FEDERAL COURT OF AUSTRALIA
GREAT BARRIER REEF MARINE PARK AUTHORITY
DATE OF ORDER:
THE COURT ORDERS THAT:
1. Pending the hearing and determination of the appeal by the applicant against the Tribunal’s decision of 2 April 2019, or further earlier order, the operation and implementation of that decision be stayed.
2. There be liberty to apply.
3. Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(Revised from Transcript)
1 The State of Queensland applied to the Great Barrier Reef Marine Park Authority (Authority), under the Great Barrier Reef Marine Park Regulations 1983 (Cth) (Regulations), for the granting of two permissions to officers of its Department of Agriculture and Fisheries to use and enter the marine park for the following purposes:
(a) to conduct a program to take animals or plants that pose a threat to human life or safety, namely, nominated species of sharks, in accordance with the Queensland Shark Control Program (SCP); and
(b) to conduct a research program comprising particular specified studies.
2 The Authority made an initial decision in respect of that application on 24 March 2017. It came, internally, to re-determine and then vary that decision on 2 June 2017 and 10 July 2018, respectively.
3 The Humane Society International (Australia) Inc (Humane Society) sought the review by the Administrative Appeals Tribunal (Tribunal) of the decision as so internally reviewed and varied by the Authority. Neither before the Tribunal nor in this Court has any point been taken as to whether the Humane Society had standing to seek that review.
4 Following a hearing earlier this year, the Tribunal came, on 2 April 2019, to make a decision which varied the Authority’s internally reviewed and varied decision in the following way:
1. The current permit is to be varied to include a condition requiring the permittee (Great Barrier Reef Marine Park Authority) to carry out the Shark Control Program in a manner that avoids, to the greatest extent possible, the lethal take of shark species;
2. The target shark list is to be removed from the current permit;
3. The current permit is to be varied to ensure that the euthanasia of sharks caught on the drum lines is only to be undertaken on animal welfare grounds, specifically when a shark is unlikely to survive release due to its condition or an injury, or which cannot be safely removed alive due to weather conditions or hooking location;
4. The current permit is to be varied to ensure sharks are attended to as soon as possible when captured on drum lines, preferably within 24 hours;
5. The current permit is to be varied to ensure all tiger, bull and white sharks caught on drum lines are tagged, using best available technology, before being released so that their movements may be monitored and researched;
6. The current permit is to be varied to ensure tagged sharks be relocated off shore, where possible, and not at site of capture;
7. The current permit is to be varied to ensure SMART drum lines are trialled and implemented on a progressive basis as soon a reasonably possible;
8. The current permit is to be varied to include a condition that requires research to be conducted into alternative non-lethal shark control measures; and
9. The current permit is to be varied to include a condition requiring research be conducted into the tiger shark population.
5 The Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), by s 44, confers on this Court a jurisdiction to hear an appeal from the Tribunal on a question of law.
6 The State instituted, or at least purported to institute, such an appeal by the filing of a notice of appeal in the Court on 5 April 2019. That notice of appeal was amended by leave today. At the same time as it filed its notice of appeal, the State applied, pursuant to s 44A of the AAT Act, for an order which stayed the operation and implementation of the Tribunal’s decision of 2 April 2019. Section 44A(1) and (2) of the AAT Act provide as follows:
Appeal does not affect operation of Tribunal’s decision
(1) Subject to this section, the institution of an appeal to the Federal Court of Australia from a decision of the Tribunal does not affect the operation of the decision or prevent the taking of action to implement the decision.
(2) Where an appeal is instituted in the Federal Court of Australia from a decision of the Tribunal, that Court or a Judge of that Court may make such order or orders staying or otherwise affecting the operation or implementation of either or both of the following:
(a) the decision of the Tribunal or a part of that decision; and
(b) the decision to which the proceeding before the Tribunal related or a part of that decision;
as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.
7 The question for resolution this afternoon is whether the State has established a persuasive case that an order staying the operation and implementation of the Tribunal’s decision is necessary for the purpose of securing the effectiveness of the hearing and determination of the appeal. In Australian International College Pty Ltd v Australian Skills Quality Authority  FCA 2097, at , Bromwich J observed:
The generally relevant principles for the exercise of the discretion in s 44A(2) have been articulated in prior cases as follows:
(1) In Comcare v Nicolas, it was said (at -):
The discretion conferred by s 44A(2) of the AAT Act should be exercised only where special circumstances justify departure from the rule that a successful litigant is entitled to the fruits of judgment pending the appeal; for example, because the appeal, although successful, may otherwise be rendered nugatory: see Broadbent v Civil Aviation Safety Authority  FCA 1871 at  and ; Hartnett v Migration Agents Registration Authority  FCA 998 at ; Theo v Secretary, Department of Family Services  FCA 1748 at 
Such special circumstances have been held to exist typically, but not exclusively, where the respondent’s financial state is such that there is no reasonable prospect of recovering the moneys paid pursuant to the judgment under appeal: Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis  FCA 880 at .
