Australia Bay Seafoods Pty Ltd v Northern Territory of Australia

The evidence 14 The evidence on the hearing of the application was wholly documentary. The Territory Respondents relied upon the affidavits of Mr William Bowman made on 28 April and 22 June 2020. ABS relied upon the affidavits of its solicitor, Mr Silvester, made on 20 April, 27 May, 15 June and 23 June 2020 and two affidavits of Mr Chauncey Hammond, both made on 15 May 2020. None of the deponents was required to attend for cross-examination. ABS also tendered a bundle of documents produced to it by the Third Respondent. 15 The affidavits of ABS and the bundle of documents it tendered comprised a little under 1,600 pages but, at the hearing, the Court was taken to relatively little of this material.

The management of fisheries by joint authorities 16 Part 5 of the Fisheries Management Act 1991 (Cth) (the FM Act) contains a suite of provisions concerning cooperation between the Commonwealth and the States and Territories with respect to the management of fisheries. 17 By Div 2 of Pt 5 of the FM Act, the Commonwealth may make an arrangement with a State or Territory that a "joint authority" have the management of a particular fishery in waters relevant to that State or Territory. By s 62, a joint authority has the functions in relation to fisheries in respect of which arrangements are made under Div 3 as are conferred on it by Pt 5 of the FM Act or by a law of the State or Territory represented on the joint authority. 18 By s 60(1) of the FM Act, the functions and powers of the Commonwealth Minister may be performed by another Minister. Relevantly for the purposes of this case, those functions and powers have been exercised by the Third Respondent.

The Northern Territory Fisheries Joint Authority 19 The NTFJA was established in 1983 under Pt IVA of the Fisheries Act 1952 (Cth), which was the predecessor of the FM Act. On the Fisheries Act 1952 ceasing to have effect on 3 February 1995 (by the operation of s 7(3) of the Fisheries Legislation (Consequential Provisions) Act 1991 (Cth) (the Consequential Provisions Act)), the NTFJA was continued in existence as if established under Pt 5 of the FM Act - see s 7(4) of the Consequential Provisions Act. 20 The NTFJA comprises the Commonwealth Minister and the Territory Minister (FM Act, s 61), being in each case the Minister with responsibility for administering the laws of the Commonwealth and the Territory, respectively, in relation to fisheries. Each may appoint a deputy to attend meetings of the NTFJA (s 63). 21 In practice, the members of the NTFJA or their deputies meet annually to discuss the management of the Fisheries. The Commonwealth Minister or that Minister's delegate presides at the meetings (s 66(1)). In the event of absence of unanimity, the Commonwealth Minister may, subject to compliance with some conditions, decide the matter (s 66(4)). 22 Part 6 of the Fisheries Act 1988 (NT) (the NT Fisheries Act) contains a suite of provisions which are complementary to those in Pt 5 of the FM Act. By s 58(1), the Minister may exercise a power or perform a function conferred on the Minister by Pt 5 of the FM Act, including a power or function of the Minister as a member of the NTFJA. By s 61, a joint authority may, by instrument in writing, delegate its powers under the Act to a person (other than the power of delegation itself). 23 Section 62 of the NT Fisheries Act has the effect that ss 66-68 inclusive of the FM Act apply to the performance by the NTFJA of its functions under the NT Fisheries Act. Sections 66-68 provide for the procedures of joint authorities, the making of decisions without holding a meeting and for the establishment by joint authorities of advisory committees. 24 Section 65 of the FM Act and s 61 of the NT Fisheries Act permit the delegation by the NTFJA of certain powers to an officer or employee of the Territory. By an instrument of delegation dated 14 July 2014, the NTFJA delegated particular powers under the NT Fisheries Act to designated office holders in the Department, including the Director. 25 By reason of s 67(2) of the NT Fisheries Act and the delegation of 14 July 2014, the functions in the day to day management of the Fisheries are carried out on behalf of the NTFJA by officers of the Department.

The "Arrangement" 26 Section 71 of the FM Act provides that the Commonwealth may make an "arrangement" with a State or Territory represented on a joint authority for that authority to have the management of a particular fishery in waters relevant to that State or Territory. Section 64 of the NT Fisheries Act contains a counterpart provision. 27 Acting pursuant to ss 71 and 74 of the FM Act and s 64 of the NT Fisheries Act respectively, on 19 December 1994 the Commonwealth and the Territory Ministers entered into an arrangement entitled "Arrangement between the Commonwealth and the Northern Territory in relation to the Demersal and Timor Reef Fishery" (the Arrangement). The Arrangement was published in the Commonwealth Gazette No. GN 4, on 1 February 1995. By cl 1 of the Arrangement, an earlier arrangement entered into between the Commonwealth and the Territory in relation to the Demersal Fishery published in the Commonwealth of Australia Gazette No. S109 on 14 April 1988, was terminated. 28 The Arrangement came into operation on 3 February 1995 and provided, in effect, that the Fisheries was to be managed by the NTFJA in accordance with the laws of the Northern Territory. This meant that the FM Act, other than Div 3 in Pt 5 which comprises ss 71-81, did not apply in relation to the Fisheries (s 77 of the FM Act) and, correspondingly, that the provisions of the NT Fisheries Act did apply to the Fisheries (s 65 of the NT Fisheries Act). The principal applicable provisions in the NT Fisheries Act are those contained in Pt 6 of that Act, including ss 70A-70E, to which I will refer shortly.

