The Tribunal's Interim Decision
4 Before the Tribunal, Austrade contended that, having regard to the description of "eligible products" set out above, only 20 per cent of the amount received by South Bank for the hire of its facilities is to be taken into account if the dealing was not one made directly with an overseas resident. The hire of the convention facilities often involved a local entity. South Bank's case was that the hire could be said to be "supplied" by it to the overseas resident for the purposes of item 7 because the Australian organiser was simply acting on behalf of the overseas resident. I observe that the decision South Bank sought to be reviewed by the Tribunal contained a reference to the paucity of documentation which had been put forward with respect to this version of events. Austrade pointed to the fact that leases were taken by the Australian organisers; and that "supply for consideration" naturally be understood to refer to the person who contracted for the space.
5 The Tribunal did not advert to the factual basis for South Bank's case. Before me, Austrade submitted that what facts as are necessary to be found by the Tribunal are of small compass. The question of law which the parties requested the Tribunal address was only as to the meaning of the word "supplied" in s 10.
6 The Tribunal held the word "supply" to have a wide meaning and observed that in The Commonwealth of Australia v Sterling Nicholas Duty Free Pty Limited (1972) 126 CLR 297, Menzies J had construed it simply as "to provide or furnish". The Tribunal concluded:
"33. I am satisfied that it is open to find that the applicant provides its convention centre to the overseas organisers of conventions albeit that the said provision of the facilities is organised by Australian professional conference organisers.
34. If I am right that the definition of supply merely excludes gratuitous supply then I am satisfied that not only is it open to find that the applicant supplies convention facilities to overseas organisers of conventions but there need not be a contractual relationship between the applicant and the overseas convention organisers. The applicant receives payment for the supply of its convention facilities and that is sufficient, in my view for the purposes of section 10 where the supply is to a person not a resident of Australia. Section 10 does not require that the consideration received for the supply be received from an overseas source."
The "interim decision" was in these terms:
"I am satisfied that it is open for the Tribunal to find that the applicant supplied convention facilities to overseas organisers of conventions for the purposes of section 10 of the Export Market Development Grants Act 1997."
7 When this matter first came before the Court on a directions hearing, I raised with the parties the lack of any determination on the part of the Tribunal. As a consequence, the question as to the Court's ability to entertain the application was treated as a preliminary issue in respect of which Austrade, as applicant, made submissions. South Bank did not wish to be heard.
8 Two sources of jurisdiction were identified by Austrade: subs 5(1) and 6(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the "ADJR Act"), providing for review of an administrative decision or conduct leading to the making of that decision; and s 39B(1A)(a) of the Judiciary Act 1903 (Cth), as a declaration is here sought by the Commonwealth in a matter. Submissions focussed substantially on the latter. No reliance was placed upon s 44(1) Administrative Appeals Tribunal Act 1975 (the "AAT Act"), which provides that a party to a proceeding before the Tribunal may appeal to this Court:
"… on a question of law, from any decision of the Tribunal in that proceeding."
9 Whilst some reliance had been placed upon the conduct of the Tribunal relating to the making of the interim decision, in written submissions, that approach was not pursued on the hearing. The difficulty that argument had sought to address was, of course, that the "decision" was not one of a final nature, one operative or determinative in the sense referred to in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 337. I take it that South Bank's lack of reliance on s 44 AAT Act was for the same reason, since the "decision" the subject of an appeal under s 44 must be the effective, and usually the final, decision referred to in s 43: Director General Social Services v Chaney (1980) 31 ALR 571, 593.
10 On the hearing of this point, issue was not taken with the ability of the Tribunal to split hearings and I will not deal further with that question. In this case, both parties to the proceedings sought the Tribunal's view upon the meaning of the terms earlier referred to. It was conceded by senior counsel for Austrade that the interim decision could not be said to bind the Tribunal Member when he came to determine the matter after a final hearing. It would not be the first time that a view stated at an earlier point in proceedings is changed when the full facts are put forward and argument is developed in light of those facts; or the argument proceeds in a different way so that it achieves the necessary level of persuasion in the decision maker. Mr Logan SC submitted that it is apprehended that the Tribunal Member is unlikely to waiver from the position taken to this point. That should not be assumed. To this point all that has been provided, it seems to me, is a preliminary view on a finding open to the Tribunal on the facts presently before it. It does not determine a question concerning the construction of s 10. It is not a decision which determines the matter, or which has any outcome for the parties.
