Consideration
181 ABS has not demonstrated any error in the factual findings of the primary judge with respect to the legal status of the Proposed Framework, or his Honour's statements of legal principle.
182 The critical factual findings with respect to the legal status of the Proposed Framework were that: it is in the nature of a policy document (at [123]); it has not been developed in the exercise of a particular statutory power (at [123]); it follows that it is not a management plan nor even a proposed management plan (we interpolate, for the purposes of s 70A of the Fisheries Act) (at [124]); it has no status beyond that given to it by the Territory Minister on 6 March 2020, namely, an endorsed draft management framework (at [124]); it is in substance a work in progress; and whether it will be subject to further amendment and, more significantly, whether it will be approved by the NTFJA, is not presently known.
183 The events that occurred after the judgment below, which are the subject of the further evidence, serve only to confirm the above critical findings. As set out earlier, on 6 March 2020 the Territory Minister indicated "in principle" support to declare the Northern Offshore Fishery as a managed fishery; endorsed the "Draft Management Framework" for the Northern Offshore Fishery which was documented in the Proposed Framework; approved the drafting of a management plan for the Northern Offshore Fishery; and approved the drafting of an amendment to the Fisheries Regulations to revoke those regulations relevant to the Demersal Fishery and Timor Reef Fishery (subject to NTFJA approval of the new management plan). The further evidence shows that those steps were subsequently undertaken by the Department. Relevantly, the Department prepared a draft proposed management plan for the Northern Offshore Fishery (in the form of the Draft Management Plan). The Draft Management Plan was endorsed by the Territory Minister on 20 July 2021 and provided to the Commonwealth Minister as a member of the NTFJA for consideration. While ABS has sought to demonstrate similarities between the Proposed Framework and the Draft Management Plan, there are material differences between the two documents. The further evidence demonstrates the correctness of the primary judge's finding that the Proposed Framework was a work in progress and there was no certainty that it would become a proposed management plan adopted by the NTFJA in respect of the proposed Northern Offshore Fishery. Indeed, at present, even the Draft Management Plan has no legal effect. It has not been, and cannot be, approved and adopted by the NTFJA as a proposed management plan for the Northern Offshore Fishery until:
(a) first, the Northern Offshore Fishery has been declared pursuant to s 22 of the Fisheries Act; and
(b) second, an arrangement has been made between the Territory and the Commonwealth for the management of the Northern Offshore Fishery pursuant to s 64 of the Fisheries Act and s 74 of the Fisheries Management Act.
184 The applicable legal principles concerning the identification of a "matter" are well-established. As recently stated in one of the majority judgments in Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; 399 ALR 214 (Hobart International Airport), a "matter" within the meaning of Ch III of the Constitution has two elements: the subject matter as defined by reference to the heads of jurisdiction set out in Ch III; and a dispute which constitutes a justiciable controversy (at [26] per Kiefel CJ, Keane and Gordon JJ). The subject matter element is not in dispute in this proceeding: ABS' claims for relief arise under laws made by the Commonwealth Parliament. The dispute concerns the second element: whether ABS' claims involve a justiciable controversy.
185 In passages cited by the primary judge, the majority (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ) in Re Judiciary and Navigation Acts (1921) 29 CLR 257 (at 265-267) determined:
… we do not think that the word "matter" in [s 76 of the Constitution] means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion 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.
…
… 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. … 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 questions of law without the right or duty of any body or person being involved.
186 In Abebe, Gleeson CJ and McHugh J further explained (at [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 …
187 As has been often stated by the High Court, jurisdiction (the authority to decide) and judicial power are different concepts (see most recently Rizeq v Western Australia (2017) 262 CLR 1 at [84]-[87] per Bell, Gageler, Keane, Nettle and Gordon JJ and [125]-[134] per Edelman J). The fact that a remedy may be refused by the Court in the exercise of judicial power does not deny the existence of a "matter". However, there will be no justiciable controversy, and therefore no "matter" for determination, if there is no available remedy in respect of the claim: Hobart International Airport at [30]-[31] per Kiefel CJ, Keane and Gordon JJ and at [47] per Gageler and Gleeson JJ.
