FEDERAL COURT OF AUSTRALIA

Malu Lamar (Torres Strait Islander) Corporation RNTBC v Findlay (as delegate of the Protected Zone Joint Authority) (No 2) [2018] FCA 1150

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s decision made on 27 April 2018 to vary conditions on commercial fishing licenses pursuant to s 22 of the Torres Strait Fisheries Act 1984 (Cth) be quashed.

2.    Order 1 be stayed up to and including 4pm on 29 June 2018.

3.    The respondent be granted liberty to apply on six hours’ notice to extend the stay in order 2.

4.    The applicant make any application for costs by filing written submissions (limited to three pages), on or before 6 July 2018.

5.    The respondent file written submissions (limited to three pages) in response to any application for costs filed pursuant to order 4, on or before 13 July 2018.

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

ORDERS

THE COURT ORDERS THAT:

1.    The respondent pay 75% of the applicant’s costs of the proceeding.

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

REASONS FOR JUDGMENT

RARES J:

1    The applicant, Malu Lamar (Torres Strait Islander) Corporation RNTBC commenced this proceeding urgently because of the limited, but potentially material, impact of the decision of Dr James Findlay, as delegate of the Protected Zone Joint Authority established under the Torres Strait Fisheries Act 1984 (Cth) (the Fisheries Act), made on 27 April 2018 (the 27 April decision) to restrict the right of persons holding a commercial fishing licence issued under s 19 of the Fisheries Act to use what is known as hookah equipment to fish for tropical rock lobster (or TRL) in the protected zone. Dr Findlay imposed the condition pursuant to his power to impose conditions under s 22(2). Hookah equipment allows a diver to be connected to an oxygen source on-board a vessel while he or she is diving in search of, relevantly in this case, lobsters.

2    The Authority is a joint authority established between the Independent State of Papua New Guinea, the Commonwealth and the State of Queensland to give effect to the provisions of the Torres Strait Treaty between Australia and Papua New Guinea done at Sydney on 18 December 1978, which the Fisheries Act ratifies and to which it gives force of law in some respects. The Authority administers fishing in the protected zone, being the land and waters identified in the Treaty. Dr Findlay is the chief executive officer of the Australian Fisheries Management Authority (AFMA) and the delegate of the Authority.

3    Malu Lamar was incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). On 23 August 2010, Finn J made a final determination of native title in proceedings Akiba (on behalf of the Torres Strait Islanders of the Regional Seas Claim Group) v Queensland (No. 2) (2010) 270 ALR 564, for which he had delivered reasons on 2 July 2010 (the 2010 determination). The 2010 determination relevantly provided that the native title claim group had non-exclusive native title rights and interests to access and take, for any purpose, resources in the native title areas, which included, relevantly, the waters of the Torres Strait. His Honour ordered that the native title holders file and serve, first, a notice in accordance with s 56(2)(a) of the Native Title Act 1993 (Cth) as to whether they intended to have their native title held in trust by one or more prescribed bodies or bodies corporate, and, secondly, that if it were to be held in trust, the name and rules of the proposed prescribed body or bodies corporate. In the event, the native title holders appointed Malu Lamar to hold their native title rights and interests the subject of the 2010 determination in trust for the Torres Strait Islanders Regional Sea Claim Group (the claim group).

The statutory context

4    Over 25 years before the 2010 determination, the Fisheries Act had recognised the statutory right of traditional inhabitants to fish and carry on activities in the course of their traditional fishing in partial conformity with the Treaty. Importantly, under the definition in s 3 of the Fisheries Act, traditional fishing did not include fishing by a method, or with the use of equipment or a boat, of a kind specified in an instrument made by the Minister.

5    Relevantly, s 8 of the Fisheries Act provided:

8    Objectives to be pursued

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. (emphasis added)

6    The Minister had power, under s 16(1)(c) of the Fisheries Act, to prohibit by legislative instrument the taking, processing or carrying of fish included in a class (such as here, lobster), by a method or with the use of equipment or a boat, of a kind specified in the instrument.

7    The Fisheries Act defined “commercial fishing” in s 3(1) as meaning fishing for commercial purposes but not including traditional fishing. Thus, the Fisheries Act regulated from the time of its enactment the rights of traditional inhabitants or, after the decision in Mabo v Queensland (No 2) (1992) 175 CLR 1, native title holders’ rights and interests, to fish commercially from a boat by requiring any person, whether or not he or she was a member of the claim group or a person entitled to native title rights and interests in the claim area, to hold a licence under s 19. Also, s 19 of the Fisheries Act gave the Minister a discretion to grant licences to undertake commercial fishing in areas of Australian jurisdiction in the protected zone.

8    There are two types of licences issued under s 19 namely, a transferrable vessel holding licence or TVH licence and a traditional inhabitant boat licence or TIB licence. There are 12 TVH licences associated with a fishing vessel, of which three are held by the chairperson of the TSRA and two are in use, and nine are held by others and seven are in use. A TVH licence can be held by any person including a person who is not a traditional inhabitant within the meaning of the Fisheries Act. That Act uses the definition in Art 1 of the Treaty, to define traditional inhabitants as Torres Strait Islanders who live in the protected zone or in the adjacent coastal area of Australia, are citizens of Australia and maintain “traditional customary” associations with areas or features in, or in the vicinity of, the protected zone in relation to their subsistence or livelihood or social, cultural or religious activities. Such persons include, among others, members of the claim group for whom Malu Lamar acts as trustee of their native title rights and interests. A TIB licence is issued to a traditional inhabitant in order to fish for his or her livelihood under s 19 of the Act. Both TVH and TIB licences are renewed annually.

9    The taking of fish by traditional methods for subsistence is not regulated by the Fisheries Act and remains, in substance, an unregulated native title right.

10    Under s 22 of the Fisheries Act, a licence granted under s 19, or a licence endorsed by the Minister as having been granted by the relevant authority of Papua New Guinea, is subject to such conditions as the licence specifies or that the Minister, in exercise of his power under s 22(2) might vary, revoke or specify by a notice in writing given to the holder of a licence under s 19 or a Treaty endorsement. Such variation or revocation of a condition of a licence takes effect on the day on which a notice relating to the licence is given pursuant to s 22(3).

11    These provisions give effect to Arts 22 to 25 of the Treaty. There, Australia and Papua New Guinea agreed a means to share, in agreed proportions, the “allowable catch” in the protected zone, based on their determination of the optimum sustainable yield by commercial fishing of particular species of fish from the protected zone. Article 26 provided for each of the States party to issue licences to persons or vessels to fish in the protected zone and for each to recognise, by endorsement, a licence that the other State party issued. And, Art 26(4) provided:

The responsible authorities of both parties shall ensure that the traditional inhabitants are consulted from time to time on the licensing arrangements in respect of Protected Zone commercial fisheries.

