Federal Court of Australia

Tasmanian Salmonid Growers Association Limited v Director of Biosecurity [2025] FCA 1669

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 13(4A) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), the applicants were entitled to make the request for reasons for the decision of the respondent to grant a permit (or permits) authorising the importation of salmonid products for human consumption from Chile under s 179 of the Biosecurity Act 2015 (Cth), being the decisions made between 20 September 2024 and 28 April 2025 (Permit Decisions).

2.    For the purposes of ss 13(5)(b) and (6) of the ADJR Act, the request for a statement of reasons for the Permit Decisions made by the applicants on 1 May 2025 was made within a reasonable time after the Permit Decisions were made.

3.    The further amended originating application in NSD 635 of 2025 be otherwise dismissed, subject to order 5.

4.    Proceeding NSD 636 of 2025, being the proceeding involving an application under r 7.23(1) of the Federal Court Rules 2011 (Cth) for preliminary discovery of certain documents relating to decisions made by the respondent (Preliminary Discovery Application), be adjourned, part-heard, to a date to be fixed by arrangement with the Chambers of Justice Lee, before 30 June 2026.

5.    The issue of costs relating to proceeding NSD 635 of 2025 and the Preliminary Discovery Application be reserved for further determination.

6.    The time for filing any notice of appeal in respect of orders 1, 2 and 3 be extended to 13 February 2026.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    INTRODUCTION

1    Given the extensive written submissions filed by the parties in advance of the hearing, and the cogent arguments advanced orally yesterday and this morning by senior counsel for the parties, it is possible to deliver judgment immediately. Further, to do so facilitates the overarching purpose in Part VB of the Federal Court of Australia Act 1976 (Cth) (FCA Act), because a pressing necessity to complete a very long and complex reserved judgment in another matter would mean that if I had reserved judgment on this present and relatively narrow controversy, its resolution would be deferred for some time.

2    These proceedings were commenced by the first applicant (Salmon Tasmania), an industry body, and the second to fourth applicants (Growers), who are engaged in the commercial production of salmon products in Tasmania. The controversy arises out of the importation from the Republic of Chile to Australia of uncooked salmonid products like salmon cutlets and salmon fillets. Reflecting biosecurity issues, such products are not allowed to be brought into Australia without a permit.

3    The genesis of the present dispute is that in September 2024, Chile and its “competent authority”, the National Fisheries and Aquaculture Service (SERNAPESCA), were approved for inclusion on a list of countries and authorities maintained by the Department of Agriculture, Fisheries and Forestry (Department) which are permitted to source and process salmonid products for importation to Australia (List Inclusion). From 20 September 2024 to 28 April 2025, 41 permits allowing for the importation of uncooked salmonid products for human consumption from Chile (and other countries) have been granted under the Biosecurity Act 2015 (Cth) (Biosecurity Act) (Permits). This has allowed for 124 consignments into Australia of Chilean salmonid products.

4    Two applications are before the Court, being:

(a)    under s 13(4A) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) for declarations that the applicants were entitled to reasons for two types of decisions made by the respondent (Director) which have led to the importation of salmonid products from Chile (Reasons Application) (NSD 635 of 2025); and

(b)    under r 7.23(1) of the Federal Court Rules 2011 (Cth) (FCR) for preliminary discovery of certain documents relating to the decisions made by the Director (Preliminary Discovery Application) (NSD 636 of 2025).

5    As will become evident, the central issues that arise for determination in the Reasons Application can be placed into the following categories:

(a)    As to the List Inclusion:

(i)    whether a request for reasons under s 13 of the ADJR Act was made by the applicants on 3 March 2025, or on 12 March 2025 or on 25 April 2025 and hence was made within time (in circumstances where the List Inclusion was a decision set out in a document to which s 13(5)(a) applied);

(ii)    whether the decision to place Chile and SERNAPESCA on the List of Approved Countries and Overseas Authorities for Salmon (Approved Countries List) was a “decision made under an enactment”;

(iii)    whether the applicants are “persons aggrieved” for purposes of standing; and

(b)    As to the Permits:

(iv)    whether, because the Permit decisions were not decisions set out in a document (and hence s 13(5)(a) does not apply), the request for reasons was made within a reasonable time after the decision was made and the applicants are entitled to a declaration to that effect; and

(v)    whether the applicants are “persons aggrieved” for purposes of standing.

6    As to the Preliminary Discovery Application, the issues are whether the applicants reasonably believe they may have a right to relief for preliminary discovery, have made reasonable enquiries, and otherwise should be entitled to such discretionary relief.

7    I will consider the issues in the above order but prior to doing so, it is worth specifying my factual findings.

B    RELEVANT FACTS

8    Extensive affidavit evidence was read by the parties and largely directed to establishing a reasonable basis (or a lack of such a basis) for biosecurity concerns held by persons controlling the applicants, and material said to be relevant to the statutory test for standing found in the ADJR Act. Although I have considered that evidence, much of it, upon analysis, is of marginal relevance at best, and it is unnecessary to refer to it in any detail for reasons that will become apparent.

9    But, to their credit, almost all centrally relevant facts were agreed between the parties. The agreed statement of facts is in evidence as Exhibit A, and although I find these agreed facts for the purposes of these reasons, it is only necessary to refer to some of them.

B.1    The parties

10    The members of Salmon Tasmania include the Growers, and Salmon Tasmania represents their interests. Salmon Tasmania has engaged with federal and state governments and their regulatory agencies in relation to issues affecting the Growers and the Tasmanian salmon industry.

11    The second applicant (Huon Aquaculture) is a large aquaculture and food processing enterprise located in Tasmania. Its business includes farming, processing and selling Tasmanian-grown Atlantic salmon products for human consumption.

12    The third applicant (Petuna Aquaculture) operates in Tasmania across four sites and engages in farming, processing, hatching and marketing salmonids for human consumption.

13    The fourth applicant (Tassal) is the largest producer of Tasmanian grown Atlantic salmon and supplies salmon for human consumption.

14    As s 540 of the Biosecurity Act provides, the Director is the person who is, or is acting as, the Agriculture Secretary, which is the Secretary of the Department. The Director has the functions and powers set out in s 541 of the Biosecurity Act, including the general administration of the Biosecurity Act.

B.2    Approved Countries List

15    The Department maintains and publishes the Approved Countries List. The addition of a country or authority to the Approved Countries List does not have the immediate consequence that a person may import salmon products from the relevant country; a person may only import salmon products in accordance with the requirements of the Biosecurity Act.

B.3    Inclusion of Chile on Approved Countries List

16    In December 2016, the Department received a market access request from SERNAPESCA in respect of salmon products from Chile.

17    On 20 September 2024, the Department amended the Approved Countries List to include Chile and SERNAPESCA.

B.4    Import Permit Decisions

18    Salmonid products are goods that are subject to a determination made by the Director and the Director of Human Biosecurity under s 174(1) of the Biosecurity Act: see the Biosecurity (Conditionally Non-prohibited Goods) Determination 2021 (Cth) (Determination).

19    Section 12(1) of the Determination provides that salmonid products, among other specified classes of goods, must not be brought or imported into Australian territory unless: (a) the goods are covered by an import permit; or (b) if alternative conditions for bringing the goods into Australian territory are specified, the alternative conditions are the subject of compliance.

20    Section 179(1) of the Biosecurity Act empowers the Director, upon an application by a person under s 177, to grant a permit authorising a person to bring or import into Australian territory particular goods that are subject to a determination under s 174(1). Section 179(1A) provides that before granting a permit: (a) a risk assessment must be conducted in relation to the goods by a biosecurity worker; and (b) the Director must be satisfied that the Appropriate Level of Protection for Australia, being “a high level of sanitary and phytosanitary protection aimed at reducing biosecurity risks to a very low level, but not to zero” (see s 5), was applied in the conduct of the risk assessment.

21    A permit may be granted under s 179 subject to conditions: s 180(1). Indeed, in deciding whether to grant a permit, the Director must consider whether it would be necessary to impose conditions on the permit to reduce the level of biosecurity risk associated with the goods to an acceptable level: s 179(2)(b).