188 The principles as to the availability of declaratory relief were stated by the plurality (Mason CJ, Dawson, Toohey and Gaudron JJ) in Ainsworth v Criminal Justice System (1992) 175 CLR 564 (Ainsworth) in the following terms (at 581-582, citations omitted):
It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise." However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed 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".
189 By reference to the above passage, in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, Gaudron J observed (at [52]) that the unavailability of declaratory relief to answer hypothetical questions, and which can produce no foreseeable consequences for the parties, is not simply a matter of discretion; rather, the unavailability of the remedy will mean that there is no "matter" for the purposes of Ch III of the Constitution. So too, in CGU Insurance, the plurality (French CJ, Kiefel, Bell and Keane JJ) said (at [26], citation omitted):
It is a necessary condition of federal jurisdiction, in the sense of authority to exercise the judicial power of the Commonwealth, that the matter in which the jurisdiction of the court is invoked is "capable of judicial determination" or "justiciable". That concept of justiciability does not embrace a purely advisory opinion.
190 The distinction between a declaratory judgment and a hypothetical or advisory opinion was explained by the majority (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) in Bass as follows (at [45], [47], [48], citations omitted):
45 The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy. In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd, Kitto J said:
"[J]udicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons ... [T]he process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which ... entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist."
…
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. …
48 It is true that some have seen the use of the declaratory judgment as little more than the giving of an advisory opinion. However, one crucial difference between an advisory opinion and a declaratory judgment is the fact that an advisory opinion is not based on a concrete situation and does not amount to a binding decision raising a res judicata between parties. Thus, the authors of one recent text on declaratory judgments emphasise that, where the dispute is divorced from the facts, it is considered hypothetical and not suitable for judicial resolution by way of declaration or otherwise. They say:
"If ... the dispute is not attached to specific facts, and the question is only whether the plaintiff is generally entitled to act in a certain way, the issue will still be considered theoretical. The main reason for this is that there may be no certainty that such a general declaration will settle the dispute finally. Subsequent to that declaration a person (the defendant himself or someone else) may be adversely affected by a particular act of the plaintiff. It may then be doubtful whether this act is covered by the declaration. In such a case the affected person will probably be entitled to raise the issue again on its special facts. Indeed, such a declaration will in effect be a mere advisory opinion."
191 As the majority expressly recognised in Bass (at [47]), the jurisdiction to make a declaratory judgment includes the power to declare that conduct which has not yet taken place will not be in breach of a contract or a law and such a declaration will not be hypothetical in the relevant sense. In The Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297 (Sterling Nicholas), Barwick CJ observed (at 305):
The jurisdiction to make a declaratory order without consequential relief is a large and most useful jurisdiction. In my opinion, the present was an apt case for its exercise. The respondent undoubtedly desired and intended to do as he asked the Court to declare he lawfully could do. The matter, in my opinion, was in no sense hypothetical, but in any case not hypothetical in a sense relevant to the exercise of this jurisdiction. Of its nature, the jurisdiction includes the power to declare that conduct which has not yet taken place will not be in breach of a contract or a law. Indeed, it is that capacity which contributes enormously to the utility of the jurisdiction.
192 In Australian Gas Light Co v Australian Competition and Consumer Commission (No 2) [2003] FCA 1229 (AGL (No 2)), French J said (at [40]):
The making of a declaration as to the lawfulness of future conduct has long been accepted as an exercise of judicial power. The fact that declaratory relief relates to future conduct does not place it outside the bounds of federal jurisdiction. If the claim for the declaration arises out of a contemporary controversy in which a party's freedom of action is challenged in some way, that controversy can constitute a matter for the purposes of the exercise of federal jurisdiction. Whether or not there is a real controversy is a question of judgment. In the present case, in my opinion, there is a real controversy about the right or freedom of AGL to proceed with the proposed acquisition in relation to the Loy Yang A power station and the coal mine. Its freedom to do so has been challenged in a very practical way by the regulator in correspondence and most explicitly in its defence where it denies that the proposed acquisitions would not contravene s 50 of the Trade Practices Act. Reservations about or opposition to a proposed acquisition expressed by the regulator can have very concrete commercial consequences and may in some, if not most, cases effectively prevent an acquisition from proceeding.
