FEDERAL COURT OF AUSTRALIA

Malu Lamar (Torres Strait Islander) Corporation RNTBC v Findlay (as delegate of the Protected Zone Joint Authority) [2018] FCA 801

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an order suspending the operation of the decision be dismissed.

2.    The proceeding be expedited and listed for hearing on an estimate of two days.

3.    Costs be reserved.

4.    There be liberty to apply.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The applicant, Malu Lamar (Torres Strait Islander) Corporation RNTBC, is incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). It was incorporated in 2014, largely for the purpose of holding certain native title rights and interests, and managing those rights and interests, on behalf of Torres Strait traditional owners.

2    On 18 May 2018, the applicant commenced the present proceeding. In the proceeding, the applicant seeks relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) in respect of a decision made by the respondent, James Findlay (as delegate of the Protected Zone Joint Authority established by the Torres Strait Fisheries Act 1984 (Cth) (the Joint Authority), on 27 April 2018 under s 22(2) of the Torres Strait Fisheries Act (the Decision). The Decision was to vary the conditions attaching to all licences issued in respect of the Torres Strait Tropical Rock Lobster Fishery (the TRL Fishery) so as to prohibit the use of hookah gear at all times in the TRL Fishery for the remainder of the 2017/18 fishing season, with effect from 30 April 2018. Notice of the Decision was given to licence holders by letters dated 27 April 2018.

3    There are two main methods used to fish for tropical rock lobster in the TRL Fishery: freediving and diving with hookah gear (also referred to as hookah equipment). Use of Self-Contained Underwater Breathing Apparatus (ie, SCUBA) equipment or any other equipment used for breathing under water other than hookah gear is not permitted under the licences issued in respect of the TRL Fishery. Free diving involves diving underwater relying on the diver’s ability to hold their own breath. Hookah gear is used for breathing underwater where the air is supplied from either a compressor or one or more compressed air cylinders on the surface of the water. Hookah gear allows divers to remain underwater for a longer period of time than would otherwise be possible if they were to simply dive underwater on a single breath hold. This means that the diver can potentially spend more time searching for tropical rock lobster, capturing tropical rock lobster and accessing deeper water. Licence holders can also catch tropical rock lobster at night with the use of a lamp. This is known as lamp fishing.

4    The applicant contends that the only warning it received of the possibility of a total ban on the use of hookah gear was a letter dated 24 April 2018. This letter was sent by email on that day. The applicant notes that the letter gave only a very short period of time for comment, that is, until 27 April 2018. The applicant also notes that one of the days in this period – 25 April 2018 – was a public holiday.

5    The applicant challenges the Decision on five grounds, as set out in its originating application for judicial review. These grounds seek to invoke several of the bases upon which judicial review may be sought under s 5 of the ADJR Act. In summary, the applicant contends that, in making the Decision: the respondent failed to comply with the procedural requirements set out in s 24HA(7) of the Native Title Act 1993 (Cth); or, alternatively, that the respondent breached the rules of natural justice (or procedural fairness).

6    The application presently before the Court is an application by the applicant for an order that the operation of the Decision be suspended until the hearing and determination of the proceeding or further order: see s 15 of the ADJR Act. In support of the application, the applicant relies on the following affidavits:

(a)    an affidavit of Seriako Stephen, a traditional inhabitant of Torres Strait and a director of the applicant, dated 21 May 2018;

(b)    an affidavit of Shayne Daley, a lawyer representing the applicant, dated 21 May 2018;

(c)    an affidavit of Basil Sabatino, a traditional inhabitant of Torres Strait who has been involved in the fishing industry in Torres Strait for many years, dated 21 May 2018; and

(d)    an affidavit of James Mills, a traditional inhabitant of Torres Strait who operates a full-time business as a professional fisher, dated 22 May 2018.

7    The respondent opposes the application for an order suspending the operation of the Decision. He relies on an affidavit of Dr Nicholas Rayns, the Executive Manager, Fisheries of the Australian Fisheries Management Authority (AFMA), dated 23 May 2018.

8    None of the deponents was cross-examined on the hearing of the application. I therefore proceed on the basis that the facts set out in the affidavits are unchallenged for present purposes.