22    On the “BICON” website, the Department publishes biosecurity import conditions for different classes of goods, including different categories of salmonid products. A copy of the biosecurity import conditions for “salmonid fish for human consumption, sourced from, processed in, and exported from approved countries (not thermally treated)” available from 20 September 2024 was in evidence as Annexure 9 to Exhibit A. Prior to the importation of goods into Australian territory, the salmon must be sourced from approved sourcing countries, and processes in approved processing countries, as listed on the Approved Countries List (see section 4.1(d)). Further, the goods must not enter a country other than an approved sourcing or processing country as listed on the Approved Countries List, prior to being exported to Australia (see section 4.1(e)).

23    Since 20 September 2024, the Director (or his delegates) has granted permits under s 179 of the Biosecurity Act from time to time for the importation of uncooked salmon products for human consumption from countries that were, at the relevant time at which each permit was granted, included on the Approved Countries List (Permit Decisions).

24    The Permit Decisions have not been furnished to Salmon Tasmania or the Growers.

B.5    Correspondence

25    On 8 September 2022, the Department wrote to Salmon Tasmania (as a “stakeholder”), informing it that the Department was undertaking an assessment of Chile’s government competent authority for salmon market access to Australia. Here the word “stakeholder” was used in the evidence in its contemporary sense, as someone with an interest in what is occurring, rather than its original meaning of someone independent holding a stake.

26    On 26 August 2024, the Department wrote to Salmon Tasmania to provide information on current salmon assessments, including that the Department was assessing Chile as a source and processing country for salmon. On 28 August 2024, Salmon Tasmania responded.

27    Again, on 16 September 2024, and reflecting the fact that it considered Salmon Tasmania to be a “stakeholder”, the Department wrote to Salmon Tasmania, advising that the Department had approved SERNAPESCA to certify salmonids sourced and processed in Chile for export to Australia.

28    On 17 September 2024, Salmon Tasmania forwarded the Department’s email of 16 September 2024 to the Growers.

29    On the same day, Tassal wrote to the Department requesting information about the process for the assessment. On 27 September 2024, the Department engaged directly with Tassal by responding to Tassal’s email.

30    In October 2024, representatives of Salmon Tasmania, the Growers and the Minister for Agriculture, Fisheries and Forestry (Minister) had discussions regarding Salmon Tasmania’s and the Growers’ concerns about the amendment of the Approved Countries List to include Chile and SERNAPESCA.

31    On 4 November 2024, Salmon Tasmania wrote to the Minister, expressing concerns about biosecurity risks from Chilean salmon products and the potential introduction of a significant competitor within the domestic market for salmon products.

32    On 11 November 2024, the Minister wrote to Salmon Tasmania, acknowledging Salmon Tasmania’s concerns, providing further information about the List Inclusion, and noting that the Department’s Australian Bureau of Agricultural and Resource Economics and Sciences had evaluated the likely impacts related to the approval of Chile to import salmon products. The letter stated that the scientific basis for the Department’s imported salmonid competent authority assessments was the Import Risk Analysis on Non-Viable Salmonids and Non-Salmonid Marine Finfish published in 1999 (1999 IRA).

33    On 10 December 2024, Salmon Tasmania wrote to the Minister, stating that Salmon Tasmania did not agree that the List Inclusion had been made correctly under law. The letter stated that Salmon Tasmania would request the Minister to exercise power under the Biosecurity Act to direct the Director to conduct a biosecurity impact risk assessment of the import of salmonid products, and to request the Director to vary, suspend or revoke any import permit for Chilean salmon products.

34    On 6 February 2025, Salmon Tasmania wrote to the Minister seeking urgent intervention by the Minister, and providing the Minister with a copy of a report prepared for Salmon Tasmania by Dr Ben Diggles entitled “Biosecurity of Salmonid Products into Australia – When will the Luck Run Out? – An independent assessment of Australia’s decision to import salmon products from Chile” (Diggles Report), which expressed the opinion that aspects of the 1999 IRA were outdated.

35    On 14 February 2025, senior officers of the Department along with NSW Food Authority and Food Standards Australia New Zealand held a teleconference with Salmon Tasmania, Huon Aquaculture and Tassal to discuss the concerns raised in their correspondence.

36    On 17 February 2025, the Minister wrote to Salmon Tasmania responding to the Diggles Report and referencing the teleconference held on 14 February 2025.

37    Then ensued correspondence it will be necessary to consider in some detail below, but it is worth briefly referring to it here to explain the immediate pre-litigation factual narrative.

38    On 3 March 2025, Salmon Tasmania’s solicitors (Allens) wrote to the Department, foreshadowing an application for judicial review in respect of either or both the List Inclusion and the Permit Decisions (3 March Alleged Request). Allens requested that the Department disclose certain documents relating to the List Inclusion and the Permit Decisions. Allens also requested that written reasons for the List Inclusion and the Permit Decisions be provided, noting that if reasons were not provided, Salmon Tasmania “reserved its rights” to apply for reasons pursuant to s 13 of the ADJR Act.

39    On 7 March 2025, the Department’s solicitors (AGS) wrote to Allens, advising that the Department was considering the 3 March Alleged Request and expected to be able to respond by 28 March 2025 (7 March Letter).

40    On 12 March 2025, Allens wrote to AGS requesting a substantive response by 17 March 2025 (12 March Alleged Request).

41    On 28 March 2025, AGS wrote to Allens, responding to Salmon Tasmania’s concerns and the request for documents and reasons (28 March Letter). In the 28 March Letter, AGS advised that the Department was “not presently satisfied that [Salmon Tasmania] would be entitled to reasons”.

42    On ANZAC day, that is 25 April 2025, Allens wrote to AGS providing a draft originating application and affidavits (25 April Alleged Request).

43    On 28 April 2025, these proceedings (NSD 635 of 2025 and NSD 636 of 2025) were commenced.

44    On the same day, AGS wrote to Allens, seeking clarification as to whether the 25 April Alleged Request was intended to be a request for reasons under s 13 of the ADJR Act (28 April Letter).

45    On 1 May 2025, Allens responded to AGS, noting that AGS had advised in its 28 March Letter that the Department would not be providing the reasons sought and, in those circumstances, the 28 March Letter could be characterised as a notice pursuant to s 13(3)(a) of the ADJR Act, but, notwithstanding that, the applicants did not object to the Department treating the 25 April Alleged Request as a request for reasons under s 13 of the ADJR Act (1 May Letter).

46    On 15 May 2025, AGS wrote to Allens, stating that the requests for reasons for the List Inclusion and some of the Permit Decisions were declined by the Department under s 13(5)(a)-(b) of the ADJR Act (15 May Letter).

47    On 29 May 2025, AGS wrote to Allens, stating that the requests for reasons for the List Inclusion and the Permit Decisions were declined by the Department under s 13(3) of the ADJR Act (29 May Letter).

C    REASONS APPLICATION

C.1    List Inclusion

C.1.1    Issue One

48    The first issue as to the List Inclusion is whether there was a request for reasons under s 13 (said by the applicants variously to have occurred on either 3 March 2025, 12 March 2025 or 25 April 2025).

49    This issue requires close consideration of the communications I introduced in Section B above and the statutory context relevant to the making of a request for reasons. Prior to coming to the correspondence, it is worth dealing initially with this statutory context.

50    At common law, it was generally accepted that a decision-maker was not required to provide reasons for administrative decisions: Public Service Board of New South Wales v Osmond [1986] HCA 7; (1986) 159 CLR 656 (at 662–670 per Gibbs CJ, Wilson J agreeing). However, as the Commonwealth Administrative Review Committee recognised, a statutory requirement for decision-makers to give reasons was intended to overcome the grievance persons experience when they are not informed of why something affecting them has been done, and to allow persons affected by a decision to consider the matters taken into account and whether an error was made so that they may determine whether to challenge the decision (see Review of Administrative Decisions (Judicial Review) Act: Statements of Reasons for Decisions, Report No. 33, Administrative Review Council, Report to the Attorney-General, 1991 at 2). Indeed, before s 13 was enacted, the absence of reasons effectively shielded many administrative decisions from judicial review.

