the Northern Offshore Fishery.

I am currently considering the draft management plan, including seeking advice from the Department of Agriculture, Water and the Environment and the Australian Fisheries Management Authority.

I will provide a formal response as soon as possible.

92    There is no evidence of any further action having been taken, or decisions made, by the Commonwealth Minister in respect of the Northern Offshore Fishery.

Comparison of the Proposed Framework and the Draft Management Plan

93    Also annexed to Mr Cureton’s affidavit was a schedule comparing the elements of the Proposed Framework and the Draft Management Plan. ABS relies on the schedule in support of a contention that the Draft Management Plan adopts the substantive elements of the Proposed Framework required for the Draft Management Plan to comply with s 70C(1) of the Fisheries Act. Mr Cureton’s affidavit acknowledges, though, that there are a number of differences between the two documents.

Findings in relation to the further evidence

94    The findings that can be made in respect of the further evidence can be stated briefly.

95    At the hearing before the primary judge, the evidence established that, on 6 March 2020, the Territory Minister:

(a)    indicated “in principle” support to declare the Northern Offshore Fishery as a managed fishery;

(b)    endorsed the “Draft Management Framework” for the Northern Offshore Fishery which was documented in the Proposed Framework;

(c)    approved the drafting of a management plan for the Northern Offshore Fishery; and

(d)    approved the drafting of an amendment to the Fisheries Regulations to revoke those regulations relevant to the Demersal Fishery and Timor Reef Fishery (subject to NTFJA approval of the new management plan).

96    The further evidence shows that the steps approved by the Territory Minister on 6 March 2020 were subsequently undertaken by the Department. Those steps culminated in, by 20 July 2021, the Territory Minister:

(a)    endorsing a draft proposed management plan for the Northern Offshore Fishery (in the form of the Draft Management Plan) to be provided to the Commonwealth Minister as a member of the NTFJA for consideration;

(b)    signing the required Gazette notice to declare the Northern Offshore Fishery a managed fishery under s 22(b) of the Fisheries Act, with the gazettal to proceed if the proposal is approved by the Commonwealth Minister as a member of the NTFJA;

(c)    signing the required Gazette notice to give notice of the proposed management plan for the Northern Offshore Fishery, with the gazettal to proceed if the proposal is approved by the Commonwealth Minister as a member of the NTFJA; and

(d)    sending the foregoing documents to the Commonwealth Minister as a member of the NTFJA for consideration.

97    None of those steps constitute the exercise of any statutory power. Each are preparatory to the exercise of statutory power. Save in one respect (referred to below), the contemplated decisions with respect to the proposed Northern Offshore Fishery require decisions to be taken by the NTFJA, not the Territory Minister acting unilaterally. ABS did not submit otherwise. Indeed, ABS submitted, in respect of its case before the primary judge:

it was not ABS’ case that the Proposed Framework had “legal effect” or was “prepared or endorsed in the exercise of any statutory power”, quite the opposite. ABS’ case was that it contained the substance of a management plan which the respondents intended to take forward in a formal “management plan” prepared under s.70A, notified under s.70C(2) and, subject to submissions, approved under s.70C(4) of the [Fisheries Act]. That case has been shown by the new evidence to be correct.

98    For completeness, it should be noted that a statutory step appears to have been overlooked by the Territory Respondents. As noted earlier, s 22(b) of the Fisheries Act empowers the Territory Minister, by Gazette notice, to declare a fishery to be a managed fishery. That is a statutory power able to be exercised by the Territory Minister independently of the NTFJA. The Territory Minister has prepared and signed a Gazette notice to declare the Northern Offshore Fishery to be a managed fishery, but the notice has not yet been gazetted. Section 23 stipulates that, if a managed fishery declared under s 22 is not a Joint Authority fishery, the Director, as soon as practicable after the declaration, must prepare a proposed plan for the whole or part of the managed fishery. It is apparent from the evidence that the Territory Minister intends for the Northern Offshore Fishery, once declared, to be a Joint Authority fishery. However, to be a Joint Authority fishery, there must be in force an arrangement between the Commonwealth and the Territory under which the fishery is to be under the management of the Joint Authority. Any such arrangement can only be made jointly by the Commonwealth and the Territory under s 74 of the Fisheries Management Act and s 64 of the Fisheries Act. As set out earlier, an arrangement was made in respect of the Demersal and Timor Reef Fisheries. However, the evidence does not reveal any steps being taken with respect to the making of an arrangement for the Northern Offshore Fishery.

Submissions on the application to reopen

99    The parties filed lengthy submissions on the application. It is unnecessary to address every point that was raised. The following summary identifies the submissions that are directly relevant to the disposition of ABS’ application to reopen and adduce the further evidence on the appeal.

ABS’ submissions

100    ABS argued that the further evidence was relevant and should be admitted on the appeal on two principal bases.

101    First, ABS submitted that the evidence was relevant to, and contradicted, a finding by the primary judge that the Proposed Framework was “in substance a work in progress” (at [124]). ABS argued that the further evidence showed that the Proposed Framework reflected the substance of the final management plan set out in the Draft Management Plan. ABS further submitted that it should be inferred from the further evidence that, prior to the hearing at first instance on 23 June 2020, the Territory Respondents knew that the Proposed Framework contained the final form of the new management arrangements for the Northern Offshore Fishery, and that the proposed management plan under s 70A would be prepared by reference to it so that it contained the elements of the Proposed Framework.

102    ABS argued that it is the duty of the Territory Respondents (as the executive branch of government) “to assist the court to arrive at the proper and just result”: P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 (P & C Cantarella) at 383 per Mahoney J, approved in Mahenthirarasa v State Rail Authority of New South Wales (No 2) (2008) 72 NSWLR 273 (Mahenthirarasa) at [16]. ABS argued that, consistently with that duty, the Territory Respondents ought to have told the primary judge the matters referred to above. Instead, the Territory Respondents’ written submissions below were that:

The Proposed Framework… does not contain… a proposed plan within ss70A and 70C. It is patently a policy document, different in both content and form to Divs 6 and 15 of Part 8 of the [Fisheries Regulations] and other management plans.

103    In oral argument, the Territory Respondents submitted to the primary judge:

…that the proposed framework document is simply a framework document, a policy document, and that there is yet to be drafted, let alone put before the NTFJA, a management plan, or a proposed management plan. The applicant’s argument, your Honour, appears to be that all of that should be ignored, because the proposed framework has some things in it which a proposed plan, or a management plan, would have, and we say that’s hardly surprising, given that it’s the policy document about a proposed fishery. But [we] make the point that, just because two documents have the same content, or have some content in common, doesn’t make them the same thing.

104    ABS argued that, had the Territory Respondents properly disclosed the matters set out above, the primary judge would have found that the Proposed Framework was not “in substance a work in progress” but the substance of the final plan for the management of the Northern Offshore Fishery which, as far as the Territory Respondents were concerned, would become law subject only to the approval of the Commonwealth Minister and the consideration of any submissions under s 70C(4) of the Fisheries Act.

105    Second, ABS submitted that the evidence contradicted submissions put to this Court on the appeal. ABS argued that the status of the Proposed Framework as only a “policy proposal” was repeatedly emphasised to this Court in written submissions to endorse the primary judge’s decision that the document was a “work in progress”. Further, in oral submissions to this Court, the Territory Respondents submitted:

It must be remembered that the process that’s challenged in this proceeding has not advanced beyond the 6 March 2020 document. The future aspect of the case is clearly hypothetical and advisory in the sense contemplated by the passages that I’ve taken your Honours to.

106    In its reply submissions, ABS further submitted that its case is based on a present breach by the NTFJA of its duty under s 66 of the Fisheries Act by “moving to bring into law the management plan which the Proposed Framework contemplates or by standing by while the Territory Respondents do the same”. ABS submitted that an aspect of that present breach is that the management plan which the Proposed Framework contemplates is not consistent with and does not seek to further the objects of the Fisheries Act. The relevance of the further evidence to ABS’ case in this respect is that it shows the stage to which “plans for the good management” under s 66(1) for the Demersal Fishery have been developed in terms of the Proposed Framework for the Northern Offshore Fishery.

The Territory Respondents’ submissions

107    The Territory Respondents supported ABS’ application, but argued that the further evidence does not assist ABS’ case.

108    The Territory Respondents supported ABS’ application because they appreciated the need to clarify submissions made on the appeal concerning the Proposed Framework. The Territory Respondents stated that their submissions to this Court were made on the basis that they reflected the factual position at the time that judgment was delivered below; the submissions were not intended to reflect the position at the time of the hearing of the appeal. The Territory Respondents said that counsel for the Territory Respondents was aware of the further evidence at the time of the hearing of the appeal. However, counsel proceeded on the mistaken premise that the appeal was concerned with the identification of error in the judgment below on the evidence and facts as they stood at the time of judgment. After the conclusion of the hearing, counsel for the Territory Respondents came to understand this premise to be incorrect, and that events occurring between the delivery of judgment and the hearing of an appeal can be relevant (referring to CDJ v VAJ (1998) 197 CLR 172 (CDJ v VAJ) at [100]-[111], [113]-[114] per McHugh, Gummow and Callinan JJ; Allesch v Maunz (2000) 203 CLR 172 (Allesch) at [20]-[24], [29]-[31] per Gaudron, McHugh, Gummow and Hayne JJ; and McNeill v The Queen (2008) 168 FCR 198 at [316]). The Territory Respondents supported the admission of the further evidence for the purpose of clarifying their submissions to this Court, and had no objection to ABS making submissions in respect of the further evidence for its own purposes.

109    In relation to the further evidence, the Territory Respondents submitted that it demonstrated that limited steps have been taken since the hearing before the primary judge. However, the NTFJA has yet to decide whether to approve the Draft Management Plan under s 70A(2) of the Fisheries Act, the Territory Minister will not declare the Northern Offshore Fishery unless the Commonwealth Minister indicates his agreement to the Draft Management Plan, and the Draft Management Plan has not been released for public comment under s 70C. Further, the Commonwealth Minister has indicated that he has not yet considered the Draft Management Plan. As to the correspondence between the Proposed Framework and the Draft Management Plan, the Territory Respondents submitted that there are substantial differences between the Proposed Framework and the Draft Management Plan, both in form and in substance. The Territory Respondents’ submissions contained a detailed description of the differences which is unnecessary to reproduce for the purposes of these reasons.