12    In addition, s 30 provides that the Authority consists of the Commonwealth Minister, the Queensland Minister and the chairperson of the Torres Strait Regional Authority (TSRA), being a body established by s 142 of the Aboriginal and Torres Strait Islander Act 2005 (Cth). TSRA also has functions as a representative body of persons who hold or claim native title rights and interest in land and waters in the Torres Strait region

13    The main objects of the Native Title Act are to provide for the recognition and protection of native title, establish ways in which the future dealings affecting native title may proceed, set standards for those dealings, and provide for or permit the validation of past acts and intermediate period acts invalidated because of the existence of native title (s 3). The overview of the Act, in s 4, provides in s 4(3) that there are basically two kinds of acts affecting native title, first, past acts (i.e. ones done before the Act commenced on 1 January 1994 that were invalid because of native title) and secondly, future acts, being:

mainly acts done after this Act’s commencement that either validly affect native title or are invalid because of native title.

14    For the purposes of the Native Title Act, the Fisheries Act was a valid past act to the extent that it affected native title. According to the overview in s 4(4), the Act deals with the validity, effect on native title and compensation for past and future acts.

15    Importantly, s 10 provides that native title is recognised and protected in accordance with the Act, s 11(1) provides that native title is not able to be extinguished contrary to the Act, and s 11(2) provides that an act that consists of the making, amendment or repeal of legislation on or after 1 July 1993 by the Commonwealth, a State or a Territory, can only extinguish native title in accordance with, relevantly, Div 3 of Pt 2, which deals with “future acts etc. and native title”.

16    Division 3 of Pt 2 commences with Subdiv A, that in the overview in s 24AA, provides (s 24AA(2)):

Basically, this Division provides that, to the extent a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not.

Under s 24AA(4)(e), a future act will be valid to the extent covered by s 24HA. Regulations can be made, pursuant to s 24AC, to impose requirements to notify persons of acts, or classes of acts, that are to any extent valid under Div 3 whether notice is required to be given before or after the acts are done.

17    Relevantly, s 24HA provided:

Subdivision H—Management of water and airspace

24HA    Management or regulation of water and airspace

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.

18    Section 24HA formed part of the scheme in Div 3 of Pt 2 of the Native Title Act that provided specific consequences in respect of various types of future acts on native title rights and interests. Critically, s 233(1) defined a future act:

233    Future act

Definition

(1)    Subject to this section, an act is a future act in relation to land or waters if:

(a)    either:

(i)    it consists of the making, amendment or repeal of legislation and takes place on or after 1 July 1993; or

(ii)    it is any other act that takes place on or after 1 January 1994; and

(b)    it is not a past act; and

(c)    apart from this Act, either:

(i)    it validly affects native title in relation to the land or waters to any extent; or

(ii)    the following apply:

(A)    it is to any extent invalid; and

(B)    it would be valid to that extent if any native title in relation to the land or waters did not exist; and

(C)    if it were valid to that extent, it would affect the native title. (emphasis added)

19    In the Native Title (Notices) Determination 2011 (No. 1) (Determination (No 1)), the Attorney-General prescribed that a notice under s 24HA(7)(a) of the Native Title Act had to be given by post but also could be given by a different means if the person to be notified agreed. Determination (No 1) required, in pars 8(3)(c) and (d), that such a notice include, first, a statement that the person notified had to be given an opportunity to comment on the act or class of acts within a period mentioned in the notice and, secondly, the name and postal address of the person to whom comment must be given.

20    The explanatory statement that the Attorney-General issued for the making of Determination (No 1) identified that his purpose was to alert people in a particular area to a proposed act or activity that was to take place on land that may be subject to native title, and that notices should enable people to consider whether they will be affected by the proposed act or activity. The explanatory statement said that the notification had to give those affected:

The chance to avail themselves of relevant procedural rights or other opportunities under the Act.

21    Because a commercial fishing licence conferred an authority to engage in commercial fishing, its grant as well as its terms and conditions had the capacity to affect the livelihood of the individual or corporation to whom it was granted. It is common ground that, subject to the argument as to the impact of s 24HA(7) of the Native Title Act, to which I will come, before imposing or altering conditions in commercial fishing licences under ss 19 and 22 of the Fisheries Act that affected the taking of lobster using hookah equipment (which facilitated that activity and made it apparently more commercially efficient) the Minister had to afford licensees procedural fairness.

22     The Authority and its delegate must exercise matters of judgment and discretion in balancing the various competing objectives in s 8 of the Fisheries Act to which it and the Treaty seek to give recognition, in determining how much catch should be allowed in any particular year and the methods by which it may be taken. Thus, scuba equipment is banned completely as a means of commercial fishing for lobster, but hookah equipment is permitted, subject to its regulation as provided by legislative instruments under s 16 and the attachment of conditions to commercial fishing licences under ss 19 and 22 of the Fisheries Act.

The issues

23    Malu Lamar’s amended originating application for judicial review sought to review the delegate’s decision made on 27 April 2018, purportedly pursuant to each of s 24HA(2) of the Native Title Act and s 22 of the Fisheries Act.

24    The originating application claimed that the 27 April decision was made in contravention of s 24HA(7) because, first, it had not given Malu Lamar, or any other entity described in s 24HA(7)(a), any reasonable notice of the proposed prohibition on hookah fishing, secondly, had not given any reasonable opportunity to comment on the proposed prohibition on the use of hookah equipment by TIB licence holders, thirdly, there had been a breach the rules of natural justice in connection with the 27 April decision’s making (see s 5(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act)), fourthly, procedures required by law to be observed in connection with the making of the 27 April decision were not observed (s 5(1)(b) of the ADJR Act), fifthly, the decision had not been authorised by the Native Title Act or the Fisheries Act, pursuant to each of which it purported to have been made, and last, an error of law had been committed in the making of the decision.

25    It was common ground that the delegate’s decision to impose the condition in licences under s 22 of the Fisheries Act prohibiting fishing using hookah equipment was capable of being a future act for the purposes of s 24HA(2). However, the parties were at issue as to whether the 27 April decision itself had to be a valid decision under the Fisheries Act, or whether all that s 24HA(2) required was that the Fisheries Act itself be a valid enactment (which it undoubtedly is) by force of which, under s 24HA(3) the 27 April decision itself is valid.