51    Section 13(1) provides that any person who is entitled to make an application under s 5 of the ADJR Act for judicial review of a decision may, by notice in writing, request the person who made the decision to “furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision”. A person is not required to commence an action for review under the ADJR Act to be entitled to request such a statement of reasons; rather, they merely need to be entitled to make an application under s 5.

52    Where such a request for reasons is made, the decision-maker is required to, subject to s 13, as soon as practicable, and in any event within 28 days, after receiving the request, prepare and furnish a statement to the requesting party: s 13(2).

53    However, where the request recipient (that is, the decision-maker) is of the opinion that the requesting party was not entitled to make the request, the decision-maker may, within 28 days after receiving the request: (a) give written notice to the requesting party of their opinion (s 13(3)(a)); or apply to this Court or the Federal Circuit and Family Court of Australia under s 13(4A) for an order declaring that the requesting party was not entitled to make the request (s 13(3)(b)).

54    Section 13(4A) provides that this Court or the Federal Circuit and Family Court of Australia may, on the application of: (a) a person to whom a request for reasons is made under subsection (1) (that is, the decision-maker); or (b) a person who has received a notice under subsection (3) that they were not entitled to make the request (that is, the requesting party), make an order declaring that the requesting party was, or was not, entitled to make the request.

55    Section 13(5) provides that the request recipient may refuse to prepare and furnish a statement of reasons if: (a) in the case of a decision the terms of which were recorded in writing and set out in a document that was furnished to the requesting party, the request was not made on or before the 28th day after the day on which that document was so furnished; or (b) in any other case, the request was not made within a reasonable time after the decision was made; and in any such case, the request recipient must give to the requesting party, with 14 days after receiving the request, notice in writing stating that the statement will not be so furnished to them and giving the reason why the statement will not be so furnished.

56    Further, section 13(6) provides that for the purposes of s 13(5)(b), a request for a statement shall be deemed to have been made within a reasonable time after the decision was made if this Court or the Federal Circuit and Family Court of Australia, on application by the requesting party, declares that the request was made within a reasonable time after the decision was made.

57    I now turn to the evidence of the relevant communications.

58    The only relevant materials before me on this issue were business records recording representations made on the dates identified by the parties. These records were said to either constitute the request under s 13 of the ADJR Act or to be contemporaneous material relevant to determining whether the representations (made by the 3 March Alleged Request, the 12 March Alleged Request or the 25 April Alleged Request) constituted a request under s 13. I will distinguish between any informal request, and a communication that constituted a valid request under s 13 of the ADJR Act, by calling the latter a statutory request.

59    No oral evidence was adduced as to this issue, which was unsurprising given all parties expressly accepted (correctly, in my view) that I was engaged in an objective process of characterisation as to whether what was communicated constituted a statutory request (and hence the uncommunicated and subjective intentions or musings of the makers of relevant representations were not relevant to that objective characterisation process).

60    I will deal with each communication in evidence which was the subject of submissions. The material parts of each communication are set out below.

3 March Alleged Request

Dear Mr Fennessy

Request for written reasons and departmental briefing material for biosecurity approval of Chile for salmonid importation

1    We act for the Tasmanian Salmonid Growers Association Limited (ABN 27 009 690 729) (Salmon Tasmania).

2    We refer to the decision to include Chile on the List of Approved Countries and Overseas Authorities for Salmon (Approval Decision). The Approval Decision, which we understand took effect on 20 September 2024, enabled the granting of import permits for the importation of salmonid fish for human consumption from Chile into Australia.

3    Salmon Tasmania understands that imports of Chilean salmon have recently commenced on a commercial scale and, accordingly, that decisions were made to grant import permits permitting the importation of salmonid fish for human consumption from Chile (Permit Decisions).

4    We understand that the Approval Decision and Permit Decisions were made by yourself, in your capacity as Director of Biosecurity.

5    Salmon Tasmania reasonably believes it may have the right to obtain relief relating to the Approval Decision, including by way of judicial review of the decision itself ….

…

Request for Documents and Reasons

16    Salmon Tasmania seeks to obtain the following documents in order to decide whether to commence judicial review of the Approval Decision and/or the Permit Decisions:

    …

    (together, the Requested Documents).

    …

18    As noted above, the Approval Decision and the Permit Decisions adversely affect Salmon Tasmania’s interests because of the increased biosecurity risk to its members with each shipment of salmonid products from Chile imported into Australian territory.

19    Given that Salmon Tasmania’s interests are being affected by the Approval Decision and the Permit Decisions, we respectfully request that, in addition to the Requested Documents, you provide written reasons (Reasons) for:

(a)    the Approval Decision; and

(b)    each of the Permit Decisions.

20    We would expect those Reasons to contain:

(a)    who made the decision (ie, whether by yourself of by your delegate) (the decision-maker);

(b)    relevant provisions of the Biosecurity Act 2015 (Cth) (and/or other act(s), if applicable) applied in making the decision;

(c)    the source of the decision-maker’s power;

(d)    the decision-making process followed on the evidence or material provided;

(e)    reasons for the decision, including:

(i)    material facts and findings supporting relevant statutory requirements to make the decision;

(ii)    explanation of the conclusions reached by reference to the evidence or material provided; and

(iii)    explanation of any discretion exercised in making the decision.

    Urgency

21    As mentioned above, Salmon Tasmania understands that imports of chilled salmon products from Chile have recently commenced on a commercial scale. The issue has therefore become particularly urgent. The biosecurity risk of such imports must be reassessed urgently given the serious threat to both the environment and the Australian aquaculture industry.

22    Given the urgent of this matter, we respectfully request that the Department provides the Requested Documents and Reasons by no later than COB on Tuesday 11 March 2025.

Further Action

23    In the event that the Requested Documents and/or the Reasons are not provided by Tuesday 11 March 2025, Salmon Tasmania reserves all of its rights, including to:

(a)    apply for written reasons for the Approval Decision and/or the Permit Decisions pursuant to section 13 of the ADJR Act; and / or

(b)    commence legal proceedings seeking preliminary discovery of the Requested Documents in accordance with rule 7.23 of the Federal Court Rules 2011 (Cth).

(Emphasis added).

24    As Salmon Tasmania’s interests are adversely affected by the Approval Decision and the Permit Decisions, and for all of the reasons set out in this letter, we consider the Court is likely to grant the above applications.

25    We reserve the right to refer to this letter on the question of costs, if that becomes necessary.

26    We look forward to receiving your urgent response and we are available to confer.

Yours sincerely

…

7 March Letter

Dear Ms Turnbull, Mr Shaw and Mr Shnookal

Salmon Tasmania: Request for documents and written reasons in respect of biosecurity approval of Chile for salmonid importation

1    We act for the Department of Agriculture, Fisheries and Forestry (Department) in respect of this matter. We confirm receipt of your correspondence dated 3 March 2025.

2    The Department is considering the content of your correspondence, and will respond as soon as possible. However, the Department will be unable to do so by Tuesday 11 March 2025 as requested. In this regard, we note that:

    …

c.    Your client is also seeking documents and statements of reasons in relation to a high volume of decisions to issue a permit under s 179(1) of the Biosecurity Act 2015; and

d.    The Department will need to carefully consider any voluntary production of material given that it is an offence to disclose ‘protected information’: see s 580 of the Biosecurity Act 2015.

3    We expect to be in a position to provide a substantive response to your letter on or before 28 March 2025.

Yours sincerely

…

12 March Alleged Request

Dear Jonathon

Salmon Tasmania: Request for documents and written reasons in respect of biosecurity approval of Chile for salmonid importation

We refer to our letter dated 3 March 2025 and your response dated 7 March 2025 in relation to the above matter.

We note your confirmation that the Department is considering our client’s request for written reasons and departmental briefing materials, and that you expect to be in a position to provide a substantive response to that request on or before 28 March 2025. We would be grateful if you could confirm by Monday 17 March 2025 that the response will include written reasons for both the Approval and Permit Decisions (as defined in our letter).