110    The Territory Respondents disagreed that their submissions below as to the nature of the Proposed Framework misled the primary judge or that their submissions led the primary judge into error. They submitted that ABS’ submissions in this regard mischaracterise the Territory Respondents’ submissions below and the reasons of the primary judge. The Territory Respondents’ position below (and on appeal) was not that the Proposed Framework did not set out material which a plan of management could also contain or from which a plan could be drafted. Their position was that ABS’ claims were hypothetical because ABS sought relief regarding a “proposed management plan as set out in the Proposed Framework”, and the content of that Proposed Framework would have no legal effect unless translated into a plan of management through a statutory process which had not yet commenced and (when complied with) might lead to changes in that content. The Territory Respondents submitted that the primary judge’s findings were consistent with that submission. After characterising the Proposed Framework as “in substance a work in progress”, his Honour explained that “[w]hether it [the Proposed Framework] will be subject to further amendment and, more significantly, whether it will be approved by the NTFJA, is not presently known” (at [124]).

111    The Territory Respondents submitted that the further evidence does not advance ABS’ case on appeal. They argued that ABS’ case below was premised on the contention that the Proposed Framework contains in substance a plan of management which will be made into law. However, the further evidence does not support that contention. ABS’ claims remain hypothetical because it is yet unknown whether the NTFJA will make a management plan and if so, the form that document will take. ABS’ submissions assume that the statutory process remains to be complied with de jure but has ended de facto. The submissions rest on the assumption that the Commonwealth Minister will “rubber stamp” the Draft Management Plan, that the public consultations will be completed in a token way, and that only a management plan which adheres to the Proposed Framework will be approved. The Territory Respondents submitted that that assumption does not have an evidentiary foundation and must be rejected. The Court should proceed on the assumption that the Ministers will conduct their activities within the law, including by exercising their statutory powers without prejudgment and by undertaking public consultations in good faith (referring to Kuczborski v Queensland (2014) 254 CLR 51 at [181] per Crennan, Kiefel, Gageler and Keane JJ and at [284] per Bell J). For these reasons, the Territory Respondents submitted that the Court is not in a position now to say whether the “proposed management plan as set out in the Proposed Framework” will be given legal effect”, either in an amended version or at all. ABS’ claims therefore remain hypothetical.

The Commonwealth Minister’s submissions

112    The Commonwealth Minister did not oppose ABS’ application, but submitted that the further evidence that ABS seeks leave to adduce would not make a difference to the outcome of the appeal.

113    The Commonwealth Minister confirmed that neither the solicitors nor counsel for the Commonwealth Minister were aware of the further evidence at the time of the hearing of the appeal. To the extent that any part of the submissions made on behalf of the Commonwealth Minister either directly or indirectly indicated that no steps had been taken in relation to the Proposed Framework after 6 March 2020, or after the date of the primary judge’s decision, the Commonwealth Minister submitted that he now seeks to correct those submissions in light of the further evidence.

114    In respect of the relevance of the further evidence on the appeal, the Commonwealth Minister submitted that that evidence does not alter the conclusion that ABS’ originating application does not raise a “matter” for determination. That is for two reasons:

(a)    to the extent that ABS’ claims are directed to the Proposed Framework, the determination of those claims could not establish any immediate right, duty or liability because that document had no legal effect and was not developed in the exercise of any particular statutory power; and

(b)    to the extent that ABS’ claims were directed to steps that might, in future, be taken by the Joint Authority, ABS was asking the Court to provide an advisory opinion on hypothetical questions in relation to events that might never come about.

115    The Commonwealth Minister said that it is common ground that the Proposed Framework has no legal effect, and submitted that the same is true of the Draft Management Plan. Before the Draft Management Plan could have legal effect, several additional steps would need to occur:

(a)    the Territory Minister declaring the Northern Offshore Fishery under s 22 of the Fisheries Act;

(b)    the Commonwealth making an arrangement with the Northern Territory under Div 3 of Pt 5 of the Fisheries Management Act that the Joint Authority is to have the management of the Northern Offshore Fishery;

(c)    the Joint Authority giving notice of the Draft Management Plan as a proposed plan under s 70C(2) of the Fisheries Act;

(d)    the Joint Authority considering any submissions made in respect of the proposed plan under s 70C(4) of the Fisheries Act, and making any amendments that it thinks fit; and

(e)    the Joint Authority approving the proposed plan as a management plan under s 70C(4) of the Fisheries Act.

116    The Commonwealth Minister submitted that, in the absence of any evidence of those steps having been taken, the further evidence provides no answer to the two reasons, stated above, why ABS’ originating application does not give rise to a “matter”.

Consideration

117    This Court has the discretion to receive further evidence on an appeal. Section 27 of the FCA Act provides as follows:

Evidence on appeal

In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken:

(a)    on affidavit; or

(b)    by video link, audio link or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or

(c)    by oral examination before the Court or a Judge; or

(d)    otherwise in accordance with section 46.

118    The principles which guide the exercise of the Court’s discretion under s 27 of the FCA Act were restated recently by Griffiths and White JJ in Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [16] (cited with approval by the Full Court in District Council of Streaky Bay v Wilson (2021) 287 FCR 538 at [149]):

… Drawing on authorities including CDJ v VAJ [1998] HCA 67; 197 CLR 172; Cottrell v Wilcox [2002] FCAFC 53; Sobey v Nicol and Davies, in the Matter of Guiseppe Antonio Mercorella [2007] FCAFC 136; 245 ALR 389; Watson Australian Community Pharmacy Authority [2012] FCAFC 142; 206 FCR 365 and Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3, they may be summarised as follows:

(1)    The discretion conferred by s 27 is unfettered, save that it must be exercised judicially and according to principle.

(2)     The power to receive further evidence is remedial and its primary purpose is to empower the Court to receive further evidence to ensure that proceedings do not miscarry.

(3)    The power is not constrained by common law rules that govern the grant of new trials on the ground of discovery of “fresh evidence”.

(4)     The following two considerations will normally be relevant to the exercise of the discretion:

(i)    the further evidence is such that, had it been adduced at trial, the result would very probably have been different; and

(ii)    the party seeking to adduce the evidence demonstrates that it was unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence.

(5)     The interests of third parties and the public at large may outweigh a party’s interest in the finality of litigation. For example, a greater willingness to receive further evidence on appeal has been apparent in bankruptcy matters which affect the interests of creditors generally.

119    It is uncontroversial that ABS was unaware of the further evidence until the conclusion of the hearing of the appeal. Shortly after the conclusion of the appeal, the legal representatives of the Territory Respondents informed the legal representatives of ABS that the Territory Respondents wished to clarify with the Court an aspect of their submissions during the appeal. Subsequent correspondence resulted in the disclosure of the further evidence to ABS and led to the application by ABS to reopen its case to adduce the further evidence. In the circumstances, it is appropriate to make an order pursuant to r 1.34 of the FCR dispensing with the requirement in r 36.57(2) for ABS to have made the application at least 21 days before the hearing of the appeal.

120    An important feature of the further evidence is that it principally concerns events which occurred after the hearing below and also after delivery of judgment below. An appeal to this Court is not an appeal in the strict sense but is rather an appeal by way of rehearing: Western Australia v Ward (2002) 213 CLR 1 at [71] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. The Full Court’s jurisdiction is therefore neither purely appellate nor purely original; the Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal: CDJ v VAJ at [111] per McHugh, Gummow and Callinan JJ. As Gageler J explained in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (at [31], citations omitted):

For practical purposes, the difference between correction of error on an appeal in the strict sense and correction of error on an appeal by way of rehearing lies in the temporal perspective that the appellate court is required to adopt in examining the correctness of the judgment under appeal. An appellate court determining an appeal in the strict sense is required to determine the correctness of the judgment under appeal at the time that judgment was given: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial and on the law as it then stood. An appellate court determining an appeal by way of rehearing, in contrast, is required to determine the correctness of the judgment under appeal in retrospect: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial supplemented by any further evidence that the appellate court may allow to be adduced on the appeal, and on the law as it stands when the appellate court gives judgment on the appeal.

121    In CDJ v VAJ, McHugh, Gummow and Callinan JJ observed that (at [111], in respect of the equivalent provision of the Family Law Act 1975 (Cth) regarding the receipt of further evidence by the Full Court of the Family Court on appeal):

… it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.

122    Their Honours went on to recognise, though, that a less strict approach is permissible where the further evidence is not in dispute and is able to be readily evaluated by the Full Court without having the proceedings re-heard, particularly where the evidence relates to events occurring after trial. Their Honours explained (at [114]):

No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge’s decision. In that context, the likely effect of the further evidence on the Full Court’s view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.

123    An appeal by way of rehearing must be distinguished, however, from a hearing de novo. As the plurality (Gaudron, McHugh, Gummow and Hayne JJ) explained in Allesch (at [23], citations omitted):

… the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error.

124    In the circumstances of the present case, it is appropriate to grant leave to ABS to rely upon the evidence in the affidavit of Mr Cureton on the appeal. Fairness also requires leave being granted to the respondents to rely on the responsive affidavits filed by them.

125    The circumstances of the present case are such that it is unnecessary, for the purposes of the application, to reach a concluded view that the further evidence, if known at the time of the hearing below, would have produced a different result. The pertinent circumstances are that:

(a)    the application to reopen and adduce further evidence is not opposed by the respondents and, in the case of the Territory Respondents, is supported;

(b)    the further evidence is not in dispute;

(c)    the further evidence is able to be readily evaluated by the Court without having the proceedings re-heard; and

(d)    the further evidence concerns events which occurred after judgment below.

126    In the hearing below, the parties were in dispute about the proper characterisation of the Proposed Framework, including the respondents’ intended actions based upon the Proposed Framework, and whether ABS’ legal challenge to the Proposed Framework and actions based upon it were justiciable. That dispute remains central on this appeal. Further, the dispute has escalated to a submission by ABS that the Territory Respondents breached their duty to this Court by advancing submissions that were contradicted by the further evidence and not disclosing the further evidence.

