FEDERAL COURT OF AUSTRALIA

Great Barrier Reef Marine Park Authority v Forgie [1999] FCA 1473

PRACTICE AND PROCEDURE - purpose of judicial determination - refusal of courts to give advisory opinion or answer hypothetical questions - whether Court ought to deal with separate issue where a determination of that was not capable, whatever the decision, of resolving the litigation

Great Barrier Reef Marine Park Act 1975 (Cth) s 39ZD

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Judiciary Act 1903 (Cth) s 39B

Bass v Permanent Trustee Co Ltd (1999) 161 ALR 399, cited

Beitseen v Johnson (1989) 29 IR 336, cited

R v Secretary of State for Home Department; ex parte Salem [1999] 2 WLR 483, cited

GREAT BARRIER REEF MARINE PARK AUTHORITY v MS S FORGIE, DEPUTY PRESIDENT, ADMINISTRATIVE APPEALS TRIBUNAL & ANOR

Q 143 of 1999

DRUMMOND J

26 OCTOBER 1999

BRISBANE

THE COURT ORDERS THAT:

1.                  The applicant pay the second respondent’s costs of and incidental to the hearing of the separate issues of paragraphs 4 and 5 of the amended application on 22 October 1999.

2.                  The applicant’s amended application be adjourned to 26 November 1999 for mention.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     It is necessary, at the outset, to spend a little time dealing with how the matter has now come before me.

2                     The action was initiated by the applicant seeking an order to review the “decision” of the Administrative Appeals Tribunal that the Whitsundays Plan of Management prepared by the applicant under the Great Barrier Reef Marine Park Act 1975 (Cth) was administrative in character, rather than legislative.  The litigation arose because the Authority refused Fantasea permission to install a private mooring at Whitehaven Beach, a locality within a setting 2 area established under s 1.9(c)(ii) of Div 4 and Table 3 of the original Plan of Management, descriptions not materially altered by the recent amendments to that Plan.

3                     Over the objection of the second respondent, the applicant persuaded the Tribunal at a directions hearing to deal with the case on the basis that the first part of the hearing before the Tribunal should be confined to whether the Plan was a legislative or an administrative instrument.  The Deputy President of the Tribunal who dealt with this issue, in a reserved decision expressed the opinion that the Plan was of an administrative character.  But as I observed on 30 July 1999 at the directions hearing before me, there was a real doubt as to whether the Tribunal incorporated its conclusion in a decision capable of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

4                     However, counsel for the applicant then persuaded me that the question as to the legislative or administrative status of the Whitsundays Plan of Management would, if decided in favour of the Authority, be decisive of the litigation in the Tribunal:  the second phase of that litigation which would involve a five day hearing into whether the Authority’s refusal of the permission sought should be set aside, having regard to the facts of the matter, would become unnecessary.  As I also then observed, counsel for Fantasea was unable to offer any convincing reason why that view should not be taken of the potentially decisive nature of the question of law as to the proper characterisation of the Plan of Management.

5                     It was in these circumstances that I gave the Tribunal leave to amend the application for an order of review to seek a declaration under s 39B the Judiciary Act 1903 (Cth) that, on the proper construction of the legislation, the Great Barrier Reef Marine Park Act 1975 (Cth), the Plan of Management was of a legislative character.  In conformity with my decision, an order was later made that the applicant’s claim for this declaration be heard and determined in advance of other issues in the action.

6                     The Plan of Management the subject of debate in the Tribunal and before me on 30 July 1999 was the Whitsundays Plan of Management prepared by the applicant and gazetted on 22 June 1998.  When the hearing commenced before me on 22 October 1999 of this separate issue, I was told that that Plan of Management had been replaced or, more accurately, amended, with the amended Plan being published in the Gazette on 12 October 1999.  It is apparent that very extensive amendments have been made by those gazetted on 12 October 1999 to the Plan in the form it was in previously.

7                     Accordingly, I raised with counsel the need to amend the application to ensure that the declaration was sought in relation to the Plan in the form in which it now takes and whether it was appropriate for the Court to embark upon the hearing of the question whether that particular Plan was of a legislative or administrative character.  In response, counsel for both parties submitted that the Court should proceed to determination of this issue in relation to the current Plan because, if it was in favour of the Authority, it would still result in the conclusion of the litigation.