The provisions in the NT Fisheries Act relevant to the Arrangement 29 Section 66 of the NT Fisheries Act provides (relevantly) for the functions, powers and objects of a joint authority such as the NTFJA in relation to a fishery subject to an Arrangement: Functions, powers and objects of Joint Authority (1) Where, in respect of a fishery, there is in force an arrangement under which a Joint Authority has the management of the fishery and that fishery is to be managed in accordance with the law of the Territory, the Joint Authority has the function of keeping constantly under consideration the condition of the fishery, formulating policies and plans for the good management of the fishery and, for the purposes of the management of the fishery, exercising the powers conferred on it by this Act and co-operating and consulting with the other authorities, including other Joint Authorities within the meaning of the Commonwealth Act, in matters of common concern. (2) A Joint Authority must, in the performance of its functions under this section, act consistently with, and seek to further, the objects of this Act. 30 As is apparent, s 66(1) has the effect of vesting in the NTFJA the functions of "keeping constantly under consideration" the condition of the Fisheries, of formulating policies and plans for their good management, and, for the purposes of the management of the Fisheries, of exercising the powers conferred on it by the NT Fisheries Act in co-operating and consulting with other authorities in matters of common concern. 31 Section 66(2) requires the NTFJA, in the performance of its functions under s 66, to act consistently with, and to seek to further, the objects of the NT Fisheries Act. One of the objects stated in s 2A is: (a) to manage the aquatic resources of the Territory in accordance with the principles of ecologically sustainable development; and … 32 The term "ecologically sustainable development" appearing in s 2A is defined in s 4(1): ecologically sustainable development means using, conserving and enhancing the community's resources so that ecological processes, on which life depends, are maintained and the total quality of life, now and in the future, can be increased. 33 ABS also referred to the principles of ecologically sustainable development contained in s 3A of the FM Act, but its submissions did not indicate the means by which those principles were applicable to the discharge by the NTFJA of its functions. 34 By s 67(2) of the NT Fisheries Act, the NTFJA may, in relation to the Fisheries, exercise the powers of the Director of Fisheries appointed under the Act and may do so to the exclusion of the Director. 35 By s 70, the Administrator of the Territory may, for the purpose of giving effect to a decision of the NTFJA, make regulations for the management of the Fisheries. 36 Part 3 of the NT Fisheries Act provides for the making of fishery management plans generally. It is convenient to note relevant provisions although, as will be seen, Pt 6 concerning joint authorities, contains its own provisions concerning the preparation of such plans. Part 3 commences with a statement of its purpose: 21 Purposes of Part (1) The purpose of this Part is to conserve, enhance, protect, utilise, and manage the fish and aquatic life resources of the Territory to: (a) promote, develop and maintain commercial and amateur fishing; and (b) provide for optimum yields from a fishery and maintain the quality of the yield; and (c) ensure that the fisheries of the Territory are not endangered or overexploited; and (ca) encourage tourist and scientific interest in fish and aquatic life; and (d) ensure that the habitats of fish or aquatic life and the general environment are not detrimentally affected. (2) For the avoidance of doubt, manage in subsection (1) includes, and must be taken always to have included, a total prohibition against the taking of fish or aquatic life in all or part of a management area or in a fishery. (Emphasis in the original) 37 Section 22 provides that the Minister may, by Gazette Notice, declare: (a) an area, place, or any waters to be a fishery management area; or (b) a fishery to be a managed fishery. The sections which follow contain provisions concerning the preparation of fishery management plans. 38 The preparation of fishery management plans in respect of areas for which a joint authority is established has, since the insertion of Subdiv 2 of Div 2 of Pt 6 (comprising ss 70A-70E) into the NT Fisheries Act in 2016, been governed by those provisions. It is those provisions which are pertinent presently. 39 Section 70A provides: 70A Joint Authority to prepare management plans (1) This section applies if a management area or managed fishery that is a Joint Authority fishery is declared under section 22. (2) The Joint Authority must, as soon as practicable after the declaration, prepare a proposed plan for the whole or part of the management area or managed fishery for the purposes specified in section 21 and having regard to the need for coordination between management areas or between managed fisheries or among any of them. 40 Section 70B provides that a joint authority may, for the purpose of assisting it in preparing proposed plans and giving advice in relation to management plans, establish an advisory committee for each management area or managed fishery. 41 Section 70C provides for the procedure to be adopted in relation to management plans: 70C Procedure in relation to management plans (1) A proposed plan being prepared under section 70A must: (a) contain a description of the management area or managed fishery; and (b) make provision in relation to the managed area or managed fishery with respect to any of the matters specified in Schedule 2 that the Joint Authority considers applicable. (2) After preparing a proposed plan under section 70A, the Joint Authority must give notice of the proposed plan, and the place where a copy of it may be inspected, in: (a) the Gazette; or (b) a newspaper circulating throughout the Territory. (3) There may be included with each proposed plan prepared under section 70A, but so as not to form part of the plan: (a) an outline of the history and status of the fishery; and (b) the policy and objectives of the plan; and (c) any other information relating to the fishery that the Joint Authority thinks fit. (4) Not less than 1 month after the date of notification under subsection (2), and after considering any submissions made in respect of the proposed plan, the Joint Authority may: (a) make any amendments to the plan that the Joint Authority thinks fit; and (b) approve the plan, after advising the relevant advisory committee of any amendments and the reasons for them. 42 It is pertinent to note the requirements imposed by s 70C(1) for the content of a management plan. Such a plan must contain a description of the managed fishery and provide for such of the matters specified in Sch 2 to the NT Fisheries Act as the joint authority considers applicable. Schedule 2 identifies 16 matters (some containing sub-categories). It is for the joint authority to assess the applicability of those matters to a joint authority fishery area. 43 Section 70D provides for the amendments of a management plan relating to a joint authority fishery: 70D Amendments to management plans (1) If a Joint Authority is of the opinion that an amendment to a management plan that it has made is required, the Joint Authority may: (a) if the proposed amendment is, in the Joint Authority's opinion, a minor amendment - approve the amendment; or (b) if the proposed amendment is not, in the Joint Authority's opinion, a minor amendment - give notice of the proposed amendment to the plan, and the place or places where a copy of it may be inspected, in: (i) the Gazette; or (ii) a newspaper circulating throughout the Territory. (2) There may be included with a proposed amendment under subsection (1) any explanatory notes that the Joint Authority thinks fit, but those notes do not form part of the proposed amendment or an amendment to the plan. (3) Not less than 1 month after the date of notification under subsection (1)(b), and after considering any submissions made in respect of the proposed amendment, the Joint Authority may: (a) make any amendments to the proposed amendment that the Joint Authority thinks fit; and (b) approve the amendment, after advising the relevant advisory committee of any amendments and the reasons for them. 44 Every provision in a management plan made pursuant to the Subdivision has the force and effect of a regulation made under the NT Fisheries Act - see s 27.

The management to date of the Demersal Fishery and Timor Reef Fishery 45 On 24 October 1994, the Territory Minister for Primary Industries and Fisheries, acting pursuant to s 22 of the NT Fisheries Act, declared the DF to be a "managed fishery". The Minister made a corresponding declaration of the TRF as a managed fishery on 11 July 1995. It was common ground that the DF and TRF are separate fisheries, albeit in adjacent areas, relating to the same species. The NTFJA has managed these two Fisheries. 46 ABS submitted that there has not been a declaration in respect of the DF, only a declaration in respect of a previous fishery also referred to as "Demersal Fishery", but its submissions did not indicate the present significance of that circumstance. 47 Effect was given to arrangements for the management of the TRF by the Fisheries Amendment (Timor Reef Fishery) Regulations 2011 (NT), which came into effect on 1 February 2011. Effect was given to arrangements with respect to the DF by the Fisheries Amendment (Demersal Fishery) Regulations 2012 (NT), which came into effect, relevantly, from 1 February 2012. The provisions concerning the DF are located in Pt 8 Div 6 and the provisions for the TRF are located in Pt 8 Div 15 of the Fisheries Regulations. Mr Bowman deposed, and I accept, that each of the two Fisheries is managed pursuant to Divs 6 and 15 (respectively) in Pt 8 of the Fisheries Regulations. 48 There is a dispute between the parties as to whether management plans of the kind contemplated by Pt 6, Div 2 Subdiv 2 of the NT Fisheries Act have ever been prepared in relation to the DF and the TRF. I will return to that issue later in these reasons. 49 Divisions 6 and 15 in Pt 8 of the Fisheries Regulations follow a similar form. They provide for licences to be issued in respect of each Fishery and for a fixed number of "fishery units" for each Fishery. A "fishery unit" is a unit which entitles the holder of the licence to which the unit is attached to a share of the total allowable commercial catch (TACC) of the species group in the relevant Fishery (regs 106(1) and 141F(1)). The Fisheries Regulations fix the total amount of three species (or groups) of fish which may be taken annually under the respective licences in each of the DF and the TRF (regs 107A and 141H). These are goldband snapper, red snapper and grouped fish. The allowed catch is referred to by the term "quota units", each of which allows 1 kg of the relevant species to be taken (regs 107B and 141J). The Fisheries Regulations also regulate how and when fishing operations may be undertaken (regs 107E-107Z and 141JC-141JR) and provide for a register of fishery and quota units (regs 108C-108E and 141JV-141JX). 50 Regulations 106(2) and 141F(2) provide that a fishery unit "does not expire" and make provision for the transfer of fishery units and quota units (regs 108-108B and 141JS-141JU). 51 Trawling is permitted in the DF, but only with approval and only in identified trawl zones (regs 107J and 107K). Trawling is not permitted in the TRF (reg 141JD).

The Proposed Framework 52 Since 2014, the Department has been developing a new management framework for the DF and the TRF. This has culminated in the Proposed Framework. It contemplates the creation of a new fishery (the NOF) to cover the whole of the areas of the existing Fisheries; to relate to the same species; to be managed through a joint authority management plan under Pt 6, Div 2, Subdiv 2 of the NT Fisheries Act; and for the licences and fishery units currently held in the DF and the TRF to be "transitioned" into licences and fishery units held in the NOF. 53 On 16 January 2020, the Chief Executive of the Department provided a memorandum to the Minister concerning the Proposed Framework. The memorandum commenced with a statement of its purpose: To provide you [the Minister] with a briefing on progress of a review of the management arrangements in the Northern Territory (NT) Timor Reef Fishery (TRF) and Demersal Fishery (DF); seek your 'in principle' support for the draft management framework for the Northern Offshore Fishery (NOF); and seek your approval to draft a management plan for the NOF. 54 The memorandum then recorded matters of background to the review, the consultation and negotiation which had occurred between the Department and various entities and licence holders; the support for the proposal by all but one member of an advisory committee; the opposition of ABS; some implications of the adoption of the Proposed Framework; and reminded the Minister of the arrangements between the Territory and the Commonwealth through the NTFJA. 55 The Chief Executive attached the Proposed Framework, being a document extending over 68 pages entitled "Northern Offshore Fishery Management Framework - December 2019". After an explanation of the document, the Chief Executive recommended that the Minister: 1. note the independent review of proposed management arrangements for the Timor Reef and Demersal Fisheries with particular regard to implications for resource sharing and procedural fairness (Attachment A); 2. indicate 'in principle' support to declare the Northern Offshore Fishery be a managed fishery; 3. endorse the Draft Management Framework for the Northern Offshore Fishery to provide the merger of the Timor Reef Fishery and Demersal Fishery (Attachment B); 4. note the Summary of Submissions provided by the Advisory Committee members in relation to the Draft Management Framework for the Northern Offshore Fishery (Attachment C); 5. note the Director of Fisheries' Draft Statement of Reasons outlining how the merger pursues the objects of the Act, to be released as a publicly available document (Attachment D); 6. note the Director of Fisheries' Draft Statement of Reasons outlining the methodology for allocating entitlement in the Northern Offshore Fishery proposed under the Draft Management Framework (Attachment E); 7. approve drafting of a management plan for the Northern Offshore Fishery; and 8. approve drafting of an amendment to the NT Fisheries Regulations 1992 to revoke those regulations relevant to the NT Demersal Fishery and Timar Reef Fishery (subject to NTFJA approval of the new management plan). (Emphasis added) 56 On 6 March 2020, the Minister "noted" the matters which were the subject of recommendations 1, 4, 5 and 6, indicated his support for the subject matter of recommendation 2, endorsed the Draft Management Framework and gave his approval for the drafting of the documents which were the subject of recommendations 7 and 8, including the drafting of a management plan.