127    The Territory Respondents have, in turn, acknowledged that their submissions to this Court require “clarification”. It would be more accurate to say that the submissions require revision or at least refinement. The Territory Respondents submitted to this Court that “the process that’s challenged in this proceeding has not advanced beyond the 6 March 2020 document”. That submission was inaccurate. The further evidence shows that the process has advanced beyond the Territory Minister’s decision on 6 March 2020 endorsing the Proposed Framework. The submission should not have been made.

128    The admission of the further evidence enables the Territory Respondents to revise their submissions to this Court and for this Court to conduct the required rehearing on the basis of undisputed facts existing as at the date of the appeal. In the circumstances of this case, the interests of justice are best served by the Court receiving the uncontroversial further evidence and determining the appeal with reference to that additional evidence.

129    Finally, it is necessary to address ABS’ criticisms of the Territory Respondents’ conduct in the proceeding in respect of their submissions to the Court in light of the further evidence. The Territory Respondents have acknowledged that their counsel on the appeal were aware of the further evidence at the time of the hearing of the appeal. It is to be inferred that the solicitors for the Territory Respondents were also aware. As submitted by ABS, the obligations of the executive government before the courts is the subject of longstanding authority. The relevant principles were summarised by Mahoney J in P & C Cantarella in the following terms (at 383):

The duty of the executive branch of government is to ascertain the law and obey it. If there is any difficulty in ascertaining what the law is, as applicable to the particular case, it is open to the executive to approach the court, or afford the citizen the opportunity of approaching the court, to clarify the matter. Where the matter is before the court it is the duty of the executive to assist the court to arrive at the proper and just result.

130    As observed by Basten JA (with whom Giles and Bell JJA agreed) in Mahenthirarasa at [17], in more recent years, the obligation of the government has been described as an expectation that it will act and be seen to act as a “model litigant” (citing Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155 at 166E per Beaumont, Burchett and Goldberg JJ).

131    As stated above, the submission to this Court by the Territory Respondents that “the process that’s challenged in this proceeding has not advanced beyond the 6 March 2020 document” was incorrect and should not have been made. The Territory Respondents have explained the error as unintentional in the sense that counsel proceeded on the mistaken premise that the appeal was concerned with the identification of error in the judgment below on the evidence and facts as they stood at the time of judgment. It should be said that, notwithstanding that mistaken understanding of the nature of an appeal in this Court, greater care should have been exercised in ensuring the factual accuracy of the submissions made to the Court. Nevertheless, the evidence shows that, soon after the appeal hearing, the Territory Respondents appreciated that they had made an erroneous or misleading submission to the Court and moved to correct it. A letter was sent to the Court about 10 days after the hearing on 19 November 2021. The further evidence was also provided to ABS seven days later on 26 November 2021. The Territory Respondents have not opposed ABS’ application to adduce the further evidence. In light of their obligations, the Territory Respondents have acted responsibly to remedy the error.

132    ABS’ criticisms of the Territory Respondents’ conduct also extended to submissions made to the primary judge at the hearing below. Those criticisms have no proper basis. The further evidence relates to actions taken after the delivery of judgment below. As at the time of the hearing, the evidence disclosed that, on 6 March 2020, the Territory Minister had indicated “in principle” support to declare the Northern Offshore Fishery as a managed fishery, endorsed the Proposed Framework and approved the drafting of a management plan for the Northern Offshore Fishery and an amendment to the Fisheries Regulations to revoke the regulations relevant to the Demersal Fishery and Timor Reef Fishery. The Territory Respondents did not seek to contradict the meaning and effect of those decisions by the Territory Minister. Rather, the Territory Respondents advanced submissions to the primary judge that those decisions had no legal effect and that the Proposed Framework was a policy document and a work in progress. There was nothing improper or misleading about those submissions. Model litigant obligations do not prevent the executive government from strenuously defending the government’s interests and advancing submissions that are available on the evidence.

G.    The substantive appeal

Overview

133    By its notice of appeal, ABS advances nine grounds of appeal, some of which have multiple subsidiary grounds. As noted earlier, the grounds are divided into three sections under the headings “matter” (grounds 1 to 5), “certiorari” (grounds 6 to 8) and the application for summary dismissal under s 31A of the FCA Act (ground 9). The organisation of the grounds under those headings is not entirely logical (from a legal perspective) because the grounds relating to certiorari are necessarily connected to the question whether ABS’ claims in the proceeding gave rise to a “matter”. Further, many of grounds 1 to 8 are in the nature of argument rather than separate grounds of appeal. For those reasons, it is convenient to address those grounds collectively. Ground 9 concerns the primary judge’s conclusion, for the purposes of s 31A of the FCA Act, that the proceeding has no reasonable prospect of success. Given the conclusions reached in respect of grounds 1 to 8, it will be unnecessary to address ground 9.

134    In written and oral argument, ABS’ case on appeal focussed heavily on ground 3. By that ground, ABS contends that the primary judge erred in failing to find that, through the proceeding, ABS is seeking to enforce the statutory duty owed by the Territory Minister and the Commonwealth Minister as the NTFJA under s 66 of the Fisheries Act of (a) “keeping constantly under consideration the condition of the fishery, formulating policies and plans for the good management of the fishery and, for the purposes of the management of the fishery, exercising the powers conferred on it by this Act” per s 66(1) and (b) acting consistently with and seeking to further the objects of the Fisheries Act per s 66(2). ABS contends that, in the proceeding, it is claiming that the Territory Minister and the Commonwealth Minister as the NTFJA are in breach of their duties under s 66 of the Fisheries Act by taking further steps to progress the Proposed Framework and by failing to take any other step to develop plans of management consistently with and in ways which uphold the objects of the Fisheries Act. ABS also contends that, in the proceeding, it is claiming that the alleged breaches of duty are causing immediate prejudice to its rights as a unit holder in the Demersal Fishery including by the loss of its rights to export fish caught by it in the Demersal Fishery. ABS contends that those claims, which are contested by the respondents, give rise to a “matter” within the meaning of s 39B(1A)(c) of the Judiciary Act.

135    The contentions advanced by ABS in respect of ground 3, involving a present breach of duty by the NTFJA, have little relationship with the reasons of the primary judge. It is clear from the reasons that the primary judge did not understand ABS’ claims in the proceeding to include what is now advanced by ground 3. The respondents contend that what is now advanced by ground 3 was not the focus of ABS’ claim below and cannot be reconciled with the relief it seeks by its amended originating application. The respondents say that none of the declarations sought by ABS referred to a present failure by the Territory Minister and Commonwealth Minister (as the NTFJA) to perform a statutory duty, and ABS did not seek mandamus or a mandatory injunction to enforce compliance with any alleged statutory duty.

136    It is entirely understandable that the primary judge did not understand ABS’ claims in the proceeding to include what is now advanced by ground 3. The claim does not emerge with any clarity from the documents constituting the proceeding, being the amended originating application and the concise statement. As a consequence of the principal contentions advanced by ABS on the appeal, ABS did not (in any substantive way) attempt to demonstrate error in the primary judge’s reasons based on the claims as understood by the primary judge. Rather, ABS sought to demonstrate that the primary judge erred by failing to understand ABS’ claims and, thereby, failing to dismiss the respondents’ application on the basis of the claims as now articulated by ABS in ground 3.

137    It is axiomatic that, in assessing whether a proceeding gives rise to a “matter” within the meaning of s 39B of the Judiciary Act, it is necessary to focus on the claims which a party is making, not their merit. As the plurality (Kiefel, Keane, Nettle and Gordon JJ) observed in Palmer v Ayres (2017) 259 CLR 478 (Palmer) at [26]-[27] (citations omitted):

26    A “matter”, as a justiciable controversy, is not co-extensive with a legal proceeding, but rather means the subject matter for determination in a legal proceeding – “controversies which might come before a Court of Justice” (emphasis added). It is identifiable independently of proceedings brought for its determination and encompasses all claims made within the scope of the controversy. …

27    The requirement that, for there to be a “matter”, there must be an “immediate right, duty or liability to be established by the determination of the Court” reinforces that the controversy that the court is being asked to determine is genuine, and not an advisory opinion divorced from a controversy, and, further, that only a claim is necessary. A matter can exist even though a right, duty or liability has not been, and may never be, established.

138    In determining the appeal, it is necessary to start by identifying the claims advanced by ABS in the proceeding. After identifying the claims, the issues raised by the grounds of appeal can be considered.

What claims are advanced by ABS in the proceeding?

ABS’ submissions

139    ABS submitted that the primary judgment (at [64]) contains a summary of some of the bases for ABS’ claims for relief, but omits most critically ABS’ claim that the NTFJA is presently in breach of its duty under s 66 of the Fisheries Act by not keeping the condition of the Demersal Fishery “constantly under consideration” and “formulating policies and plans for the good management of” the Demersal Fishery in compliance with s 66(2). ABS argued that each of its claims for relief in the proceeding were in fact directed towards allegations of present breaches of s 66(2).

140    In the course of argument, ABS accepted that: (a) the Northern Offshore Fishery had yet to be declared a managed fishery under s 22 of the Fisheries Act; (b) the NTFJA has not adopted the Proposed Framework; and (c) the Proposed Framework is not a proposed plan prepared under s 70A(2) of the Fisheries Act. ABS said that its submissions to the primary judge, that the Proposed Framework purportedly contained all of the detail required of a management plan for the Northern Offshore Fishery of the kind referred to in s 70A(2), were simply to highlight as a matter of substance the deficiencies in these details and the processes by which they had been developed as a means of promoting the objects in s 2A. ABS’ claim for relief was not premised on the Proposed Framework containing the purported plan of management for the Northern Offshore Fishery.

141    ABS submitted that, as the owner of 66% of the units in the Demersal Fishery, it was claiming the right to enforce the NTFJA’s statutory duties imposed by s 66 of the Fisheries Act, namely the duties to keep the Demersal Fishery (as opposed to the Northern Offshore Fishery) constantly under consideration and to formulate policies and plans for its good management which are “consistent with” and which “seek to further” the objects in s 2A of the Act, including the principles of ecologically sustainable development. ABS submits that its contention is that the NTFJA was, and is presently, in breach of its duty under s 66 either because it is purporting to formulate a plan for the merger of the Demersal Fishery with the Timor Reef Fishery as proposed in the Proposed Framework in purported discharge of its function and duty under s 66 or because it is standing by, in breach by impermissible inaction, while the Department does the same.