26    Malu Lamar complained that Dr Findlay made the 27 April decision in breach of his obligation to afford persons affected, being licence holders, and or Malu Lamar or the members of the claim group for which it acts as trustee, procedural fairness under each of s 24HA(7) of the Native Title Act and s 22 of the Fisheries Act. However, the consequence of any failure to accord procedural fairness in contravention of s 24HA(7) does not, for the reasons I will explain, invalidate the future act itself, but rather simply may give rise to the right of compensation for which s 24HA(5) provides.

27    Initially, Malu Lamar’s attack on the validity of the 27 April decision focused on the delegate’s alleged failure to comply with the provisions of s 24HA(7) of the Native Title Act. During the course of argument, that attack expanded to include Dr Findlay’s alleged failure to comply with the provisions of s 22 of the Fisheries Act and the common law, having regard to the requirement that a person affected by any decision that may affect adversely or curtail a person’s means of earning a livelihood under a commercial fishing licence be afforded procedural fairness before any decision is made.

28    Malu Lamar also contended that the delegate’s failures to accord procedural fairness consisted of, first, a failure to give proper notice of the possibility that he would impose the impugned condition and to provide a sufficient time in which persons affected could make submissions, and secondly, (which subsequently became common ground) Dr Findlay’s failure to read or consider (because he was not aware of it) a letter dated 27 April 2018, that TSRA had written, as representative body, on behalf of Malu Lamar and the members of the claim group that objected to the imposition of the new condition, which the Authority received on the afternoon of 27 April 2018 (the TSRA letter).

The events leading up to the 27 April decision

29    On 10 April 2018, the Authority imposed a condition on commercial fishing licences that prevented fishing using hookah equipment during periods in which there was a full moon or “moon tide”.

30    In the immediate period leading up to the 27 April decision, the Authority became concerned, about the need to act so as to maintain, as much as possible, the potential for those with commercial fishing licences to continue to earn livelihoods while at the same time seeking to limit their ability to maximise their catch of tropical rock lobster by prohibiting the use of hookah equipment.

31    On 23 April 2018, AFMA sent a notice by email at 2.57pm (the 23 April notice) to the tropical rock lobster working group and resource assessment group (or RAG) members, proposing to convene joint meetings over the next few weeks and seeking urgent confirmation on the members’ availability for a meeting. The email attached a description of proposed dates and agendas. Relevantly, the 23 April notice set out the proposed agenda for the working group, which subsequently came to be convened for a meeting on 26 April 2018, the day after the Anzac Day public holiday, as being:

1.    Update on catches to date and further matters to be considered by the RAG; 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.

32    The attached paper provided an analysis that stated that, as at 17 April 2018, the total landed catch was then 139 tonnes or 73% of Australia’s share of the total allowable catch, under the Treaty for the quota year ended 30 September 2018. For the year ending 30 September 2018, the total allowable catch for lobster was fixed at an historically very low figure. At the time at which Dr Findlay began considering making the 27 April decision, he was aware that the amount of the lobster catch to date was rapidly approaching the level at which no further fishing could be allowed at all.

33    The proposed agenda for the resource assessment group, included in the 23 April notice, dealt with issues concerning data for the fishing season, the likelihood and quantum of certain amounts of lobsters being within the fisheries’ areas and the need to evaluate whether or not a mid-year survey should be conducted.

34    Significantly, none of the material included with the Authority’s email of 23 April 2018 indicated that the Authority or Dr Findlay then was contemplating imposing a total, or any other, ban on the use of hookah equipment to fish for lobster.

35    At 6.21pm on 23 April 2018, Dr Findlay sent an email to the other members (than himself) of the standing committee of the Authority, being an officer of the Queensland Government and an officer of the TSRA, saying that, as delegate of the Authority:

Given the latest data indicating catches are more quickly approaching the limit than previously thought, I am seeking your views about whether or not we should take additional action to prolong fishing in the TRL fishery whilst remaining within the Australian TAC [total allowable catch] of 190 tonnes. While doing nothing more this season (i.e. leaving the recent hookah ban increase in place and just closing the fishing once the TAC is reached) will pursue our sustainability objectives, having regard to other objectives of the Act I am considering prohibiting the use of hookah at any time for the remainder of this TRL fishing year (via a licence condition variation).

...

the next moon-tide hookah closure commences Friday 27 April and ends 3 May 2018. If I was to proceed with prohibiting the use of hookah for the remainder of the season, l would prefer to make the decision by this Friday to allow time for a licence condition variation to be issued and give fishers as much time as possible to adjust.

We will be calling on the TRL Working Group for further advice with a teleconference scheduled for Thursday 26 April 2018. Through informal discussions with industry (TIB and TVH) we understand that a complete ban on hookah for the remainder of this season is unlikely to be supported by TVH or ‘fulltime’ TIB fishers who use hookah, but the majority of the TIB sector may support it. (emphasis added)

36    At 6.11pm on 24 April 2018, the Authority sent an email to, among others, the chairperson of Malu Lamar, Maluwap Nona, attaching a letter (the 24 April letter) and a notice under s 24HA(7) of the Native Title Act (the s 24HA notice) inviting comment on “proposed management action” in line with section 24HA(7). The 24 April letter identified proposed management action under s 16 of the Fisheries Act as imposing a prohibition on the use of hookah gear in the Torres Strait tropical rock lobster fishery. The 24 April letter stated:

Under section 24HA(7), the [Authority] 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 [Torres Strait Tropical Rock Lobster Fishery], please provide any comments on the proposed management action by 27 April 2018, in writing, to the addressee below:

Australian Fisheries Management Authority

Att: Steve Hall

PZJA Secretariat

PO Box …

Canberra Business Centre

CANBERRA ACT 2610

Email: steve.hall@... (italic emphasis added)

37    The heading of the s 24HA notice specified that it was given pursuant to s 24HA(7). The s 24HA notice identified Mr Hall as the person to whom responses had to be sent as par 8(3)(d) of Determination (No 1) required, again providing his contact name, email address and telephone number. The s 24HA notice stated as follows:

The Protected Zone Joint Authority intends to issue:

TYPE OF APPROVAL

The following management option is proposed under section 22 of the Torres Strait Fisheries Act 1984 (the Act).

Prohibition on the use of hookah gear

Subject to consultation with the Protected Zone Joint Authority Tropical Rock Lobster Working Group, one management option that may be considered for the Torres Strait Tropical Rock Lobster Fishery (TSTRLF) is to prohibit the use of hookah gear for the remainder of the 2017 /18 fishing season.

38    The s 24HA notice named, as its apparent addressees, the Cape York Land Council, Carpentaria Land Council Aboriginal Corporation, Kaurareg Native Title (Aboriginal) Corporation RNTBC and Malu Lamar, as registered native title claimant groups or native title body corporates, and TSRA as the native title representative body.