The concerns of ABS 57 ABS is concerned about the practical effect if the Proposed Framework is implemented. In particular, it considers that the changes which will ensue include: (1) the merger of the DF and TRF, the repeal of Divs 6 and 15 of Pt 8 of the Fisheries Regulations, and the cancellation of the fishery units issued thereunder; (2) the creation of a new fishery called the NOF and the introduction of a new management plan for it by introducing new provisions into the Fisheries Regulations which will: (a) increase the overall TACC for both fisheries from 6,400 tonnes to 7,700 tonnes; (b) increase the TACC for red snapper for both fisheries from 3,800 tonnes to 4,670 tonnes, an increase of 870 tonnes; (c) permit presently unfished TACC for red snapper in the TRF to be fished in the DF (Arafura Zone). This will have the effect of moving 930 tonnes of unused quota in the TRF into the DF; (d) increase the actual catch of red snapper which may be taken in the DF by 1,793 tonnes, an increase of 63%; (e) expand significantly the areas which can be trawled; and (f) grant to the present unit holders in the DF and in the TRF units in the NOF with varying entitlements as explained in cl 7.3.1 of the Proposed Framework. 58 Counsel for ABS accepted that the Proposed Framework does not itself articulate these changes. Indeed, this was one of the criticisms which ABS made of the Proposed Framework, namely, that not only does it not articulate the changes, it does not contain a process of reasoning relating them to the promotion of the objects of the NT Fisheries Act. 59 The evidence indicates a history of opposition by ABS to the changes contemplated by the Proposed Framework. It is not necessary for present purposes to recount that history. It is sufficient to note the allegations in [5] in ABS's Concise Statement: 5. The applicant has opposed the Merger Proposal since it was first promoted by the Department on the basis, and the fact is, that: 5.1. because a proper biomass survey of the DF and the TRF has not been undertaken since 1990 (and perhaps not even then), there is no current, reliable information as to the stocks of fish in the two fisheries, which information is essential for forming a valid opinion as to the likely impact of the Merger Proposal and the Proposed Framework on the DF and the TRF; 5.2 further, there is no reliable evidence that the DF and TRF have any, and if so what, common stocks. This is a premise on which the Merger Proposal and the Proposed Framework are based; 5.3 further, there is no sufficiently reasonable basis for concluding that the decisions made by the NTFJA in about 2010 and 2011 to manage the fisheries separately are no longer valid and must be abandoned. This is also a premise on which the Merger Proposal and the Proposed Framework are based; and 5.4 there is further evidence that the quota for the TRF was fixed by the NTFJA and incorporated into Part 8 Division 15 of the FR at an unsustainably high and damaging level and that, as a result, the TRF has been and continues to be over-fished and otherwise damaged. This damage has been exacerbated by the Department's decisions to permit, exceptionally, trawling in the TRF including between 2014 and 2018. The Merger Proposal and the Proposed Framework are likely to cause fishers to use this unused quota in the DF and thereby to expose the DF as well as the TRF to the risk of over-fishing and of exposure to other damaging actions.

The relief sought by ABS 60 By its AOA, ABS seeks declaratory, injunctive, and prerogative relief. 61 In [1] of the AOA, ABS seeks declarations as follows: a. the proposed management plan as set out in the Proposed Framework has not been formulated or prepared by the Second and Third Respondents as the Northern Territory Joint Authority, validly or at all: i. in the discharge of the functions under s.66(1) of the Fisheries Act 1988 (NT); and further ii. in the discharge of the duty under s.70A(2) of the Fisheries Act 19898 (NT); b. the proposed management plan as set out in the Proposed Framework or any amendment thereof cannot lawfully be the subject of any validly formed opinion or validly made decision of the Second and Third Respondents as the Northern Territory Joint Authority pursuant to s.70C(2) or s.70C(4) of the Fisheries Act 1988 (NT); c. the proposed management plan as set out in the Proposed Framework: i. has not been formulated or prepared in a way which is consistent with and which furthers; and ii. does not further, and is not consistent with, the objects of: iii. managing the aquatic resources of the Territory in accordance with the principles of ecologically sustainable development, which include the precautionary principle, within the meaning of s.3(1)(b) and s.3A of the Fisheries Management Act 1991 (Cth) and s.2A(a) of the Fisheries Act 1988 (NT); iv. maintaining a stewardship of aquatic resources that promotes fairness and equity within the meaning of s.2A(b) of the Fisheries Act 1988 (NT); and v. promoting the optimum utilisation of aquatic resources to the benefit of the community within the meaning of s.2A(c) of the Fisheries Act 1988 (NT). d. the proposed management plan as set out in the Proposed Framework will effect an acquisition of the Applicant's property otherwise than on just terms contrary to s.50(1) of the Northern Territory (Self-Government) Act 1978 (Cth), and accordingly cannot be made a valid law of the Northern Territory. 62 In [2] of the AOA, ABS seeks injunctions as follows: 2. Permanent injunctions restraining: aa. the Second Respondent, as a member of the Northern Territory Fisheries Joint Authority, from endorsing or approving any proposed management plan or amendments to the Fisheries Regulations 1992 (NT) to give effect to the Proposed Framework or a framework substantially the same as the Proposed Framework; a. the First Respondent and the Second Respondent from seeking the decision of the Third Respondent as a member of the Northern Territory Joint Authority to endorse or approve any proposed management plan or amendments to the Fisheries Regulations 1992 (NT) in accordance with the Proposed Framework or a framework substantially the same as the Proposed Framework for the purposes of giving notice pursuant to s.70C(2) of the Fisheries Act 1988 (NT). 63 By [2A] of the AOA, ABS seeks prerogative relief, as follows: 2A. Relief in the nature of certiorari quashing, or a declaration declaring invalid, the decision of the Second Respondent of 6 March 2020 endorsing or approving: a. the Proposed Framework and the proposed management plan as set out therein; b. the merger of the Timor Reef Fishery and the Demersal Fishery to create the Northern Offshore Fishery; c. the drafting of a management plan for the Northern Offshore Fishery in accordance with the Proposed Framework and the proposed management plan as set out therein. 64 As the basis for these claims to relief, ABS contends that: (a) it is not lawful for the Department, as distinct from the NTFJA, to prepare a draft management plan (which it contends the Department did by preparing the Proposed Framework); (b) it is not lawful for the Department, as distinct from the NTFJA, to establish an advisory committee for the NOF to fulfil the function contemplated by s 70B of the NT Fisheries Act (which it contends the Department did by establishing an Offshore Snapper Fishery Advisory Committee and re-establishing it in June 2017 as the Offshore Snapper Fishery Management Advisory Committee (OSFMA Committee)); (c) contrary to s 66(2) of the NT Fisheries Act, the Proposed Framework has not been prepared in a manner which is consistent with, and does not further, the objects contained in s 2A of that Act; and (d) the proposed repeal of Div 6 of Pt 8 of the Fisheries Regulations and the cancellation of the DF fishery units will be an acquisition of property otherwise than on just terms, contrary to s 50(1) of the NT S-G Act.