9    At the hearing of the application, both parties presented submissions on the basis that the principles applicable to an application for an interlocutory injunction are applicable to the present application. Accordingly, it is necessary to consider: whether there is a serious question to be tried (or a prima facie case); and whether the balance of convenience favours the making of an order that the operation of the Decision be suspended.

10    In my view, for the reasons that follow, the application for an order suspending the operation of the Decision should be refused.

Background facts

11    The following statement of the background facts is based on the affidavits referred to above. Although the affidavits were not challenged for the purposes of the present application, it is possible that they may be the subject of challenge at a later stage of this proceeding. Accordingly, the following statement of the background facts is only for the purposes of the present application.

12    On 23 August 2010, this Court made a determination of native title in respect of a large portion of the seas in the Torres Strait region (known and identified geographically as the Part A claim) (the Akiba Determination): see Akiba v Queensland (No 3) (2010) 204 FCR 1. Various appeals were commenced and heard and determined and, on 7 August 2013, in Akiba v Commonwealth of Australia (2013) 250 CLR 209, the High Court made orders the effect of which was, among other things, to confirm the grant of native title as determined by this Court on 23 August 2010. There is also a Part B claim for the remainder of the waters of Torres Strait, which were not the subject of the Akiba Determination. This claim has not yet been determined.

13    On 26 June 2014, this Court ordered that native title rights and interests determined to be possessed by the Torres Strait traditional owners pursuant to the Akiba Determination were to be held on trust by the applicant. The applicant undertook to act as trustee on behalf of the native title holders described in the Akiba Determination (Traditional Inhabitants).

14    In most instances, matters involving the seas up to the high-water mark, the living aquatic resources within those seas, and the seabed, are dealt with by the applicant. Matters involving land are dealt with by island-based native title corporations.

15    The applicant has 24 directors. The applicant’s constitution (the Rule Book) requires that a “member” director be a chairperson of an island registered native title body corporate. Accordingly, there is one director for each of the determined island areas within the Akiba Determination area.

16    The 24 directors of the applicant are dispersed across the Torres Strait region. For directors to meet face to face, most of them need to travel by sea or air to a common location. This can be weather dependent, time consuming and expensive. Electronic communication by telephone or internet is weather dependent and unreliable.

17    The Rule Book states that a quorum for a directors’ meeting is four persons. It also requires that the quorum must comprise at least one member from each nation (being four groups of people identified in the Rule Book).

18    Given the above matters, it is extremely difficult to reach all the directors of the applicant quickly and for directors to confer with each other when an urgent issue arises. Further, as each director is the chairperson of a registered native title body corporate, the directors often need to consult with their members and stakeholders who, in turn, are often in distant locations.

19    Torres Strait Traditional Inhabitants have, since time immemorial, fished the seas for their subsistence as well as to further their general wellbeing. In doing so, they have developed significant cultural protocols and knowledge to ensure that the aquatic resources are managed on a sustainable basis and are used and shared in a way that promotes a harmonious relationship among Traditional Inhabitants in the general geographic region.

20    Since sovereignty over the Torres Strait islands and waters was first asserted by the State of Queensland in the 1870s, there has been increasing regulation and control by Queensland and Commonwealth government authorities over the fishing activities of Traditional Inhabitants. In more recent decades, this regulation has been accompanied by management practices which have come to affect the ways in which Traditional Inhabitants fish and the conditions attached to licences they are required to hold if they are fishing on a commercial basis as Traditional Inhabitants.

21    On 18 December 1978, Australia and Papua New Guinea entered into a treaty to define and manage the sovereignty and maritime boundaries in the area between the two countries, including the area known as Torres Strait (the Treaty). A copy of the Treaty appears as Sch 1 to the Torres Strait Fisheries Act. The introductory paragraphs of the Treaty include:

RECOGNISING the importance of protecting the traditional way of life and livelihood of Australians who are Torres Strait Islanders and of Papua New Guineans who live in the coastal area of Papua New Guinea in and adjacent to the Torres Strait

22    Part 4 of the Treaty established the Protected Zone in the Torres Strait, comprising all the land, sea, airspace, seabed and subsoil within a defined geographical area. It required the signatories to the Treaty to adopt and apply measures in relation to the Protected Zone in accordance with the provisions of the Treaty.