193 As identified by the primary judge, the principles as to the availability of certiorari were stated by the plurality (Mason CJ, Dawson, Toohey and Gaudron JJ) in Ainsworth in the following terms (at 580, citations omitted):
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.
194 In separate reasons, Brennan J explained (at 595, citation omitted):
Certiorari is not available. Certiorari might go to quash a report if its production or furnishing were to affect directly a prosecutor's rights or were to subject them in some way to a new hazard but, as the Commission's Report has no legal effect, there is nothing to be quashed. 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.
195 So too, in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159-160, the majority (Brennan CJ, Gaudron and Gummow JJ) referred to the above passages in Ainsworth and continued (emphasis added):
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.
The form in which a decision-making structure is established may be likely to indicate the nature of the function exercised at each stage within that structure. Nevertheless, the difference between the two situations outlined above is one of substance as well as form. In the second situation, the question becomes whether the stage of the process under challenge has the necessary effect on the final or ultimate decision. …
196 As discussed earlier, ABS' claims in the proceeding concern past actions or decisions and also future actions or decisions.
197 As to past actions or decisions, ABS seeks declarations that:
(a) the proposed management plan as set out in the Proposed Framework has not been formulated or prepared by the NTFJA validly or at all in the discharge of the functions under s 66 of the Fisheries Act; and
(b) the proposed management plan as set out in the Proposed Framework does not further, and is not consistent with, the objects of the Fisheries Act.
198 ABS also seeks an order in the nature of certiorari quashing, or a declaration declaring invalid, the decisions of the Territory Minister of 6 March 2020.
199 On the uncontroversial facts, the above declarations seek to answer abstract questions for which the Court's declaration will produce no foreseeable consequences for the parties. In relation to the first declaration, there is no dispute between the parties that the proposed management plan as set out in the Proposed Framework has not been formulated or prepared by the NTFJA in the discharge of the functions under s 66 of the Fisheries Act. ABS accepts that the NTFJA has not adopted the Proposed Framework. It is uncontroversial that, to date, the NTFJA has no functions in respect of the Northern Offshore Fishery because that fishery is yet to be declared under s 22 of the Fisheries Act and there is no arrangement between the Territory and the Commonwealth in respect of that fishery. It follows that the declaration can produce no foreseeable consequences for the parties. There is simply no dispute about that question and no immediate right, duty or liability arises in respect of it. Similarly, the second declaration raises a question which is entirely abstract and which can produce no foreseeable consequences for the parties. Once it is accepted that the Proposed Framework has not been prepared or adopted by the NTFJA, and has not been prepared in the exercise of any specific statutory power, but was prepared by the Department for the consideration of the Territory Minister, it must be concluded that the subject of the declaration is untethered to any right, duty or liability of any party.
200 On the well-established principles referred to above, certiorari is not available to quash the decisions of the Territory Minister of 6 March 2020 because the decisions have no legal effect and the decisions have no necessary effect on any future decision that may be made in respect of the Northern Offshore Fishery. Contrary to ABS' submission, the opposite proposition is not arguable. There is no dispute that the decisions of 6 March 2020 did not involve the exercise of any statutory power. As found by the primary judge (at [143]):
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.
201 The decisions were no more than the endorsement, by the Territory Minister, of work undertaken by the Department toward the establishment of the Northern Offshore Fishery and instructions to the Department to progress that work by drafting a management plan for the Northern Offshore Fishery as well as an amendment to the Fisheries Regulations to revoke the regulations relevant to the Demersal Fishery and Timor Reef Fishery. However, none of that work would become law, and thereby affect rights, unless and until (a) an arrangement is made between the Commonwealth and the Territory with respect to the Northern Offshore Fishery under s 74 of the Fisheries Management Act and s 64 of the Fisheries Act, (b) the management plan is formally adopted by the NTFJA as a proposed management plan under s 70A of the Fisheries Act, and (c) the management plan is publicly notified and subsequently approved by the NTFJA with or without amendment under s 70C of the Fisheries Act.