11 A decision under the EMDG Act is not excluded from the application of the ADJR Act pursuant to Schedule 1 ADJR Act. Sections 97 and 98 of the EMDG Act provide for decisions which are to be reviewable and for Austrade's reconsideration of such decisions on the request of the person dissatisfied with it. Section 99 provides that an applicant for review of a decision which has been confirmed or varied under that last mentioned process may seek review from the Administrative Appeals Tribunal. Section 44 of the AAT Act then provides for an appeal to this Court. Whilst the right to apply to the Court for review under ss 5 and 6 ADJR Act are expressed to be in addition to any other rights to seek a review (s 10(1)(a) ADJR Act), the Court has a discretion whether to refuse to grant such an application if adequate provision is made by any law other than the ADJR Act for that review: see s 10(2)(b)(ii). It is not necessary in this case to further consider these provisions. In a practical sense, the "decision" upon which either the application or appeal depends is of the same character.
12 Austrade submitted that the possibility of a decision which was not final or determinative and which might nevertheless be reviewable for error of law was left open in the reasons for judgment of Mason CJ in Australian Broadcasting Tribunal v Bond in the much quoted passage (337):
"… That answer is that a reviewable 'decision' is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment."
His Honour went on to add that another essential quality of a reviewable decision is that it resolve a substantive issue.
13 Austrade relies upon his Honour's qualification "but not always" in the second sentence of the passage quoted. In context however it seems to me that his Honour was saying no more than that the statute which makes provision for the decision may provide for an intermediate decision, although it would not usually do so. The answer to Austrade's contention appears from his Honour's summary of the view he held (338):
"The interpretation of 'decision' which I favour is not as broad as that preferred by the Federal Court in Lamb v Moss. There the Full Court of the Federal Court (Bowen CJ, Sheppard and Fitzgerald JJ), after reviewing the authorities, which the Court said revealed 'some inconsistency', stated :
'In our opinion, there is not limitation, implied or otherwise, which restricts the class of decision which may be reviewed to decisions which finally determine rights or obligations or which may be said to have an ultimate and operative effect.'
My view is more in accord with the tentative opinion expressed earlier by Ellicott J in Ross v Costigan when he said that 'it may well be that the word "decision" means an ultimate or operative determination not a mere expression of opinion or a statement which can of itself have no effect on a person'. However, I would not wish for myself to place emphasis on the words 'of itself' in this statement. To say that a reviewable decision is an ultimate or operative determination does not mean that antecedent conclusions or findings which contribute to the ultimate or operative decision are beyond reach. Review of an ultimate or operative decision on permissible grounds will expose for consideration the reasons which are given for the making of the decision and the processes by which it is made."
That is to say, his Honour considered that intermediate conclusions or findings may be considered, but only in connexion with an operative decision to which the Act referred since they provided the rationale for it; but his Honour, like Ellicott J in Ross v Costigan (1982) 59 FLR 184, did not consider that a mere expression of opinion, or a statement having no effect on a person would suffice. In my view, the decision in this case falls into both those categories. The fact that the decision does not resolve the substantive issue between the parties, in a final way, means that there is no remedy available to the parties with respect to the interim decision. If one considers s 16(1) of the ADJR Act, and the orders which may be made pursuant to it, it can be seen that there is no necessity for an order concerning the Tribunal's preliminary finding, because of its interim nature, and an order declaring the rights of the parties is unavailable. That subsection provides:
"On an application for an order of review in respect of a decision, the Court may, in its discretion, make all or any of the following orders:
(a) an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the Court specifies;
(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit;
(c) an order declaring the rights of the parties in respect of any matter to which the decision relates;
(d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties."
14 It is necessary then to consider s 39B(1A) Judiciary Act 1903. Austrade placed reliance upon the changes effected by its introduction in 1997. It provides:
"39B(1A) [Inclusions]
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."
15 Austrade's application placed reliance on (c) and in argument it was extended to (a). "Matter" is defined by s 2 to include any proceeding in a Court and any incidental proceeding in a cause or matter. This assumes some importance with respect to (a).
16 No question was raised concerning Austrade's assertion that it was suing on behalf of the Commonwealth. The declaration it sought was in these terms:
"On its true construction the word 'supplied' in s 10 of the EMDG Act means supplied by one person to another pursuant to a contract between those persons."