23    Paragraph 3 of article 10 of the Treaty states:

The principal purpose of the Parties in establishing the Protected Zone, and in determining its northern, southern, eastern and western boundaries, is to acknowledge and protect the traditional way of life and livelihood of the traditional inhabitants including their traditional fishing and free movement.

24    Part 5 of the Treaty deals with Protected Zone Commercial Fisheries. This Part sets out further principles as to fishing practices and contains some regulatory arrangements for fishing within the region. Part 5 is expressed to apply to all commercial fishing within the Protected Zone, whether owned or operated by indigenous interests or otherwise. However, paragraph 1 of article 20 states:

The provisions of this Part shall be administered so as not to prejudice the achievement of the purposes of Part 4 of this Treaty in regard to traditional fishing.

25    Under article 23 of the Treaty, Australia and Papua New Guinea share the ‘allowable catch’ of the Protected Zone fisheries. The allowable catch, also referred to as the ‘optimum sustainable yield’ in article 23, is a volume of catch agreed by Australia and Papua New Guinea. It is also commonly known as the ‘recommended biological catch’ (RBC).

26    Presently, the RBC for the TRL Fishery is agreed annually following an annual pre-season scientific survey conducted by the Commonwealth Scientific and Industrial Research Organisation (CSIRO) in late October or early November each year, just prior to the commencement of the tropical rock lobster fishing season, and the Joint Authority receiving advice from the two groups, known as the Tropical Rock Lobster Resource Assessment Group (the Assessment Group) and the Tropical Rock Lobster Working Group (the Working Group).

27    In 1984, the Parliament enacted the Torres Strait Fisheries Act. Section 8 of the Act provides:

In the administration of this Act, regard shall be had to the rights and obligations conferred on Australia by the Torres Strait Treaty and in particular to the following management priorities:

(a)    to acknowledge and protect the traditional way of life and livelihood of traditional inhabitants, including their rights in relation to traditional fishing;

(b)    to protect and preserve the marine environment and indigenous fauna and flora in and in the vicinity of the Protected Zone;

(c)    to adopt conservation measures necessary for the conservation of a species in such a way as to minimise any restrictive effects of the measures on traditional fishing;

(d)    to administer the provisions of Part 5 of the Torres Strait Treaty (relating to commercial fisheries) so as not to prejudice the achievement of the purposes of Part 4 of the Torres Strait Treaty in regard to traditional fishing;

(e)    to manage commercial fisheries for optimum utilisation;

(f)    to share the allowable catch of relevant Protected Zone commercial fisheries with Papua New Guinea in accordance with the Torres Strait Treaty;

(g)    to have regard, in developing and implementing licensing policy, to the desirability of promoting economic development in the Torres Strait area and employment opportunities for traditional inhabitants.

28    The TRL Fishery is managed as a separate and discrete fishery in the Protected Zone, pursuant to the provisions of the Torres Strait Fisheries Act. It is the most lucrative of all the fisheries in the area for Traditional Inhabitants.

29    Part V of the Torres Strait Fisheries Act establishes the Joint Authority. This consists of the Commonwealth Minister (being the Minister for the time being administering the Act), the Queensland Minister and the Chairperson of the Torres Strait Regional Authority. Part V gives the Joint Authority almost all of the powers to manage and regulate fishing in the Protected Zone that would otherwise have been given to the Commonwealth Minister by the Act. Further, Pt V allows the Joint Authority to delegate certain of its functions or powers under the Act to certain persons, including a staff member of AFMA. The Joint Authority has delegated certain powers and functions to the respondent. I note that the respondent is the Chief Executive Officer of AFMA.

30    The Torres Strait Treaty regulates the proportion of the agreed RBC allocated to Australia and Papua New Guinea each year. Presently, the catch-sharing arrangements are that Australia receives 85 per cent of the agreed RBC for tropical rock lobster, and Papua New Guinea receives 15 per cent. This reflects the nature and location of the tropical rock lobster stock across the area of the TRL Fishery.