(2) In Aspen Pharma Pty Ltd v H Lundbeck A/S  FCA 324, it was observed (at ) that neither the notion of an entitlement to the “fruits of judgment” pending the appeal (it being the prima facie position under s 44A(1) of the AAT Act that an appeal to this Court does not affect the operation of the decision or prevent the taking of action to implement it), nor the possible purpose of s 44A(1) of ensuring that the subject matter of the appeal is not rendered nugatory by the implementation or coming into effect of the decision under appeal, should be “grafted onto the clear words of the provision so as to limit the occasions on which the broad discretion it confers should be exercised”.
(3) In Zadeh, it was held (at ) that the statutory test of whether the order sought is “appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal” could give rise to the following non-exhaustive considerations (being sub-paragraphs to ):
As a general rule the successful party is entitled to the benefit of the judgment which is presumed to be correct.
The applicant bears an onus to demonstrate a proper basis for a stay.
Although speculation as to the prospects of success is generally unnecessary, a stay will not be granted in the absence of arguable grounds of appeal or where the appeal is not bona fide.
On the other hand, if it appears that the prospect of success is strong, this may in the circumstances of the particular case be a relevant factor to consider in exercise of the discretion and may interact with considerations of balance of convenience; if the prospect of the appeal succeeding is particularly strong then the appellant may have to show less in terms of balance of convenience.
All other things being equal, a stay will generally be granted if, but for a stay, the appeal would be rendered nugatory if the appeal is successful.
Considerations such as the balance of convenience and the competing rights of the parties and the effect of granting or not granting the stay on non-parties are to be weighed in the balance.
8 As to these observations, and with respect, one does not find in the text of s 44A(2) any reference to “special circumstances”. Nor, in terms, does one find reference to enjoyment of the fruits of judgment. What one finds in s 44A(1) is a statement that the mere “institution of an appeal … does not affect the operation of the decision under challenge or prevent the taking of action to implement” it. Further, one finds in s 44A(2) a statement that “the purpose of securing the effectiveness of the hearing and determination of the appeal” is the ordained touchstone. What I understand the references to “special circumstances” to mean is that there needs to be found in the evidence supporting a stay application something which establishes that a stay is necessary for the purpose of securing the effectiveness of the hearing and determination of the appeal in order to warrant the exercise of a discretion to stay the operation and implementation of that decision. In that sense, there has to be an element which establishes the circumstances are special, but the prism through which one views the stay application must be the terms of the conferral of jurisdiction to grant the stay, rather than considerations which might be abroad in relation to the granting of a stay in the exercise of some other appellate jurisdiction. Indeed, even to characterise the jurisdiction conferred by s 44 as “appellate” is loose language, for in truth that section confers an original jurisdiction with the proceeding best classed as a form of statutory appeal.
9 So I have approached the question of whether or not to grant a say sought by the State on the basis that the State must establish that a stay is necessary for the purpose of securing the effectiveness of the hearing and determination of the appeal.
10 As to that, one point made on behalf of the Humane Society – and it was, in my view, a good point – was that it would be wrong to approach the question of whether to grant a stay on the basis of a particular assertion in evidence which is contrary to the express findings of fact made by the Tribunal. Ms Claire Andersen, the Executive Director of Fisheries Queensland within the State’s Department of Agriculture and Fisheries, who is responsible for managing the State’s SCP in Queensland waters, including in the Marine Park, has deposed as follows:
34. The Shark Control Program is specifically designed to reduce the risk of large dangerous sharks at the most popular swimming beaches where there is a concentration of swimmers, by removing large dangerous sharks. In this case, the removal of an individual large dangerous shark at a popular swimming beach clearly removes the risk of that individual shark fatally killing a swimmer. A suspension of the Shark Control Program in the Great Barrier Reef Marine Park will in that manner increase the risk of a potential shark attack at those popular swimming beaches.
35. This temporary suspension of the Shark Control Program will also create significant uncertainty for members of the public, as well as the Shark Control Program contractors.
