Great Barrier Reef Marine Park Authority v Indian Pacific Pearls Pty Ltd

Federal Court of Australia (Full Court)|2004-10-21|Before: Finkelstein JJ, Madgwick JJ

Background 1 This is an appeal on a question of law by the Great Barrier Reef Marine Park Authority ('the Authority') from a decision of the Administrative Appeals Tribunal ('the Tribunal') dated 15 December 2003, with further reasons delivered on 1 and 15 March 2004. The Tribunal granted a permit to Zen Pearls Pty Limited, the second respondent, and approved a permit to a related company, Indian Pacific Pearls Pty Ltd, the first respondent (collectively, 'the companies') to conduct pearl mariculture in waters offshore from Fantome and Orpheus Islands, in Juno Bay and Harrier Point respectively. These islands, located in the Central Section (see [5]) of the Great Barrier Reef Marine Park ('the Park'), form part of the Palm Islands group in North Queensland, the traditional owners of which, as found by the Tribunal and not disputed before the Court, are the Manbarra People, the third respondents. The fourth respondents are representative parties to the proceedings in the name of the Manbarra People. 2 A detailed history of the proceedings is contained in the Tribunal's decision. In summary, the Authority issued initial permits for pearl oyster farming over 10-hectare sites at both Harrier Point and Juno Bay to the first and second respondents respectively in 1997, for a period of 12 months. On 15 March 1998, the companies applied for further permits for 60 hectares at each site. The Authority granted the first respondent a permit for the Harrier Point site, but refused the second respondent a permit for the Juno Bay site. In September 1999, both these decisions were affirmed on reconsideration by a delegate of the Authority, although reasons for those decisions were not provided until July 2001. In August 2001, the second respondent applied to the Tribunal for a review of the decision to refuse a permit for the Juno Bay site and the third and fourth respondents applied to the Tribunal for a review of the decision to grant the first respondent a permit for the Harrier Point site. In those circumstances, the proceedings were consolidated and came before the Tribunal in August 2003. Throughout these proceedings, the companies have continued their farming operations at both sites.

Legislative Framework 3 The management of the Park is governed by the Great Barrier Reef Marine Park Act 1975 (Cth) ('the Act'), and the provisions governing the zoning of areas in the Park and the issuing of permits for prescribed and other activities are contained in the Great Barrier Reef Marine Park Regulations 1983 ('the Regulations'). In the period since 15 March 1998, which is the date the first and second respondents applied for renewal/enlargement of their permits, the relevant provisions of the Regulations have been re-numbered twice, although those provisions have in substance remained the same. For convenience, the regulations cited are those as at the date of the Tribunal's decision, namely 15 December 2003. 4 The object of the legislation is set out in s 5 of the Act, relevantly as follows: '… to make provision for and in relation to the establishment, control, care and development of a marine park in the Great Barrier Reef Region… .' 5 Under s 31(1), provision is made for the naming or designation of specific areas within the Park by proclamation of the Governor-General. In accordance with the relevant proclamation (dated 15 October 1984), reg 4 provides for a 'Central Section', part of which is the area the subject of the present dispute. 6 Section 32 provides for the preparation of zoning plans and contains the following: '(6) In respect of a zone, a zoning plan shall make provision with respect to the purposes for which the zone is to be, or may be, used or entered. (7) In the preparation of the plan, regard shall be had to the following objects: (a) the conservation of the Great Barrier Reef; (b) the regulation of the use of the Marine Park so as to protect the Great Barrier Reef while allowing the reasonable use of the Great Barrier Reef Region;… .' 7 The Great Barrier Reef Marine Park Central Section Zoning Plan ('Zoning Plan') creates six designated areas, of which only two are relevant to the present case. General Use 'A' Zone, which covers the majority of the Harrier Point site, has the following objective: 'To provide opportunities for reasonable general-use consistent with the conservation of the [Park]'. 8 The majority of the Juno Bay site is zoned as General Use 'B', which has the following objective: 'To provide for the conservation of the [Park] while providing opportunities for reasonable general-use in areas that are free from trawling and generally free from shipping'. 9 The purposes for which each zone may be used or entered are set out in Clauses 5.2 and 6.2 of the Zoning Plan. Both zones permit, with the written permission of the Authority or its delegate, 'the farming of marine resources including the operation, construction, maintenance, demolition or removal of any associated facility'; 'the construction or conduct of mooring facilities for vessels'; and 'any purpose … consistent with the objective of the Zone'. 10 The process for obtaining 'the written permission of the Authority' is contained in reg 18, which bears the title 'Application for a relevant permission'. (Under reg 4, a relevant permission means 'a permission required under a provision of a zoning plan with respect to the purposes for which a zone may be used or entered.') 11 Regulation 18(4) provides: '(4) In considering an application for a relevant permission, the Authority must have regard to: (a) the objective of the zone; and (b) the need to protect the cultural and heritage values held in relation to the Marine Park by traditional inhabitants and other people; and (c) the likely effect of granting permission on future options for the Marine Park; and (d) the conservation of the natural resources of the Marine Park; and (e) the nature and scale of the proposed use in relation to the existing use and amenity, and the future or desirable use and amenity, of the relevant area and of nearby areas; and (f) the likely effects of the proposed use on adjoining and adjacent areas and any possible effects of the proposed use on the environment and the adequacy of safeguards for the environment; and (g) the means of transport for entry into, use within, or departure from, the zone or designated area and the adequacy of provisions for aircraft or vessel mooring, landing, taking off, parking, loading and unloading; and (h) in relation to any structure, landing area, farming facility, vessel or work to which the proposed use relates: (i) the health and safety aspects involved, including the adequacy of construction; and (ii) the arrangements for removal upon the expiration of the permission of the structure, landing area, farming facility or vessel or any other thing that is to be built, assembled, constructed or fixed in position as a result of that use; and (i) the arrangements for making good any damage caused to the Marine Park by the proposed activity; and (j) any other requirements for ensuring the orderly and proper management of the Marine Park; and (k) any charge payable by the applicant in relation to a chargeable permission (whether or not in force) that is overdue for payment; and (l) if the application relates to an undeveloped project, the cost of which will be large - the capacity of the applicant to satisfactorily develop the project.'