The challenge to the Court's jurisdiction 65 The jurisdiction of the Court with respect to the present matter must be found in s 39B of Judiciary Act which provides (relevantly): 39B Original jurisdiction of Federal Court of Australia ... (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (a) in which the Commonwealth is seeking an injunction or a declaration; or (b) arising under the Constitution, or involving its interpretation; or (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. … 66 As is apparent, the Court has jurisdiction under s 39B(1A) only in respect of a "matter": Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591 at [31] and see the authorities cited therein. The term "matter" is used in its constitutional sense: Re Australian Securities and Investments Commission; Ex parte Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559 at [50]-[51]. The "matter" is the justiciable controversy between the parties arising out of a substratum of facts and claims representing, or amounting to, the dispute or controversy between or amongst the parties: Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1 at [17]. 67 In Palmer v Ayres [2017] HCA 5; (2017) 259 CLR 478, Kiefel, Keane, Nettle and Gordon JJ said of the concept of a "matter": [26] A "matter", as a justiciable controversy, is not co-extensive with a legal proceeding, but rather means the subject matter for determination in a legal proceeding - "controversies which might come before a Court of Justice" … It is identifiable independently of proceedings brought for its determination and encompasses all claims made within the scope of the controversy … [27] The requirement that, for there to be a "matter", there must be an "immediate right, duty or liability to be established by the determination of the Court" reinforces that the controversy that the court is being asked to determine is genuine, and not an advisory opinion divorced from a controversy, and, further, that only a claim is necessary. A matter can exist even though a right, duty or liability has not been, and may never be, established. (Citations omitted and emphasis in the original) 68 In support of these propositions, the plurality in Palmer v Ayres referred to Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 in which Gleeson CJ and McHugh J said: [32] The existence of a "matter", therefore, cannot be separated from the existence of a remedy to enforce the substantive right, duty or liability. That does not mean that there can be no "matter" unless the existence of a right, duty or liability is established. It is sufficient that the moving party claims that he or she has a legal remedy in the court where the proceedings have been commenced to enforce the right, duty or liability in question. It does mean, however, that there must be a remedy enforceable in a court of justice, that it must be enforceable in the court in which the proceedings are commenced and that the person claiming the remedy must have sufficient interest in enforcing the right, duty or liability to make the controversy justiciable … (Citation omitted) 69 The requirement that there be a "matter" in order to found the jurisdiction of this Court was explained by French J in IMF (Australia) Ltd v Sons of Gwalia Ltd [2004] FCA 1390; (2004) 211 ALR 231 at [43]: The jurisdiction of the Federal Court is entirely statutory and is conferred in relation to 'matters' whose content derives from the statute conferring the jurisdiction … The definition of 'federal jurisdiction' by reference to 'matters' is necessary because the Constitution, which gives authority to the Parliament to confer and define federal jurisdiction, requires it to be conferred and defined in those terms. That constraint means that when the jurisdiction of the Court is invoked the party invoking it must be seeking the determination of rights, duties, liabilities or obligations. That is 'Central to the notion of a 'matter'' … Where declaratory relief is sought the question to be determined must be real, and not abstract or hypothetical. That is because the availability of declaratory relief is confined by the boundaries of judicial power … The fact that declaratory relief relates to the lawfulness of future conduct does not place it beyond the reach of judicial power nor thereby beyond the bounds of federal jurisdiction. A declaration sought upon the basis of an hypothetical situation or facts which are contingent or may never occur has the character of an advisory opinion which does not relate to a real question. Therefore it does not relate to a matter and is outside the jurisdiction of the Court. (Citations omitted) 70 At a general level, the Territory Respondents submitted that the proceedings commenced by ABS do not involve any "matter" within the meaning of s 39B(1A)(c) of the Judiciary Act, having regard to the following matters: (a) the Proposed Framework has no legal effect and is "patently a policy document"; (b) the Proposed Framework was not prepared by the Department, nor endorsed by the Minister, in the exercise of any statutory powers; (c) the necessary instrument (a management plan or Regulation) to give the Proposed Framework legal content and effect is yet to be drafted; and (d) given the process for public notification and receipt and consideration of submissions before final approval, it cannot be assumed that the final management plan will replicate the content of the Proposed Framework. 71 The Solicitor-General for the Northern Territory submitted that, in these circumstances, four matters indicated that the issues raised by the AOA did not give rise to a "matter" in the requisite sense: (a) the issues which ABS wishes to agitate in the proceedings are hypothetical; (b) the Court's determination of the matters raised by ABS will not determine any immediate rights, duties or liabilities; (c) the relief sought by ABS will not resolve any controversy; and (d) ABS is seeking in effect an advisory opinion. 72 As is apparent, there is some overlap in these matters. The central thrust of the submissions was that ABS is seeking to have determined matters which are presently hypothetical and which do not affect any immediate right, duty or liability of ABS.

Applicable principles 73 The Territory Respondents' submissions as to these matters were to the following effect. A "matter" for the purposes of s 39B(1A) requires a real controversy between parties, as distinct from a circumstance which is abstract or hypothetical: Bass v Permanent Trustee Co Ltd [1999] HCA 9, (1999) 198 CLR 334 at [45]-[47]; Re McBain; Ex parte Australian Catholic Bishops' Conference [2002] HCA 16, (2002) 209 CLR 372 at [5] and [242]; and see Good to Go Loans Pty Ltd v Australian Securities and Investments Commission [2015] FCA 1350 at [46]. 74 The Court's power to grant declarations under s 21 of the FCA Act is confined by the considerations marking out the boundaries of judicial power: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 581-2 and see the authorities cited therein. In Truth About Motorways, Gaudron J said: [52] There may be cases where a bare declaration that some legal requirement has been contravened will serve to redress some or all of the harm brought about by that contravention. Ainsworth v Criminal Justice Commission was such a case. But a declaration cannot be made if it "will produce no foreseeable consequences for the parties." That is not simply a matter of discretion. Rather, a declaration that produces no foreseeable consequences is so divorced from the administration of the law as not to involve a matter for the purposes of Ch III of the Constitution. And as it is not a matter for those purposes, it cannot engage the judicial power of the Commonwealth … (Citations omitted) 75 Relying on this passage and on Ainsworth, the Territory Respondents submitted that the existence of a "matter" within the meaning of Ch III of the Constitution and s 39B of the Judiciary Act is a jurisdictional pre-requisite to the grant of declaratory relief under s 21 of the FCA Act and that, in order to be within the boundaries of judicial power, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions; that the person seeking the relief must have a real interest; that the relief will not be granted if the question "is purely hypothetical", a claim in relation to circumstances that have not occurred and might never happen, or if the Court's declaration will produce no foreseeable consequences for the parties. 76 These propositions derive from Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 in which Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ said at 265-7: There can be no matter within the meaning of [s 76 of the Constitution] unless there is some immediate right, duty or liability to be established by the determination of the Court … [The Legislature] cannot authorise this Court to make a declaration of the law divorced from any attempt to administer that law … … All these opinions indicate that a matter under the judicature provisions of the Constitution must involve some right or privilege or protection given by law, or the prevention, redress or punishment of some act inhibited by law. The adjudication of the Court may be sought in proceedings inter partes or ex parte … But we can find nothing in Chapter III of the Constitution to lend colour to the view that Parliament can confer power or jurisdiction upon the High Court to determine abstract question of law without the right or duty of any body or person being involved. 77 The Territory Respondents also submitted that, while the futurity of the circumstances in issue is not a bar to jurisdiction, there must be some certainty or immediacy attaching to the consequences to which the declaratory relief is directed: Allseas Construction SA v Minister for Immigration and Citizenship [2012] FCA 529; (2012) 203 FCR 200 at [23] and see the authorities cited therein. In Re Tooth & Co Ltd [1978] FCA 10, (1978) 31 FLR 314, Brennan J at 333 referred to United States authority suggesting that the difference between the hypothetical and the non-hypothetical in a context like the present was one of degree so that the question was one of whether there is "a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment" (emphasis added). 78 Finally, the Territory Respondents referred to the judgment of Jacobs J (with whom McTiernan ACJ agreed) in University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1 at 24: A declaration of right based on facts found in a particular case can certainly be made but it is not permissible to make a declaration of right which amounts to a conclusion of fact from a hypothetical or assumed state of facts and thereby to annunciate or declare a rule of apparently general application as though it were a declaration of applicable law. A declaration of right based on hypothetical or assumed facts may be made when the assumed facts can be certainly and exhaustively stated and when the conclusion flowing therefrom is truly a conclusion of law but when it is itself a conclusion of fact. 79 As to a "matter requiring a claim for some immediate right, duty or liability to be established by the determination of the Court", the Territory Respondents again referred to Re Judiciary and Navigation Acts at 265 (set out earlier in these reasons), to Abebe v Cth at [25] (Gleeson CJ and McHugh J), at [118] (Gaudron J), and to CGU Insurance Ltd v Blakeley [2016] HCA 2, (2016) 259 CLR 339 at [26] (French CJ, Kiefel, Bell and Keane JJ). 80 In relation to the objection that ABS is seeking an advisory opinion, the Territory Respondents referred to Bass v Permanent Trustee at [47] in which the majority (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) said: [47] Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions. The jurisdiction with respect to declaratory relief has developed with an awareness of that traditional attitude. (Citation omitted) 81 The Solicitor-General for the Territory accepted that these remarks were directed to the exercise of the discretion to grant declaratory relief, rather than to the existence of a "matter" for the purposes of s 39B(1A). 82 In addition to the above authorities, counsel for the Third Respondent referred to Re Barrow [2017] HCA 47; (2017) 349 ALR 574 in which Edelman J said: [9] More than a century ago, it was held that the meaning of "matters" in Ch III of the Constitution was matters "capable of judicial determination" or "justiciable" matters. In In re Judiciary and Navigation Acts, five members of this Court concluded that a justiciable matter requires "some immediate right, duty or liability to be established by the determination of the Court" or "must involve some right or privilege or protection given by law, or the prevention, redress or punishment of some act inhibited by law". A justiciable matter was said to include neither "a declaration of the law divorced from any attempt to administer that law" nor "abstract questions of law without the right or duty of any body or person being involved". (Citations omitted) 83 Counsel for ABS indicated that it did not take issue with any of the principles on which the respondents relied, only in the application which the respondents sought to give them in the present case.