36 The temporary suspension has also required additional resources of the State Government being made available by deploying Queensland Boating and Fisheries Patrol Officers to undertake additional on water activities to inform members of the public that the Shark Control Program has been temporarily suspended.
11 On the basis of the evidence before it, the Tribunal found, at , that the lethal component of the SCP does not reduce the risk of unprovoked shark interactions:
The scientific evidence before us is overwhelming in this regard. Most compelling is the evidence of Associate Professor McPhee who gave evidence that he would never recommend a lethal program and could never imagine advocating for a lethal shark program anywhere. He agreed that it was “highly plausible” that if the SCP became non-lethal tomorrow, we would see “no discernible change in unprovoked shark bites, in particular, fatalities.”
12 There was no suggestion in the submissions made in respect of a stay application that the Tribunal’s finding in  was made without evidence. In those circumstances, I do not consider that I should, in relation to the stay application, act on evidence that is quite contrary to a considered finding of the Tribunal on the evidence.
13 In introducing its reasons, The tribunal observed:
Mankind has a fear of sharks which is hardwired from an evolutionary perspective. We also fear what we cannot mitigate. In the ocean, there is a far greater risk of drowning than being attacked by a shark but we believe we can mitigate that risk by learning to swim. To that extent, we believe we are in control. No such observation can be made in relation to an interaction with a shark. We cannot mitigate the risk of a shark interaction by being more competent. There is an understandable desire by the public to want to do something or have something done by Government to protect swimmers from shark attack.
14 The State’s challenge to the Tribunal’s decision entails the acceptance of a conclusion that the Tribunal has not just wanted to “do something” in response to the evidence tendered before it, but has done something which is beyond its statutory remit.
15 The scheme evident in relation to the Tribunal in the AAT Act is that, in respect of conferrals of jurisdiction to review by other statutes, the Tribunal will stand in place of the decision-maker whose decision is under review and make a decision afresh (see s 43). In so doing, the Tribunal is equipped with all of the powers and discretions of that decision-maker. That is not though a blank cheque. The Tribunal cannot exercise substantial powers or discretions which the primary decision-maker could not.
16 Having said that, if the Tribunal observes its statutory charter and makes an evaluative decision on the factual merits, Parliament’s clear intention, having regard to s 44, is that that decision of the Tribunal will be immune from challenge. The only permitted challenge is on a question of law. The corollary is that, no matter how worthy the Tribunal’s factual evaluation may be, if it steps outside its statutory remit and makes an error of law, its decision is amenable to challenge under s 44 and to being set aside by this court.
17 The Tribunal is not in the nature of a Royal Commission charged with making a roving inquiry subject only to the constraints of its terms of reference. The Tribunal’s constraints are one and the same as those of the person whose decision is under review. It is on that premise that the State has sought to challenge the Tribunal’s decision. It is not for me today to reach any final conclusion as to the merits in law of the bases of the State’s challenge as set out in its amended notice of appeal. That said, if those proposed bases were obviously untenable, it could hardly be said that the State had established that the granting of a stay was necessary for securing the effectiveness of the hearing and determination of the appeal.
18 The State came to focus on two particular alleged errors of law made by the Tribunal. It may, with all due respect to the authors of the amended notice of appeal, aptly be said, and so much was by the Humane Society, that it takes a rather benign reading even of the notice of appeal as amended to see those particular errors. But in my view, they are there, albeit not in a way which is desirably particularised.
19 One error which the State alleges is that the Tribunal overstepped the statutory charter in relation to the imposition of conditions on a permit. That charter is to be found in reg 77 of the Regulations as they stood before the Tribunal, which materially provided:
77 Grant or refusal of relevant permission
(1) If a person has applied for a relevant permission and has complied with any requirement or request by the Authority about the application, the Authority must, by notice in writing to the person, grant or refuse the permission.
(2) The Authority may grant the permission subject to a condition or conditions specified in the permission, being:
(a) a condition allowing the giving of authorities and specifying the maximum number of persons to whom authorities may be given; and
(b) a condition indemnifying the Authority against any costs to the Authority that the permission holder’s activities incur; and
(c) a condition appropriate to the attainment of the object of the Act (including a requirement that the person give the Authority a written undertaking in a form approved by the Authority).