202 ABS' submission that the Territory Minister was bound not to act to prejudge or to be seen to prejudge the decision to be made under s 70C of the Fisheries Act does not assist its claim for certiorari. As submitted by the Territory Respondents, the remedy for bias is either recusal of the decision-maker before a decision is made or certiorari to quash the ultimate decision tainted by bias to remove its legal effect.
203 As to future actions or decisions, ABS seeks both declaratory and injunctive relief. ABS seeks declarations that:
(a) 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 NTFJA pursuant to s 70C(2) or s 70C(4) of the Fisheries Act; and
(b) the proposed management plan as set out in the Proposed Framework will effect an acquisition of ABS' property otherwise than on just terms contrary to s 50(1) of the NT Self-Government Act, and accordingly cannot be made a valid law of the Northern Territory.
204 ABS also seeks injunctions preventing the Territory Minister, as a member of the NTFJA, from endorsing or approving any proposed management plan or amendments to the Fisheries Regulations to give effect to the Proposed Framework or a framework substantially the same as the Proposed Framework, and preventing the Territory Respondents seeking the same approval from the Commonwealth Minister.
205 The claims for relief in respect of future actions or decisions of the NTFJA raise different questions to the claims for relief in respect of the preparation of the Proposed Framework and its in-principle approval by the Territory Minister on 6 March 2020. ABS seeks declaratory orders that a future adoption, or bringing into law, of "the proposed management plan as set out in the Proposed Framework" or "a framework substantially the same as the Proposed Framework" by the NTFJA will be invalid. The claimed invalidity arises from an alleged breach of the NTFJA's duty under s 66 of the Fisheries Act and because it will effect an acquisition of ABS' property otherwise than on just terms contrary to s 50(1) of the NT Self-Government Act.
206 As observed by Mortimer and Abraham JJ in Association for Employees with a Disability at [132], in some circumstances an order in the nature of a prohibition, or an injunction, may be issued to a body or other repository of statutory power to preclude it embarking upon a course of conduct which is (alleged to be) unlawful. Their Honours referred to Annetts v McCann (1990) 170 CLR 596 and Ainsworth (at 594-595, per Brennan J) as examples. Both examples concern issues of procedural fairness. As discussed earlier, the Court may also make a declaratory judgment that conduct which has not yet taken place will not be in breach of a contract or a law. It remains the case, however, that the question to be determined will not be justiciable, and will not give rise to a "matter" for determination, if the question is hypothetical.
207 The factual premise for the declaratory and injunctive relief sought by ABS is that the NTFJA is proposing to adopt and bring into law, pursuant to ss 70A and 70C of the Fisheries Act, the Proposed Framework as a management plan for the proposed Northern Offshore Fishery. The uncontroversial facts found by the primary judge, together with the further evidence adduced on the appeal, certainly establish that the Territory Minister supports the creation of the Northern Offshore Fishery. On 20 July 2021, the Territory Minister signed a number of documents directed to that end and provided the documents to the Commonwealth Minister. The documents do not, though, have legal force and the creation of the Northern Offshore Fishery remains subject to the consideration of the Commonwealth Minister, and any further deliberations between both Ministers as constituting the NTFJA. Accordingly, there remains uncertainty whether the Northern Offshore Fishery will ultimately be created. Even more significantly, there is uncertainty as to the content of any management plan that may be adopted by the NTFJA in respect of the Northern Offshore Fishery (if it were to be created). That uncertainty is reflected in the form of orders sought by ABS: it seeks a declaration in respect of "the proposed management plan as set out in the Proposed Framework or any amendment thereof" and seeks an injunction in respect of "any proposed management plan … to give effect to the Proposed Framework or a framework substantially the same as the Proposed Framework". The form of orders sought by ABS acknowledge an inevitable fact: that the future decisions of the NTFJA cannot be known in advance and the form of any management plan in respect of the Northern Offshore Fishery, if created, cannot be known in advance.