142    In its oral submissions, ABS focussed upon what it submitted was the strongest and most obvious breach of s 66(2), being the NTFJA’s failure to undertake an overdue biomass survey of the Demersal Fishery. It submitted that a proper biomass survey of the Demersal Fishery and the Timor Reef Fishery has not been undertaken since 1990. The EPBC Act approval of the Demersal Fishery in 2009 required a new fish stock survey to be completed and the results provided by May 2013. ABS submitted that it would seek to establish at a substantive hearing that that requirement has continually been deferred by the Department, at least with the acquiescence of the NTFJA, so that it would not be done until after the merger proposal and other changes contemplated have been brought into law (an order of events acknowledged in the Proposed Framework itself). ABS submitted that it would seek to make the case that the biomass survey should have been done directly, and should now be done directly, and that changes cannot and should not be contemplated to the management arrangements for the Demersal Fishery until the results of that survey are known. ABS submitted that it is simply not possible to know whether or not the changes will advance the objects in s 2A as required by s 66(2) without that information.

143    In response to the respondents’ arguments that the claim now advanced cannot be found in the amended originating application and concise statement, ABS relied on the statement in Palmer at [26], cited earlier, that a matter is identifiable independently of proceedings brought for its determination and encompasses all claims made within the scope of the controversy, as well as the statement of the majority (Mason, Murphy, Brennan and Deane JJ) in Fencott v Muller (1983) 152 CLR 570 (Fencott) at 608:

In identifying a s. 76(ii) matter, it would be erroneous to exclude a substantial part of what is in truth a single justiciable controversy and thereby to preclude the exercise of judicial power to determine the whole of that controversy. What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out.

144    ABS submitted that the relief sought in the amended originating application can do no more than “illuminate” the scope of the controversy which is found elsewhere and that federal jurisdiction does not ebb and flow according to the presence and characterisation of particular words in a pleading or submission. It argued that the matter is founded in the context of the relevant conduct and relationship to which the laws attaching rights or liabilities apply and not in the form of relief sought or submissions advanced.

The Respondents’ submissions

145    It is unnecessary to distinguish between the arguments advanced by the Territory Respondents and the Commonwealth Minister. The respondents submitted that the primary judge correctly identified ABS’ claims that (a) it was not lawful for the Department, as distinct from the NTFJA itself, to prepare a draft management plan and (b) contrary to s 66(2) of the Fisheries Act, the Proposed Framework had not been prepared in a manner which is consistent with, and did not further, the objects contained in s 2A of the Fisheries Act. Having correctly identified those claims, the primary judge below concluded there was no matter because the relief sought was premature and the matters sought to be raised by ABS were hypothetical.

146    The respondents submitted that ABS’ case below was premised on the Proposed Framework containing a purported plan of management for the Northern Offshore Fishery. That was how ABS put its case orally and in writing, and is consistent with the relief sought, which ABS specifically amended so that each of the declarations were in respect of “the proposed management plan as set out in the Proposed Framework”. On this basis, the respondents submitted that the primary judge did not err in proceeding on that understanding of the claim. As such, ABS sought to raise matters which were hypothetical and therefore beyond jurisdiction. The statutory scheme, which required the Northern Offshore Fishery to be declared and a process of public consultations and amendments, precluded any assumption that the Proposed Framework would be approved by the NTFJA in its present form. ABS’ proceeding was premature and hypothetical because it sought, in effect, to challenge the policy in the Proposed Framework before it was known whether it would be amended and whether it would be adopted by the NTFJA.

147    The respondents submitted that, faced with this conclusion, ABS now shifts focus and says that the immediate right, duty or liability that it sought to enforce is the “duty” of the NTFJA imposed by s 66 of the Fisheries Act. The respondents say that this was not the focus of ABS’ claim below and cannot be reconciled with the relief it seeks. They submitted that it is clear from ABS’ concise statement and from the relief sought that it was concerned with the prospective lawfulness of the Proposed Framework if approved. The concise statement alleges that the proposal to merge the Demersal and Timor Reef Fishery through the Proposed Framework was inconsistent with the Fisheries Act and “cannot be brought into law under the Fisheries Act”. Conversely, the concise statement did not allege any existing breach of a duty under s 66(1) of the Fisheries Act arising out of the preparation of the Proposed Framework. Similarly, ABS sought declarations and injunctions directed to the lawfulness of the Proposed Framework if it were brought into law. Conversely, no declaration was sought that the NTFJA was in breach of its duty under s 66 of the Fisheries Act, nor was any relief sought in the nature of mandamus to compel the NTFJA’s compliance with that asserted duty.

Consideration

148    Contrary to ABS’ submission, in determining whether the Court has jurisdiction in a proceeding, it is necessary to examine the claims to relief sought and the basis of the claims as stated in pleadings or equivalent documents by which the case is stated to the opposing parties and the Court. ABS’ convoluted submissions, that the matter is founded in the context of the relevant conduct and relationship to which the laws attaching rights or liabilities apply and not in claims for relief and pleadings, should be rejected. It is not supported by the authorities relied on by ABS. Fencott concerned the question of the extent of federal jurisdiction: whether federal jurisdiction extended to common law claims that arose out of the same controversy as a federal claim. The passage cited earlier concerned the determination of the question whether the federal and common law claims arose from the one controversy. In any event, the passage confirms the centrality of pleadings in identifying the claims that are brought before the Court in a proceeding. Further, as the existence of a “matter” cannot be separated from the existence of a remedy to enforce the substantive right, duty or liability (Abebe v The Commonwealth (1999) 197 CLR 510 (Abebe) at [32] per Gleeson CJ and McHugh J), it is also necessary to have close regard to the relief sought in the originating application.

149    The difficulties which have arisen in this proceeding can be attributed in large part to the poorly prepared originating application and concise statement. At the hearing below, ABS proffered a substantially amended originating application. As discussed below, that has not brought clarity to the claims made in the proceeding. The concise statement also suffers from numerous problems, as also discussed below. Significantly for present purposes, the claims propounded by ABS through appeal ground 3 do not emerge with any clarity from the documents constituting the proceeding.

150    The claims made by ABS in its concise statement were set out earlier in these reasons. It can be accepted that the claims made in the concise statement are predominantly based on s 66 of the Fisheries Act. The principal contention advanced is that the proposed merger of the Demersal and Timor Reef Fisheries to create the Northern Offshore Fishery and the Proposed Framework are inconsistent with the objects of the Fisheries Act. The concise statement then alleges that, as a consequence, the merger proposal and the Proposed Framework “cannot be brought into law under the [Fisheries Act]”. The legal basis of that claim is not articulated. It appears to have at least two premises. The first premise is that s 66 of the Fisheries Act imposes a duty (as opposed to a function or power) on the NTFJA. That is a contestable issue, but one which ABS is entitled to have determined by the Court. The second premise appears to be that, assuming s 66 imposes a duty on the NTFJA, the Court has the lawful authority to assess the merits of a particular action or decision (in this case, the implementation of the merger proposal and the Proposed Framework) and determine for itself whether that action or decision is consistent (or compliant) with the duty stated in s 66.

151    Some statutory duties are stated in terms that are neither evaluative nor discretionary. Such duties are able to be enforced by the Court in accordance with their terms. Section 66 of the Fisheries Act is not, however, of that kind. Even if it be a duty (as opposed to a function or power), s 66 is stated in evaluative terms whereby the NTFJA is charged with the duty of keeping constantly under consideration the condition of the fishery and formulating policies and plans for the good management of the fishery and, in doing so, acting consistently with, and seeking to further, the objects of the Fisheries Act. The evaluation of policies and plans for a fishery as required by s 66 must be undertaken by the NTFJA, not by the Court. As Brennan J explained in Attorney-General (NSW) v Quin (1989) 170 CLR 1 (at 35-36):

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. … The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

152    The concise statement entirely fails to state the legal (as opposed to factual) basis upon which ABS seeks to have the Court review the merger proposal and the Proposed Framework for compliance with s 66. It may be accepted, though, that defects in pleading are able to be remedied by amendment and typically do not deny the Court’s jurisdiction over the matter.

153    For completeness, it should be noted that any duty imposed on the NTFJA by s 66 can only relate to a fishery in respect of which there is in force an arrangement under which the NTFJA has the management of the fishery. Relevantly for this proceeding, any duty imposed on the NTFJA by s 66 can only relate to the Demersal and Timor Reef Fisheries and not the Northern Offshore Fishery for which an arrangement has not yet been made. It can be accepted, though, that the merger proposal to create the Northern Offshore Fishery and the Proposed Framework for the management of the Northern Offshore Fishery may be characterised as policies and plans for the management of the Demersal and Timor Reef Fisheries. The respondents did not contend to the contrary.

154    Another significant problem with the concise statement is that it elides the actions and decisions of the Department, the Territory Minister and the NTFJA in the formulation and adoption of the merger proposal and the Proposed Framework. As already noted, the concise statement alleges that, being inconsistent with the objects in the Fisheries Act, the merger proposal and the Proposed Framework “cannot be brought into law” under the Fisheries Act. It is only the NTFJA that can “bring into law” the merger proposal and the Proposed Framework. The concise statement makes no allegation that the NTFJA is threatening or even proposing to do so. The concise statement alleges, consistently with the known facts, that the Department has formulated and promoted the merger proposal and the Proposed Framework, and that on 6 March 2020 the Territory Minister endorsed “the drafting of a new Management Framework and harvest strategy for the Northern Offshore Fishery”. But there is no allegation that the NTFJA proposes to bring the Proposed Framework into law. The further evidence shows that, since 6 March 2020, the proposal has been further developed into a proposed management plan for the Northern Offshore Fishery, should it be created. The proposed merger to create the Northern Offshore Fishery, and the proposed management plan for it, have been approved by the Territory Minister and those proposals have been sent to the Commonwealth Minister for consideration. However, no decision has been taken by the Commonwealth and, necessarily, there is no indication whether the NTFJA is proposing or threatening to approve those proposals. Certainly, there is no allegation to that effect in the concise statement.

