Great Barrier Reef Marine Park Authority v Forgie [1999] FCA 1473 | Case summary

Federal Court of Australia|1999-10-26|Before: Drummond J

1 It is necessary, at the outset, to spend a little time dealing with how the matter has now come before me. 2 The action was initiated by the applicant seeking an order to review the "decision" of the Administrative Appeals Tribunal that the Whitsundays Plan of Management prepared by the applicant under the Great Barrier Reef Marine Park Act 1975 (Cth) was administrative in character, rather than legislative. The litigation arose because the Authority refused Fantasea permission to install a private mooring at Whitehaven Beach, a locality within a setting 2 area established under s 1.9(c)(ii) of Div 4 and Table 3 of the original Plan of Management, descriptions not materially altered by the recent amendments to that Plan. 3 Over the objection of the second respondent, the applicant persuaded the Tribunal at a directions hearing to deal with the case on the basis that the first part of the hearing before the Tribunal should be confined to whether the Plan was a legislative or an administrative instrument. The Deputy President of the Tribunal who dealt with this issue, in a reserved decision expressed the opinion that the Plan was of an administrative character. But as I observed on 30 July 1999 at the directions hearing before me, there was a real doubt as to whether the Tribunal incorporated its conclusion in a decision capable of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). 4 However, counsel for the applicant then persuaded me that the question as to the legislative or administrative status of the Whitsundays Plan of Management would, if decided in favour of the Authority, be decisive of the litigation in the Tribunal: the second phase of that litigation which would involve a five day hearing into whether the Authority's refusal of the permission sought should be set aside, having regard to the facts of the matter, would become unnecessary. As I also then observed, counsel for Fantasea was unable to offer any convincing reason why that view should not be taken of the potentially decisive nature of the question of law as to the proper characterisation of the Plan of Management. 5 It was in these circumstances that I gave the Tribunal leave to amend the application for an order of review to seek a declaration under s 39B the Judiciary Act 1903 (Cth) that, on the proper construction of the legislation, the Great Barrier Reef Marine Park Act 1975 (Cth), the Plan of Management was of a legislative character. In conformity with my decision, an order was later made that the applicant's claim for this declaration be heard and determined in advance of other issues in the action. 6 The Plan of Management the subject of debate in the Tribunal and before me on 30 July 1999 was the Whitsundays Plan of Management prepared by the applicant and gazetted on 22 June 1998. When the hearing commenced before me on 22 October 1999 of this separate issue, I was told that that Plan of Management had been replaced or, more accurately, amended, with the amended Plan being published in the Gazette on 12 October 1999. It is apparent that very extensive amendments have been made by those gazetted on 12 October 1999 to the Plan in the form it was in previously. 7 Accordingly, I raised with counsel the need to amend the application to ensure that the declaration was sought in relation to the Plan in the form in which it now takes and whether it was appropriate for the Court to embark upon the hearing of the question whether that particular Plan was of a legislative or administrative character. In response, counsel for both parties submitted that the Court should proceed to determination of this issue in relation to the current Plan because, if it was in favour of the Authority, it would still result in the conclusion of the litigation. 8 Regulation 13AC(1) of the Great Barrier Reef Marine Park Regulations makes provision for applications for "a relevant permission" being made to the Authority. It was under this provision that Fantasea made its mooring permit application. The term "relevant permission" is defined in reg 4 of the Regulations to mean: "… a permission required under a provision of a zoning plan with respect to the purposes for which a zone may be used or entered". Whitehaven Beach is in the Central Section Zoning Plan established under the Act. It is in the "Marine National Park 'A'" Zone of this Zoning Plan. Clause 7.2 of the Zoning Plan, dealing with this zone, states, so far as is relevant, that it "sets out the only purposes for which the Marine National Park 'A' Zone may be used or entered". Sub-paragraph (a) sets out a number of particular purposes for which this zone may be used or entered, ie, as of right and without any further need for permission "unless otherwise stated in paragraph (b)". One of the purposes for which this zone may be used or entered, but only with the written permission of the Authority or its delegate under cl 7.2(b) is:

"(iv) the construction or conduct of mooring facilities for vessels".