31    Australia’s share of the agreed RBC that can be taken by Australian boats licenced under s 19 of the Torres Strait Fisheries Act, in line with article 23(4) of the Torres Strait Treaty, is referred to as the ‘total allowable catch’ (TAC). Under article 23(4) of the Treaty, in areas of Australian jurisdiction, Australian boats can take 75 per cent of Australia’s share of the agreed RBC. The remaining 25 per cent is reserved for Papua New Guinea boats who may be cross-endorsed to fish in areas of Australian jurisdiction. It follows that the TAC is calculated as 75 per cent of Australia’s 85 per cent share of the agreed RBC.

32    Traditional Inhabitants who wish to fish commercially for rock lobster must obtain a licence to do so. AFMA is the body that manages the issue and monitoring of such licences. These licences are known as Traditional Inhabitant Boat licences (TIB licences). Such licences are renewed annually. Traditional Inhabitants hold these licences in order to fish for their livelihood. In many cases, they make significant financial investments in their boats and equipment in order to fish commercially.

33    Another type of licence for commercial fishing is the Transferable Vessel Holder licence (TVH licence). This type of licence can be held by persons who are not Traditional Inhabitants. I was informed at the hearing that the holders of TVH licences are usually larger operations and that they almost exclusively use hookah gear.

34    Further details regarding TIB and TVH licences are set out at [35]-[38] of Dr Rayns’s affidavit.

35    In 2008, AFMA published a document titled “Fisheries Management Paper No 1”, which sets out, in great detail, the Joint Authority’s policy for the operation and administration of Management Advisory Committees, Scientific Advisory Committees, working groups and resource assessment groups, and other associated consultative groups. The document outlined key decision-making processes associated with the delivery of advice in the pursuit of the Joint Authority’s legislative objectives and the interactive processes, respective roles and responsibilities between these various committees and groups.

36    In accordance with these policies the Joint Authority has established the Working Group and the Assessment Group. There is a description of the Working Group and the Assessment Group on the Joint Authority’s website (as set out in [37] of Mr Stephen’s affidavit).

37    The Joint Authority has established rules for the membership of the Working Group and the Assessment Group. In some cases, there is an election for Traditional Inhabitant representatives. In addition, many other indigenous persons are invited to attend as what the Joint Authority describes as “observers”. The applicant has been invited to nominate an observer to attend these meetings, as have other organisations such as the Torres Strait Fishers Association Inc (which represents a significant number of TIB licence holders who are engaged, to varying extents, in commercial fishing for tropical rock lobster).

38    Since the 2014/15 fishing season there have been temporal bans on the use of hookah gear, around either the full or the new moon each month, to help reduce fishing in the TRL Fishery.

39    In 2016, the Joint Authority published a draft “Torres Strait Fishery (Quotas for Tropical Rock Lobster (Kaiar)) Management Plan 2016”, after receiving submissions from a range of parties including the applicant.

40    At about this time, AFMA published a document setting out answers to “frequently asked questions” about the draft management plan. The executive summary included the following:

The fishery will continue to have output controls such as minimum size limits and bag limits for traditional and recreational fishing as well as a range of input controls that control how you must fish. The input controls in place in the fishery include requirements to hold a licence, tender number restrictions, moon-tide hookah closures, fishery closure 1 October to 30 November, Hookah closure 1 December to 31 January, fishing gear restrictions, prohibition on carrying meat removed from lobster, prohibition on carrying dive equipment at night and boat length restrictions and replacement policy. These arrangements will be periodically reviewed once the plan commences.

41    In Mr Stephen’s affidavit, he states that the applicant is disappointed that the regulatory and management practices set out in the “frequently asked questions” document have not, in the applicant’s view, been administered or implemented so as to properly take into account the interests of Traditional Inhabitants in the process of acquiring 100 per cent ownership of Torres Strait fisheries (as described in the affidavit).

42    Mr Stephen has been an observer at most meetings of the Working Group since its inception.

43    On 1 December 2017, the 2017/18 TRL Fishery fishing season opened. Dr Rayns’s affidavit provides details of various assessments and meetings concerning the available resource in the period from December 2017 to April 2018: see [53]-[75] of Dr Rayns’s affidavit.