155    A further allegation in the concise statement is that, because the Proposed Framework has been developed by the Department, and not by the NTFJA in the performance of its functions under s 66, the Proposed Framework cannot be the subject of a valid opinion on the part of the NTFJA formed for the purposes of s 70D(1) of the Fisheries Act. Section 70D concerns amendments to a management plan that has been made by the NTFJA in respect of a fishery. The allegation seems to assume that any new management plan for the Northern Offshore Fishery would be an amendment to the management plans for the Demersal and Timor Reef Fisheries. The legal basis for that assumption is not articulated in the concise statement. Leaving aside that difficulty, no basis is stated in the concise statement for the allegation that work done by the Department cannot be the subject of a valid opinion by the NTFJA. The unstated premise appears to be that the NTFJA, which is constituted by a Minister of the Territory and a Minister of the Commonwealth, is not entitled to have work performed by, and take advice from, the public service (relevantly, the Department). The allegation is entirely unmeritorious. The fact that an allegation is hopeless does not deny the Court jurisdiction over the matter, but will entitle the Court to dismiss the claim summarily.

156    The final allegation in the concise statement is that, if the Fisheries Regulations are amended to bring the Proposed Framework into law, it will effect a transfer of substantial value from the holders of units in the Demersal Fishery to the holders of units in the Timor Reef Fishery without compensation and would thereby purportedly effect an acquisition of ABS’ property otherwise than on just terms contrary to s 50(1) of the NT Self-Government Act. The concise statement alleges that, for that reason, it cannot be a valid law of the Northern Territory. The allegation is, of course, premised on the Fisheries Regulations being amended to incorporate relevant elements of the Proposed Framework, which has not yet occurred. As submitted by the Territory Respondents, the allegation has little prospect of success because both the Fisheries Act and the Fisheries Management Act contain “historic shipwrecks” clauses.

157    Section 57 of the Fisheries Act provides as follows:

57     Acquisition on just terms

If the operation of this Act would, apart from this section, result in an acquisition of property from a person otherwise than on just terms:

(a)     the person is entitled to receive from the Territory the compensation necessary to ensure the acquisition is on just terms; and

(b)     a court of competent jurisdiction may decide the amount of compensation or make the orders it considers necessary to ensure the acquisition is on just terms.

158    Section 167A of the Fisheries Management Act provides as follows:

167A        Compensation for acquisition of property

(1)     If, apart from this section, the operation of this Act would result in the acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay reasonable compensation to the person.

(2)     If the Commonwealth and the person do not agree on the amount of the compensation, the person may apply to the Federal Court to determine a reasonable amount of compensation.

(3)     The jurisdiction of the Federal Court is exclusive of the jurisdiction of all other courts except that of the High Court.

(4)     Any damages or compensation recovered, or other remedy given, in a proceeding begun otherwise than under this section must be taken into account in assessing compensation payable in a proceeding begun under this section and arising out of the same event or transaction.

(5)     In this section:

acquisition of property and just terms have the same meaning as in paragraph 51(xxxi) of the Constitution.

159    Again, the fact that an allegation has little prospect of success does not deny the Court jurisdiction over the matter, but may entitle the Court to dismiss the claim summarily.

160    Three conclusions can be drawn from the above survey of the claims made in the concise statement. First, it may be accepted that, within the concise statement, there is a (poorly articulated and legally problematic) claim to the effect that the merger proposal and the Proposed Framework are inconsistent with the objects of the Fisheries Act and, for that reason, cannot be implemented by the NTFJA in compliance with its duty in s 66 of the Fisheries Act. Second, each of the claims in the concise statement contemplate a future contravention of the alleged duty in s 66, not a present contravention. It is alleged that the merger proposal and the Proposed Framework cannot be brought into law (paragraph 7), that they cannot be the subject of a valid opinion on the part of the NTFJA under s 70D (paragraph 8), and that if brought into law would effect an acquisition of property otherwise than on just terms (paragraph 9). The alleged contraventions are all premised on actions or decisions of the NTFJA which are yet to occur. Third, the concise statement does not contain some broader and generalised claim that the NTFJA is presently in breach of its duty under s 66 by failing to keep constantly under consideration the condition of the fishery and formulating policies and plans for the good management of the fishery which are consistent with and which further the objects of the Fisheries Act. ABS’ contention on this appeal that such a claim is advanced in the proceeding must be rejected.

161    The claims for relief in the amended originating application largely reflect the allegations made in the concise statement as discussed above. It is necessary to consider each form of relief in turn.

162    ABS seeks four declarations. Each of them concern what is described as “the proposed management plan as set out in the Proposed Framework”. As noted earlier, it is common ground that the Proposed Framework did not have any legal effect and was not prepared or endorsed in the exercise of any statutory power. ABS’ case is that it contains the “substance” of a management plan which the respondents intend to take forward in a formal “management plan” prepared under s 70A, publicly notified under s 70C(2) and, subject to submissions, approved under s 70C(4) of the Fisheries Act. The four declarations are as follows:

(a)    The first declaration is that the proposed management plan as set out in the Proposed Framework has not been formulated or prepared by the NTFJA validly or at all in the discharge of the functions under s 66 of the Fisheries Act. It is uncontroversial that the Proposed Framework was not prepared by the NTFJA but was prepared by the Department for the consideration of the Territory Minister.

(b)    The second declaration is that the proposed management plan as set out in the Proposed Framework or any amendment thereof cannot lawfully be the subject of any validly formed opinion or validly made decision of the NTFJA pursuant to s 70C(2) or s 70C(4) of the Fisheries Act. That declaration is inconsistent with paragraph 8 of the concise statement which focusses upon s 70D. Leaving that aside, the declaration contemplates a future event, which is yet to occur, that the NTFJA adopts the alleged management plan and gives public notice of the plan under s 70C.

(c)    The third declaration is that the proposed management plan as set out in the Proposed Framework does not further, and is not consistent with, the objects of the Fisheries Act. It may be accepted that that declaration is directed to present circumstances, not future actions or decisions. However, it suffers from the problem that it is not attached to any past, present or future action or decision of the NTFJA.

(d)    The fourth declaration is that the proposed management plan as set out in the Proposed Framework will effect an acquisition of ABS’ property otherwise than on just terms contrary to s 50(1) of the NT Self-Government Act, and accordingly cannot be made a valid law of the Northern Territory. That declaration reflects the claim made in paragraph 9 of the concise statement.

163    ABS also seeks two permanent injunctions. The first is to enjoin the Territory Minister, as a member of the NTFJA, from endorsing or approving any proposed management plan or amendments to the Fisheries Regulations to give effect to the Proposed Framework or a framework substantially the same as the Proposed Framework. The second is to enjoin the Territory Respondents from seeking the decision of the Commonwealth Minister as a member of the NTFJA to endorse or approve any proposed management plan or amendments to the Fisheries Regulations in accordance with the Proposed Framework or a framework substantially the same as the Proposed Framework for the purposes of giving notice pursuant to s 70C(2) of the Fisheries Act. It is apparent that the injunctions are directed to future actions or decisions by the NTFJA. The first injunction contemplates a decision of the Territory Minister as a member of the NTFJA endorsing or approving a management plan based on the Proposed Framework. The second injunction contemplates an act or decision preparatory to the Commonwealth Minister as a member of the NTFJA endorsing or approving a management plan based on the Proposed Framework, being the Territory Respondents seeking that approval. To that extent, the claims for injunctive relief are consistent with the allegations made in the concise statement: that the merger proposal and Proposed Framework cannot be lawfully implemented by the NTFJA (because, it is alleged, they are inconsistent with the objects of the Fisheries Act and therefore would place the NTFJA in breach of its duty under s 66).

164    ABS also seeks an order in the nature of certiorari quashing, or a declaration declaring invalid, the decisions of the Territory Minister of 6 March 2020 endorsing or approving (a) the Proposed Framework and the proposed management plan as set out therein, (b) the merger of the Demersal and Timor Reef Fisheries to create the Northern Offshore Fishery, and (c) the drafting of a management plan for the Northern Offshore Fishery in accordance with the Proposed Framework and the proposed management plan as set out therein. No basis for that relief is stated in the concise statement. There is no allegation that the decisions of 6 March 2020 were made in the exercise of statutory power or affected legal rights.

165    It is helpful to summarise the claims arising from the concise statement and the amended originating application by reference to whether they concern past, present or future actions or decisions.

166    As to past actions or decisions, ABS seeks the following orders:

(a)    a declaration that the proposed management plan as set out in the Proposed Framework has not been formulated or prepared by the NTFJA validly or at all in the discharge of the functions under s 66 of the Fisheries Act;

(b)    a declaration that the proposed management plan as set out in the Proposed Framework does not further, and is not consistent with, the objects of the Fisheries Act; and

(c)    an order in the nature of certiorari quashing, or a declaration declaring invalid, the decisions of the Territory Minister of 6 March 2020.

167    ABS makes no claims as to present actions or decisions. It does not seek an order in the nature of mandamus or a mandatory injunction compelling the NTFJA to perform any duty or function. As noted earlier, and contrary to the submissions advanced by ABS on the appeal, there is no claim made that the NTFJA is presently in breach of its duty under s 66 by failing to keep constantly under consideration the condition of the fishery and formulating policies and plans for the good management of the fishery which are consistent with and which further the objects of the Fisheries Act.

168    As to future actions or decisions, ABS seeks the following orders:

(a)    a declaration that the proposed management plan as set out in the Proposed Framework or any amendment thereof cannot lawfully be the subject of any validly formed opinion or validly made decision of the NTFJA pursuant to s 70C(2) or s 70C(4) of the Fisheries Act;

(b)    a declaration that the proposed management plan as set out in the Proposed Framework will effect an acquisition of ABS’ property otherwise than on just terms contrary to s 50(1) of the NT Self-Government Act, and accordingly cannot be made a valid law of the Northern Territory; and

(c)    injunctions preventing the Territory Minister, as a member of the NTFJA, from endorsing or approving any proposed management plan or amendments to the Fisheries Regulations to give effect to the Proposed Framework or a framework substantially the same as the Proposed Framework, and preventing the Territory Respondents seeking the same approval from the Commonwealth Minister.

169    It follows that, to the extent that ground 3 of the appeal postulates that the primary judge erred in failing to find that ABS’ claim was broader than as stated above, and involved a claim that the NTFJA was in breach of its duties under s 66 by failing to take certain actions such as a biomass survey of the Fisheries, it must be rejected.

Do the claims in the proceeding give rise to a “matter”?