17 It will be observed that the declaration differs in effect from the Tribunal's interim decision, in the sense that it would amount to a pronouncement on an aspect of the construction of s 10. It does not go further and seek a determination of the rights of the parties consequent upon that pronouncement. That will be pronounced upon by the Tribunal after making findings as to the facts. It is proposed that any declaration issuing from the Court be placed before the Tribunal.
18 Section 77Constitution authorises the making of laws defining the jurisdiction of this Court with respect to the matters mentioned in ss 75 and 76. Section 75(iii) provides for jurisdiction in matters "in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party". Paragraph (a) of s 39B(1A) takes this up and limits the jurisdiction derived from the Commonwealth's position as a party by reference only to the nature of the relief sought. Pars (b) and (c) reflect, respectively, s 76(i) and (ii). Austrade's argument might also derive support from par (c) of s 39B(1A), as was referred to in the application filed, since it concerns a matter arising under the EMDG Act.
19 Difficulties here arise from the terms of the declaration sought, the fact that it is not determinative of the parties' rights and that it is sought to be made without reference to the facts relevant to South Bank's claim. There would seem to be two ways of approaching these problems: to consider whether a "matter" arises, to which s 39B(1A) might refer; and to consider whether the declaration should be made, as a matter of discretion and having regard to its utility. Similar concerns are reflected in the cases concerned with these questions.
20 A "matter" is constituted by a justiciable controversy between parties: Fencott v Muller (1983) 152 CLR 570; Abebe v The Commonwealth of Australia (1999) 197 CLR 510. Here a dispute, capable of determination according to legal principles, can be identified and concerns the right of South Bank to a grant under the EMDG Act. A resolution of that dispute is not and cannot however be sought in this Court, only an aspect of it is.
21 In In re Judiciary and Navigation Acts (1921) 29 CLR 257, the Court was concerned with the validity of a section in the first mentioned Act by which the Governor General could seek the opinion of the Court as to the validity of legislation. The majority said (at 265-266):
"…In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court. If the matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purpose may, we think, adopt any existing method of legal procedure or invent a new one. But it cannot authorize this Court to make a declaration of the law divorced from any attempt to administer that law. …"
and (at 267):
"…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 questions of law without the right or duty of any body or person being involved."
22 In Hooper v Kirella (1999) 96 FCR 1, 15 a Full Court of this Court cautioned against reading these passages out of context. The reference to an "immediate right, duty or liability" was used by the Court in In re Judiciary and Navigation Acts to distinguish a genuine controversy from a desire to obtain an advisory opinion. It did not require proceedings for substantive relief to be on foot before a "matter" existed. In Abebe, Gleeson CJ and McHugh J (524) referring to In re Judiciary and Navigation Acts, held that the determination of rights and obligations was central to the notion of a "matter". In the context of whether a controversy must be regarded as indivisible, their Honours held that it could give rise to separate matters because different courts may provide different remedies (529).
23 Answers, in the nature of opinions, are provided by the Courts when questions are referred, matters reserved or cases stated. In O'Toole v Charles David Proprietary Limited (No 2) (1991) 171 CLR 232, it was held that answers, provided to a case stated for the Court were not an advisory opinion of the type with which the Court had been concerned in In re Judiciary and Navigation Acts: Mason CJ, 243-4, where proceedings were in train in a Court or Tribunal. Of particular concern in that case was whether the opinion was binding. In Mellifont v Attorney-General for the State of Queensland (1991) 173 CLR 289, the majority said, with reference to the passages from In re Judiciary and Navigation Acts set out above:
"The passage contains two critical concepts. One is the notion of an abstract question of law not involving the right or duty of any body or person; the second is the making of a declaration of law divorced or disassociated from any attempt to administer it.
In O'Toole, it was explicitly recognized that answers given by the full court of a court to questions reserved for its consideration in the course of proceedings in a "matter" pending in that court do not constitute an advisory opinion or abstract declaration of the kind dealt with in In re Judiciary and Navigation Acts whether or not those answers, of themselves, determine the rights of the parties. Such answers are not given in circumstances divorced from an attempt to administer the law as stated by the answers; they are given as an integral part of the process of determining the rights and obligations of the parties which are at stake in the proceedings in which the questions are reserved. Once this is accepted, as indeed it must be, it follows inevitably that the giving of the answers is an exercise of judicial power because the seeking and the giving of the answers constitutes an important and influential, if not decisive, step in the judicial determination of the rights and liabilities in issue in the litigation. Viewed in this context, it matters not whether the giving of the answers is, as a matter of legal theory, a binding determination, that is, binding on the court at first instance and the parties, as Mason C.J. and Dawson J. thought, or influential, that is, binding in a practical sense or virtually so, as Deane, Gaudron and McHugh JJ thought."