44    On Monday, 23 April 2018, at 2.57 pm, Selina Stoute, an employee of AFMA, sent an email giving notice of proposed meetings of the Working Group and the Assessment Group. It was proposed that a meeting of the Working Group be held by teleconference between 10.00 am and 12.00 pm on Thursday, 26 April 2018. The proposed agenda for the meeting was as follows:

1.    Update on catches to date and further matters to be considered by the [Assessment Group]; and

2.    Discuss and advise on any additional measures to prolong fishing in the Fishery, noting catch rates are on a trajectory to reach the Australian catch share of the RBC by the end of May. Whilst there is very limited opportunity to implement additional measures, AFMA welcomes advice from members. Attached is a paper to support Working Group consideration.

45    On Tuesday, 24 April 2018, Natalie Couchman, Senior Management Officer, Torres Strait Fisheries at AFMA, sent a letter to various organisations, including the applicant, inviting the organisation to comment on proposed management action (the 24 April 2018 letter). The letter, which was sent by email on 24 April 2018, was in the following terms:

Comment on proposed management action in line with section 24HA(7) of the Native Title Act 1993

I am writing to you on behalf of the Secretariat of the Protected Zone Joint Authority (PZJA) regarding a proposed management action under section 16 of the Torres Strait Fisheries Act 1984 to implement a prohibition on the use of hookah gear in the Torres Strait Tropical Rock Lobster Fishery (TSTRLF) for the remainder of the 2017/18 fishing season.

Further details of the proposed action can be found in Attachments A-F - Class Notification under the Commonwealth native Title Act 1993.

Under section 24HA(7), the PZJA must give the recipient of this notice an opportunity to comment on the action within a period defined by this notice. Given the urgent need for this proposed management action in order to protect the sustainability of the TSTRLF, please provide any comments on the proposed management action by 27 April 2018, in writing, to the addressee below: …

If you have any problems meeting the timeframe given or if you have any questions regarding the proposed management action, please contact Steve Hall by phone on [omitted] or email (above).

46    There were a number of attachments to this letter. Attachment A was headed “Class Notification under the Commonwealth Native Title Act 1993”. This attachment referred to s 24HA of the Native Title Act and set out the proposed prohibition on the use of hookah gear. At the end of the attachment, the following statement appeared (in bold):

You are invited to comment upon the class of proposed future acts outlined above by close of business 27 April 2018. If you would like to extend the response period, please contact AFMA by 27 April 2018.

47    Mr Stephen states in his affidavit, and I accept for present purposes, that before receiving the 24 April 2018 letter, the applicant had been given no indication that the respondent or AFMA was proposing to implement a total ban on the use of hookah gear for the remainder of the season.

48    On the same day, 24 April 2018, at 7.58 pm, Maluwap Nona, the Chairperson of the applicant sent an email to Ms Stoute in the following terms:

After your swift response to concerns from Murray Island TIB operators regards Finish. Whereas, we set down critically analysed the intent of your letter also the legal position of Torres Strait Fisherman Association (TSFA).

It is therefore, in the best interests of our people Malu lamar will not engage in meeting of 26th April this week.

However, we are grateful for your management to organise our travel and accommodation.

We will respond to PZJA future act notice by tomorrow.

(Errors in original.)

49    It is apparent that the reference to the “PZJA future act notice” was to the 24 April 2018 letter. Although it was indicated in the email that the applicant would respond to this notice by “tomorrow”, that is, 25 April 2018, no response was sent on that day, or at all. Further, the applicant did not request an extension of time in which to respond.

50    On Friday, 27 April 2018, the respondent made the Decision. This is described in Dr Rayns’s affidavit at [86] as a decision to replace an additional moon-tide hookah closure licence condition (that had been put in place on 10 April 2018) with a condition prohibiting the use of hookah equipment. Dr Rayns states that this was done by varying the licence conditions for all TRL Fishery licences under s 22(2) of the Torres Strait Fisheries Act.