The Tribunal's reasoning 12 The Tribunal commenced its reasons by describing the geography of the relevant area, the traditional inhabitants and the history concerning the original permits and subsequent applications for their renewal. It is not necessary to set those matters out again in detail here, save to note that, before the Tribunal, the companies claimed that when the initial permits were granted by the Authority, there was an assurance that the permits would be renewed, although no detailed evidence was provided in relation to this claim. In those circumstances, the Tribunal stated that it could not act on this assertion. However, all parties accepted that it was known that a pearl farming operation could not be made commercially viable in one year, and so the one-year initial permits would be followed by applications for further permits. 13 The Tribunal then described the nature of the pearling operations carried out on both sites, including: · the companies' method of pearl-farming involving suspending oyster shells from long lines at various depths; · the type of work involved in pearl production; · that there were already three vessels in the area (including a 15 metre tug boat usually moored on the Juno Bay site); and · the companies' plans for the development of the business to a seven day permanent operation including a hatchery at the Juno Bay site, a farm at the Harrier Point site and a need for a 25 to 30 metre vessel used for accommodation of up to 14 people. 14 Consideration was given to the natural and observable impact of the pearling operations. All parties accepted there were no ecological impacts of concern. Implicitly, this was a very important finding, as will appear. 15 In relation to movement in and around the subject areas, the Tribunal stated that for practical purposes navigation by others would virtually be precluded in the two areas because, although smaller vessels could be navigated through the lines, 'most navigators would feel compelled to give the area a wide berth'. 16 The Tribunal found that the visual effect of the proposed pearling operations, particularly the constant presence of three vessels (including the permanent presence of a highly visible and substantial vessel moored at Juno Bay), constituted a serious adverse impact because of the unhappy contrast it would create within the whole surrounding undeveloped area. The Tribunal also found that the activities associated with pearling operations would produce some noise. 17 In considering the specific impact on local persons generally, the Tribunal began with the proposition that 'for the majority of Australians the current and proposed future pearling operations in Juno Bay will have an adverse impact. The permanent presence of what amounts to a light industrial operation in an unspoilt natural area is simply an affront to the eye'. 18 The Tribunal then discussed the impact of the pearling operations on the traditional inhabitants. It referred to the evidence from members of the Manbarra and Bwgaman People (the latter being Aborigines who were settled on the Palm Islands from various places elsewhere in and after 1918 and their descendants); and to reports from an anthropologist, a marine biologist and environmental consultant, and Mr Pryor, a person of Aboriginal descent, who was born on Palm Island and had close ties to the Bwgaman People. 19 Amongst other things, the Tribunal accepted that the areas in contention were important for camping, hunting and fishing and that the freedom to use these areas to hunt and to fish had been reduced. It was said that the area was used for initiation practices and 'Juno Bay was used as an area in which young people could be [inculcated] with traditional practices'. 20 In relation to the impact on subjective practices and sensibilities, the Tribunal recorded 'at least five main values that are impacted [upon] by the pearl farms': respect for burial sites and the spirits attaching to those sites; following traditional laws and customs; gaining consent to enter country belonging to others (including ancestors); going outside the contemporary community to get in touch with tradition; and introducing successive generations to the same land and traditions. 21 In relation to the first value, the presence of ancestral graves on Fantome Island meant that the inhabitants viewed the area as sacred, and 'perceived any disturbance to this area disturbed the soul'. Further, it was said, the pearl farm operations adversely affected spiritual values because they obstructed and intruded upon traditional hunting and fishing. 22 Turning to the importance of following traditional laws and gaining consent (the second and third values), the Tribunal found that 'the permission of the Traditional Owner was required before coming on to someone else's country' and that 'even the permission of ancestral spirits is sought'. Further, the Tribunal accepted that the granting of a permit in accordance with non-indigenous law is felt to be invasive where indigenous law is not respected and, in particular, where the consent of the Palm Island community is not given. The Tribunal referred to evidence before it to the effect that 'the Palm Island People were not consulted about the pearl farm proposal', nor was 'information disseminated sufficiently through the Palm Island Community'. 