39    Bizarrely, Mr Hall was not going to be at work on 27 April 2018 because he was taking study leave on that day and 30 April 2018. Yet, despite requiring recipients of the s 24HA notice to respond directly to Mr Hall by post or using his email address, the Authority did nothing to ensure that, despite his known absence on leave, emails that were sent to his email address, as required by the s 24HA notice, would be provided to Dr Findlay before he made a decision.

40    This was unacceptable maladministration, particularly since the Authority itself had created the urgent situation and prescribed to whom it required a response to the s 24HA notice should be sent – namely the absent Mr Hall. All that the Authority or Mr Hall did in this context was to program an automatic email message reply from him that informed a person who sent him an email:

Thank you for your email. I’m out of the office until 1 May 2018. I will respond to your inquiry upon my return. For urgent matters, please contact …

The automated reply went on to give a telephone number to call and the email address of another officer of the Authority.

41    Mr Hall’s name and postal address was (or became by its inclusion) an essential part of the s 24HA notice because par 8(3)(d) of Determination (No 1) required a notice under s 24HA to contain the name and postal address of the person to whom comment must be given. The Authority’s maladministration in this regard is to be deprecated and ought not be repeated. If an officer is known to be on leave or away at the time fixed for persons who may be affected by a proposed decision to make a comment or submission, the officer’s employer and the decision-maker must ensure that all email responses that may come from persons so affected are collected from the absent officer’s email accounts. Mr Hall’s automatic email response did not tell its recipients that no appropriate arrangements were in place to have their responses to the s 24HA notice available to the decision-maker. Moreover, the recipient would not know if a response other than as stipulated in the s 24HA notice would be valid or provided to or considered by the decision-maker.

42    By the time he received the s 24HA notice sent to him at 6.11pm, Mr Nona had already made arrangements with the Authority to travel to the meeting of the working group on 26 April 2018. But after receiving the s 24HA notice, he emailed the Authority at 7.58pm on 24 April 2018 cancelling his participation. In that email he said that it was in the best interests of the Malu Lamar people not to engage in the meeting on 26 April 2018 and that they would respond to the future act notice by the next day, namely, Anzac Day, 25 April 2018.

43    In the event, Malu Lamar did not respond that quickly. But, on 27 April 2018, the TSRA, in its capacity as a representative body of native title holders, wrote the TSRA letter to the Authority addressed to Mr Hall that it sent by email to him at 3.37pm on behalf of Malu Lamar. The TSRA letter stated that:

Our clients [Malu Lamar] and Torres Strait Regional Sea Claim (Part A) have instructed this office that they strongly object to the proposed management option being issued over traditional land and waters which include land and waters where traditional native title rights and interests exist and are being regularly exercised. The basis for the objection is as follows:

•    The notice does not contain a clear and detailed description of the extent and nature of the future act activities proposed to be undertaken. Without knowing the extent of the operation our clients are unable to make an assessment as to what impact or effect the operation may have on their Native Title Rights. Please note that this office has requested this sort of information several time with regards to previous notifications received from your organisation;

•    The notice does not provide clear details of any likely impact the proposed activities will have on the local fisheries;

•    The grantee has not provided details of how they propose to eliminate or minimise any interference with the native title holders exercising their native title rights; and

•    The issue of the proposed option will interfere with, and may well make it unsafe for the native title holders to continue to exercise their native title, community and social activities on their traditional land and waters including the right to hunt, fish, collect traditional food and to generally access the area.

The making of the 27 April Decision

44    When Dr Findlay came to make his decision at around 4.56 pm on 27 April 2018, he had before him a briefing minute that recommended that he implement a prohibition on the use of hookah equipment for the remainder of the 2017/18 fishing season. The minute, as drafted, asked that Dr Findlay note that the TSRA and Queensland Department of Agriculture and Fisheries (being a reference to the Queensland Minister and TSRA in their capacities as members of the Authority) supported the decision. However, on the minute, Dr Findlay crossed out by hand the reference to the TSRA and wrote:

N/A. (No response rec’d at 4.56 pm 27/4/18)

45    Dr Findlay then signed a letter dated 27 April 2018 to each commercial fishing licence holder that notified the licensee that he, as delegate of the Authority, had varied the conditions on the licence so as to prohibit the use of hookah equipment in the tropical rock lobster fishery for the remainder of the 2017/18 season. The letter stated that the new condition would come into effect on 30 April 2018.

Subsequent events

46    Malu Lamar, at some point shortly after the TSRA sent the TSRA letter on its behalf on 27 April 2018, engaged its own solicitor, Shayne Daley, in place of the TSRA. Mr Daley wrote to Dr Findlay on 30 April 2018. He complained that the s 24HA notice had failed to give Malu Lamar and other recipients any adequate notice of the proposed management action and, more particularly, any reasonable opportunity to comment on that action, as required by s 24HA(7) of the Native Title Act. His letter pointed out that the intervention of Anzac Day, as a public holiday, meant that there was effectively one working day available for written comments to be provided and forwarded to Canberra. He noted that (as the evidence before me establishes) the recipients of the notification were representatives of widely disparate groups of people scattered on various islands and in communities throughout the Torres Strait and that there were obvious communication difficulties in obtaining and formulating comments from all of them for the purposes of preparing a response.

47    Mr Daley’s letter complained that the decision had immediate and grave financial and social implications for indigenous fishers who were members of the claim group for whom Malu Lamar held native title on trust.

48    It appears that Mr Daley was not aware of the TSRA letter that Mr Nona had organised for TSRA to send to Mr Hall on 27 April 2018.

49    Following Mr Hall’s return to work on 1 May 2018, Dr Findlay became aware of the TSRA letter. However, when Dr Findlay wrote back to Mr Daley on 1 May 2018, he made no mention of the TSRA letter. Dr Findlay wrote in his reply to Mr Daley of 1 May 2018 that he had varied the conditions on licences issued for the tropical rock lobster fishery under s 22 of the Fisheries Act, stating:

The facts and circumstances that led me to make the decision to vary the licence conditions are unchanged and I will not revisit the decision, or undertake to change the decision, at this time. (emphasis added)

50    In his affidavit of 22 June 2018, Dr Findlay said that, when he wrote his letter of 1 May 2018 in reply to Mr Daley, he was aware of the TSRA letter. But, he but gave no explanation as to why he did not refer to it in response to Mr Daley’s letter on their behalf dated 30 April 2018.