51    On 30 April 2018, the respondent sent letters dated 27 April 2018 to the holders of licences in respect of the TRL Fishery, giving notice of the Decision. The letter was in the following terms:

Prohibition on the use of hookah gear in the Torres Strait Tropical Rock Lobster Fishery for the remainder of the 2017/18 fishing season – effective 30 April 2018

As delegate of the Protected Zone Joint Authority (PZJA) under the Torres Strait Fisheries Act 1984 (the Act), I am of the view that additional management measures are required in the Torres Strait Tropical Rock Lobster Fishery (the TRL Fishery) to restrict the fishing effort in that Fishery so as to ensure catches do not exceed the limit of Australian catch share of the recommended biological catch (RBC) and to prolong the opportunity for fishing for the duration of the 2017/18 fishing season.

On 10 April 2018 the Australian Fisheries Management Authority (AFMA) provided you with a notice stating that reported catches of Tropical Rock Lobster were reaching the limit of Australia’s catch share of the RBC and that the TRL Fishery will be closed when that limit was reached.

The objectives that must be pursued by AFMA under the Act include the administration of commercial fisheries so as not to prejudice traditional fishing, to manage commercial fisheries for optimum utilisation, and to share allowable catch of commercial fisheries in accordance with Australia’s treaty obligations with Papua New Guinea.

The RBC for the TRL fishery in the 2017/18 fishing season was determined to be 299 tonnes. In accordance with the treaty, Australia’s catch share is 190.65 tonnes. As at 25 April 2018, AFMA’s records indicate that the landed catch from the TRL Fishery was 142.676 tonnes. Given how close the reported catches are to Australia’s catch share, I consider it appropriate for additional management measures to be imposed to limit the effort in the TRL Fishery.

Today I have decided to vary the condition on your licence so as to prohibit the use of hookah gear at all times in the TRL Fishery for the remainder of the 2017/18 fishing season under section 22 of the Act. This condition will come into effect from 30 April 2018.

The following condition varies the condition issued on 10 April 2018 regarding additional moon-tide hookah closures in the TRL Fishery.

Prohibition on the carriage or use of hookah gear

The taking or carrying of tropical rock lobster (Panulirus spp.) while using, or in the possession of, hookah gear is prohibited in the area of the Torres Strait Tropical Rock Lobster Fishery during the period commencing 30 April 2018 and ending 30 September 2018.

Please attach this notice to your licence immediately.

The enclosed calendar shows the period this prohibition will apply.

Further, I advise that additional measures are being considered to ensure catches do not exceed the Australian catch share of the RBC. Such measures will include a prohibition on the take of Tropical Rock Lobster in the area of the TRL Fishery when the Australian catch share of the RBC is reached. Implementation of any prohibition on the take of Tropical Rock Lobster is pending agreement on the division of catch shares between Australia and Papua New Guinea. Licence holders will be notified when this prohibition is to come into effect.

Should you have any questions about the matters contained in this letter, please contact Natalie Couchman (Senior Management Officer, AFMA) on [omitted].

(Footnote omitted.)

52    Dr Rayns, in [87] of his affidavit, provides evidence, on an information and belief basis, in relation to the Decision as follows:

87    I am informed by the respondent and understand that:

87.1    It was important to lower the rate of catch in the TRL Fishery by implementing the hookah prohibition to increase the likely length of [the] TRL fishing season. This measure had been identified by AFMA, as delegate of the Joint Authority, to be most beneficial to the majority of TIB Licence holders, consistent with Australia’s obligations under the Torres Strait Treaty and with the objectives to be pursued under the Torres Strait Fisheries Act. AFMA considered, having regard to the objectives set out in s 8 of the Torres [Strait] Fisheries Act and the Torres Strait Treaty, that prohibiting the use of hookah would provide greater benefit to the largest number of TIB licence holders as opposed to those with the greatest potential for profit. It considered that allowing approximately, 60-70% of the license holders in the TRL Fishery … to continue to harvest TRL for as long as possible … before the RBC was reached was preferable to allowing a smaller percentage of the industry to harvest TRL with greater efficiency. This is the basis upon which AFMA had provided the Working Group with recommendations prior to the 28-29 March and 26 April meetings.