The submissions of the Territory Respondents 84 In the Outline of Submissions provided in advance of the hearing, the Territory Respondents submitted that the issues which ABS wishes to agitate are hypothetical because the Proposed Framework is just that, a proposed framework. Whether it will ever be adopted as a framework is not known. All that has happened so far is that the Minister has given in principle support for the Proposed Framework, given in principle support for the NOF to be declared a managed fishery, approved the drafting of a management plan for the NOF, and approved the drafting of amendments to the Fisheries Regulations. The Territory Respondents emphasised that, in making the decisions on 6 March 2020, the Minister had not exercised a statutory power and that his decisions had not had any legal effect. They submitted that: [13] By those acts, the Minister did not perform any statutory function and the acts had no legal effect. The Proposed Framework is not, does not contain and does not purport to be, a proposed plan within ss70A and 70C. It is patently a policy document, different in both content and form to Divs 6 and 15 of Part 8 of the [Fisheries Regulations] and other management plans. 85 The Territory Respondents also noted that cl 5 of the Proposed Framework indicated that it would apply from a date yet to be fixed and that it would be "enabled" by a "management plan" developed under Subdiv 2 of Div 2 of Pt 6 of the NT Fisheries Act. That management plan is yet to be prepared. 86 As is apparent, these submissions were directed to the Proposed Framework. That is understandable because the originating application of ABS, in the form filed on 7 April 2020, sought declarations with respect to the Proposed Framework. The effect of the amendments to the Originating Application (contained in the AOA set out earlier in these reasons) was to shift the focus of the declarations sought by ABS to "the proposed management plan as set out in the proposed framework". 87 The Territory Respondents' submissions at the hearing were accordingly directed to the form of these differently framed declarations. They submitted again that the content of any management plan which may be developed pursuant to the Proposed Framework, and whether such a plan may be approved by the NTFJA, are matters of "speculation and conjecture". By way of elaboration, the Territory Respondents noted that the following sequence of steps is yet occur with respect to the development and promulgation of the NOF: (a) as Mr Bowman deposed, the management plan and amendments to the Fisheries Regulations must be drafted by the Office of Parliamentary Counsel in the Territory (OPC); (b) as Mr Bowman again deposed, following the drafting by OPC of these documents, both will be reviewed and considered by officers in the Department and by the Minister. This may lead to re-drafting or further drafting by OPC; (c) on the Departmental Officers and the Minister being satisfied with the drafting, the Minister will, by Gazette notice, declare the NOF to be a managed fishery (ss 22 and 70A(1) of the NT Fisheries Act); (d) the NTFJA must, as soon as practicable after the declaration under s 22, prepare a proposed management plan for the whole or part of the NOF having regard to the purposes specified in s 21 (s 70A(2)); (e) the NTFJA may include with the plan prepared under s 70A (but not so as to form part of the plan) an outline of the history and status of the NOF, the policy and objectives of the plan, and any other information relating to the NOF which it thinks fit (s 70C(3)); (f) the NTFJA must, once the management plan under s 70A is prepared, give notice of it and the place at which a copy of it may be inspected. The notice is to be given in the Gazette or in a newspaper circulating throughout the Territory (s 70C(2)); and (g) not less than one month after the date of notification under s 70C(2) and after considering any submissions made in respect of the proposed management plan, the NTFJA may make any amendments to the plan which it thinks fit and approve it (but only after advising the relevant advisory committee of any amendments and the reasons for them) (s 70C(4)). 88 The NTFJA could then rely on s 27 of the NT Fisheries Act to give force and effect to the provisions of the approved management plan. Alternatively, it could seek to have the Administrator make amendments to the Fisheries Regulations so that legal force and effect is given by that means. 89 The Territory Respondents submitted that this sequence of steps has not yet commenced. Steps (a) and (b) had not been completed at the time of the hearing. More particularly, the Minister has not yet made a declaration with respect to the NOF under s 22, the obligation of the NTFJA under s 70A has not yet been triggered, and the NTFJA has not prepared a proposed management plan for the NOF within the meaning of s 70A(2), let alone given the necessary public notification or received submissions concerning it. Their submission in short was that ABS's application for relief raises matters which are hypothetical because, not only is it not known that the NOF will be declared as a fishery under s 22 of the NT Fisheries Act, the form and content of a regulation or of a management plan which will have the force and effect of a regulation under the NT Fisheries Act is not known.

The submissions of the Third Respondent 90 Third Respondent referred to the same matters raised by the Territory Respondents and emphasised that, as the NTFJA has not yet exercised any statutory power, it remains speculative as to whether it will do so. 91 Counsel likened the decisions made by the Minister on 6 March 2020 to the Policy Determination concerning the importation of pig meat into Australia which was considered in Director of Animal and Plant Quarantine v Australian Pork Ltd [2005] FCAFC 206; (2005) 146 FCR 368. Of that Determination, Heerey and Lander JJ said: [85] The Determination did not 'authorise' anything. It did not affect anyone's rights or impose obligations. On its face, as already mentioned, it did no more than put forward matters to be taken into account by the Director in granting permits. There was no jurisdictional error because no statute conferred jurisdiction to make the Determination; it was a purely internal administrative exercise. 92 Counsel also referred to Australasian College of Cosmetic Surgery Ltd v Australian Medical Council Ltd [2015] FCA 468; (2015) 232 FCR 225 in which Katzmann J considered Guidelines issued by the Australian Medical Council and to Taylor v O'Beirne [2010] QCA 188 which concerned a claim for judicial review of letters sent to the applicant which he claimed constituted "decisions" that he had contravened the conditions of a supervision order. In finding that the proceeding did not raise a justiciable legal controversy, Chesterman JA, in the judgment of the Court, said: [34] [T]he respondents' "decisions" that there had been contraventions, had no consequence in fact or law for the applicant. They were not binding on the applicant. Had contravention proceedings been commenced he was free to contest the facts and demonstrate to the satisfaction of the court that he did not do what was alleged against him, or had a reasonable excuse for his conduct. 93 The Third Respondent submitted that, until such time as the NTFJA does prepare a "proposed plan" under s 70A or approve a plan under s 70C of the NT Fisheries Act, none of ABS's rights and interests are affected and it remains speculative as to how, if at all, they may be affected in the future.