170    This section considers grounds 1 to 8 of the appeal in light of the above conclusions concerning the claims made by ABS in the proceeding. As noted earlier, many of grounds 1 to 8 are in the nature of argument and it is convenient to address those grounds collectively.

ABS’ submissions

171    ABS did not challenge the applicable legal principles as summarised by the primary judge. Rather, ABS submitted that the primary judge failed to identify the “immediate right, duty or liability” for which ABS was seeking relief and from that to identify the “justiciable controversy”. ABS argued that, as the owner of 66% of the units in the Demersal Fishery, it was claiming the right to enforce the NTFJA’s statutory duties imposed by s 66 of the Fisheries Act to keep the Demersal Fishery constantly under consideration and to formulate policies and plans for the good management of the Demersal Fishery which are consistent with and which seek to further the objects in s 2A including the principles of ecologically sustainable development. ABS argued that it is claiming that the NTFJA is in breach of these duties at this point in time. ABS argued that it is claiming that the Proposed Framework had not been validly prepared in the exercise of the NTFJA’s functions and duties under s 66. Its claim is that the Department’s actions were not properly authorised by delegation of the NTFJA under the Fisheries Act, and the Proposed Framework itself and the processes by which it had been developed were contrary to the objects of the Fisheries Act and therefore contrary to s 66(2). ABS submitted that the NTFJA is presently in breach of its duty under s 66 either because it is purporting to formulate a plan for the merger of the Demersal Fishery with the Timor Reef Fishery as proposed in the Proposed Framework or because it is standing by, in breach by impermissible inaction, while the Department does the same.

172    ABS argued that there is nothing hypothetical about the impact of these ongoing breaches on the Demersal Fishery and ABS’ business. The mismanagement of a resource like the Demersal Fishery in breach of s 66 necessarily places at risk the fish stocks and hence the financial return from commercial fishing. Further, units in a fishery which has been and is being unlawfully mismanaged and which, as a result, are subject to an unlawful threat of cancellation, inevitably will be less valuable than if the fishery was being managed according to law and not subject to such a threat. ABS submitted that its claim is not based on a breach of s 66 at some time in the future, but is based on a present breach of s 66.

173    With respect to the claim for a writ in the nature of certiorari, ABS argued that its claim in that respect is at least arguable. It submitted that the Territory Minister, being a member of the NTFJA and entrusted with functions and duties for the formulation of plans of management in accordance with ss 66 and 70A(2) and with the power to approve a management plan so formulated and prepared under s 70C(4)(b), was bound not to act to prejudge or to be seen to prejudge the decision to be made under s 70C(4)(b). That decision is a precondition for the exercise of the Administrator’s power under s 70(1). Any decision by the NTFJA to cancel fishery units in the Demersal Fishery sufficiently affects ABS’ rights to attract certiorari if made without authority. ABS submitted that it is arguable that certiorari may issue to quash any decision by the Territory Minister which is outside his authority because it unlawfully prejudges or is seen to prejudge the decision to be made by him as part of the NTFJA under s 70C(4)(b).

The Territory Respondents’ submissions

174    The Territory Respondents submitted that the primary judge correctly understood the claims made by ABS in the proceeding. The claims as articulated in the concise statement were that the proposed plan of management (as set out in the Proposed Framework) could not be adopted by the NTFJA (in the future) because (a) it had not been prepared by the NTFJA, (b) did not accord with or further the principles in s 2A of the Fisheries Act and (c) would effect an acquisition of ABS’ property. Those claims raised matters which were hypothetical and therefore beyond jurisdiction. The statutory scheme, which required the Northern Offshore Fishery to be declared and a process of public consultations and amendments, precluded any assumption that the Proposed Framework would be approved by the NTFJA in its present form (as found by the primary judge at [124]). ABS’ proceeding was premature and hypothetical because it sought, in effect, to challenge the policy in the Proposed Framework before it was known whether it would be amended and whether it would be adopted by the NTFJA.

175    The Territory Respondents submitted that ABS’ arguments on the appeal, that the NTFJA is presently in breach of its duty under s 66 of the Fisheries Act, cannot be reconciled with the claims made in the concise statement and the relief sought in the amended originating application. Even if that claim were to be advanced in the proceeding, it would not give rise to a “matter” for three reasons.

176    First, it would not be justiciable (susceptible to judicial determination). The Territory Respondents argued that the existence of a justiciable controversy is central to the notion of a “matter” (referring to CGU Insurance Ltd v Blakeley (2016) 259 CLR 339 (CGU Insurance) at [26] per French CJ, Kiefel, Bell and Keane JJ and at [120] per Nettle J); a “matter” requires the availability of a judicially enforceable remedy which can quell the relevant controversy (referring to Abebe at [31] per Gleeson CJ and McHugh J); and the Court has no jurisdiction to engage in merits review or grant declaratory relief to determine the correct or preferable outcome of administrative action. The Territory Respondents submitted that the objects of the Fisheries Act in s 2A comprise subjective and value-laden considerations which are aspirational, expressed at a high level of generality and contain competing purposes. What is “consistent with” and “further[s]” those objects is a matter of evaluative judgment, requiring the formulation of policy and the exercise of administrative discretion. That is no part of the judicial function (referring to Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 268 per Deane, Dawson, Gaudron and McHugh JJ and Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172 (Victoria v CFMEU) at [153] per Buchanan and Griffiths JJ). The application of the Fisheries Act’s objects to a proposed plan of management does not admit of a singularity of outcome, more so where the objects are goals to be achieved rather than rules to be obeyed (referring by way of illustration to the observations of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [95]-[96]). The statutory scheme reposes in the NTFJA (not the Court) the role of deciding what action is consistent with and furthers those objects.

177    Second, the relief sought is premature and will have no immediate impact on ABS’ rights, duties or liabilities. The Proposed Framework is a policy document with no legal effect on the rights of ABS or any other person. Whether it has been prepared in compliance with the Fisheries Act will be academic unless and until it is translated into a management plan which is approved. The Court has refused to grant declaratory relief in respect of policy documents because they had no effect on any immediate right, duty or liability (referring by way of illustration to Victoria v CFMEU at [15]-[16], [19]-[21] per Kenny J, and at [145], [153] per Buchanan and Griffiths JJ; Director of Animal and Plant Quarantine v Australian Pork Ltd (2005) 146 FCR 368 at [84]-[85] per Heerey and Lander JJ; and Association for Employees with a Disability v Commonwealth (2021) 283 FCR 561 (Association for Employees with a Disability) at [131] per Mortimer and Abraham JJ).

178    Third, the relief would not dispose of the asserted controversy with finality. In effect, ABS seeks an opinion as to whether the NTFJA is entitled generally to act in a certain way (referring to Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 (Bass) at [48]).

179    In relation to the claim for a writ in the nature of certiorari, the Territory Respondents submitted that the primary judge was correct to conclude that the only function of certiorari is to quash the legal effect or the legal consequences of a decision (referring to Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 at [28] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ), and that certiorari is unavailable here because the Territory Minister’s decision of 6 March 2020 had no legal effect. In response to ABS’ submission that the Territory Minister’s decision of 6 March 2020 involved actual or perceived prejudgment of any future decision of the Minister under s 70A of the Fisheries Act, the Territory Respondents submitted that the remedy for bias is either recusal of the decision-maker before a decision is made (CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at [71] per Nettle and Gordon JJ) or certiorari to quash the ultimate decision tainted by bias to remove its legal effect (for example, Isbester v Knox City Council (2015) 255 CLR 135 at [51] per Kiefel, Bell, Keane and Nettle JJ). In response to ABS’ submission that the decision of 6 March 2020 was a precondition for the exercise of the Administrator’s power under s 70(1) of the Fisheries Act to make regulations for the management of the Northern Offshore Fishery, the Territory Respondents submitted that the basis for that assertion is not identified and it cannot be reconciled with the text of the Fisheries Act.

The Commonwealth Minister’s submissions

180    The submissions advanced by the Commonwealth Minister were to the same effect as those of the Territory Respondents and, with no disrespect, it is unnecessary to identify them separately.

Consideration

181    ABS has not demonstrated any error in the factual findings of the primary judge with respect to the legal status of the Proposed Framework, or his Honour’s statements of legal principle.

182    The critical factual findings with respect to the legal status of the Proposed Framework were that: it is in the nature of a policy document (at [123]); it has not been developed in the exercise of a particular statutory power (at [123]); it follows that it is not a management plan nor even a proposed management plan (we interpolate, for the purposes of s 70A of the Fisheries Act) (at [124]); it has no status beyond that given to it by the Territory Minister on 6 March 2020, namely, an endorsed draft management framework (at [124]); it is in substance a work in progress; and whether it will be subject to further amendment and, more significantly, whether it will be approved by the NTFJA, is not presently known.

183    The events that occurred after the judgment below, which are the subject of the further evidence, serve only to confirm the above critical findings. As set out earlier, on 6 March 2020 the Territory Minister indicated “in principle” support to declare the Northern Offshore Fishery as a managed fishery; endorsed the “Draft Management Framework” for the Northern Offshore Fishery which was documented in the Proposed Framework; approved the drafting of a management plan for the Northern Offshore Fishery; and approved the drafting of an amendment to the Fisheries Regulations to revoke those regulations relevant to the Demersal Fishery and Timor Reef Fishery (subject to NTFJA approval of the new management plan). The further evidence shows that those steps were subsequently undertaken by the Department. Relevantly, the Department prepared a draft proposed management plan for the Northern Offshore Fishery (in the form of the Draft Management Plan). The Draft Management Plan was endorsed by the Territory Minister on 20 July 2021 and provided to the Commonwealth Minister as a member of the NTFJA for consideration. While ABS has sought to demonstrate similarities between the Proposed Framework and the Draft Management Plan, there are material differences between the two documents. The further evidence demonstrates the correctness of the primary judge’s finding that the Proposed Framework was a work in progress and there was no certainty that it would become a proposed management plan adopted by the NTFJA in respect of the proposed Northern Offshore Fishery. Indeed, at present, even the Draft Management Plan has no legal effect. It has not been, and cannot be, approved and adopted by the NTFJA as a proposed management plan for the Northern Offshore Fishery until:

(a)    first, the Northern Offshore Fishery has been declared pursuant to s 22 of the Fisheries Act; and

(b)    second, an arrangement has been made between the Territory and the Commonwealth for the management of the Northern Offshore Fishery pursuant to s 64 of the Fisheries Act and s 74 of the Fisheries Management Act.