23 The Tribunal then considered the fourth value, namely allowing the community to recover traditions, and accepted that Juno Bay was 'an area …where it was possible to get in touch with tradition. This, combined with the spiritual importance attaching to the grave sites and the prime fishing conditions, makes Juno Bay a unique place for members to visit to recover and reinforce traditional values in the younger people in the community.' However, the evidence provided by the anthropologist indicated that the Palm Islanders 'were still able to address their ancestors in the proper traditional way on Fantome Island. The pearl farm, to date, had not materially interfered with this.' 24 The final value considered by the Tribunal was the importance of introducing successive generations to the area. It was accepted that the waters of Juno Bay were the 'best places to teach … children the skills to be good salt-water people as well as the rules for fishing in sea country.' 25 The history of local opposition to the pearl farms at Juno Bay and Harrier Point and the process of consultation with the Palm Island Community was then set out in detail by the Tribunal, including communications and consultations that took place between the Palm Island Aboriginal Council, the applicant, the companies and numerous other interested persons, both prior to the initial granting of the permits and then in the period following to 1 September 1999. 26 As to matters of law, the Tribunal focused on the interpretation of the objective of the zone, the cultural and heritage values, and use and amenity (sub-regs 18(4)(a), 18(4)(e)). In relation to sub-reg 18(4)(a), the Tribunal noted that the phrase 'reasonable use' was used in the objective specified for both relevant zones in the Zoning Plan. Citing the US cases of Thompson v Enz 154b NW 2 at d473, and Stupak-Thrall v United States 89 F.3d 1269, the Tribunal adopted (at [171]) the following approach: '…in determining 'reasonable use', [attention needed] to be given to the site and its attributes, including its size, character and natural state. Secondly, there was a need to examine the use itself in terms of its type, extent, necessity and effects. Finally, it was necessary to examine the proposed artificial use in relation to the consequential effects, including the benefits obtained and the detriment suffered, on the interests of others as well as the interests of the State.' 27 When considering the phrase 'cultural and heritage values', the Tribunal relied on Tickner v Bropho (1993) 114 ALR 409 per French J at 437, and emphasised that 'the cultural heritage of any country extends to the language, traditions, customs, stories and religions of its peoples past and present.' 28 As to the term 'amenity' in the context of sub-reg 18(4)(e), the Tribunal noted its ordinary meaning, namely 'the quality of being pleasant or agreeable' (citing Melbourne City Council v Silver Top Taxi Service Ltd (1994) 89 LGERA 387 at 390), and its meaning in the context of town planning, where it was variously stated as 'the question of what residents are justly entitled to expect'; 'the element in the appearance or layout of the town and country which makes for a comfortable and pleasant life rather than a mere existence' and 'not only the effect of a place on the senses, but also the resident's subjective perception of his locality' (see Broad v Brisbane City Council and Baptist Union of Queensland [1986] 2 Qd.R. 317 at 326 and the cases there cited). 29 No party before us criticised these legal conclusions and they appear to be correct. 30 The Tribunal observed that the effect of the legislative provisions in the present case was that the present and proposed activities were approved uses under the Zoning Plan and required written consent. The issue was whether the activities were capable of being within the objectives for both zones (addressing the requirements of reg 18(4)), which required consideration of whether the use was 'reasonable general use'. The Tribunal considered that the items which must be addressed pursuant to the Regulations required a comparative evaluation, and stated (at [192]): 'Cultural and heritage values and the nature and scale of the proposed use in relation to existing use and amenity, as well as future desirable use and amenity, must be comparatively evaluated against the policy of reasonable general use.' 31 The Tribunal held that the 'concept of reasonable use alone requires a balancing of benefits and detriments', and 'a consideration of the actual conditions at the times relevant for consideration by the various decision-makers'. 32 In a crucial passage, criticised by the appellant, the Tribunal said (at [195]): 'A use which interferes with cultural and heritage values may be unreasonable if it has never been present but reasonable if it has been permitted for many years without opposition.' 33 The Tribunal then raised the possibility of joint management of the project relying on the opinion of the anthropologist, that: '..the overriding issue was not the damage to [cultural heritage] values related to the physical intrusion of the pearl farm sites as such - which all parties might well concede will occur if the [companies'] project proceeds - but the lack of respect shown by the proprietors of the project and the Authority. .. Palm Islands [P]eople have had no part and have been offered no part in negotiating the conditions of the project. … In my opinion, the clear course available to the Authority is to develop a working relationship with the Palm Islands community aimed at negotiating management plans that allow the participation of the Palm Islands community in decision making processes, management and policing over their traditional seas.' 34 However, despite suggesting the possibility, the Tribunal declined to consider this matter in determining the applications. 35 The Tribunal then set out the submissions of the parties. The Authority submitted: · Fantome Island was unique in the Palm Island Group because of the presence of grave sites and former settlement sites.