…

28 March Letter

Dear Ms Turnbull and Mr Shnookal

Salmon Tasmania: Request for documents and written reasons in respect of biosecurity approval of Chile for salmonid importation

…

3    Thank you for your patience while we considered your request ….

…

Request for documents relating to and reasons for the Approval Decision

16    Our client has given consideration to your request for documents and reasons in connection with the Approval Decision.

17    The documents referred to in paragraph 13 above are publicly available. A consideration of those documents will be sufficient, we apprehend, to dispel the concern expressed in your 3 March letter. Moreover, the disclosure of any further documents would require a significant process of review and consideration, given that they contain information that is confidential; diplomatically sensitive; and “protected information” within the meaning of s 580 of the Biosecurity Act 2015. That appears unwarranted in the circumstances.

18    Likewise, the Department does not propose informally to provide written reasons for the Approval Decision. It would also note in that regard:

18.1    the length of time has passed since the decision was made;

18.2     the nature and complexity of the decision (noting that it was the product of a comprehensive assessment process over 8 years); and

18.3    the fact that information considered in making the decision is confidential, diplomatically sensitive, and “protected information” within the meaning of s 580 of the Biosecurity Act 2015.

(Emphasis added).

19    You have indicated that, if reasons for the Approval Decision are not informally provided, your client may make a formal request for reasons under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The Department will of course consider any such request according to law. However, the Department is not presently satisfied that your client would be entitled to reasons under the ADJR Act, including because your correspondence does not adequately identify the basis on which your client (as an entity that is distinct from its members) is a “person aggrieved” by the Approval Decision and any such request may be out of time.

    (Emphasis added).

Permit Decisions

20    Your correspondence also refers to decisions to grant permits for the importation of Chilean salmonids to Australia (Permit Decisions); although it does not identify any specific decisions of that kind; any relief in respect of those decisions to which your client might be entitled, or the possible grounds for any such relief. Indeed, your 3 March letter says that Salmon Tasmania is “considering its rights” in relation to the Permit Decisions.

21    Nevertheless, you have requested certain documents relating to all Permit Decisions and reasons for each of those decisions.

22    The Department has considered this request, but does not propose to disclose the documents sought or to provide reasons ….

23    You have indicated that, if reasons for the Permit Decisions are not informally provided, your client may make a formal request for reasons under the ADJR Act. While the Department will consider any such request according to law, it is – as with the Approval Decision – not presently satisfied that your client would be entitled to reasons under the ADJR Act.

    (Emphasis added).

Yours sincerely

…

25 April Alleged Request

Dear Mr Hutton

Salmon Tasmania: draft applications for written reasons and preliminary discovery in respect of biosecurity approval for Chile for salmonid importation

…

Application for orders entitling our clients to reasons

…

6    Our client intends to file this application by close of business on 28 April 2025. Our letter of 3 March 2025 stated that Salmon Tasmania reserved all of its rights, including to apply for written reasons for the Decisions pursuant to s 13 of the ADJR Act. Your letter of 28 March 2025 stated at paragraphs 19 and 23 that your client would consider any request pursuant to s 13 according to law. However, in light of the views expressed at paragraphs 16–19 and 22–23 of your 28 March 2025 letter, our letter of 3 March 2025 may be treated as a request for reasons under s 13(1) of the ADJR Act, and your letter of 28 March 2025 may be treated as notice under s 13(3)(a) of the ADJR Act that Salmon Tasmania is not entitled to make the request. If that is the case, time is running for Salmon Tasmania to commence any judicial review proceedings in respect of the Decisions pursuant to s 11(3)(b)(ii) of the ADJR Act.

(Emphasis added).

…

28 April Letter

Dear Ms Turnbull and Mr Shnookal

Salmon Tasmania: Request for documents and written reasons in respect of biosecurity approval of Chile for salmonid importation

…

2    In terms of the draft application for reasons for the Decisions under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), we note the following:

2.1    your initial letter of 3 March 2025 expressly reserved your client’s right to ‘apply for written reasons for the Approval Decision and/or the Permit Decisions pursuant to section 13 of the ADJR Act’;

2.2    accordingly, our client did not consider your letter of 3 March 2025 to be a request for reasons under s 13(1) of the ADJR Act;

…

3    In those circumstances, we seek your client’s position on whether your 25 April letter is intended to be a request for reasons for the Decisions under s 13(1) of the ADJR Act.

4    If so, we will treat it as such and respond accordingly, noting that the time for our response will start running from the date on which we receive your confirmation.

5    Otherwise, our client’s position is that there has been no request for reasons for the Decisions under s 13(1), nor any response to such a request under, for example, ss 13(2)–(3), (5), 13A(3), or 14(3). Accordingly, neither s 13(4A) nor any of the other provisions in s 13 conferring jurisdiction on the Federal Court have been engaged and your client’s draft application is premature.

…

1 May Letter

Dear Mr Hutton

Salmon Tasmania and others: documents and written reasons in respect of biosecurity approval of Chile for salmonid importation

…

3    We do not agree with the assertion at paragraph 5 of your letter that our clients’ application for declarations under s 13(4A) of the ADJR Act and reasons is premature or that the jurisdiction of the Federal Court under s 13 of the ADJR Act has not yet been engaged. While reserving the right to apply for written reasons pursuant to s 13 of the ADJR Act, our letter of 3 March 2025 requested written reasons for the Approval Decision and Permit Decisions. We refer in particular to paragraphs 19 and 20 of that letter. In your response of 28 March 2025, you advised that the Department would not be providing the reasons sought, including because the Department was not presently satisfied that Salmon Tasmania was entitled to reasons under the ADJR Act. In those circumstances, your letter of 28 March 2025 could be characterised as a notice pursuant to s 13(3)(a) of the ADJR Act, and our client has made reasonable inquiries for the purpose of r 7.23 of the Federal Court Rules 2011 (Cth).

    (Emphasis added).

4    Notwithstanding the above, our clients do not object to the Department treating our letter of 25 April 2025 (including the matters set out in the draft application for declarations under s 13(4A) of the ADJR Act and reasons and supporting affidavit material attached to that letter) as a request for reasons pursuant to s 13(1) of the ADJR Act. We would be grateful to receive your client’s response to that request by 29 May 2025, being 28 days from this letter.

…

6    Our clients make no admissions and reserve all rights.

7    We are available to confer.

Yours sincerely

…

15 May Letter

Dear Ms Turnbull and Mr Shnookal

Salmon Tasmania: Request for documents and written reasons in respect of biosecurity approval of Chile for salmonid importation

1    We refer to your letter dated 1 May 2025 in which you formally requested reasons for the decisions initially described in your letter of 3 March 2025, specifically being:

1.1    the decision to include Chile on the List of Approved Countries and Overseas Authorities for Salmon (the Approval Decision); and

1.2     subsequent decisions to grant import permits permitting the importation of salmonid fish for human consumption from Chile (the Permit Decisions)

2    Our client declines to provide your client with reasons for the Approval Decision and the Permit Decisions on the grounds set out in s 13(5)(a)-(b) of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act).

…

29 May Letter

Dear Ms Turnbull and Mr Shnookal

Salmon Tasmania: Request for documents and written reasons in respect of biosecurity approval of Chile for salmonid importation

…

3    We write to advise you that our client declines to provide reasons for the Approval Decision and the Permit Decisions for other reasons, described below.

…

5    First, none of your clients is a ‘person who is aggrieved’ by the Approval Decision or the Permit Decisions within the meaning of the ADJR Act.

6    Secondly, the Approval Decision is not a decision to which s 13 applies, because it is not a ‘decision … made … under an enactment’ within the meaning of the ADJR Act.

…

Consideration of Issue One and Consequences

61    At the outset, it is important to bear in mind that no form of statutory request is prescribed. In Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500, Woodward J explained that a statutory request does not have to state that it has been made pursuant to the ADJR Act (at 508). Consistently with a beneficial approach taken when considering whether a statutory request has been made, it does not have to follow the wording of s 13(1), and while it must be made in writing, there is no doubt that it can take many forms and can be made by an agent of the person entitled: see Becerra v Fowell (Federal Court of Australia, unreported, 18 February 1983 per Morling J).