184    The applicable legal principles concerning the identification of a “matter” are well-established. As recently stated in one of the majority judgments in Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; 399 ALR 214 (Hobart International Airport), a “matter” within the meaning of Ch III of the Constitution has two elements: the subject matter as defined by reference to the heads of jurisdiction set out in Ch III; and a dispute which constitutes a justiciable controversy (at [26] per Kiefel CJ, Keane and Gordon JJ). The subject matter element is not in dispute in this proceeding: ABS’ claims for relief arise under laws made by the Commonwealth Parliament. The dispute concerns the second element: whether ABS’ claims involve a justiciable controversy.

185    In passages cited by the primary judge, the majority (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ) in Re Judiciary and Navigation Acts (1921) 29 CLR 257 (at 265-267) determined:

… we do not think that the word “matter” in [s 76 of the Constitution] means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of [s 76 of the Constitution] unless there is some immediate right, duty or liability to be established by the determination of the Court.

…

… a matter under the judicature provisions of the Constitution must involve some right or privilege or protection given by law, or the prevention, redress or punishment of some act inhibited by law. … we can find nothing in Chapter III of the Constitution to lend colour to the view that Parliament can confer power or jurisdiction upon the High Court to determine abstract questions of law without the right or duty of any body or person being involved.

186    In Abebe, Gleeson CJ and McHugh J further explained (at [32]):

The existence of a “matter”, therefore, cannot be separated from the existence of a remedy to enforce the substantive right, duty or liability. That does not mean that there can be no “matter” unless the existence of a right, duty or liability is established. It is sufficient that the moving party claims that he or she has a legal remedy in the court where the proceedings have been commenced to enforce the right, duty or liability in question. It does mean, however, that there must be a remedy enforceable in a court of justice, that it must be enforceable in the court in which the proceedings are commenced and that the person claiming the remedy must have sufficient interest in enforcing the right, duty or liability to make the controversy justiciable …

187    As has been often stated by the High Court, jurisdiction (the authority to decide) and judicial power are different concepts (see most recently Rizeq v Western Australia (2017) 262 CLR 1 at [84]-[87] per Bell, Gageler, Keane, Nettle and Gordon JJ and [125]-[134] per Edelman J). The fact that a remedy may be refused by the Court in the exercise of judicial power does not deny the existence of a “matter”. However, there will be no justiciable controversy, and therefore no “matter” for determination, if there is no available remedy in respect of the claim: Hobart International Airport at [30]-[31] per Kiefel CJ, Keane and Gordon JJ and at [47] per Gageler and Gleeson JJ.

188    The principles as to the availability of declaratory relief were stated by the plurality (Mason CJ, Dawson, Toohey and Gaudron JJ) in Ainsworth v Criminal Justice System (1992) 175 CLR 564 (Ainsworth) in the following terms (at 581-582, citations omitted):

It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which “[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.” However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have “a real interest” and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen” or if “the Court’s declaration will produce no foreseeable consequences for the parties”.

189    By reference to the above passage, in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, Gaudron J observed (at [52]) that the unavailability of declaratory relief to answer hypothetical questions, and which can produce no foreseeable consequences for the parties, is not simply a matter of discretion; rather, the unavailability of the remedy will mean that there is no “matter” for the purposes of Ch III of the Constitution. So too, in CGU Insurance, the plurality (French CJ, Kiefel, Bell and Keane JJ) said (at [26], citation omitted):

It is a necessary condition of federal jurisdiction, in the sense of authority to exercise the judicial power of the Commonwealth, that the matter in which the jurisdiction of the court is invoked is “capable of judicial determination” or “justiciable”. That concept of justiciability does not embrace a purely advisory opinion.

190    The distinction between a declaratory judgment and a hypothetical or advisory opinion was explained by the majority (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) in Bass as follows (at [45], [47], [48], citations omitted):

45     The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy. In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd, Kitto J said:

“[J]udicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons ... [T]he process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which ... entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist.”

…

47    Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions. …

48    It is true that some have seen the use of the declaratory judgment as little more than the giving of an advisory opinion. However, one crucial difference between an advisory opinion and a declaratory judgment is the fact that an advisory opinion is not based on a concrete situation and does not amount to a binding decision raising a res judicata between parties. Thus, the authors of one recent text on declaratory judgments emphasise that, where the dispute is divorced from the facts, it is considered hypothetical and not suitable for judicial resolution by way of declaration or otherwise. They say:

“If ... the dispute is not attached to specific facts, and the question is only whether the plaintiff is generally entitled to act in a certain way, the issue will still be considered theoretical. The main reason for this is that there may be no certainty that such a general declaration will settle the dispute finally. Subsequent to that declaration a person (the defendant himself or someone else) may be adversely affected by a particular act of the plaintiff. It may then be doubtful whether this act is covered by the declaration. In such a case the affected person will probably be entitled to raise the issue again on its special facts. Indeed, such a declaration will in effect be a mere advisory opinion.”

191    As the majority expressly recognised in Bass (at [47]), the jurisdiction to make a declaratory judgment includes the power to declare that conduct which has not yet taken place will not be in breach of a contract or a law and such a declaration will not be hypothetical in the relevant sense. In The Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297 (Sterling Nicholas), Barwick CJ observed (at 305):

The jurisdiction to make a declaratory order without consequential relief is a large and most useful jurisdiction. In my opinion, the present was an apt case for its exercise. The respondent undoubtedly desired and intended to do as he asked the Court to declare he lawfully could do. The matter, in my opinion, was in no sense hypothetical, but in any case not hypothetical in a sense relevant to the exercise of this jurisdiction. Of its nature, the jurisdiction includes the power to declare that conduct which has not yet taken place will not be in breach of a contract or a law. Indeed, it is that capacity which contributes enormously to the utility of the jurisdiction.

192    In Australian Gas Light Co v Australian Competition and Consumer Commission (No 2) [2003] FCA 1229 (AGL (No 2)), French J said (at [40]):

The making of a declaration as to the lawfulness of future conduct has long been accepted as an exercise of judicial power. The fact that declaratory relief relates to future conduct does not place it outside the bounds of federal jurisdiction. If the claim for the declaration arises out of a contemporary controversy in which a party’s freedom of action is challenged in some way, that controversy can constitute a matter for the purposes of the exercise of federal jurisdiction. Whether or not there is a real controversy is a question of judgment. In the present case, in my opinion, there is a real controversy about the right or freedom of AGL to proceed with the proposed acquisition in relation to the Loy Yang A power station and the coal mine. Its freedom to do so has been challenged in a very practical way by the regulator in correspondence and most explicitly in its defence where it denies that the proposed acquisitions would not contravene s 50 of the Trade Practices Act. Reservations about or opposition to a proposed acquisition expressed by the regulator can have very concrete commercial consequences and may in some, if not most, cases effectively prevent an acquisition from proceeding.

193    As identified by the primary judge, the principles as to the availability of certiorari were stated by the plurality (Mason CJ, Dawson, Toohey and Gaudron JJ) in Ainsworth in the following terms (at 580, citations omitted):

The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review. The report made and delivered by the Commission has, of itself, no legal effect and carries no legal consequences, whether direct or indirect. It is different when a report or recommendation operates as a precondition or as a bar to a course of action, or as a step in a process capable of altering rights, interests or liabilities. A report or a recommendation of that kind may be quashed, that is to say its legal effect may be nullified by certiorari.

194    In separate reasons, Brennan J explained (at 595, citation omitted):

Certiorari is not available. Certiorari might go to quash a report if its production or furnishing were to affect directly a prosecutor's rights or were to subject them in some way to a new hazard but, as the Commission's Report has no legal effect, there is nothing to be quashed. Quashing annihilates the legal effect of an act or decision that has been reached in breach of a condition of its validity but, if an act or decision has no legal effect, there is nothing to quash.

195    So too, in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159-160, the majority (Brennan CJ, Gaudron and Gummow JJ) referred to the above passages in Ainsworth and continued (emphasis added):

Thus, for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing.

This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue: (1) where the decision under challenge is the ultimate decision in the decision-making process and the question is whether that ultimate decision sufficiently “affects rights” in a legal sense; (2) where the ultimate decision to be made undoubtedly effects legal rights but the question is whether a decision made of a preliminary or recommendatory stage of the decision-making process sufficiently “determines” or is connected with that decision.

The form in which a decision-making structure is established may be likely to indicate the nature of the function exercised at each stage within that structure. Nevertheless, the difference between the two situations outlined above is one of substance as well as form. In the second situation, the question becomes whether the stage of the process under challenge has the necessary effect on the final or ultimate decision. …

196    As discussed earlier, ABS’ claims in the proceeding concern past actions or decisions and also future actions or decisions.

197    As to past actions or decisions, ABS seeks declarations that:

(a)    the proposed management plan as set out in the Proposed Framework has not been formulated or prepared by the NTFJA validly or at all in the discharge of the functions under s 66 of the Fisheries Act; and

(b)    the proposed management plan as set out in the Proposed Framework does not further, and is not consistent with, the objects of the Fisheries Act.

198    ABS also seeks an order in the nature of certiorari quashing, or a declaration declaring invalid, the decisions of the Territory Minister of 6 March 2020.

199    On the uncontroversial facts, the above declarations seek to answer abstract questions for which the Court's declaration will produce no foreseeable consequences for the parties. In relation to the first declaration, there is no dispute between the parties that the proposed management plan as set out in the Proposed Framework has not been formulated or prepared by the NTFJA in the discharge of the functions under s 66 of the Fisheries Act. ABS accepts that the NTFJA has not adopted the Proposed Framework. It is uncontroversial that, to date, the NTFJA has no functions in respect of the Northern Offshore Fishery because that fishery is yet to be declared under s 22 of the Fisheries Act and there is no arrangement between the Territory and the Commonwealth in respect of that fishery. It follows that the declaration can produce no foreseeable consequences for the parties. There is simply no dispute about that question and no immediate right, duty or liability arises in respect of it. Similarly, the second declaration raises a question which is entirely abstract and which can produce no foreseeable consequences for the parties. Once it is accepted that the Proposed Framework has not been prepared or adopted by the NTFJA, and has not been prepared in the exercise of any specific statutory power, but was prepared by the Department for the consideration of the Territory Minister, it must be concluded that the subject of the declaration is untethered to any right, duty or liability of any party.