51    Dr Findlay gave evidence that he regarded the TSRA letter as being formulaic and uninformative. He said that he regarded it as a standard form letter of objection that the TSRA had, in substance, sent on a number of previous occasions. He said:

Overall, I considered the letter from the TSRA to be a series of assertions about the notice and the safety impacts of the proposal. It did not appear to grapple in any way with the proposed prohibition of hookah gear (and this was not even mentioned apart from in the title of the letter). I considered that the matters raised in the letter were of extremely limited relevance to the exercise of my delegated powers under s 22(2) of the [Fisheries Act] and the objectives of that Act. I gave little weight to the assertions in that letter. (emphasis added)

52    On 28 May 2018, Moshinsky J declined (on the different evidence and arguments then before him) to grant interlocutory relief to Malu Lamar in respect of the 27 April decision: Malu Lamar (Torres Strait Islander) Corporation RNTBC v Findlay (as delegate of the Protected Zone Joint Authority) [2018] FCA 801. His Honour caused the proceeding to be set down for an urgent final hearing, because the fishing season for the current licences was soon to come to an end and there was a need for a prompt decision to enable the parties to know whether the 27 April decision was valid. As a result, I heard the proceeding on 19 and 20 June 2018 and adjourned them part-heard to 26 June 2018, making it necessary for me to give reasons today in circumstances more urgent than would otherwise have been ideal.

The delegate’s submissions

53    Dr Findlay argued that the provisions of s 24HA of the Native Title Act operated in such a way that a failure to comply with s 24HA(7) did not invalidate a future act made under the section. He contended that s 24HA, rather, provided a code for giving notice to persons with native title rights and interests who may be affected by any decision and, in the event, whether or not such a notice was given or given in accordance with law, the only right which such persons had when the future act was made was to receive compensation under s 24HA(5). Dr Findlay argued that, when s 24HA(2) referred to validity, the reference was to the legislation under which the grant of, relevantly, a licence was made as opposed to the validity of the licence itself or the process by which it had been granted. He contended that, as a consequence, s 24HA(3) provided that such a licence was valid regardless of whether there had been compliance with processes otherwise required by other legislation under which the licence was granted. He submitted that s 24HA(3) deemed a future act to be valid for all purposes provided that the legislation under which the future act itself had been made was valid.

54    Accordingly, the delegate argued, any exercise of the power to impose a licence condition that affected the capacity of a licence holder who held native title rights or interests to earn his, her or its livelihood from the exploitation of an issued commercial fishing licence, would be valid by force of s 24HA, regardless of a failure to observe any common law requirement to afford natural justice or procedural fairness. He contended that s 24HA attenuated the common law right to procedural fairness of the claim group members for whom Malu Lamar acted as trustee so that whatever deficiencies there may have been in the process that Dr Findlay followed in making the 27 April decision under s 22 of the Fisheries Act, including his failure to have regard to the TSRA letter, did not invalidate that decision. He submitted Malu Lamar and the claim group members could not assert any other basis to attack the validity of the 27 April decision because they were persons who had native title rights and interests, and s 24HA codified the entirety of their rights and interests to complain in respect of that decision.

55    The delegate argued that by dint of s 24HA, read in the context of the Native Title Act as a whole, the Parliament did not intend that any deficiency in affording procedural fairness to a person with native title rights or interests before he made the 27 April decision would invalidate the decision. He submitted that this had the consequence that s 24HA supplanted any other procedure that might otherwise have applied were a different statutory scheme to govern the making of the 27 April decision. That was because, he contended, the 27 April decision was a future act that consisted of the imposition, under valid legislation, of the condition prohibiting the use of hookah equipment to fish. He contended that the principles that McHugh, Gummow, Kirby and Hayne JJ identified in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at esp 392-393 [97]-[98] and, that Jagot J applied in Guardian Industries Corporation Ltd v Attorney-General (Cth) (2013) 213 FCR 507 at 528 [82]-[84] supported the conclusion that s 24HA operated so that any failure to afford procedural fairness in making the 27 April decision did not invalidate it.

56    Dr Findlay also argued that the 27 April decision was valid because decisions of the Full Court had held that a failure to comply with s 24HA(7) did not invalidate a future act to which that provision applied: Harris v Great Barrier Reef Marine Park Authority (2000) 98 FCR 60, Lardil Peoples v State of Queensland (2001) 108 FCR 453 and BHP Billiton Nickel West Pty Ltd v KN (Deceased) (Tjiwarl and Tjiwarl #2) (2018) 351 ALR 491. He argued that he had given persons who may have been affected by the 27 April decision a reasonable opportunity to comment in light of the statutory scheme and the urgency of the need to make a decision. He contended that such persons, including Malu Lamar, could have, but did not, seek further time to comment and that that fact itself bore on the reasonableness of the period in which he had allowed comments to be made.

57    That last argument fell somewhat by the wayside. That is because both parties appear to have had the erroneous impression, before the hearing before me began, that the TSRA letter had not been written on behalf of Malu Lamar or the claim group members. After the clarification of this common misunderstanding, both parties had to reassess their arguments in light of the fact that TSRA had provided the TSRA letter to the Authority on 27 April 2018, but the delegate had not seen or considered it before making the 27 April decision.

58    Next, Dr Findlay argued that Malu Lamar, itself, could not complain, as trustee of the native title rights and interests of the claim group members, about the imposition of a condition on commercial fishing licences because it, in its own right, had no such licence or any right or interest in a licence or any financial interest directly affected by such a licence or the 27 April decision.

59    He contended, as a matter of discretion, that given the substance of what the TSRA letter contained and his characterisation of it as a formulaic response, his failure to consider it before making the 27 April decision should not entitle Malu Lamar to any relief in accordance with s 16(1) of the ADJR Act. He also argued that because he read both the TSRA letter and Mr Daley’s letter of 30 April 2018 before he sent Mr Daley his reply dated 1 May 2018, that reply was the operative decision that Malu Lamar had to challenge being a decision not to revisit or reopen his earlier decision. He submitted that it would not have made any difference to the outcome of the 27 April decision for him to afford Malu Lamar a reasonable opportunity to be heard, so that no relief ought flow to it.

60    However, that argument is difficult to follow. Dr Findlay said that, when he read the TSRA letter he gave it “little weight”. That meant that the submissions in the letter were matters that he ought to have taken into account, had it been before him on 27 April 2018.