62    A moment’s reflection reveals why this makes sense: one is expected to assume decision-makers know their obligations under the ADJR Act, and the ADJR Act does not compel the requesting party to adopt a particular form of words to acquire the beneficial purposes of the ADJR Act in obtaining a statement of reasons. Technicality is to be avoided.

63    Accordingly, it is important that some pedantic approach is not taken to ascertaining whether a statutory request has been made. Having said that, it is still necessary to consider the objectively ascertained intention of maker of the representations said to constitute the statutory request.

64    It is for this reason, that I have set out comprehensively, all of the relevant representations which have been relied upon by the parties in support of their competing contentions as to whether the statutory requests were made as alleged by the applicant, or whether, as contended by the respondent, a statutory request was only made by the 1 May Letter.

65    The terms of the 3 March Alleged Request are instructive. Up until this time, it is evident that Allens’ client, Salmon Tasmania, was doing all it could by way of informal representations to the appropriate authorities to bring its concerns to the forefront and arrange for some sensible, consensual and non-curial resolution of the issue that had arisen.

66    Unsurprisingly in the circumstances, the 3 March Alleged Request reflects such an approach and, in its terms, invites a consensual resolution of how the asymmetry of information between the decision-maker and Salmon Tasmania as to the relevant decisions was to be addressed. Plainly, a request was made for reasons, but that cannot be divorced from the fact that there was an express reservation of the right to apply for written reasons for the decisions pursuant to s 13 of the ADJR Act; that is, a reservation of the right to make a statutory request at another and later time. Consistently with this, the 3 March Alleged Request asked that reasons be provided no later than eight days after the request was made.

67    Hence the preferable construction of the 3 March Alleged Request is that the authors objectively manifested an intention to pursue an informal or non-statutory request for reasons and decided to reserve engaging s 13 of the ADJR Act depending upon whether a consensual approach would be adopted by the Minister. It is notable, that providing a statement of writing other than in pursuance of a statutory request, is contemplated by the statute: see s 11(3)(b)(i)).

68    Again, in the 12 March Alleged Request, there was reference to Allens noting AGS’s confirmation that the Department was “considering our client’s request for written reasons and departmental briefing materials”, and seeking confirmation that AGS’s response would include written reasons for both the List Inclusion and Permit Decisions. The letter is notable for making no reference to the fact that a request had been made, other than informally. Although not determinative, the fact that AGS had, as the recipient of the representation, correctly regarded the request as being other than a statutory request, is evident from the 28 March Letter where AGS commented on the fact that Allens had previously indicated that “if reasons for the [List Inclusion] are not informally provided, your client may make a formal request for reasons under the [ADJR Act]” and that the Department would consider any such future statutory request.

69    As is evident from the letter sent on ANZAC day, the 25 April Alleged Request, Salmon Tasmania again emphasised it had reserved “all of its rights, including to apply for written reasons for the Decisions pursuant to s 13 of the ADJR Act”. The emphasised parts of the letter then expressed the notion that something that has not been a statutory request at the time it was made could now be deemed or “treated as a request for reasons”, with the 28 March Letter being treated as a notice under s 13(3)(a). The letter then proceeded on the premise that if the parties were to agree that this was the case, then certain consequences would flow. Obviously enough, such a consensus did not emerge.

70    The position taken by the AGS is even plainer from the 28 April Letter, in which reference again was made to the express reservation of Salmon Tasmania’s right to apply for written reasons under s 13 and, as a consequence, the fact that the Director did not consider a statutory request had been made.

71    The picture remained the same up until the 1 May Letter when Allens, after mentioning the fact that it had indeed reserved the right to apply for written reasons under s 13, asserted that the 3 March Alleged Request did request written reasons and then went on to indicate that there was no objection to the 25 April Alleged Request being characterised as an operative statutory request. Yet again, this was inviting some sort of consensual approach to deem something had occurred which had not, in fact, occurred at the time.

72    It follows from the above that, even after reminding myself of the need for there to be liberality in construing what constitutes a statutory request, absent consent, one cannot simply pretend a step happened when the contemporaneous materials make plain the right to take such a step was being deliberately deferred. This is an unusual case where there was specific attention given by the requesting party as to whether it was seeking to engage the statute. This was not a case of inadvertence or oversight – it was a case where a decision was made to make the request initially in an informal way while reserving the possibility that the issue would later be escalated by making a formal and statutory request.

73    I stress in making these comments I am not seeking to be critical of the solicitors who were no doubt reflecting the instructions of their client to adopt a consensual approach. But such a consensus did not emerge, and the failure to request reasons prior to 1 May 2025 in circumstances where, by the 15 May Letter, a response was given within 14 days, has a consequence. That consequence, of course, is as provided for in s 13(5): that a person to whom a statutory request for a statement in relation to a decision is made may refuse to prepare and furnish the statement. That is what has happened.

Two Final Matters

74    I should not leave this aspect of my reasons without referring to an argument the subject of extensive written and oral submissions, but which I have found unnecessary to resolve because it is necessarily conditioned upon acceptance of the applicants’ submission that a statutory request was made on one of the dates asserted.

75    The first matter relates to an argument concerning the proper construction of s 13(5). It is contended by the Director that if there was a failure to give notice within the 14-day deadline specified in s 13(5), the applicants’ request is out of time. That view as to the operation of s 13(5) is said to be “supported by the weight of authorities in this Court”, being a reference to Ralkon Agricultural Company Pty Ltd v Aboriginal Development Commission (1982) 69 FLR 328 (at 342–343 per Keely J), Lally v Minister for Immigration and Ethnic Affairs (1984) 6 FCR 251 (at 255 per Northrop J) and Cameron v Gesling (Federal Court of Australia, unreported, 4 March 1987 per Neaves J). It is further said that the only and later authority supporting the applicants’ position, James Richardson Corporation Pty Ltd v Federal Airports Corporation (1992) 117 ALR 277 (at 284 per Cooper J), is plainly wrong and should be rejected.

76    In response, the applicants say that to rely on the grounds in s 13(5), the decision-maker must, within 14 days after receiving the request, give notice in writing stating that the statement will not be furnished and giving the reason why the statement will not be so furnished. If such a notice is not given, the obligation imposed by s 13(2) is neither discharged nor terminated and the earlier authorities referred to by the Director are unsound because the construction adopted renders s 13(5) of no effect: see James Richardson (at 283–284 per Cooper J).

77    More particularly, the Director contends the relevant question is whether Parliament intended that non-compliance with the 14-day deadline would invalidate an exercise of the discretion, and that s 13(5) has two parts: the first gives a discretion to “refuse to prepare and furnish the statement if” the request was made out of time; the second requires an official who exercises that discretion to give notice to the person who made the request: “and in any such case the [official] shall give to the person who made the request, within 14 days after receiving the request, notice in writing stating that the statement will not be furnished to him or her and giving the reason why the statement will not be so furnished”.

78    It is then submitted that the text of s 13(5) indicates that compliance with the 14-day deadline and the notice requirement more generally is not essential to the validity of the exercise of the “discretion” and that this construction avoids capricious results and better promotes the preparation of better reasons for decision. In this latter regard, and notwithstanding the admonition of the High Court in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 (at 188 [94] per Keane, Nettle and Gordon JJ) that statutory construction is a process best not engaged in by reference to extreme examples, the Director contends that a person could request reasons years after the decision was made and, provided the relevant official failed to give notice within the 14-day deadline, the requesting party would be entitled to reasons.

79    The competing arguments are canvassed at length in writing, but it is unnecessary for me to reach a concluded view on what I regard as a contestable issue. This is for two reasons. The first is, of course, that it is unnecessary for the resolution of the present matter given what I have found concerning the failure to make requests prior to the 1 May Letter. The second is that even if the issue of the proper construction of the subsection was determinative, the course I would have adopted is to follow the decision of Cooper J in James Richardson. This seems to me to follow as a matter of proper judicial method. His Honour, in a detailed and comprehensive decision, considered the line of authority reflected in Ralkon Agricultural Co and Lally, explained why his Honour thought the observations in Larry were obiter dicta, and articulated the compulsion he felt to depart from earlier first instance authority. Unless I reached the contrary view that there were compelling reasons as to why Cooper J’s views as to the proper construction were incorrect, it seems to me that I should best adopt the approach explained in James Richardson.

