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.