20 Regulation 77(2) was not felicitously drafted. By that I mean that, as a matter of initial impression, it might be thought that the use of the conjunctive “and” between paragraphs (a) and (b), and between (b) and (c) has the consequence that a condition must have each of those elements. But that is not the way in which the parties approached the construction of reg 77 before the Tribunal. It was approached on the basis that any or each of the condition specifications could authorise conditions which the Authority or, in its place, the Tribunal could impose in respect of the granting of a permission.
21 Regulation 77(2)(c) provides that a permission may be subject to a condition which is appropriate to the attainment of “the object of the Act”, including a requirement that the person give the authority a written undertaking in a form approved by the authority. The object of the Great Barrier Reef Marine Park Act 1975 (Cth) (Marine Park Act) is more aptly put in the plural, as regard to s 2A instructs. That section provides:
2A Objects of this Act
(1) The main object of this Act is to provide for the long term protection and conservation of the environment, biodiversity and heritage values of the Great Barrier Reef Region.
(2) The other objects of this Act are to do the following, so far as is consistent with the main object:
(a) allow ecologically sustainable use of the Great Barrier Reef Region for purposes including the following:
(i) public enjoyment and appreciation;
(ii) public education about and understanding of the Region;
(iii) recreational, economic and cultural activities;
(iv) research in relation to the natural, social, economic and cultural systems and value of the Great Barrier Reef Region;
(b) encourage engagement in the protection and management of the Great Barrier Reef Region by interested persons and groups, including Queensland and local governments, communities, Indigenous persons, business and industry;
(c) assist in meeting Australia’s international responsibilities in relation to the environment and protection of world heritage (especially Australia’s responsibilities under the World Heritage Convention).
(3) In order to achieve its objects, this Act:
(a) provides for the establishment, control, care and development of the Great Barrier Reef Marine Park; and
(b) establishes the Great Barrier Reef Marine Park Authority; and
(c) provides for zoning plans and plans of management; and
(d) regulates, including by a system of permissions, use of the Great Barrier Reef Marine Park in ways consistent with ecosystem‑based management and the principles of ecologically sustainable use; and
(e) facilitates partnership with traditional owners in management of marine resources; and
(f) facilitates a collaborative approach to management of the Great Barrier Reef World Heritage area with the Queensland government.
22 Read in isolation, it might be thought that reg 77(2)(c) confers on the Authority, and the Tribunal in its place, a very broad charter indeed, sufficient to embrace the conditions set out in the Tribunal’s decision. Not so, submits the State. The State proceeds from a conventional statutory construction perspective, which is that one must construe a particular statutory provision not just by reference to its text, but also to the context in which it appears. And that context, so the State’s submission goes, necessarily includes reg 77(1). It was put on behalf of the State that the relevant power found there in respect of permissions is “binary”, in other words, that the alternatives are grant or refuse permission.
23 I am not sure that it is strictly correct to regard reg 77(1) as “binary”, at least in the sense that the granting of permission may be subject to conditions, but the point made on behalf of the State was what one could not do under the guise of granting conditions was to create an application for a permission which had never been made. The State’s application was to conduct, in effect, its SCP, not just to enter for the purpose of taking sharks. It seems to me that the State’s proposition is at least arguable. If correct, it would follow that the Tribunal had exceeded its statutory charter by, in effect, treating the State’s application as but a generic one, in relation to which it could impose any condition it considered appropriate pursuant to reg 77(2)(c).
24 The other point developed on behalf of the State was that the Tribunal’s decision had been informed by the taking into account of the precautionary principle, in circumstances where that particular principle’s engagement was not the subject of the requisite finding of fact. That the precautionary principle can be relevant is apparent from regard to s 2A(2)(a) of the Marine Park Act in its reference to ecologically sustainable use, and in turn to the principles of ecologically sustainable use as defined by s 3AB of that Act. These include, at s 3AB(b), the precautionary principle. Section 3 of the Marine Park Act defines the “precautionary principle” thus:
precautionary principle means the principle that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage.
25 It is apparent from the Tribunal’s reasons that it has at least thought it was appropriate to have regard to the precautionary principle. What is more difficult to discern is an express finding that “[t]here are threats of serious or irreversible environmental damage”, materially, in relation to either the shark population with sharks as “apex predators” or other threats that would result from the reduction or elimination of such an apex predator. Of course, the reasons of the Tribunal must not be read narrowly and with an eye for error. Further, it is again not necessary today to reach any concluded view in relation to this other aspect of what the State identified as the essence of its challenge in law to the Tribunal’s decision. Nonetheless, it does seem to me at least arguable that the Tribunal has taken into account the precautionary principle without the requisite condition precedent finding of fact that there are “[t]hreats of serious or irreversible environmental damage.”