80    The final matter that I wish to refer in this regard is the curiosity that the statutory request, which I found to be made by the 1 May Letter, was made after the commencement of this proceeding.

81    In this regard, I raised with the parties the decision of the Full Court in Provide Nominees Pty Ltd v Australian Securities and Investments Commission [2024] FCAFC 25; (2024) 301 FCR 569, where I observed, admittedly by way of obiter, the following (at 576 [35]–[37]):

First, there is some doubt, in my view, as to whether events occurring after the commencement of the proceeding could be relied upon in order to establish the satisfaction of a pre-condition necessary to approach the Court to seek relief. It is, of course, fundamental that in order to succeed (including in respect of a claim for relief founded in statute), a plaintiff must establish a cause of action at the date of the plaint, that is, at the time of the origin of the action. It is for this reason that a moving party cannot, in the absence of statutory authority, amend the proceedings without the consent of the defendant by adding a cause of action which has accrued since the commencement of the action: see Wigan v Edwards (1973) 47 ALJR 586; 1 ALR 497 (at 596; 515 per Mason J).

Put another way, as Callinan J observed in Attorney-General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485 (at [150]) in a different context, as a general rule, all elements of a cause of action must be complete when the proceedings are commenced: see also Gertsch v Roberts (1993) 35 NSWLR 631 (at 634 per Powell J). Without deciding the point, this reasoning seems to me to apply when the relief sought is statutory and there is a necessity for pre-conditions to seeking relief to exist.

Of course, this point is not exactly dripping in merit, and if there was an absence of an initial proper certification prior to commencement, any such argument could have been easily circumvented at the hearing by ASIC obtaining leave to file another originating application in Court returnable instanter (thus instituting another proceeding) and relying on the later 26 May 2023 certificate annexed to the Third McGuire Affidavit.

82    I mention this because no issue was taken as to the action not being properly constituted by reason of this issue, and if such a point had been taken, senior counsel for the applicants indicated that they would have sought leave to file a further application and have it returnable instanter, seeking such relief. I would have granted such leave. Commendably, the Director did not press for this to occur, which would only have resulted in an unnecessary filing fee. Accordingly, this technicality can be put, by mutual consent, to one side.

C.1.2    Issue Two

83    Although, again, it is unnecessary to decide because of the conclusion I have reached in relation to Issue One as to the List Inclusion, it is also worth making some observations as to the second issue; that is, whether the decision to place Chile and SERNAPESCA on the Approved Countries List was a “decision made under an enactment”.

84    It seems to me plain that, as the applicants contend, the List Inclusion was authorised by s 180 of the Biosecurity Act, which empowers the Director to impose a condition on a permit, or to vary a condition of a permit, or to impose a further condition on a permit under s 180 of the Biosecurity Act.

85    By the List Inclusion, Chile and SERNAPESCA were added to the Approved Countries List, and Chile therefore became an approved sourcing country and an approved processing country for uncooked salmonid products for human consumption. As explained above, it is a condition of importing uncooked salmonid products for human consumption that the salmon is sourced from approved sourcing countries and processed in approved processing countries as listed on the Approved Countries List.

86    Once a permit is granted, salmonid products may be imported from any country that was, at the time the permit was granted, included on the Approved Countries List (other than a presently irrelevant exception). It necessarily follows that the List Inclusion was, in effect, a permit condition to allow the importation of uncooked salmonid products for human consumption from Chile, or to vary a condition, or to impose a further condition, on existing permits to allow such imports.

87    Further, the effect of the List Inclusion was to affect legal rights or obligations because it approved market access to salmonid fish for human consumption from Chile, and gave biosecurity clearance to the import of such products into Australia.

88    The Director placed much emphasis on Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 and Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. In my view, this reliance was understandable but somewhat misplaced. Of course, it may be accepted that the majority in Tang held that for a decision to be made “under an enactment”, it first must be expressly or impliedly required or authorised by the enactment; and, secondly, it must confer, alter or otherwise affect legal rights and obligations, and in that sense the decision must derive from the enactment: Tang (at 130 [89] per Gummow, Callinan and Heydon JJ); Fuller v Lawrence [2024] HCA 45; (2024) 99 ALJR 103 (at 107 [13]–[15] per Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ). Further, the decision must be “final or operative and determinative”: Bond (at 337 per Mason CJ). It was stated in Bond that a reviewable decision will “generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration”: Bond (at 337 per Mason CJ). More recently, the Full Court held that only those administrative decisions that, at least in the practical sense, are final or operative are decisions which may be reviewable under the ADJR Act: Minister for Health v Nicholl Holdings Pty Ltd [2015] FCAFC 73; (2015) 231 FCR 539 (at 550 [44] per Greenwood and Logan JJ, 553–554 [65]–[66] per Rangiah J).

89    The problem for the Director is that the List Inclusion, in my view, falls within those principles. Practically speaking, the List Inclusion is operative and determinative in setting the conditions under which uncooked salmonid products intended for human consumption can be imported into Australia. Part 3 of Chapter 3 of the Biosecurity Act, and as is expressed in the simplified outline of Part 3 in s 171, “deals with bringing or importing goods into Australian territory”. Placing a country on a list that determines from which country or countries a person may import “conditionally non-prohibited goods” is a step in the implementation and operation of the statutory regime regulating the importation of salmonid products. Indeed, the decision to include a country on the Approved Countries List is made under the enactment of Part 3.

90    The immediate statutory context of the List Inclusion was the Determination made under s 174 of the Biosecurity Act. As I identified above, the Determination that salmonid products are “conditionally non-prohibited goods” involves a prohibition on imports unless specified conditions are the subject of compliance (s 174(1)). One of these conditions is that the salmonid products are not to be brought or imported into Australian territory unless an import permit has been granted (s 174(4)(a)).

91    The decision that a country be included on the Approved Countries List is a prerequisite to the imposition of such a condition because the condition is only effective if there are countries on the Approved Countries List. In a practical sense, that decision becomes final and operative upon all future permit applications. Indeed, it was not in dispute that 31 of the 42 permits issued between 20 September 2024 and 28 April 2025 were granted subject to conditions including, inter alia, that: (a) uncooked salmonid products for human consumption must be sourced from approved sourcing countries, and processed in approved processing countries, as listed on the Approved Countries List; and/or (b) the goods must not enter a country other than an approved sourcing or processing country, as listed on the Approved Countries List, prior to being exported to Australia. It is apparent that a substantial number of the relevant class of permits contained conditions requiring that the goods be sourced or processed in countries on the Approved Countries List. A key component in furthering the object of Part 3 of the Biosecurity Act; namely, the component of the regime for import control that identifies from where goods may be imported into Australian territory, is given content by the decision to include a country on the relevant list.

92    The decisions to grant a permit under s 179 and to impose a condition (or to vary or revoke a condition of a permit, or to impose a further condition on a permit) under s 180, are types of decisions which are “final or operative and determinative” in the relevant sense and reviewable under the ADJR Act. Put simply, they are determinative of whether a permit will be granted subject to conditions, or whether conditions of an existing permit will be varied or revoked.

C.1.3    Issue Three

93    The third issue as to the List Inclusion is whether the applicants are “persons aggrieved” for purposes of standing. I will deal with this issue below in the context of the Permit Decisions.

C.2    Permit Decisions

C.2.1    Issue One

94    The first issue as to the Permits is whether, because the Permit Decisions were not decisions set out in a document (and hence s 13(5)(a) does not apply), the request for reasons has been made a reasonable time after the decision was made and the applicants are entitled to a declaration to that effect.