· The Juno Bay site was relatively undisturbed, with an extensive protected reef that was a traditional and favoured hunting and fishing ground.

· Over time, the Juno Bay site could become an 'industrial site' because of the continuous flow of employees and the presence of a larger vessel on site. Because of the companies' needs for a larger boat to be moored at Juno Bay and the use of surface lines with accompanying buoys (rather than sub-surface lines as originally intended), it would not be possible to manage or to minimize the impacts on visual disturbance that would arise.

· In granting almost exclusive use of the Juno Bay area to the second respondent, a significant portion of Juno Bay would be alienated, compromising the future use of Juno Bay by all persons. 36 The Tribunal stated it had taken into account the matters specified in regs 18(4)(a), 18(4)(b), 18(4)(c), 18(4)(e) and 18(4)(f), but had also had regard to all of the other matters specified in reg 18(4). 37 The Tribunal accepted the evidence of the indigenous witnesses, and found that the Manbarra and Bwgaman Peoples used Fantome Island for traditional purposes and to pursue traditional values. Under traditional law, the Manbarra should be asked permission by people who wish to use the water of the Palm Islands. 38 In relation to Fantome Island, the Tribunal accepted that it was sacred because of the spiritual presence of ancestors; respect for the ancestors' previous lives is reflected in the need for quiet. The graves on Fantome Island were places of 'special ancestral presence' and the domain or range of the spirits could carry some distance from the land on Fantome Island. The sacred values associated with the presence of ancestral spirits and forces on Fantome Island make it a unique place in the Palm Island. 39 The Tribunal further found that the waters of Juno Bay were a favoured fishing ground and that traditional inhabitants' laws and customs extended to the right to fish. However, the Tribunal found there was no evidence before it that the traditional fishing rights had been adversely affected by the pearl farm operations at the Juno Bay site, although they might have the potential to interfere with traditional rights to hunt and to fish in Juno Bay. 40 Based on the above findings and, in the absence of any form of mutually agreed plan of co-management for cultural and heritage values between the Manbarra and Bwgaman Peoples and the companies for pearl farm operations, the Tribunal concluded there was a need to protect the cultural and heritage values held by traditional inhabitants in relation to the pearl farm sites.