200    On the well-established principles referred to above, certiorari is not available to quash the decisions of the Territory Minister of 6 March 2020 because the decisions have no legal effect and the decisions have no necessary effect on any future decision that may be made in respect of the Northern Offshore Fishery. Contrary to ABS’ submission, the opposite proposition is not arguable. There is no dispute that the decisions of 6 March 2020 did not involve the exercise of any statutory power. As found by the primary judge (at [143]):

The Minister’s decisions are more accurately characterised as a form of Ministerial endorsement for the Department continuing with the development of the Proposed Framework with a view to it, and documents which may be appropriate to give effect to it, being considered by the NTFJA in due course. The decisions may also be understood as an acceptance by the Minister of political responsibility for the steps recommended in the Chief Executive’s memorandum. But whatever the appropriate characterisation, none of the Minister’s decisions on 6 March 2020 had any legal effect. None was a condition precedent to the NTFJA’s consideration of the matter, and none was a matter which the NTFJA was obliged to take into account.

201    The decisions were no more than the endorsement, by the Territory Minister, of work undertaken by the Department toward the establishment of the Northern Offshore Fishery and instructions to the Department to progress that work by drafting a management plan for the Northern Offshore Fishery as well as an amendment to the Fisheries Regulations to revoke the regulations relevant to the Demersal Fishery and Timor Reef Fishery. However, none of that work would become law, and thereby affect rights, unless and until (a) an arrangement is made between the Commonwealth and the Territory with respect to the Northern Offshore Fishery under s 74 of the Fisheries Management Act and s 64 of the Fisheries Act, (b) the management plan is formally adopted by the NTFJA as a proposed management plan under s 70A of the Fisheries Act, and (c) the management plan is publicly notified and subsequently approved by the NTFJA with or without amendment under s 70C of the Fisheries Act.

202    ABS’ submission that the Territory Minister was bound not to act to prejudge or to be seen to prejudge the decision to be made under s 70C of the Fisheries Act does not assist its claim for certiorari. As submitted by the Territory Respondents, the remedy for bias is either recusal of the decision-maker before a decision is made or certiorari to quash the ultimate decision tainted by bias to remove its legal effect.

203    As to future actions or decisions, ABS seeks both declaratory and injunctive relief. ABS seeks declarations that:

(a)    the proposed management plan as set out in the Proposed Framework or any amendment thereof cannot lawfully be the subject of any validly formed opinion or validly made decision of the NTFJA pursuant to s 70C(2) or s 70C(4) of the Fisheries Act; and

(b)    the proposed management plan as set out in the Proposed Framework will effect an acquisition of ABS’ property otherwise than on just terms contrary to s 50(1) of the NT Self-Government Act, and accordingly cannot be made a valid law of the Northern Territory.

204    ABS also seeks injunctions preventing the Territory Minister, as a member of the NTFJA, from endorsing or approving any proposed management plan or amendments to the Fisheries Regulations to give effect to the Proposed Framework or a framework substantially the same as the Proposed Framework, and preventing the Territory Respondents seeking the same approval from the Commonwealth Minister.

205    The claims for relief in respect of future actions or decisions of the NTFJA raise different questions to the claims for relief in respect of the preparation of the Proposed Framework and its in-principle approval by the Territory Minister on 6 March 2020. ABS seeks declaratory orders that a future adoption, or bringing into law, of “the proposed management plan as set out in the Proposed Framework” or “a framework substantially the same as the Proposed Framework” by the NTFJA will be invalid. The claimed invalidity arises from an alleged breach of the NTFJA’s duty under s 66 of the Fisheries Act and because it will effect an acquisition of ABS’ property otherwise than on just terms contrary to s 50(1) of the NT Self-Government Act.

206    As observed by Mortimer and Abraham JJ in Association for Employees with a Disability at [132], in some circumstances an order in the nature of a prohibition, or an injunction, may be issued to a body or other repository of statutory power to preclude it embarking upon a course of conduct which is (alleged to be) unlawful. Their Honours referred to Annetts v McCann (1990) 170 CLR 596 and Ainsworth (at 594-595, per Brennan J) as examples. Both examples concern issues of procedural fairness. As discussed earlier, the Court may also make a declaratory judgment that conduct which has not yet taken place will not be in breach of a contract or a law. It remains the case, however, that the question to be determined will not be justiciable, and will not give rise to a “matter” for determination, if the question is hypothetical.

207    The factual premise for the declaratory and injunctive relief sought by ABS is that the NTFJA is proposing to adopt and bring into law, pursuant to ss 70A and 70C of the Fisheries Act, the Proposed Framework as a management plan for the proposed Northern Offshore Fishery. The uncontroversial facts found by the primary judge, together with the further evidence adduced on the appeal, certainly establish that the Territory Minister supports the creation of the Northern Offshore Fishery. On 20 July 2021, the Territory Minister signed a number of documents directed to that end and provided the documents to the Commonwealth Minister. The documents do not, though, have legal force and the creation of the Northern Offshore Fishery remains subject to the consideration of the Commonwealth Minister, and any further deliberations between both Ministers as constituting the NTFJA. Accordingly, there remains uncertainty whether the Northern Offshore Fishery will ultimately be created. Even more significantly, there is uncertainty as to the content of any management plan that may be adopted by the NTFJA in respect of the Northern Offshore Fishery (if it were to be created). That uncertainty is reflected in the form of orders sought by ABS: it seeks a declaration in respect of “the proposed management plan as set out in the Proposed Framework or any amendment thereof” and seeks an injunction in respect of “any proposed management plan … to give effect to the Proposed Framework or a framework substantially the same as the Proposed Framework”. The form of orders sought by ABS acknowledge an inevitable fact: that the future decisions of the NTFJA cannot be known in advance and the form of any management plan in respect of the Northern Offshore Fishery, if created, cannot be known in advance.

208    The circumstances of the present case are entirely different to cases such as Sterling Nicholas and AGL (No 2). Both of those cases involved an application to declare specific conduct lawful in circumstances where governmental authorities had asserted that the conduct was unlawful. The factual basis on which the declaratory relief was sought was certain, notwithstanding that it concerned future conduct.

209    In the present case, the factual basis for the declaratory and injunctive relief is entirely uncertain, both as to whether the impugned actions or decisions will be taken at all (the creation of the Northern Offshore Fishery) and the form of any management plan that may be adopted. In those circumstances, it must be concluded that the issues raised for determination are hypothetical and, in effect, ABS is seeking an advisory opinion from the Court. As the plurality stated in CGU Insurance (at [26]), the concept of justiciability does not embrace a purely advisory opinion.

210    The foregoing conclusions dispose of grounds 1 to 8 other than ground 5, which can be addressed briefly. By ground 5, ABS contends that the primary judge erred in concluding that:

(a)    the fate of these proceedings is not shown to have any effect on any rights of ABS under the EPBC Act; and

(b)    the loss of ABS’ ability to export the fish it catches has arisen for reasons which are independent of the issues it wishes to raise in the proceedings below and will continue irrespective of ABS’ success or failure in the proceedings below.

211    That ground concerns the reasons of the primary judge at [125]-[136]. In that section of the reasons, his Honour addresses submissions advanced by ABS relating to the regulation of fish exports under the EPBC Act. His Honour found (at [129]) that exemptions granted by the Commonwealth Minister under the EPBC Act, which permitted ABS to export its catch from the Demersal Fishery, had been granted for limited periods and, at the time of the hearing, the most recent expiry date was 13 June 2020. Without a continuation of the exemption, ABS is not permitted to export any of its catch. His Honour ultimately concluded that the Commonwealth’s actions under the EPBC Act did not bear on the issues for determination on the application to dismiss the proceeding (at [136]). That was because (at [134]):

… the fate of these proceedings is not shown to have any effect on any rights of ABS under the EPBC Act. That is to say, even if the Court did declare that the Proposed Framework does contain a management plan and declare that management plan to be invalid, or declare the process by which it is being developed invalid, it would not have any effect on the export rights of ABS in respect of its catch.

212    ABS has not demonstrated any error in that conclusion. None of the claims advanced by ABS in the proceeding are based on rights, duties or liabilities arising under the EPBC Act. Specifically, ABS did not demonstrate that the relief it sought in the proceeding, as discussed above, could have any legal effect on a decision by the Commonwealth Minister to reinstate exemptions under the EPBC Act in respect of the export of fish caught in the Demersal Fishery. ABS submitted that there is a “link” between the outcome of this proceeding and approvals under the EPBC Act because “the Minister and the department administering the EPBCA have been pressing for up to date stock surveys since 2013 in order to assess the viability of whatever the NTFJA was planning to be fished and in what way from the DF to assess sustainability”. The submission is necessarily founded on the contention, advanced by ground 3, that in the proceeding ABS is advancing a claim that the NTFJA is presently in breach of its duties under s 66 of the Fisheries Act by “failing to undertake and assess the results of a stock survey of the Demersal Fishery and the Timor Reef Fishery before seeking to formulate any plan of management for the Fisheries”. For the reasons explained earlier, no such claim is advanced in the proceeding and ground 3 has been rejected.

213    For those reasons, the primary judge was correct to dismiss ABS’ claims for relief because the claims did not give rise to a “matter” within s 39B of the Judiciary Act.

214    We note for completeness that it has been unnecessary to address the respondents’ contention that any claim by ABS that the NTFJA is presently in breach of its duty under s 66 of the Fisheries Act would not give rise to a “matter” within s 39B of the Judiciary Act. That is because we have concluded that no such claim is advanced in this proceeding. While the respondents’ submissions on that question correctly recite the applicable legal principles, the application of those principles in any case will depend on the nature of the claim that is made in the proceeding.

Summary dismissal

215    By ground 9, ABS contends that the primary judge erred in accepting the submissions of the respondents that the proceedings had no reasonable prospect of success. Given the conclusions reached in respect of grounds 1 to 8, it is unnecessary to address this ground of appeal.

H.    Conclusion

216    In conclusion, ABS has not shown error in the primary judge’s decision to dismiss the proceeding on the basis that the claims advanced did not give rise to a “matter” within s 39B of the Judiciary Act. The appeal is therefore dismissed with costs.

Associate:

Dated:    14 November 2022