24 There is a power given by s 45 AAT Actto the Tribunal to refer a question of law arising in a proceeding before it to this Court. I will not set it out. Whether the assistance of the Court is sought in a given case is a matter for the Tribunal and it is under no obligation to do so: Re Hassell; Ex parte Pride & Norman (No 2) (1984) 2 FCR 319, 321-323. Pursuant to the section, a reference requires the concurrence of a presidential member or the President; it is heard by a Full Court; and the Tribunal is prohibited from giving a decision to which the question is relevant whilst the reference is pending and from making a decision that is inconsistent with the opinion of the Court. The latter requirement would go a long way towards allaying concerns as to whether it would be influential in the determination of the parties' rights. That would still, however, leave the question whether it was appropriate, in a given case, to answer the question.
25 A reference under s 45 AAT Act would involve the exercise of judicial power with respect to a matter and there would seem to be no reason, in principle, to regard a step taken towards a determination, by seeking a declaration, in a different way. Whether the declaration sought would be effective for that purpose and whether discretionary considerations might weigh against the making of it are separate questions. Discretionary factors might include whether the parties should undertake the procedure provided for, one which involves the Tribunal, and whether they be discouraged from duplicating costs and seeking the view both of the Tribunal and of the Court. I will not deal further with these matters, since it seems to me that a declaration in the terms sought could not be said to provide an answer to South Bank's claim to entitlement.
26 My considerations to this point are relevant to s 39B(1A)(c) Judiciary Act which is concerned with a "matter" arising under a statute and in the sense discussed, which has regard to the subject or controversy, but not the proceedings themselves. The definition of "matter" in s 2 of the Act would not be consistent with that enquiry. As I have earlier observed, under s 39B(1A)(a) jurisdiction relies only upon a party, the Commonwealth, seeking particular remedies in a "matter". In this context it would seem to me wholly appropriate for the definition section to operate - which includes the proceedings themselves. It would follow that jurisdiction is given to the Court under (a) when proceedings are instituted and in them the Commonwealth seeks a declaration or an injunction. The same discretionary considerations referred to above would apply.
27 The declaration sought is to the effect that "supplied" in s 10 comprehends a contract between two persons. This is directed to the product description in item 7. It provides for the whole, and not merely a percentage, of relevant earnings to be taken into account in assessing a grant and is expressed to apply when there is not an indirect tourism service. The latter service is that referred to in item 5, one which involves an initial supply to an Australian resident and the supply on by them to a non-resident.
28 The facts and the evidence concerning the transactions relied upon by South Bank in support of its claim to a larger grant are unclear. They are not yet the subject of findings by the Tribunal and are not the subject of agreement. One may take it that South Bank will argue that the local organisers were the agents of the non-residents; and that the circumstances referred to in item 5 did not arise, but there is nothing to show what the true facts were. One infers from Austrade's argument that it will contend for findings closer to the facts referred to in item 5. The Tribunal's "interim decision", in my view reflects the uncertainty which presently attends the facts and leaves open what its findings might be. The declaration sought might not then have application to the facts as found and should not, in my view, be made. In Bass v Permanent Trustee Company Limited (1999) 73 ALJR 522, 533 the majority, speaking of declarations amounting only to advisory opinions, said:
"As the answers given by the Full Court and the declaration it made were not based on facts, found or agreed, they were purely hypothetical. At best, the answers do no more than declare that the law dictates a particular result when certain facts in the material or pleadings are established. What those facts are is not stated, nor can they be identified with any precision. They may be all or some only of the facts. What facts are determinative of the legal issue involved in the question asked is left open. Such a result cannot assist the efficient administration of justice. It does not finally resolve the dispute or quell the controversy. Nor does it constitute a step that will in the course of the proceedings necessarily dictate the result of those proceedings. Since the relevant facts are not identified and the existence of some of them is apparently in dispute, the answers given by the Full Court may be of no use at all to the parties and may even mislead them as to their rights. Courts have traditionally declined to state - let alone answer - preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred."
(See also Femcare Ltd v Bright [2000] FCA 512, [42].
29 The position here may be contrasted with that in Great Barrier Reef Marine Park Authority v Forgie [1999] FCA 1071, upon which Austrade relied, where Drummond J was of the view that the answer to the question of law raised was capable of resolving the litigation in the Tribunal.