8                     Regulation 13AC(1) of the Great Barrier Reef Marine Park Regulations makes provision for applications for “a relevant permission” being made to the Authority.  It was under this provision that Fantasea made its mooring permit application.  The term “relevant permission” is defined in reg 4 of the Regulations to mean:  “… a permission required under a provision of a zoning plan with respect to the purposes for which a zone may be used or entered”.  Whitehaven Beach is in the Central Section Zoning Plan established under the Act.  It is in the “Marine National Park ‘A’” Zone of this Zoning Plan.  Clause 7.2 of the Zoning Plan, dealing with this zone, states, so far as is relevant, that it “sets out the only purposes for which the Marine National Park ‘A’ Zone may be used or entered”.  Sub-paragraph (a) sets out a number of particular purposes for which this zone may be used or entered, ie, as of right and without any further need for permission “unless otherwise stated in paragraph (b)”.  One of the purposes for which this zone may be used or entered, but only with the written permission of the Authority or its delegate under cl 7.2(b) is:

“(iv)    the construction or conduct of mooring facilities for vessels”.

9                     Although the Zoning Plan made provision for Fantasea to establish the mooring it sought at Whitehaven Beach, provided it first obtained written permission of the Authority, the Authority disposed of Fantasea’s application by holding that s 1.9(c)(iv) of Div 4 of the original Plan of Management prohibited the installation and use of such facilities in the Whitehaven Beach setting area.

10                  Section 1.9(c) of Div 4 - “use strategies” - of the original Plan stated that “The Authority has developed the following strategies to manage use in the Area” and, in sub-par (iv), the following appeared:

“(iv)    Restrictions on installing and using facilities in the Area

·                    …

·                    Recognising that the installation of facilities at popular sites may lead to exclusivity and displacement of other users, the number of relevant permissions to install, and use, facilities in the Area is capped from the commencement of the Plan, except:

-                     in setting 1 areas; and

-           at Hardy Reef (permanently moored facilities only).

·                    …”

11                  The Authority refused Fantasea’s mooring application by holding in effect that its grant was barred by this provision:  because it was legislative in character, it was irrelevant for the Authority to inquire into what can be called the merits of Fantasea’s application.

12                  The provision of the amended Plan corresponding to s 1.9(c)(iv) of Div 4 of the original Plan in the amended Plan is s 1.10(13) of Div 4 of the amended Plan.  It is contained in a sub-heading “Restrictions on installing certain facilities in the Planning Area” and it provides:

“(13)   Recognising that the installation of moorings and tourist facilities at popular destinations may lead to exclusivity and displacement of other uses, the number of such facilities permitted in the Planning Area will be capped, except:

(a)        in a setting 1 area; and

(b)        in the Hardy Reef location.”

13                  In the original Plan, in contrast, it was said that the number of relevant permissions to install and use facilities in the Area “is capped from the commencement of the Plan”.  There is an obvious difference in language:  the original Plan suggests that the number of relevant facilities was fixed at the number existing at the commencement of that Plan (although depending on the meaning given to the term “capped”, not defined, at least one other reading is possible).  In the amended Plan, however, the wording has significantly changed.  The current provision can be read as a statement that there is an already identified maximum number of facilities that will be permitted in the Planning Area consistent with the objective sought to be achieved by this section, but that number has not yet been reached or, and perhaps more readily, as a statement that, while no maximum number of facilities has yet been identified, it is the intention of the Authority to do that at some stage in the future.  It is apparent that, even if the current provision is of a legislative character, it almost certainly has quite a different meaning from the proscriptive language of the corresponding provision in the old Plan.

14                  Even if the amended Plan of Management has legislative effect, it would be difficult to read the new provision as a prohibition on any moorings not already established at the date of the original Plan or at the date of the amended Plan.  Yet the Authority wishes to contend that this is how the new section should be read, with the result that the Tribunal will be bound to dismiss Fantasea’s appeal that is still pending before it.  As senior counsel for the Authority recognised, it may well not be possible to arrive at the correct interpretation of the new provision without reference to factual material.  Though not now able to point to any further material that may be relevant to the interpretation of the section, the applicant wants an opportunity to consider the matter:  it was not prepared to deal now with the question of the proper reading of the section.

15                  Even if the current provision s 1.10(13) is legislative in character, there are further difficulties for the Authority to surmount before it could rely on the section as of itself a sufficient answer to Fantasea’s permit application.  Section 39ZD provides:

“39ZD  Preparation of plan of management