208 The circumstances of the present case are entirely different to cases such as Sterling Nicholas and AGL (No 2). Both of those cases involved an application to declare specific conduct lawful in circumstances where governmental authorities had asserted that the conduct was unlawful. The factual basis on which the declaratory relief was sought was certain, notwithstanding that it concerned future conduct.
209 In the present case, the factual basis for the declaratory and injunctive relief is entirely uncertain, both as to whether the impugned actions or decisions will be taken at all (the creation of the Northern Offshore Fishery) and the form of any management plan that may be adopted. In those circumstances, it must be concluded that the issues raised for determination are hypothetical and, in effect, ABS is seeking an advisory opinion from the Court. As the plurality stated in CGU Insurance (at [26]), the concept of justiciability does not embrace a purely advisory opinion.
210 The foregoing conclusions dispose of grounds 1 to 8 other than ground 5, which can be addressed briefly. By ground 5, ABS contends that the primary judge erred in concluding that:
(a) the fate of these proceedings is not shown to have any effect on any rights of ABS under the EPBC Act; and
(b) the loss of ABS' ability to export the fish it catches has arisen for reasons which are independent of the issues it wishes to raise in the proceedings below and will continue irrespective of ABS' success or failure in the proceedings below.
211 That ground concerns the reasons of the primary judge at [125]-[136]. In that section of the reasons, his Honour addresses submissions advanced by ABS relating to the regulation of fish exports under the EPBC Act. His Honour found (at [129]) that exemptions granted by the Commonwealth Minister under the EPBC Act, which permitted ABS to export its catch from the Demersal Fishery, had been granted for limited periods and, at the time of the hearing, the most recent expiry date was 13 June 2020. Without a continuation of the exemption, ABS is not permitted to export any of its catch. His Honour ultimately concluded that the Commonwealth's actions under the EPBC Act did not bear on the issues for determination on the application to dismiss the proceeding (at [136]). That was because (at [134]):
… 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.
212 ABS has not demonstrated any error in that conclusion. None of the claims advanced by ABS in the proceeding are based on rights, duties or liabilities arising under the EPBC Act. Specifically, ABS did not demonstrate that the relief it sought in the proceeding, as discussed above, could have any legal effect on a decision by the Commonwealth Minister to reinstate exemptions under the EPBC Act in respect of the export of fish caught in the Demersal Fishery. ABS submitted that there is a "link" between the outcome of this proceeding and approvals under the EPBC Act because "the Minister and the department administering the EPBCA have been pressing for up to date stock surveys since 2013 in order to assess the viability of whatever the NTFJA was planning to be fished and in what way from the DF to assess sustainability". The submission is necessarily founded on the contention, advanced by ground 3, that in the proceeding ABS is advancing a claim that the NTFJA is presently in breach of its duties under s 66 of the Fisheries Act by "failing to undertake and assess the results of a stock survey of the Demersal Fishery and the Timor Reef Fishery before seeking to formulate any plan of management for the Fisheries". For the reasons explained earlier, no such claim is advanced in the proceeding and ground 3 has been rejected.
213 For those reasons, the primary judge was correct to dismiss ABS' claims for relief because the claims did not give rise to a "matter" within s 39B of the Judiciary Act.
214 We note for completeness that it has been unnecessary to address the respondents' contention that any claim by ABS that the NTFJA is presently in breach of its duty under s 66 of the Fisheries Act would not give rise to a "matter" within s 39B of the Judiciary Act. That is because we have concluded that no such claim is advanced in this proceeding. While the respondents' submissions on that question correctly recite the applicable legal principles, the application of those principles in any case will depend on the nature of the claim that is made in the proceeding.