9 Although the Zoning Plan made provision for Fantasea to establish the mooring it sought at Whitehaven Beach, provided it first obtained written permission of the Authority, the Authority disposed of Fantasea's application by holding that s 1.9(c)(iv) of Div 4 of the original Plan of Management prohibited the installation and use of such facilities in the Whitehaven Beach setting area. 10 Section 1.9(c) of Div 4 - "use strategies" - of the original Plan stated that "The Authority has developed the following strategies to manage use in the Area" and, in sub-par (iv), the following appeared:

"(iv) Restrictions on installing and using facilities in the Area

· Recognising that the installation of facilities at popular sites may lead to exclusivity and displacement of other users, the number of relevant permissions to install, and use, facilities in the Area is capped from the commencement of the Plan, except:

at Hardy Reef (permanently moored facilities only).

11 The Authority refused Fantasea's mooring application by holding in effect that its grant was barred by this provision: because it was legislative in character, it was irrelevant for the Authority to inquire into what can be called the merits of Fantasea's application. 12 The provision of the amended Plan corresponding to s 1.9(c)(iv) of Div 4 of the original Plan in the amended Plan is s 1.10(13) of Div 4 of the amended Plan. It is contained in a sub-heading "Restrictions on installing certain facilities in the Planning Area" and it provides:

"(13) Recognising that the installation of moorings and tourist facilities at popular destinations may lead to exclusivity and displacement of other uses, the number of such facilities permitted in the Planning Area will be capped, except:

13 In the original Plan, in contrast, it was said that the number of relevant permissions to install and use facilities in the Area "is capped from the commencement of the Plan". There is an obvious difference in language: the original Plan suggests that the number of relevant facilities was fixed at the number existing at the commencement of that Plan (although depending on the meaning given to the term "capped", not defined, at least one other reading is possible). In the amended Plan, however, the wording has significantly changed. The current provision can be read as a statement that there is an already identified maximum number of facilities that will be permitted in the Planning Area consistent with the objective sought to be achieved by this section, but that number has not yet been reached or, and perhaps more readily, as a statement that, while no maximum number of facilities has yet been identified, it is the intention of the Authority to do that at some stage in the future. It is apparent that, even if the current provision is of a legislative character, it almost certainly has quite a different meaning from the proscriptive language of the corresponding provision in the old Plan. 14 Even if the amended Plan of Management has legislative effect, it would be difficult to read the new provision as a prohibition on any moorings not already established at the date of the original Plan or at the date of the amended Plan. Yet the Authority wishes to contend that this is how the new section should be read, with the result that the Tribunal will be bound to dismiss Fantasea's appeal that is still pending before it. As senior counsel for the Authority recognised, it may well not be possible to arrive at the correct interpretation of the new provision without reference to factual material. Though not now able to point to any further material that may be relevant to the interpretation of the section, the applicant wants an opportunity to consider the matter: it was not prepared to deal now with the question of the proper reading of the section. 15 Even if the current provision s 1.10(13) is legislative in character, there are further difficulties for the Authority to surmount before it could rely on the section as of itself a sufficient answer to Fantasea's permit application. Section 39ZD provides:

(2) The plan of management must not be inconsistent with any provision of this Act or any provision of a zoning plan in force for the area, species or ecological community to which the plan of management relates.

(3) Without limiting the generality of subsection (2), a reference in that subsection to a plan of management being inconsistent with a provision of a zoning plan includes a reference to a plan of management permitting the doing of anything that is prohibited by the provision.

(4) A plan of management is taken not to be inconsistent with a zoning plan merely because it prohibits the doing of something that is not prohibited by the zoning plan.

(5) If the plan of management contains provisions (the enforcement provisions) prohibiting or regulating the doing of something, or requiring the doing of something, those provisions are to be included in a separate part of the plan.

(6) The enforcement provisions may prohibit the doing of an act even though the doing of the act would, apart from the enforcement provisions, be permitted or authorised by or under this Act.