95    I am somewhat surprised that this point was put in issue by the Director. What is evident from the engagement from Salmon Tasmania and its solicitors, and the Director and the AGS, is that every reasonable attempt was being made by the applicants to seek a sensible and non-curial resolution of a bona fide dispute as to whether there was a proper basis, having regard to the perceived biosecurity risks, of Chile being included on the Approved Countries List and the Permit Decisions which flowed subsequent to that inclusion. Far from any delay being unreasonable, the contrary is manifestly proven by the communications in evidence and the attempts to engage with the Department.

96    The submission of the Director proceeds from the assertion, which may be accepted, that the applicants were aware by November 2024 that the relevant permits were being granted. It is then said that there is an “unexplained delay of five months before the applicants requested reasons”, and this delay is likely to cause “significant prejudice to third parties” if the Department was belatedly required to provide reasons. It is further submitted the holders of the import permits were entitled to conduct their commercial affairs on the basis that any challenge to a permit would be made in a timely fashion.

97    One would have to be the salmonid importer equivalent of Rip Van Winkle not to appreciate that there was a red-hot issue as to the importation of salmonid products from Chile. In the absence of any evidence to the contrary, I would surmise that anyone who obtained a permit would have been aware of the possibility of a challenge being mounted by either Salmon Tasmania or the Growers to the decision. At the very least, the Director’s submission lacks any evidentiary foundation. I think that any issue of prejudice to the holders of import permits is unproven and likely significantly overstated.

98    In short, I regard as wholly unsustainable the submission that there was an unexplained delay of five months. Anyone reading the relevant communications during this period would understand why a statutory request for reasons was made as a last resort.

99    Moreover, and although it does not really matter, this contention of the Director is also surprising in the light of the Commonwealth passing the Civil Dispute Resolution Act 2011 (Cth), which provides by s 3, that the object of the Act is “to ensure that, as far as possible, people take genuine steps to resolve disputes before certain civil proceedings are instituted”, and it further requires by s 6, that a relevant applicant who institutes civil proceedings must file a genuine steps statement before the hearing date specified in the application (which it is common ground occurred here). Consistent with the modern approach to civil litigation, the steps taken by the applicants prior to taking the last step of requesting reasons formally and then instituting proceedings were entirely reasonable, and they are entitled to the declaration they seek in this regard.

C.2.2    Issue Two

100    The second issue takes its character from, again, a somewhat surprising submission to be adopted by the Director in the circumstances, and relates to the criterion for standing under s 13 of the ADJR Act, being that the requesting party be a “person aggrieved” by a decision to which the ADJR Act applies: see ss 5(1) and 13(1). That criterion may be satisfied if the applicant is “a person whose interests are adversely affected by the decision”: s 3(4)(a)(i).

101    Of course, the term “person aggrieved” is not restrictive and holds a very wide import: Argos Pty Ltd v Minister for the Environment and Sustainable Development [2014] HCA 50; (2014) 254 CLR 394 (at 411 [48] per French CJ and Keane J). The term appears in an Act that is “intended to facilitate judicial review of administrative decisions made under a wide range of statutes and having a wide range of practical effects upon members of the community”: Argos (at 411 [48] per French CJ and Keane J). The focus of the inquiry is whether the decision will have an effect on a person’s interests which is different from, or beyond, its effect on the public at large: Argos (at 414 [61] per Hayne and Bell JJ).

102    While it was explained in Argos that the term “person aggrieved” does not expand or contract according to the scope and purpose of the enactment under which the decision was made, the enactment under which the impugned decision is made is not irrelevant to the question of standing: Bell v Native Title Registrar [2021] FCA 229; (2021) 390 ALR 45 (at 62 [56] per Griffiths J). As French CJ and Keane J stated in Argos (at 409 [43]), “it will be necessary to have regard to the enactment under which the impugned decision is made and the legal effect and operation of the decision in order to determine how the interests of the applicant for review may be adversely affected or the applicant otherwise [sic] a person aggrieved”.

103    Given the reliance placed on Argos in the Director’s submissions, it is appropriate to revisit the circumstances of that case which seem to me to be a world away from the present circumstances. Argos involved an application for judicial review of the decision of the Minister for the Environment and Sustainable Development to approve a proposal for a new commercial development at Giralang in the Australian Capital Territory. The second and third appellants each operated a supermarket business near the approved development and stood to lose profit by reason of increased competition. The first appellant had granted a lease to the second appellant. Each of the appellants sought to challenge the Minister’s decision.

104    At first instance, the Supreme Court of the Australian Capital Territory dismissed each applicant’s application for judicial review, finding that each applicant did not meet the definition of a “person aggrieved” under s 3B(1)(a) of the Administrative Decisions (Judicial Review) Act 1989 (ACT). An appeal from the decision was unanimously dismissed by the Court of Appeal. Following a grant of special leave, the High Court unanimously held that the Court of Appeal erred in stating that there was some sort of “general rule” that detriment to the economic interests of a business is not sufficient to satisfy the relevant statutory test of standing. It further held, again unanimously, that because the lower court accepted as a fact that the approval of an application would adversely affect the profitability of the businesses owned and operated by the second and third appellants, this was sufficient to find both these appellants to be “persons aggrieved”. By majority, (Gageler J dissenting) the High Court also held, however, that the landlord, the first appellant, did not satisfy the relevant test.

105    French CJ and Keane J distinguished the factual circumstances of the second and third appellants on the one hand, and the first appellant on the other. Given that the trial judge had made no finding that the tenant of the landlord was likely to go out of business, it was not proven on the facts that there was any likelihood that it would lose the commercial benefit of its lease which would, of course, remain extant. As a result, its interests were not adversely affected by the Minister’s decision. As Hayne and Bell JJ explained, the “focus of the inquiry required by the words is upon the connection between the decision and interest of the person who claims to be aggrieved” (at 414 [61]). Their Honours further explained that the type of interest that may be adversely affected by a decision might take any of a variety of forms, citing a non-exclusive list of examples, which included legal rights, privileges, permissions or interests.

106    In the present case, the Director’s submissions seem concerned with trying to characterise the applicants’ interests as purely economic, and creating a requirement that it must be proven, as a fact in proceedings before me, that some biosecurity risk will be realised prior to the applicants having a relevant interest.

107    There are several answers to this contention, and it is worth noting, at the outset, that biosecurity risk encompasses both economic and broader environmental factors (see s 9 of the Biosecurity Act).

108    As I explained at the commencement of these reasons, Salmon Tasmania is an industry body, and as my findings indicate, has been engaged in representing the interests of the Growers and engaging with federal and state governments and their regulatory agencies in relation to issues affecting the Growers and the Tasmanian salmon industry in general.

109    Further, Salmon Tasmania’s objects include to:

(a)    coordinate research and development and other projects on matters of importance to the salmonid industry in Tasmania;

(b)    collect, compile and distribute amongst the Growers, governments, companies, other bodies or organisations, consumers and the public, information and data which will be of assistance in carrying out the objects of Salmon Tasmania; and

(c)    promote the objects at a local and regional level, including through representation on government or fisheries working groups.

110    The evidence discloses that, consistently with these objects, a matter of central importance to the salmonid industry in Tasmania is maintaining what is described as the relatively disease-free status of this industry. To maintain this status, the industry invests considerable resources in managing the risk of foreign pathogens entering Tasmanian waters. Indeed, Salmon Tasmania has 3.6 full-time equivalent employees, all of whom are engaged in a role that involves marine health or biosecurity. Further, unchallenged evidence was adduced that Salmon Tasmania considers that the importation of Chilean salmonid products for human consumption into Australia poses a biosecurity risk to the Tasmanian salmon industry that could compromise what is perceived to be the relatively disease-free status of the Tasmanian salmon industry.

111    Although there was some attempt in cross-examination to extract a concession that the risks may have been exaggerated by Mr Matthew Barrenger (the Technical Director of Salmon Tasmania) in his evidence-in-chief, the evidence is replete with the concerns of both Salmon Tasmania and the Growers that the importation of salmonid products from Chile could, inter alia, spread quickly between salmon farms. The concern is said to be acute because of the unique biosecurity conditions in Tasmania, where the farms are near one another. It follows that the introduction of exotic diseases into one production facility is likely to quickly affect other areas. This occurrence, it is believed, could lead to mass mortalities, which could impact the viability of farming and have impacts on the surrounding environment and cause significant harm to the social acceptance of salmon farming in Tasmania.