41 The Tribunal made the following specific findings in relation to the impact of pearl farming: · The inhabitants of Great Palm Island hold cultural and heritage values in relation to Fantome Island, including the waters of Juno Bay and off Harrier Point, which would be affected by continued pearl farming by the companies. · The nature and scale of the present pearl farming, as well as its proposed expansion, affect the existing use and amenity (in terms of movement, sight and sound) as well as the future and desirable use and amenity of Juno Bay and waters off Harrier Point. · The original applications for permits to use the two sites for pearl farming should have been refused because, notwithstanding that it was a use capable of being permitted under the Zoning Plan, it was not a reasonable general use, taking into account the effect on cultural and traditional values, and on existing uses and amenity (both from an ordinary perspective and from the perspective of the traditional inhabitants). · The circumstances occurring since the grant of the original permits were capable of affecting the question of whether permits could be granted for pearl farming which would amount to reasonable general use. The fact that the pearl farming had been taking place for six years without significant trouble was relevant. · The companies were not complying with the terms of either the original permits or the permit under review, because the principal vessel used on the pearl farm was moored at Juno Bay and not Harrier Point, and because many of the long lines were surface lines and not mid-water lines. 42 The Tribunal accepted Mr Crimp's evidence (on behalf of the companies) that the Harrier Point site alone was not viable. 43 In the circumstances, the Tribunal decided that a limited right to continue the existing pearl farming which is now being carried out by the companies would be a reasonable general use of the areas in question. Although the impact on cultural and heritage values, and on existing use and amenity, did not justify any long term pearl farming operations, the circumstances did justify further limited permits. 44 As noted above, the Tribunal saw no reason why the reasonableness of use could not be determined, in part, by the length of time it is to be engaged in. In the Tribunal's opinion, it would be reasonable to allow continuation of the existing level of pearl farming activity to enable some commercial return on the activity to the companies, without permitting the activity to continue longer, or substantially longer, than the approximately two years which remained of the permit for Harrier Point. The Tribunal noted that it could not direct how the Authority should consider any fresh application, however it stated that the circumstances peculiar to this case could not exist in the future and the permits granted pursuant to its decision were, in its view, the limit of any reasonable general use which can flow from the pearl farming commenced under the one year permits. In other words, in the Tribunal's view, such extra period would exhaust the capacity of the companies' pearl farming operation to constitute reasonable general use. 45 After further hearings and further submissions regarding, among other things, the imposition of a bond in respect of the removal of the pearl farm infrastructure and the conditions the permits should contain, the Tribunal made orders approving the permit granted to the first respondent for Harrier Point, but for 10 hectares only, expiring on 1 September 2005 and issuing a permit to the second respondent, again for 10 hectares only for Juno Bay, expiring at midnight on 1 December 2005. 46 Among the conditions of the permits were requirements that the first respondent pay a bond of $50,000, the second respondent pay a bond of $7,500 and that the operations carried on under the permit for Juno Bay should not include any expansion of the pearl farming operations currently being carried out.

The appeal before this Court 47 By its Amended Notice of Appeal, filed 16 July 2004, the applicant Authority asserted, in relation to the first and second respondents, that the Tribunal erred in law as follows:

(a) In determining that the consideration of an application for a relevant permission under Part 4 of the Regulations required a comparative evaluation of the menu of items set out in sub-regulation 18(4).

(b) In determining that a use of the Park which interferes with cultural and heritage values may, though unreasonable, become reasonable 'if it has been permitted for many years without opposition'.

(i) it is an apparent finding of fact which cannot be supported by any of the material before the Tribunal; or

(d) In taking into account irrelevant considerations, namely the financial interests of the companies and enabling the companies to achieve a commercial return.

(e) In making a decision to grant relevant permissions up to 1 December 2005 with the expectation, express or implied, that an application or applications made for the grant of relevant permissions beyond that date will or must be refused by the appellant. 48 In relation to the second respondent, the Authority further contended that the Tribunal erred:

(f) In determining the bond that would be imposed upon the second respondent, because:

(i) at the hearing no challenge had been made, either by the first or second respondent, to the bonds proposed to be imposed by the Authority, and the hearing had been conducted on the basis that no issue arose in respect of that matter;

(ii) the $7,500 bond could not be supported by any of the material before the Tribunal;

(iii) the bond was not a condition appropriate to the attainment of the objects of the Act within the meaning of paragraph 77(2)(c).