Consideration

61    It is a fundamental rule that a statutory authority having power to affect the rights of a person is bound to hear him, her or it before exercising the power. And, the obligation of the statutory decision-maker to afford procedural fairness “is not limited to cases where the exercise of the power affects rights in the strict sense. It extends to the exercise of a power which affects an interest or a privilege”: FAI Insurances v Winneke (1982) 151 CLR 342 at 360 per Mason J. French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ applied what Mason J held in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at 352-353 [75]. The principle extends to a statutory licence under which a person affected by the exercise of the power may be deprived or impaired in the earning of his, her or its livelihood: Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222; Sanders v Snell (1998) 196 CLR 329 at 347-348 [45] per Gleeson CJ, Gaudron, Kirby and Hayne JJ.

62    Thus, Dr Findlay, as delegate, when using his power under s 22(2) of the Fisheries Act to vary or impose a new condition on fishing licences held by the claim group members for whom Malu Lamar held their native title in trust, had to afford those persons procedural fairness in respect of the proposed exercise of power. The source of that obligation was not, as Malu Lamar first propounded, s 24HA(7) of the Native Title Act, albeit that that section may have mirrored the general law (were it to have had a freestanding effect outside the scheme of Div 3 of Pt 2 of that Act read as a whole). Rather, the source was the common law obligation that attached to the exercise of the power when Dr Findlay was giving consideration to imposing a condition on fishing licences under s 22 of the Fisheries Act.

63    Moreover, as French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ said in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at 206-207 [82]:

compliance with an implied condition of procedural fairness requires the repository of a statutory power to adopt a procedure that is reasonable in the circumstances to afford an opportunity to be heard to a person who has an interest apt to be affected by exercise of that power. The implied condition of procedural fairness is breached, and jurisdictional error thereby occurs, if the procedure adopted so constrains the opportunity of the person to propound his or her case for a favourable exercise of the power as to amount to a “practical injustice” [Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 [37] as explained in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 337 [36], 342 [57]]. (emphasis added)

64    In Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 258-259 [11]-[13], French CJ, Gummow, Hayne, Crennan and Kiefel JJ said:

In Annetts v McCann [(1990) 170 CLR 596] it was said that it could now be taken as settled that when a statute confers power to destroy or prejudice a person’s rights or interests, principles of natural justice regulate the exercise of that power [Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ]. Brennan J in Kioa v West [(1985) 159 CLR 550 at 609 (citation omitted)] explained that all statutes are construed against a background of common law notions of justice and fairness. His Honour said:

“[W]hen the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that ‘the justice of the common law will supply the omission of the legislature’. The true intention of the legislation is thus ascertained.”

The implication of the principles of natural justice in a statute is therefore arrived at by a process of construction. It proceeds upon the assumption that the legislature, being aware of the common law principles, would have intended that they apply to the exercise of a power of the kind referred to in Annetts v McCann [Salemi v MacKellar [No 2] (1977) 137 CLR 396 at 401 per Barwick CJ; at 451 per Jacobs J].

Observance of the principles of natural justice is a condition attached to such a statutory power and governs its exercise, as Brennan J further explained in Kioa v West [(1985) 159 CLR 550 at 609]. A failure to fulfil that condition means that the exercise of the power is inefficacious [FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 409 per Brennan J]. A decision arrived at without fulfilling the condition cannot be said to be authorised by the statute and for that reason is invalid [Salemi v MacKellar [No 2] (1977) 137 CLR 396 at 401 per Barwick CJ]. (emphasis added)

65    I am of opinion that the power to vary or revoke a condition of a commercial fishing licence, or to specify further conditions to which it is subject, conferred by s 22(2) of the Fisheries Act, necessarily requires the decision-maker to afford procedural fairness to a person whose livelihood may be affected by such a decision. The obligation to do so arises out of the construction of the Fisheries Act, that operates independently of any provision in the Native Title Act that might deal with particular native title rights and interests or future acts that might affect those rights or interests.

66    The members of the native title claim group for whom Malu Lamar was trustee were also “traditional inhabitants” within the meaning of the Fisheries Act whose rights, as traditional inhabitants under that Act, were affected by the 27 April decision (although the effect is likely not to have been adverse on those traditional rights). A decision under s 22(2) of the Fisheries Act to impose a new condition on commercial fishing licences affected all persons who held such licences issued under s 19. As the evidence established, some members of the claim group held an interest in commercial fishing licences. Because of that interest, that in part overlapped with their native title rights and interests, Malu Lamar conceived itself to be acting on their behalf in making its submission through the TSRA letter. Mr Nona explained, as best he could in his oral evidence, that whenever the Authority gave a future act notice (under s 24HA(7)), he and others considered it important to respond at least using a letter of that kind, in a standard form, in order to seek to protect their rights and interests, including their native title rights and interests.

67    Importantly, the Fisheries Act operates as a law of general application, indifferently on native title rights and interests and the rights of others, including, traditional inhabitants, TVH and TIB licensees, to conduct commercial fishing in the protected zone. The 27 April decision had an effect that had a dual character. It affected the rights of all existing commercial fishing licence holders, whoever they might be, who earned a livelihood by using hookah equipment.

68    The Fisheries Act itself also had the incidental character of being a past act that had derogated from the native title rights and interests of native title holders, for whom Malu Lamar was trustee, to fish using hookah equipment. However, from the time of the enactment of the Fisheries Act in 1984, whatever native title rights and interests then existed to conduct commercial fishing activities became regulated by that Act’s requirement for a person who wished to engage in commercial fishing to hold a commercial fishing licence issued under s 19. Such a licence, necessarily, would be subject to any variation, revocation or supplementation of conditions imposed under s 22 of the Fisheries Act. Any native title right or interest, as found by Finn J in the 2010 determination, to engage in commercial fishing in the protected zone was, first, non-exclusive and, secondly, already regulated by the Fisheries Act and the Treaty and could only be enjoyed in accordance with their provisions.

69    However, the 27 April decision did not regulate or affect the right of traditional inhabitants to fish traditionally. Thus, while the imposition of a condition on all commercial fishing licences prohibiting the use of hookah equipment necessarily derogated from the rights of native title holders who held such a licence, it did so by limiting the field of activities by which all persons with such a licence could fish commercially. The right to apply for and be granted a commercial fishing licence under s 19 of the Fisheries Act did not require a person to have native title rights, albeit, the Fisheries Act, implementing the Treaty, could and did give certain preferences to persons who were defined as traditional inhabitants, who necessarily were persons within the claim group with pre-existing native rights and interests.

70    McHugh, Gummow, Kirby and Hayne JJ cautioned in Project Blue Sky 194 CLR at 392 [97]:

Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act.

However, here, the issue is not whether the legislation invalidates a future act, but rather whether the 27 April decision was a future act, as defined in s 233(1)(c)(i) of the Native Title Act, being a decision that, apart from that Act, “validly affects native title”. Thus, the validity of the 27 April decision falls to be determined as a decision made under s 22 of the Fisheries Act.