112    Further, it seems to me that the Growers are aggrieved persons for similar reasons that Salmon Tasmania is an aggrieved person, with the additional consideration of the prospect of the sort of direct economic impact on their trading operations that would be caused in the event of significant economic loss resulted from a loss of production or sales following any biosecurity risk being realised.

113    While I was taken, particularly in written submissions, to many cases which turn on their facts, it is important not to be distracted, and a decision in a particular case such as the present involves the consideration of all relevant facts and circumstances. This is not unusual where the issue of standing is contested. Indeed, “[i]t is inevitable that there will be cases where deciding whether a person’s interests are adversely affected by a decision will require judgments of fact and degree”: Argos at (414 [62] per French CJ and Keane J). This case does not seem to me to be anywhere near the margins, and the applicants clearly fall within the definition of being persons aggrieved.

D    PRELIMINARY DISCOVERY

114    It follows from the above that, although reasons are not available in respect of the List Inclusion, I am persuaded that it is appropriate that the relief sought by the applicants in relation to the Permit Decisions ought to be granted.

115    It is against this background that one comes to the application of FCR 7.23, which provides a discretionary power to order discovery against a prospective respondent before the commencement of proceedings claiming relief in respect of which the discovery is sought. It provides, relevantly, as follows:

7.23 Discovery from prospective respondent

(1)    A prospective applicant may apply to the Court for an order under subrule (2) if the prospective applicant:

(a)    reasonably believes that the prospective applicant may have the right to obtain relief in the Court from a prospective respondent whose description has been ascertained; and

(b)    after making reasonable inquiries, does not have sufficient information to decide whether to start a proceeding in the Court to obtain that relief; and

(c)    reasonably believes that:

(i)    the prospective respondent has or is likely to have or has had or is likely to have had in the prospective respondent’s control documents directly relevant to the question whether the prospective applicant has a right to obtain the relief; and

(ii)    inspection of the documents by the prospective applicant would assist in making the decision.

(2)    If the Court is satisfied about matters mentioned in subrule (1), the Court may order the prospective respondent to give discovery to the prospective applicant of the documents of the kind mentioned in subparagraph (1)(c)(i).

116    It is unnecessary for me to rehearse the principles applicable to determining such an application as they are not in dispute and were outlined by Allsop CJ in Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193; (2017) 257 FCR 62 (at 65–66 [7]–[8]) and by White J in Outback Stores Pty Ltd v Smith [2020] FCA 1785 (at [26]–[28]).

117    It is clear from Pfizer and subsequent cases that FCR 7.23(1)(a) has two features: first, there must be a reasonable belief as to a particular state of affairs; and secondly, that state of affairs must consist of the possibility that the prospective applicant has a right to obtain relief from the prospective respondent: Pfizer (at 90 [101] per Perram J). The prospective applicant must demonstrate a subjective belief and that the belief is a reasonable one objectively viewed: Pfizer (at 91–92 [107] per Perram J).

118    As to consideration of the nature of the relevant belief, such belief might be shown not to be reasonable if it is untenable, irrational or baseless; having noted this, as was further explained in Pfizer (at 64 [2] and 66 [8] per Allsop CJ and at 89–95 [98]–[126] per Nicholas J):

(a)    preliminary discovery applications are summary procedures and not mini-trials;

(b)    it is important to bear in mind that the belief that must be reasonable is a belief about something that may be the case, not is the case and this important qualification colours, necessarily, the analysis involved in assessing the reasonableness of that belief;

(c)    in practice, to defeat a claim for preliminary discovery it will be, at least in the practical sense, necessary to demonstrate that there is no reasonable basis for thinking that there may be (not is) such a case; and

(d)    it may prove difficult to disprove a reasonable belief that a case may exist by seeking to demonstrate that aspects of the argument are faulty or contestable.

119    It is not in dispute that the effect of FCR 7.23(2) is that even if the pre-conditions in FCR 7.23(1) are satisfied, a decision to order (or not order) preliminary discovery is one of an interlocutory nature to be determined in the exercise of a discretion on a matter of practice and procedure: see, for example, Fei v Hexin Pty Ltd [2024] VSCA 158; (2024) 75 VR 581 (at 587 [68] per Kennedy, Macaulay and Lyons JJA).

120    Accordingly, the power to order preliminary discovery, following the introduction of Part VB into the FCA Act by the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth) (see s 37(M)) “must be exercised or carried out, in the way that best promotes the overarching purpose” being the just resolution of this dispute according to law and as quickly, inexpensively and efficiently as possible.

121    I mention this required consideration notwithstanding that in the year prior to the introduction of these civil justice reforms, in Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2008] FCAFC 133; (2008) 169 FCR 435, the Full Court (Heerey, Gyles and Middleton JJ), opined (at 445 [45]) that “normally there will be little scope for refusal of relief” where the requirements of the predecessor cognate preliminary discovery rule have been met. This observation reflects the fact that the remedy is beneficial and ought not be refused, “save for good cause”. Needless to say, I consider that if refusal serves to promote the overarching purpose, this will amount to the sort of “good cause” anticipated by the Full Court. The existence of this residual discretion was not in dispute before me.

122    It would be inappropriate for the purposes of this application to be definitive as to whether the preconditions in FCR 7.23(1) have been satisfied following the failure of the Reasons Application in relation to the List Inclusion.

123    The question of prematurity, however, has troubled me in relation to this application since I first mentioned it at the initial case management hearing. We are now going to be faced with a situation where the applicants will obtain reasons for the Permit Decisions. One would hope, and I have every reason to expect, that those reasons will not only set out the findings on material questions of fact and refer to the evidence of other material on which those findings were based and give reasons for the Permit Decisions (see s 13(4A)(a) and s 13(1)), but explain, in some sort of comprehensive manner, why it is that the Department currently holds the view that the biosecurity risks are such that it is appropriate for the permits to be conditioned in such a way as to allow importation of Chilean salmonid products.

124    As I indicated above, it is evident that Salmon Tasmania and the Growers, at least at present, hold a very different view about biosecurity risks. There is a possibility that the reasons may be expressed in such a way as to convince those advising Salmon Tasmania and the Growers that the prospects of bringing some sort of application for prerogative relief would be insufficient to justify the commencement of such a proceeding. Another prospect may be that the reasons are prepared in a sufficiently transparent way as to mean that those advising the applicants consider that the reasons for the List Inclusion must have, in the light of information then in their possession, been affected by jurisdictional error. A third possibility is that the reasons are insufficient to allow the applicants to decide as to whether to commence proceedings.

125    It is only in the third scenario that an application for preliminary discovery would need to be pursued. One hopes that there may be an outbreak of common sense in this matter and that either through the transparent reasons provided pursuant to the orders of the Court or the voluntary provision of documents, that there may no longer be a need for the Court to reconvene to deal with any question concerning preliminary discovery.

126    Sensibly, the respondent did not oppose the course of me standing over the Preliminary Discovery Application for a period to ascertain whether it would be pursued. If it is to be pursued, that can be arranged by contacting my chambers. If the parties reach some other consensual position whereby the information asymmetry is redressed, then no doubt proposed orders could be provided to me in chambers dismissing the Preliminary Discovery Application.

E    CONCLUSION

127    My current view is that I should make orders reserving the question of costs in relation to both the Reasons Application and the Preliminary Discovery Application until the entire controversy between the parties has been finally resolved. To do so would allow me to approach the question of costs apprised by all relevant circumstances, including what order for costs would best promote the overarching purpose in the unusual circumstances of these proceedings.

128    The only other point that I would make in conclusion is that this matter is of importance to the salmon industry in Tasmania. There is no reason why it ought not to have been filed in the Tasmanian Registry of the Court, and although I will continue to deal with the issue of costs and Preliminary Discovery Application, should the matter for some reason proceed further, I think a formal order transferring it to the Tasmanian Registry ought to be made, but it is unnecessary to make that order today.

Associate:

Dated: 22 December 2025

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