87.2    The decision was made at that time because AFMA identified, that in order for the hookah prohibition to be effective, it needed to be implemented prior to the next scheduled hookah opening on 4 May 2018.

87.3    The fishing method composition of the TRL Fishery fleet (e.g. number of operators that use hookah gear, free dive and other methods) was taken into consideration in making a decision on a prohibition on the carriage and use of hookah gear. At the time of the decision, the data showed that approximately 35% of TIB licence operators and 100% of TVH Licence holders used hookah gear.

87.4    AFMA considered it to be prudent to prohibit the use of hookah on the basis that this would lower catch rates across the TRL Fishery and therefore prolong the opportunity for TIB Licence holders to fish for the duration of the season consistent with recommendations of the Working Group from their 28-29 March 2018 meeting.

53    Further, at [94] of his affidavit, Dr Rayns states:

As at 21 May 2018, AFMA’s records indicate that the total reported landed catch for the TRL Fishery is 163 tonnes. Once unaccounted catch is included, due to possible underreporting and reporting time lag, I estimate that the actual catch remaining before the TAC is breached may be as little as 5 tonnes. As a result, AFMA is preparing for the imminent closure of the TRL Fishery. That closure will initially be implemented by placing conditions on TIB and TVH Licences as foreshadowed in the letter to the applicant annexed to this affidavit … and will be followed by amendment to the relevant legislative instrument for the TRL Fishery by the Joint Authority at the first available opportunity.

Applicable principles

54    As noted above, both parties proceeded on the basis that the principles applicable to an application for an interlocutory injunction were applicable. I therefore proceed on the basis of such principles: see Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 at [52]-[74] and [87]-[89] (see also Nyangatjatjara Aboriginal Corporation v Registrar of Aboriginal Corporations (No 2) [2006] FCA 675 at [33]-[38]). It is, however, relevant to have regard to the nature of the proceeding, being an application for judicial review under the ADJR Act, and the fact that what is sought is to suspend the operation of an administrative decision pending the hearing and determination of the proceeding: see, eg, Castlemaine Tooheys Limited v State of South Australia (1986) 161 CLR 148 at 153-156 per Mason ACJ. It is in this context that I approach the questions whether there is a serious question to be tried (or a prima facie case), and whether the balance of convenience favours the making of an order suspending the operation of the Decision.

Consideration

55    Although the originating application for judicial review contains five grounds, senior counsel for the applicant did not rely on the fifth ground for the purposes of the present application. Accordingly, it is sufficient to have regard to the first four grounds, which are:

(a)    the Decision was made in contravention of s 24HA(7) of the Native Title Act (the reference to s 27HA(7) in the originating application appears to be a typographical error);

(b)    procedures that were required by law to be observed in connection with the making of the Decision were not observed);

(c)    a breach of the rules of natural justice occurred in connection with the making of the Decision; and

(d)    the Decision was not authorised by the Native Title Act or the Torres Strait Fisheries Act, pursuant to each of which it was purportedly made.

56    In summary, the applicant contends that, in making the Decision: the respondent failed to comply with the procedural requirements in s 24HA(7) of the Native Title Act; or, alternatively, the respondent breached the rules of natural justice (or procedural fairness): see s 5(1)(a), (b) and (d) of the ADJR Act. This was the main thrust of the applicant’s case as presented at the hearing of the present application.

57    Section 24HA of the Native Title Act provides as follows:

Legislative acts

(1)    This section applies to a future act consisting of the making, amendment or repeal of legislation in relation to the management or regulation of:

(a)    surface and subterranean water; or

(b)    living aquatic resources; or

(c)    airspace.

In this subsection, water means water in all its forms and management or regulation of water includes granting access to water, or taking water.

Leases, licences etc

(2)    This section also applies to a future act consisting of the grant of a lease, licence, permit or authority under legislation that:

(a)    is valid (including because of this Act); and

(b)    relates to the management or regulation of:

(i)    surface and subterranean water; or

(ii)    living aquatic resources; or

(iii)    airspace.

In this paragraph, water means water in all its forms and management or regulation of water includes granting access to water, or taking water.

Validity of act

(3)    The act is valid.

Non-extinguishment principle

(4)    The non-extinguishment principle applies to the act.