26 Though the State has an arguable case, it does not necessarily follow that a stay should be ordered. I have already adverted to a factor which I consider it would not be appropriate to take into account. There are, though, other factors identified by Ms Andersen in her affidavit. The long and the short of these is that the State, hardly surprisingly, is not disposed just to ignore the Tribunal’s decision, pending the determination of its appeal and, in particular, ignore the conditions which the Tribunal has imposed on the permission. Quite properly, the State considers itself, in the absence of a stay, duty bound to comply with the conditions imposed by the Tribunal. The State does not put forward that it must do so overnight, but it does put forward that it must embark upon so doing.
27 Ms Andersen deposes to what compliance is expected to entail, and has already entailed, both in terms of expenditure of public money and interactions with third parties, particularly third party contractors. Because the State is not at liberty just to treat the Tribunal’s decision as if it had never happened, it has already embarked upon a consideration of exactly what is entailed in implementing that decision, and in the assessment of the expense. That expense is not insubstantial in relation to so-called SMART drum lines. Ms Andersen’s estimate, and she appears to me well placed to offer it by virtue of her position, is that some tens of millions of dollars of public money would be entailed in the installation of SMART drum lines. Of course, the Tribunal’s conditions do not require this to be done immediately, but rather in a staged way. But, as I have already observed, the State is not at liberty to ignore the tribunal’s conditions. What is apparent enough from Ms Andersen’s affidavit, quite apart from the inadmissible, in my view, reliance on public safety, is that if not stayed, public money will be expended and interactions will occur with third parties. Those public moneys will never be able to be recovered, and those interactions would necessarily have to be undone in the event that the State were to succeed in its appeal.
28 In this regard, then, the benefits that the State would enjoy from success on the appeal would be rendered ineffective. The purpose of the appeal is to check what the State considers to be an unlawful exercise of administrative power by the Tribunal. The effectiveness of the determination of the appeal would be diminished, at least, were a stay not to be granted.
29 That is not the only consideration.
30 The Humane Society has highlighted – and it is, undoubtedly, relevant so to do – the evidence and related findings of the Tribunal in relation to the impact on the shark population of the SCP promoted by the State to the Authority and which the Authority came to approve. There would be, in all likelihood, some impact on the particular species, permission as to the targeting of which was granted by the Authority. In all likelihood, the appeal, if heard by a Full Court as the State has requested, would be heard in the August sittings of the Court. At the least, it seems to me to follow from that that some six months impact of uncertain nature and extent on the targeted shark population would occur were I to grant a stay. The Tribunal’s reasons disclose that the SCP is of very long standing indeed. Further, the conditions specified by the Tribunal would not, in any event, be implemented overnight but rather, as the Tribunal envisaged, via might a staged implementation. Additionally, in relation to the taking of sharks, the Tribunal’s conditions envisage that particular value judgments would be made in relation to whether release or killing is feasible, if they are hooked.
31 There is something of a balancing exercise entailed in this, but, in my view, the nature and extent of the impact on the shark population, even applying in the context of a stay application something of a worst-case scenario, insofar as it can be discerned from the Tribunal’s reasons, is not such as to outweigh the ineffectiveness of any successful appeal that would follow, were a stay not to be granted, in terms of an intervening period impact on the State’s consolidated revenue and third parties.
32 For its part, the Authority, apart from signifying that the construction of reg 77(1) and reg 77(2) promoted by the State was shared by it, consented to the granting of a stay. That consent is, as I see it, a considered value judgment by the regulator chosen by Parliament to administer the Marine Park Act and, in particular, the applicable management plan. So it is not without weight in the balancing exercise to which I have referred. I should have expected the Authority, if it had a particular concern in relation to the impact on the targeted species of the granting of a stay, to have voiced that concern.
33 Therefore, it only comes to this. Taking into account the State’s possession of an arguable case and the factors to which I have referred, in my view it is necessary, to secure the effectiveness of the hearing and determination of the appeal, to stay the operation and implementation of the Tribunal’s decision. In coming to that view, I have done so also on the basis that what that will do is to leave in place the permission with the conditions granted by the Authority. That will not, by any means, allow what one might term “open slather” on the species identified in the permit; quite the reverse. It will not, though, of course, result in the particular conditions which, for reasons it thought good, the Tribunal chose to impose, being implemented, pending the hearing and determination of the appeal.