The submissions of ABS 94 The submissions of ABS did not address directly the contentions of the Respondents concerning hypotheticality and the absence of any immediate effect on the rights, duties or liabilities of ABS. Instead, the ABS submissions focused on the Territory Respondents' alternative application that the proceedings be dismissed because they have no reasonable prospect of being successfully prosecuted. This was despite the alternative limbs in the Territory Respondents' application being conceptually distinct and, if the Respondents are correct in their contention that ABS has not invoked the Court's jurisdiction, it will not be able to hear and determine its application, irrespective of the assessment of ABS's prospects of success. 95 However, within the submissions directed to s 31A, I understood ABS to make submissions in relation to the issues of hypotheticality and immediacy as follows: (a) the Proposed Framework should be understood as a draft management plan because: (i) in relation to the DF and the TRF, "highly sophisticated" management plans have been in place since 2011-2012 and, like the Proposed Framework, these are called "Frameworks". These Frameworks (the 2011 Frameworks) contain all the requisite and permitted elements of a management plan and have been adopted by the NTFJA. Counsel submitted that it was "the universal practice" of the NTFJA to describe documents containing the statutory requirements for a management plan as "frameworks". This history of usage meant that the Proposed Framework should be understood as being, or containing, the management plan for the NOF; (ii) separate documents called "management plans" had not been produced for the DF or the TRF because the terms of management were apparent in the 2011 Frameworks. Legal effect had been given to the 2011 Frameworks by the amendments to the Fisheries Regulations in 2011 and 2012 to which reference was made earlier; (iii) the 2011 Frameworks had been approved under Pts 13 and 13A of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act); (iv) the Proposed Framework is the product of a process which has now extended over some six years and that process "replicates (at least superficially) the process by which a management plan is ordinarily developed and finalised to the point of Gazettal" under s 70C(2); (v) the Proposed Framework is comparable with the 2011 Frameworks, contains all the requisite details for a management plan for the NOF and, as was the case for the 2011 Frameworks, the amendments to the Fisheries Regulations can be prepared solely by reference to it; and (vi) the Proposed Framework should be regarded as practically final because the NTFJA "is practically committed to [the] management plan contained in [it]", there is "no practical capacity to vary or change the critical things" in the Proposed Framework, and the process of public consultation is "of no substance, no consequence … box ticking". Counsel submitted that, having regard to practical considerations, it is not open to the NTFJA, even acting responsibly, to make changes to the Proposed Framework before it is published for public consultation; (b) the Proposed Framework cannot reasonably be characterised as a "policy document", as the Territory Respondents contend; (c) there is an immediate right, duty or liability in issue because there is an urgent need for the NTFJA to secure extensions of the EPBC Act approvals for the DF, without which it cannot be lawfully operated. 96 Some of these contentions of ABS were, seemingly, in the nature of conclusions on contestable factual issues. They seemed to reflect ABS's view of the situation rather than matters of established fact. The propositions in (a)(i), (ii), (iv), (v) and (vi) in particular seemed to be in this category. 97 By way of example, in support of the submissions that it is "standard" practice of the NTFJA to use the terminology of "framework", counsel for ABS referred to an Information Paper concerning a different fishery, (the Offshore Net & Line Fishery) presented to the meeting of the NTFJA held on 23 September 2015. The Paper stated: A draft Framework for the fishery is currently being developed to appropriately address identified risks and issues. A copy of the draft Framework will be distributed to members when available. The management framework will form the basis for drafting instructions to amend the regulations. The NTFJA's 'in-principle' approval of the proposed amendments of the Regulations will be sought at the appropriate time. (Emphasis added) 98 However, this document did contain any reference to the "draft framework" being, or having the status of, a management plan. 99 Counsel also referred to the minutes of the NTFJA meeting on 27 October 2011 which recorded that it had been informed that a "management framework document" had been developed by an Offshore Snapper Advisory Group established to work through issues directed by the NTFJA. This document also indicated that regulations would be prepared, but again did not refer to the framework document as a "management plan" or as having the status of a management plan. 100 It is not necessary to give further examples. As will be seen, whatever may have been the situation in the past, the Proposed Framework does contemplate expressly the preparation of a separate management plan. 101 Some of the submissions which ABS made in support of its claims of invalidity in the development of the Proposed Framework were seemingly inconsistent with its contention that it is not raising matters which are hypothetical. In those submissions, ABS accepted that, as there has not yet been a declaration under s 22 of the NOF as a managed fishery, the obligation of the NTFJA imposed by s 70A(2) of the NT Fisheries Act is not yet engaged with the effect that neither the Proposed Framework, nor any of the work done in relation to the Proposed Framework, is referrable to a discharge of the duty imposed by s 70A(2). ABS relied on these circumstances in submitting that the Proposed Framework cannot be treated as if it had been prepared under the NT Fisheries Act. It submitted that management plans must be prepared by NTFJA or a delegate lawfully appointed in the exercise of the power under s 61, noting that s 66 of the NT Fisheries Act vests the functions to which it refers in the NTFJA and not in the Department. 102 These submissions indicate the centrality to ABS's submissions of the proposition that the Proposed Framework is the management plan for the NOF contemplated by s 70A.