16 It will be remembered that cl 7.2 of the Zoning Plan permits a person to use or enter Whitehaven Beach area for the purpose of "the construction or conduct of mooring facilities for vessels" provided written permission of the Authority or its delegate is obtained. The Authority's argument is that s 1.10(13), if legislative in character, prohibits any new mooring facility being established in the Whitehaven Beach area. That is, s 1.10(13) is said to destroy the discretion conferred on the Authority by cl 7.2 of the Zoning Plan to permit new moorings, although s 39ZD(2) states the basic principle that a plan of management must not be inconsistent with any provision of the zoning plan. If this were the only relevant provision and s 1.10(13) of the current Plan had the effect contended for by the Authority, it would be inconsistent with cl 7.2(b) of the Central Section Zoning Plan. 17 Section 39ZD(6) declares that the enforcement provisions of the Plan of Management, by prohibiting the doing of an act, can override provisions of the Act that permit or authorise the doing of that act. This would appear to cover actions permitted under the zoning plan as an instrument under the Act. But s 1.10(13) is not in the enforcement provisions of the current Plan. Its capacity to destroy the discretion to permit the mooring sought by Fantasea conferred by cl 7.2 of the Zoning Plan must be found elsewhere. The Authority points to s 39ZD(4). 18 Yet the Authority's argument is that s 1.10(13), not in the enforcement provisions, can prohibit the doing of an act permitted by or under the Act, ie, under the zoning plan made under the Act which instrument the same Authority is responsible for implementing. It might be thought an odd result if, although by s 39ZD(2) a Plan of Management must not be inconsistent with any provision of a zoning plan and the relevant zoning plan permits the establishment of mooring facilities in the Whitehaven Beach area without limit, provided written permission of the Authority is first obtained, the Authority itself can deprive that provision of the zoning plan of all effect by formulating a provision in its Plan of Management that fixes the maximum number of such facilities that can be installed there (if that is the proper reading of the section). 19 There is, I think, ground for reading s 39ZD(6) as containing an implication that provisions of the Plan of Management other than the enforcement provisions cannot prohibit the doing of an act permitted by or under the Act, including the zoning plan made under the Act. Section 39ZD(4) can be read as preventing a provision of the Plan of Management falling foul of the inconsistency rule in s 39ZD(2) merely because it prohibits the doing of something that is not prohibited by the zoning plan, in the sense that it is something which can be done as of right under the zoning plan. There may be good reason why an activity permitted as-of-right by the zoning plan, ie, an activity exempt from any capacity in the Authority to control it, should nevertheless be subject to prohibition by the Authority by an appropriate provision in the Plan of Management. But there is less reason why an activity already subject to the Authority's control, as is the establishment of new moorings at the place here relevant, under the zoning plan, should also be able to be prohibited by the Authority, by it including such a prohibition in a plan of management promulgated by it. 20 It is clear that the foundation on which I was urged to deal with the separate question of the legislative or administrative character of the Plan of Management has been falsified by the recent adoption by the Authority of the amended Plan and by issues that have emerged in the course of argument. The question of decisive import for this case is whether s 1.10(13) of the new Plan of Management destroys the discretion conferred on the Authority by cl 7.2 of the Zoning Plan, not whether the Plan in general has legislative status. Yet neither party wants me to decide the decisive question now: evidence may be required before that can be done. 21 If the Court were to make a determination on the proper characterisation of the current Plan of Management as legislative, there can be no certainty that that will settle even that issue, even as between the Authority and Fantasea: for the reasons given, the Tribunal, and the Court on any review or appeal, might well determine that s 1.10(13) does not have the decisive impact on Fantasea's application for permission that the Authority contends, without any need to consider the proper characterisation of s 1.10(13), let alone the proper characterisation of other provisions of the Plan. See Bass v Permanent Trustee Co Ltd (1999) 161 ALR 399 at 415. There may also be a question as to whether the Full Court would entertain an appeal from any declaration I might make, given that the rights of the parties would appear not to be governed or even affected by the general characterisation of the Plan of Management as legislative (if that were the conclusion reached) but rather by the interpretation of the section in the Plan that is of critical importance here. That the appeal Court has a discretion, even after litigation has been concluded by a final judgment, to refuse to deal with a decision not directly affecting the rights and obligations of the parties is established by cases such as Beitseen v Johnson (1989) 29 IR 336 and R v Secretary of State for Home Department; ex parte Salem [1999] 2 WLR 483. For the reasons given, any declaration I may make as to the proper characterisation of the Plan may well not be capable of being appealed or dealt with on appeal on a notice of contention because it was revealed as a determination that had no impact on the rights of the parties as ultimately found. If that were the result, not at all unlikely, a decision by me now on the proper characterisation of the Plan would not even be capable of raising an estoppel between the Authority and Fantasea. 22 There is good reason to refuse to give a decision on an issue that may be irrelevant to the final determination of the rights of the parties to this action, irrespective of how important it may be to the Authority. 23 In these circumstances, it seems to me that the proper course is to refuse to determine the questions in pars 4 and 5 of the applicant's amended application the subject of the orders I made on 1 October 1999. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Counsel for the Applicant: GJ Gibson QC with E Ford

Solicitor for the Applicant: Australian Government Solicitor

Solicitor for the Second Respondent: Macrossan & Amiet

Date of Hearing: 22 October 1999

Date of Judgment: 26 October 1999

Great Barrier Reef Marine Park Authority v Forgie

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