71    The validation that s 24HA(3) confers operates on the grant or modification of a licence “under legislation” that is valid. In my opinion, the words “is valid (including because of this Act)” as used in s 24HA(2)(a) refer to the character of the legislation under which the future act is, or is intended to be, created. Thus, s 24HA(2) applies to a future act consisting, relevantly for present purposes, of the grant of a licence under valid legislation that relates, as the 27 April decision clearly does, to the management or regulation of living aquatic resources. The future act that s 24HA(3) validates is the grant of a licence “under legislation”, being valid legislation.

72    In BHP 351 ALR at 497 [27], North, Dowsett and Jagot JJ noted:

the Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth) referred to s 24HA(7) of the NTA (which imposes notification requirements on acts covered by the section) and stated, in that regard, that a failure to notify under that regime “will not affect the validity of the future act”. There is no discernible difference between this provision and the other procedural provisions in Div 3 of Pt 2 of the NTA. (emphasis added)

73    The Explanatory Memorandum also identified that the target of the Parliament in s 24HA(2)(a) was the validity of the legislation under which the future act was made, as opposed to the validity of the actual grant of a licence or other permission itself. That aid to legislative construction, accords with the scheme of the Act, since s 233(1)(c)(i) provides that a future act is an act that, “apart from this Act, either … validly affects native title in relation to the land or waters to any extent”. In other words, a future act has to be an act, apart from the Native Title Act itself, including s 24HA, that is or has the character of being a valid administrative or executive decision that has been made in accordance with the law. If it were not, then it could not “validly” affect anything. The use of the expression “under legislation” in s 24HA(2), to refer to valid legislation, necessarily imports that the grant of the licence, being the relevant future act in fact was made validly itself “under legislation”.

74    In Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 505-506 [75]-[76], Gaudron, McHugh, Gummow, Kirby and Hayne JJ explained why an expression of a cognate kind to that in s 24HA(2), such as “decision made under this Act”, operates like a “grant made under [valid] legislation”. They said:

When regard is had to the phrase “under this Act” in s 474(2) of the Act, the words of that sub-section are not apt to refer either to decisions purportedly made under the Act or, as some of the submissions made on behalf of the Commonwealth might suggest, to decisions of the kind that might be made under the Act. Moreover, if the words of the sub-section were to be construed in either of those ways, s 474(1)(c) would be in direct conflict with s 75(v) of the Constitution and, thus, invalid. Further, they would confer authority on a non-judicial decision-maker of the Commonwealth to determine conclusively the limits of its own jurisdiction and, thus, at least in some cases, infringe the mandate implicit in the text of Ch III of the Constitution that the judicial power of the Commonwealth be exercised only by the courts named and referred to in s 71.

Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression “decision[s] … made under this Act” must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all” [See Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615 [51], per Gaudron and Gummow JJ; at 618 [63], per McHugh J; at 646-647 [152], per Hayne J]. Thus, if there has been jurisdictional error…, the decision in question cannot properly be described in the terms used in s 474(2) as “a decision … made under this Act” and is, thus, not a “privative clause decision” as defined in s 474(2) and (3) of the Act [See Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 635, per Gaudron and Gummow JJ]. (emphasis added)

75    It is common ground that the delegate committed a jurisdictional error in imposing the condition prohibiting the use of hookah equipment because he did not consider the TSRA letter. Therefore, the 27 April decision was no decision at all. It follows there was no “grant” of anything under valid legislation, being the Fisheries Act (within the meaning of s 24HA(2) of the Native Title Act), on which s 24HA could have operated to confer validity. However, that result is not because of any non-compliance with s 24HA(7), but because the 27 April decision purported to affect every commercial fishing licence held by any person, regardless of the source of the licensee’s status to hold it, including native title rights and interests or rights as a traditional inhabitant. A future act must satisfy, independently of the Native Title Act, including s 24HA, the elements of the definition of “future act” in s 233(1). That is, the future act, if it is validly to affect native title, must be an act under valid legislation and the grant itself, comprising the future act to which s 24HA(2) refers, must be made lawfully (or validly) in accordance with that legislation.

76    In my opinion, the Parliament did not intend that the Native Title Act generally, or Div 3 of Pt 2 in particular, would be a vehicle to validate decisions that themselves were not authorised to be made or were not made under the valid legislation that the decision-maker purported to rely on to make them. Here, the requirement in s 233(1)(c), that a future act had “apart from this Act ... validly [to affect] native title in relation to the land or waters to any extent”, conveyed in the plainest of terms the Parliament’s intention that any future act which the Native Title Act intended to validate, independently of that Act, had to have been made in accordance with law.

77    A decision “under” s 22(2) of the Fisheries Act will not be validly made unless the decision-maker affords procedural fairness to the persons whose interests are, or may be, affected by the decision. In this case, the submissions made in the TSRA letter were relevant to Dr Findlay’s consideration of whether to make the 27 April decision. Procedural fairness required him to consider those submissions and to give them such weight as he saw fit. But, he never considered those submissions before coming to his decision. It follows that the 27 April decision is a decision affected by jurisdictional error and invalid.

78    The evident purpose of the Parliament, in defining a future act in s 233(1)(c) as one that has the characteristic of validity under the legislation pursuant to which it is made, and then validating that act under the applicable provision of Div 3 of Pt 2 of the Native Title Act and, in particular in this case, s 24HA, is to enable the nation’s parliaments, executive governments and the community to have certainty that the Native Title Act would not operate to invalidate (except so far as Div 3 of Pt 2, or some other provision of that Act expressly provided), governmental decisions or future acts that were made in accordance with valid laws and would otherwise affect native title. However, it was not the purpose of the Parliament to validate acts that were not made lawfully in accordance with the legislation under which they purported to have been made. Rather, the Parliament intended to protect lawfully made future acts from any consequence of what, otherwise, would be their apparent inconsistency with the provisions of the Native Title Act.

79    For those reasons, I am of opinion that the 27 April decision to impose a condition on all commercial fishing licences under s 22(2) of the Fisheries Act to prohibit the use of hookah equipment was no decision at all and invalid.