Consideration 103 ABS seeks relief from the Court in respect of the Proposed Framework before it is known whether the NTFJA will adopt it (with or without amendments). In effect, it seeks to challenge a process of law making before a law has been made and before it is known whether the law will be made. 104 These matters suggest that ABS's proceedings are premature and that there is considerable force in the submissions of the respondents that the Court is being asked to make orders with respect to matters which are hypothetical. 105 As already noted, the declarations sought by ABS are directed to "the proposed management plan as set out in the proposed framework". This terminology seems to imply that there is an identifiable proposed management plan within the Proposed Framework. However, in the submissions at the hearing, counsel for ABS did not seek to identify particular aspects of the Proposed Framework as constituting "the management plan". Instead, counsel submitted that the Proposed Framework was itself "manifestly" a management plan. The matters set out earlier in these reasons are the matters on which counsel relied for that contention. It was plain that this was a foundational contention of ABS in resisting the Territory Respondents' application. 106 There are some matters which are consistent with the contention of ABS. These include the fact that no separate document entitled "management plan" has been developed or adopted by the NTFJA in relation to the DF or TRF, the fact that a document entitled "Proposed Management Arrangements for the Northern Territory's Proposed Demersal Fishery (DF)" but with the footnote "Final Draft Demersal Fishery Framework" was approved by the NTFJA between 27 October 2011 and 7 December 2011, some of the content of the Proposed Framework is seemingly in a form which could be adopted almost verbatim into a management plan, and there are some similarities in the processes followed in the development of the 2011 Frameworks and the Proposed Framework. 107 Nevertheless, a number of matters indicate that ABS's characterisation of the Proposed Framework as a management plan (or even as a draft management plan) should not be accepted. 108 First, it is pertinent that the term "framework" is used in the title to the document. On ordinary understandings, the word "framework" in the present context has the meaning of an overarching structure for something else such as a scheme or an arrangement. It is suggestive of a statement of the principles or objectives within which the scheme or arrangement is to be developed or implemented. This of course is not a decisive matter because the use of the term "framework" may simply reflect a looseness of language by those responsible for the development of the Proposed Framework. 109 Secondly, the NT Fisheries Act uses the terminology of "management plan" and not "management framework". In fact, the Act does not use the term "framework" at all in relation to management plans for fishery areas. It is reasonable to suppose that the persons seeking to give effect to the NT Fisheries Act would be mindful of the terms of the statutory obligations and would use their terminology in the development of the required documents. This suggests that the persons responsible for the drafting of the Proposed Framework did not use the term "framework" as a synonym for "plan". Again, this is not a decisive consideration given previous usages of the term "management framework". 110 Thirdly, and perhaps more pertinently, there are several indications in the Proposed Framework itself that it contemplates that a separate document will be developed as the management plan. Clause 5 provides for a commencement date of the Proposed Framework and states that it "will be enabled by a management plan" developed under Subdiv 2 of Div 2 in Pt 6 of the Fisheries Act. The term "NOF Licence" is defined in cl 3 as a licence "issued … under the new NOF management plan". The Proposed Framework contains some provisions concerning licences but does not contain any provisions concerning their issue. Clause 9 refers to effect being given to management changes through amendments to legislation including, amongst other things, "the NOF management plan". It does not refer to the Proposed Framework itself as a form of relevant legislation. Clause 11.5 refers to provisions for flexibility being built into the "[NOF] management plan". Finally, cl 13 provides that "the regulatory arrangements for the NOF are contained within Fisheries Regulations and the [NOF] Management Plan". 111 These are clear indications that the Proposed Framework is not a management plan, let alone the management plan for the NOF for the purposes of s 70A of the NT Fisheries Act. 112 Fourthly, consideration of the content of the Proposed Framework supports the conclusion that it is in the nature of an overarching structure for management of the NOF. By way of example, cl 8 contains a set of five "Goals and Objectives" said to be consistent with the objects of the NT Fisheries Act. Significantly, the Proposed Framework contains only a very brief synopsis of the means by which these goals and objectives are to be achieved, referring to them as "management strategies". To my mind, this is an indicator that the Proposed Framework is not itself intended to be a management plan because, if it was, one would expect that the management strategies would be spelt out in it. 113 Fifthly, it is pertinent that the Chief Executive's memorandum to the Minister of 16 January 2020 distinguished between the Proposed Framework and a management plan. The Chief Executive stated the purpose of the memorandum as being to seek the Minister's "support for the draft management framework" and his "approval to draft a management plan for the NOF". Further, as seen previously, the recommendations to the Minister distinguished between the Proposed Framework and the preparation of a management plan. 114 Sixthly, I do not consider that the 2011 Frameworks have the significance for which ABS contends. The Court was referred to a 2011 Framework in relation to both the DF and TRF but, for present purposes, it is sufficient to refer to that concerning the DF only. There were two iterations of this 2011 Framework, dated July 2011 and November 2011 respectively. The title to each was "Proposed Management Arrangements for the Northern Territorys Proposed Demersal Fishery (DF)" but with a footnote "Final Draft Demersal Fishery Framework". A subheading was "Introducing an Individual Transferable Quota Management Framework". The underlying proposal in the documents was the transition to output (catch-based) controls from input (gear-based) controls in two existing fisheries (the Demersal Fishery and the Finfish Trawl Fishery) and to the merger of them into the one fishery (the DF). The document stated that it "describes a proposed framework for the new management arrangements" and said that its intention was to "outline future policy guidelines which would assist implementation of the proposed management arrangements". My review of the 2011 Framework concerning the DF suggests that ABS's description of it as "highly sophisticated and detailed" is appropriate. However, merely being of that character or quality does not mean that it is itself a management plan. It also seems pertinent that the 2011 Framework did not describe itself as a "management plan" but contemplated that the management arrangements it proposed would be made by Regulation. That is what in fact occurred. It is evident that the amendments to the Fisheries Regulations introduced detailed prescriptions and proscriptions. 115 It is the case, as Mr Bowman deposed, that no separate management plans were prepared to implement the 2011 Frameworks. But this does not have the consequence, as ABS contended, that the 2011 Frameworks were the management plans or that management plans were not prepared because the 2011 Frameworks was seen as such. It is more realistic to regard the amendments to the Regulations in 2011 and 2012 as being the manifestations of management plans or, as the Solicitor-General submitted, as the substitute for such plans. 116 Independently of these matters, the 2011 Frameworks were not in any event developed by the NTFJA as ss 70A-70E (which imposed the obligations on the NTFJA to prepare management plans) were not inserted into the NT Fisheries Act until 2016. The 2011 Frameworks must therefore have been prepared by someone else, perhaps the Offshore Snapper Advisory Group mentioned in the minutes of the NTFJA meeting on 27 October 2011 to which reference was made earlier, or perhaps by the Director of Fisheries in the exercise of his powers under s 23 of the NT Fisheries Act and only after their preparation provided to the NTFJA. This is consistent with the statement in the 2011 Framework concerning the DF that approval would be sought from the NTFJA at an appropriate time "to implement the final proposal". 117 Seventhly, the existence of a "universal practice" in the development of management frameworks of the kind to which ABS referred is contradicted by the form of the Spanish Mackerel Fishery Management Plan comprised in Regulation 2004, No 44. This Management Plan is clearly designated as such and has a clear prescriptive and proscriptive content. It is very different, both in form and content from the Proposed Framework and, for that matter, from the 2011 Frameworks. 118 The Spanish Mackerel Fishery in the Northern Territory does not appear to be a fishery subject to the NTFJA and it is directed to a particular species rather than a fishery area, so there are bases on which it can be distinguished as a precedent. But I consider it significant that those responsible for drawing up a management plan for a fishery described it as such when that was their intention. 119 The ABS submission that the Proposed Framework contains all the required and permitted content of a management plan seemed to be based on ABS's own conception of what must, and may, be included in a management plan. In any event, the ABS submissions did not seek to relate the content of the Proposed Framework to the legislative provisions. 120 The mandatory requirements for a management plan are specified in s 70C(1) of the NT Fisheries Act. It provides that a management plan must contain a description of the management area or managed fishery and make provision with respect to any of the matters specified in Sch 2 to the Act "that the Joint Authority considers applicable". Thus, the required content of a management plan depends on an assessment by the NTFJA of whether the matters specified in Sch 2 are "applicable". Schedule 2 specifies 16 separate matters which, subject to the NTFJA's assessment of applicability, may be included in a management plan. Several of those 16 matters have their own sub-categories. A momentary consideration of the 16 matters is sufficient to indicate that several are not mentioned at all in the Proposed Framework. Whether or not the NTFJA will consider it appropriate for these to be included in the management plan is a matter which must await its consideration of the Proposed Framework. Accordingly, I do not accept that this is a matter indicating that the Proposed Framework is a management plan or that it contains a management plan. 121 I do not accept the submission of ABS that the Proposed Framework should be regarded as "practically final" because the NTFJA is committed to it, because there is "no practical capacity to vary or change the critical things" in it and because the process of public consultation which it will engage is "of no substance, no consequence … box ticking". This was tantamount to a submission that the NTFJA will comply only with the letter of the law concerning the public consultation required by s 70C and will not engage in any genuine consideration of submissions it receives following that consultation. There is no basis upon which the Court should, or may, infer that the NTFJA, comprised as it is by two responsible Ministers (or their deputies) will act with such dereliction of its duty under the NT Fisheries Act. On the contrary, the Court should proceed on the assumption that the NTFJA will conduct itself in accordance with the law: cf Kuczborski v State of Queensland [2014] HCA 46; (2014) 254 CLR 51 at [181], [284]. I accept the submission of the Territory Respondents that the implicit requirement in s 70C that the NTFJA consider any submissions made as a result of the consultation process is an important indication that the Proposed Framework has not been finalised. 122 Once ABS's submission that the 2011 Frameworks were management plans is rejected, its submission that the development of the Proposed Framework has replicated, at least superficially, "the process by which a management plan is ordinarily developed" can be seen to lack an evidentiary foundation. To the extent that there are similarities in the process by which the 2011 Frameworks and the Proposed Framework have been developed, that seems more likely attributable to their character as frameworks. In any event, even if there be similarities in the way the documents were prepared, that cannot reasonably be regarded as indicating that the Proposed Framework is, despite all the indications pointing to the contrary, a management plan. 123 I consider that the Territory Respondents' submission that the Proposed Framework is in the nature of a policy document should be accepted, although I would prefer to use the description which the document bears, namely, it is a framework document. What is clear, is that it does not contain the detailed prescriptions and proscriptions of the existing Regulations concerning the DF and TRF or, for that matter, relating to the Spanish Mackerel Fishery. It is also clear that it has not been developed in the exercise of a particular statutory power. 124 It follows that the Proposed Framework is not a management plan, nor even a proposed management plan. It has no status beyond that given to it by the Minister on 6 March 2020, namely, an endorsed draft management framework. It is in substance a work in progress. Whether it will be subject to further amendment and, more significantly, whether it will be approved by the NTFJA, is not presently known.

The EPBC Act 125 The submissions of ABS concerning the EPBC Act did not indicate clearly how the Proposed Framework, or its implementation, will have any immediate effect on a right, duty or liability of the requisite kind. However, on my understanding, the issues under the EPBC Act arise in the following way. 126 Part 13 of the EPBC Act permits the Commonwealth to list certain species (relevantly for present purposes, marine species) as threatened (s 178). The fish species in the DF caught by ABS are among the listed species. Part 13A of the EPBC Act permits export controls to be put in place in order to protect threatened species. Amongst other things, it makes it an offence to export "a regulated native specimen" unless the exporter holds a permit or holds an exemption under the EPBC Act. Section 303FN permits the Commonwealth Minister to declare that a specified "wildlife trade operation" is an "approved wildlife trade operation" upon satisfaction of certain preconditions. Further, s 303FJ of the EPBC Act provides that the export of a wildlife specimen is an "eligible commercial purpose export" if, amongst other things, the export would be in accordance with an "approved wildlife trade operation" under s 303FN. 127 Part 13 of the EPBC Act permits the Commonwealth to accredit a plan of management for fisheries operating under State or Territory law which interact with threatened species (ss 208A, 222A, 245 and 265). On 26 May 2009, a delegate of the Commonwealth Minister for the Environment, Heritage and Arts accredited the NT Fisheries Act and the Fisheries Regulations, to the extent that they apply to the DF. I note that, contrary to a submission of ABS, it is the NT Fisheries Act and the Fisheries Regulations insofar as they concern the DF which have been accredited, and not documents which ABS described as "Current Frameworks". I also note that a similar accreditation may have been issued in respect of the TRF. On the basis of these accreditations, exemptions have been granted, which have permitted fish caught in the DF and TRF to be exported. 128 Although the evidence did not make this clear, as I understand it, the Minister's accreditations have been made contingent upon certain conditions concerning the management of the DF and TRF being satisfied. 129 By reason of concerns about the management of the DF and TRF, the exemptions granted by the Commonwealth Minister (which permit ABS to export its catch) have been granted for limited periods. Those periods have been extended successively with, at the time of the hearing, the most recent expiry date being 13 June 2020. Without a continuation of the exemption, ABS is not permitted to export any of its catch. 130 At the hearing, ABS submitted that the "approvals [under the EPBC Act] are in doubt and must be attended to urgently for the fisheries to be able to continue to operate lawfully". It sought to rely on this as indicating the existence of real and immediate issues, submitting: [I]t is clear that there are rights and duties in issue at this point in time. The rights in issue are those held by ABS which arise from its ownership of 66% of the units in the DF … The duties in issue are those owed by the NTFJA under the [NT Fisheries Act] which impact directly on the worth of those units as well as the DF and TRF and their environments. There is no lack of immediacy. On the materials before the Court at least one of the approvals of the DF under the EPBCA has already expired. 131 ABS also referred to passages in the Chief Executive's memorandum to the Minister of 16 January 2020: As outlined in Ministerial Brief 2019/0859-PAK, the export approval for the TRF and DF has been extended for six months until 13 June 2020. The extension is subject to a number of conditions being met within specified timeframes and the finalisation of the new management framework is integral to meeting those conditions. The Department of Environment and Energy has advised that the existing management frameworks for the TRF and DF will not receive another approval to export beyond the current period if the conditions are not met. The new management framework for the Offshore Snapper Fisheries will not only meet the conditions for export approval, but also position the fishery world for third party accreditation in the future. 132 In addition, ABS referred to a letter from the Department of Environment and Energy (Cth) (DEE) of 9 December 2019 which stated: If this information is not provided within the timeframe specified, the Department will be unable to undertake an assessment of the fisheries under the EPBC Act and the Part 13A approvals for these fisheries will not continue. This will mean that from 13 June 2020 product from these fisheries will not be permitted to be exported unless a new approval is granted. 133 On this basis, ABS submitted that there is presently a clear and immediate justiciable controversy concerning its ability to export its catch. 134 However, as the Solicitor-General noted, the fate of these proceedings is not shown to have any effect on any rights of ABS under the EPBC Act. That is to say, even if the Court did declare that the Proposed Framework does contain a management plan and declare that management plan to be invalid, or declare the process by which it is being developed invalid, it would not have any effect on the export rights of ABS in respect of its catch. ABS will not have these rights because the Commonwealth has indicated that it is not extending export approvals while the existing management arrangements continue. 135 This reveals the incongruity in ABS's reliance on the expiry of the export period allowed under the EPBC Act and its present inability to export fish. By this litigation, it seeks to postpone any changes to the existing DF and DRF possibly for some years even though, if the attitude of the Commonwealth remains the same, it will thereby be precluded from exporting its catch. Yet, with a view to establishing the immediacy and reality of an issue indicating the presence of a "matter", it wishes to rely on the statement attributed to DEE that there will not be any further extensions of the export approvals while the current arrangements are in place. Related to this is the incongruity in ABS challenging the changes said "to meet the conditions for export approval" while contending that the loss of the ability to export gives rise to an immediate justiciable issue. However, putting those incongruities to one side, ABS relies on the loss of the ability to export when that loss has arisen for reasons which are independent of the issues it wishes to raise in this litigation and will continue irrespective of ABS's success or failure in the litigation. 136 For these reasons, I am not satisfied that resort to the Commonwealth's actions under the EPBC Act avails ABS presently.