Compensation

(5)    The native title holders concerned are entitled to compensation for the act in accordance with Division 5.

Who pays compensation

(6)    The compensation is payable by:

(a)    if the act is attributable to the Commonwealth — the Crown in right of the Commonwealth; or

(b)    if the act is attributable to a State or Territory — the Crown in right of the State or Territory.

Notification

(7)    Before an act covered by subsection (2) is done, the person proposing to do the act must:

(a)    notify, in the way determined, by legislative instrument, by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters that will be affected by the act, or acts of that class, that the act, or acts of that class, are to be done; and

(b)    give them an opportunity to comment on the act or class of acts.

58    One issue that arises is whether s 24HA(7) applied to the Decision. Subsection (7) relates to an act that is covered by subsection (2). Subsection (2) refers to a future act consisting of the grant of a “lease, licence, permit or authority under legislation”. Does this cover the imposition of a condition upon a licence? The applicant submits that the provision should be construed broadly so as to include such an act. For present purposes, I will proceed on the basis that this is at least arguable. I note that the respondent (or AFMA), in sending the 24 April 2018 letter, appears to have assumed that notification under s 24HA(7) was required.

59    I also proceed on the basis that it is at least arguable that the principles of natural justice required the respondent to give the applicant notice and an opportunity to comment before making the Decision. I note the applicant’s particular role in relation to native title rights and interests.

60    In circumstances where the applicant was given only a very limited period of time in which to comment, I accept that there is a serious question to be tried as to whether the respondent failed to comply with the procedural requirements in s 24HA(7) of the Native Title Act and whether the respondent breached the rules of natural justice. Having said that, on the basis of the factual material before the Court at this stage, I do not consider the applicant’s case to be a strong one. In particular, the email from the Chairperson of the applicant dated 24 April 2018, at 7.58 pm, set out above, did not suggest that the applicant needed more time to respond, but rather indicated that a response would be provided in the specified period. It was open to the applicant to seek further time to respond (as it was invited to do in the 24 April 2018 letter), but it did not do so. These matters are likely to make it difficult to contend that the 24 April 2018 letter gave the applicant insufficient opportunity to comment on the proposal.

61    Further, the question whether a sufficient period of time was provided for the applicant to comment on the proposal, will need to be considered in the context of the urgency of the issue. The material before the Court suggests that there was an urgent need to make a decision. This may suggest that the period of time allowed for comment (with an indication that further time could be sought) was sufficient in the circumstances.

62    I turn now to consider the balance of convenience. If the operation of the Decision is not suspended, and the applicant is ultimately successful in the proceeding at final hearing, the applicant will have lost the opportunity to comment on the proposal in circumstances where (it is to be assumed, on this scenario) it was entitled to this opportunity pursuant to s 24HA(7) of the Native Title Act and the principles of natural justice. In weighing this consideration, I note the role that the applicant has in relation to native title rights and interests. I also note that the total ban on the use of hookah gear is likely to affect Traditional Inhabitants who engage in commercial fishing.

63    On the other hand, if the operation of the Decision is suspended, fishing with hookah gear would resume. The practical issue that arises on this scenario is that such resumed fishing is likely to quickly exhaust the TAC for the season, being Australia’s share of the RBC. This would require the complete closure of the TRL Fishery at an earlier point in time than would otherwise be the case, to the detriment of TIB licence holders who use free diving. These are substantial matters that tend against suspending the operation of the Decision.

64    It is not clear at this stage when the proceeding is likely to be heard. It may be possible to arrange an expedited hearing. It may also be possible to limit the period of time of any suspension of the Decision so that the suspension did not operate for longer than the period that the applicant contends should have been provided to it to comment on the proposal. However, even if the matter were assessed on the basis that the suspension would only operate for a period of three to four weeks, the considerations referred to in the preceding paragraph would still tend strongly against suspension.

65    Taking the above matters into account, the applicant has not made out a prima facie case of sufficient strength to justify the suspension of the operation of the Decision. Further, the balance of convenience does not favour suspension of the order.

66    Accordingly, the application for an order suspending the operation of the Decision is refused.

Associate:

Dated:    4 June 2018