Another basis of invalidity

80    Moreover, I reject the delegate’s argument that the Native Title Act creates a code of all rights that persons holding native title rights and interests have to complain about any invalidity in the process by which a decision under valid legislation, such as the Fisheries Act, was made. The consequence of that argument would be that third parties (having no native title rights or interests) who, for example, held TVH licences, could challenge the same exercise of power under s 22(2) of the Fisheries Act for invalidity, but native title holders who held a TVH or TIB licence could not do so because s 24HA somehow had negated the implied condition of procedural fairness under s 22 of the Fisheries Act in respect of only persons with native title rights and interests. That cannot have been the Parliament’s purpose of requiring, under s 24HA(7) of the Native Title Act, notice to be given to native title holders and conferring on them limited rights on their part to compensation in the event that the future act occurred. If a TVH licensee established that a decision under s 22 of the Fisheries Act was affected by jurisdictional error, and the delegate’s argument were correct, the consequence would be that, somehow, the invalid decision would still bind the native title holders who held TIB licences because, first, only they had a native title right or interest and, secondly, s 24HA(3) said so.

81    Dr Findlay appears to have reasoned that the ban on using hookah equipment for commercial fishing would affect mostly TVH licence holders. That is probably correct. However, as he acknowledged and the material before him demonstrated, the 27 April decision also affected a number, but not all, of the traditional inhabitants and persons in the claim group holding native title who also held TIB licences.

82    In my opinion, the incoherence in the legislative scheme of the delegate’s argument on a TIB licence demonstrates its unsoundness. That argument would operate, if correct, to deprive persons with native title rights and interests of otherwise generally applicable common law rights arising out of other legislation: cf. Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 at 338 [34]-[35] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ.

83    Dr Findlay then relied on what his counsel accurately described as fallback arguments, namely, that I should decline to grant relief under s 16 of the ADJR Act in the exercise of my discretion because, in substance, he would have come to exactly the same decision because of his evidence in his affidavit of 22 June 2018 (set out at [60] above) that he would have given the representations in the TSRA letter little weight, in accordance with the principles of Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 or, alternatively, that, in substance, he had made a “decision” not to reopen the 27 April decision, on 1 May 2018 and Malu Lamar had not challenged that latter “decision”.

84    I reject those arguments. The 27 April decision was no decision at all. Dr Findlay’s subsequent musing not to re-open it simply demonstrated that he had not made any decision at all on 27 April or later that had any effect in law. In any event, I am of opinion that Dr Findlay’s 1 May 2018 letter made it plain beyond argument, that he was not prepared to reconsider, and had not reconsidered, his 27 April decision.

85    Moreover, in my opinion, the delegate’s failure to give proper notice of his intention to impose the condition as soon as he intended to do so, namely, on 23 April 2018, is another reason why the s 24HA notice was not adequate. I accept that, on the material before me, some urgency existed requiring Dr Findlay to make a decision to protect the fishing stock in the fishery. But, that did not excuse him from ensuring that persons who were liable to be affected adversely had a fair procedure giving them a reasonable opportunity to comment or make submissions: SZSSJ 259 CLR 206-207 [82].

86    The 23 April notice convening the working group gave no indication to the persons to whom it was addressed of Dr Findlay’s proposed course of action. It may be that he developed the proposal in the three hours after its despatch, but in any event, he did not notify those persons subsequently, except to the extent that any of them had received a notice, purportedly pursuant to s 24HA(7), similar to that sent to the four bodies referred to in the Authority’s letter of 24 April 2018. Determination (No 1) and its explanatory statement also suggested that a reasonable period of notice must be given under s 24HA(7).

87    Sending a notice in about mid-afternoon on 24 April 2018 that required a response by 27 April 2018 to Mr Hall (who was not at work on that day), gave the persons notified or affected very little time to respond, particularly having regard to the interposition of the Anzac Day public holiday.

Conclusion

88    Accordingly, I am satisfied that Malu Lamar has established that a breach of the rules of natural justice occurred in connection with the making of the 27 April decision and that procedures required by law to be observed in connection with its making were not observed for the purposes of s 5(1)(a) and (b) of the ADJR Act. I will make an order quashing the 27 April decision but will stay its operation until 29 June 2018 so that the delegate can consider his position and whether to apply for a further stay to come into operation after the existing moon-tide prohibition on fishing using hookah equipment comes to an end on Sunday, 1 July 2018. I will also make orders so that the parties can file submissions as to costs.

Costs

89    Both parties contended in their written submissions that s 85A of the Native Title Act did not apply to the question of costs and that this question fell to be determined under s 43 of the Federal Court of Australia Act 1976 (Cth). That was because the application sought relief under the ADJR Act. Each party referred to and relied on, for different purposes, the review of the authorities by, and reasons of, Edelman J in Burragubba v Queensland (2016) 236 FCR 160; an appeal from which the Full Court dismissed with costs: Burragubba v State of Queensland (2017) 254 FCR 175.

90    It is not necessary to decide whether the common position that the parties took is correct, since even if s 85A(1) applies, it contains a discretion to depart from the general rule that, unless the Court otherwise orders, each party to a proceeding (referred to in s 80 as “proceedings in relation to applications filed in the Federal Court that relate to native title”) must bear his or her own costs. While important issues of statutory construction of ss 24HA and 233(1) of the Native Title Act arose, this proceeding also concerned substantial questions as to the statutory construction of the Fisheries Act and the implied statutory obligation of procedural fairness arising under that Act.

91    The delegate contended that the amendment of the application on the second day of hearing changed the direction of the case from what the parties had hitherto prepared for and run. He argued that even so, Malu Lamar substantially continued to propound a case based on his alleged failure to comply with s 24HA of the Native Title Act and it had failed on those arguments.

92    I reject the delegate’s argument. In my opinion the proceeding always concerned the validity of Dr Findlay’s 27 April decision that had its only source in s 22 of the Fisheries Act. Malu Lamar’s argument involved it relying on s 24HA of the Native Title Act as one source of the obligation to accord it procedural fairness. However, that was not the only source of such an obligation. The argument, and the changes brought about by the amendments to the application, involved identifying and applying the general and statute law to substantially the same facts, albeit that I had pointed out late on 19 June 2018 that the TSRA letter had been written on behalf of Malu Lamar, a circumstance that neither party had realised earlier. Despite this, and his failure to consider the TSRA letter, the delegate continued to oppose the grant of relief.

93    Generally, the discretion to order costs is exercised in favour of the successful party: Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 at 62 [25] per Gleeson CJ, Gummow, Hayne and Crennan JJ.

94    Having regard to all of the circumstances, I am of opinion that Malu Lamar should have an order for 75% of its costs of the proceeding. The outcome of the unsuccessful claim for interlocutory relief and the change of direction of the arguments thereafter warrant the making of a partial but not substantial reduction. The principles apposite to the administration of the grant to licences and imposition of conditions on licences under the Fisheries Act were central to the proceeding and affect persons who are licensees under that Act generally.

95    For these reasons, I will order that the delegate pay 75% of Malu Lamar’s costs.

Associate:

Dated:    6 August 2018