The claim for prerogative relief 137 ABS submitted that its claim for prerogative relief in respect of the Minister's decisions on 6 March 2020 in relation to the Proposed Framework does not involve any element of futurity and indicated present and immediate issues to be determined by the Court. The claims for prerogative relief was not articulated in the Concise Statement but ABS's written submissions indicated that this claim has the following elements: (i) as a member of the NTFJA, the Minister is bound by the public consultation process set out in s 70C of the NT Fisheries Act in relation to a proposed management plan and is obliged not to prejudge, or to be seen to prejudge, the outcome of that process, citing Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17, (2001) 205 CLR 507 at [100]-[105], [176] and MacTiernan; Ex parte Coogee Coastal Action Coalition [2005] WASCA 109, (2005) 30 WAR 138 at [64]; (ii) the Minister has acted in such a way as to give rise to a reasonable apprehension by a reasonable and informed member of the public that the Minister may not be open to persuasion to take a different position from that adopted on 6 March 2020; (iii) as the exercise of the NTFJA's power to approve a management plan under s 70C is a condition precedent to the exercise of the Administrator's powers under s 70(1) to amend the Fisheries Regulation, which powers directly affect the rights of ABS, the Minister's decision is amenable to certiorari; and (iv) as the Minister must by necessity be a decision-maker, the appropriate relief is to quash the decision. 138 For the reasons which follow, the difficulty for ABS is that the Minister's decisions of 6 March 2020 are not decisions in respect of which a writ in the nature of certiorari will issue. 139 In Ainsworth, the High Court considered the availability of certiorari to quash a report prepared by the Criminal Justice Commission and tabled in Parliament under the Criminal Justice Act 1989 (Qld) containing adverse recommendations about certain persons involved in the poker machine industry. The plurality (Mason CJ, Dawson, Toohey and Gaurdron JJ) said at 580: The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review. The report made and delivered by the Commission has, of itself, no legal effect and carries no legal consequences, whether direct or indirect. It is different when a report or recommendation operates as a precondition or as a bar to a course of action, or as a step in a process capable of altering rights, interests or liabilities. A report or a recommendation of that kind may be quashed, that is to say its legal effect may be nullified by certiorari. 140 To like effect, Brennan J said at 595 that "quashing annihilates the legal effect of an act or decision that has been reached in breach of a condition of its validity but, if an act or decision has no legal effect, there is nothing to quash". 141 In Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149 at 159, the majority (Brennan CJ, Gaudron and Gummow JJ) referred to these passages in Ainsworth and continued: Thus, for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing. This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue: (1) where the decision under challenge is the ultimate decision in the decision-making process and the question is whether that ultimate decision sufficiently "affects rights" in a legal sense; (2) where the ultimate decision to be made undoubtedly effects legal rights but the question is whether a decision made of a preliminary or recommendatory stage of the decision-making process sufficiently "determines" or is connected with that decision. 142 Plainly, the present case is not of the first kind to their Honours referred. Nor is it within the second because, as the following reasons of their Honours indicated, a preliminary decision or recommendation will be amenable to certiorari only if it constitutes a condition precedent to the exercise of power affecting legal rights or is matter to which the final decision-maker must have regard, at 164-5. 143 The decisions made on 6 March 2020 by the Minister are not of that kind. ABS did not point to any statutory power being exercised by the Minister in making the decisions other than the exercise of his general Ministerial authority over the Department. The NT Fisheries Act did not require that the Minister make any of the eight decisions made on 6 March 2020 and none of them is a precondition to the exercise of the NTFJA's functions under Subdiv 2 of Div 2 in Pt 6 of the NT Fisheries Act. The Minister's decisions are more accurately characterised as a form of Ministerial endorsement for the Department continuing with the development of the Proposed Framework with a view to it, and documents which may be appropriate to give effect to it, being considered by the NTFJA in due course. The decisions may also be understood as an acceptance by the Minister of political responsibility for the steps recommended in the Chief Executive's memorandum. But whatever the appropriate characterisation, none of the Minister's decisions on 6 March 2020 had any legal effect. None was a condition precedent to the NTFJA's consideration of the matter, and none was a matter which the NTFJA was obliged to take into account. 144 The third element of ABS's submission concerning the availability of certiorari, set out above, seemed to recognise this difficulty. However, it is not to the point that the exercise of the power of the NTFJA to approve a management plan under s 70C is a condition precedent to the exercise of the Administrator's powers under s 70(1) of the NT Fisheries Act. That circumstance could not have the effect of making the Minister's decisions of 6 March 2020 a condition precedent to the exercise of the NTFJA's powers. 145 In these circumstances, ABS's reliance on the claim for prerogative relief in answer to the Territory Respondents' interlocutory application does not avail it. 146 Counsel for ABS made a related submission, namely, that the Minister had no authority on 6 March 2020 to authorise the drafting of amendments to the Regulations. As I understood it, the sole basis for this submission is the terms of s 70 of the NT Fisheries Act. However, there is nothing in s 70 which precludes the Department drafting, or causing to be drafted, amendments to the Fisheries Regulations for consideration by the NTFJA.

Conclusion on the application under r 13.01(1)(a) of the FCR 147 For the reasons set out above, I am satisfied that the application of the Territory Respondents for an order under r 13.01(1)(a) of the FCR should be upheld because ABS is seeking to agitate matters which are hypothetical and which have no real or immediate impact on its rights and interests. This means that there is not a "matter" before the Court within the meaning of s 39B(1A) of the Judiciary Act. It is also evident that ABS seeks, in effect, an advisory opinion. The appropriate order to give effect to this decision is an order dismissing the proceedings.

The application under s 31A 148 The conclusion expressed above makes it unnecessary to consider the application of the Territory Respondents under s 31A of the FCA Act. I indicate, however, that, had it been necessary to do so, I would have accepted the submissions of the respondents that the proceedings have no reasonable prospect of success. 149 The formal order of the Court is that the proceedings are dismissed. I certify that the preceding one hundred and forty-nine (149) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice White.