49 The Authority submitted that the following were irrelevant considerations, and outside the scope of considerations listed in the Regulations: · The Tribunal's proposition that an unreasonable use may become reasonable 'if permitted for many years without opposition'; · The Tribunal's introduction of the companies' 'financial interests' and the concept of enabling 'some commercial return on the activity'; · The Tribunal's statement that 'circumstances occurring since the grant of the original permits are capable of affecting the question of whether permits could be granted'; and · The Tribunal's apparent assumption that, if granted permits for a limited period, no future application for a relevant permission could be granted. 50 The Authority further submitted that no issue was raised by the companies in relation to the imposition of a $7,500 bond in substitution for a $50,000 bond as a condition of the permit issued to the second respondent. The Authority submitted it was conceded there was no longer a complaint about the proposal to impose the $50,000 bond and that, as a consequence of that concession, no evidence was led upon the issue. However, the Authority submitted, the remedial purposes of a bond may be discerned by considering the Deed signed between the Authority, the State of Queensland and the first respondent on 7 August 2000. In the circumstances, the Tribunal had imposed a condition inappropriate to the attainment of the object of the Act. 51 Finally, the Authority submitted there was no evidence to support the finding that '[a] use which interferes with cultural and heritage values may be unreasonable if it has never been present but reasonable if it has been permitted for many years without opposition', if indeed that statement was a factual finding. 52 The companies did not take an active role in the appeal, neither consenting to nor opposing it; one may infer that fear of a possible costs order dictated this course. The third and fourth respondents largely adopted the Authority's principal submissions.

Conclusions 53 Except as to the question concerning the bond, we see no error of law in the approach adopted by the Tribunal. 54 The first consideration to which the Tribunal was required to have regard, under the regulation, was the 'objective of the zone'. As to Harrier Point, that objective was to provide opportunities for reasonable general use of the Park, consistent with its conservation. In relation to Juno Bay, the objective was, so far as relevant, both to provide for the conservation and to provide ('while providing') opportunities for reasonable general use. The companies' continued use would, on the Tribunal's findings, not threaten the conservation of the Park. The question to be determined was, in each case, whether the use for which permission was sought was reasonable. In each case, the present and proposed activities are approved uses under cll 5.2(b) and 6.2(b)(vii) and (ix), with written permission. 55 In our opinion, reasonable means reasonable in all the circumstances, having regard to the purposes of the Act: see [26] and [30] above. The Tribunal clearly acted on such a view and, having considered factual matters and matters for assessment, including benefits and detriments to relevant persons, including the companies, formed conclusions as to those matters. There was no error of law in so proceeding. 56 The Tribunal's assessment was that, but for the history of relevant matters, the sought use would not be reasonable. However that history made such use reasonable for a continued but limited time. We see no legal obstacle to such an approach, at least where, as was the case here, the actual physical and ecological conservation of the Park was not threatened. 57 Possible financial benefits and detriments to the companies, as to other affected people, were not outside the range of circumstances relevant to a determination of reasonable use. There is no reason that we can discern, either a priori or in the specific context of the Act, why benefits or detriments of that kind must be excluded from consideration: c.f. [26] and [30] above. The weight, if any, to be given to them was a matter for the discretionary assessment of the decision-maker. 58 Nor is there any legal error in the Tribunal having forcefully expressed its view that permission for limited continued use would exhaust the capacity for historical considerations to influence the preferable judgment of a decision-maker in the future. The Tribunal was not under any legal misapprehension as to its lack of power to bind later decision-makers. It was merely emphatically stressing that its grant of permission was for a strictly limited period and dispelling any basis for a future suggestion that such a grant could itself found a reasonable expectation or hope that a later decision-maker might similarly proceed. 59 To the extent that the Tribunal may have mis-stated the effect of the materials before it as to the extent of any opposition to the companies' operations by the Palm Island People, that is at worst an error on a question of fact, involving no question of law. Whether the facts are as summarised by the Tribunal on this aspect or whether they show only that community leaders, as distinct from community members at large, did not at crucial times oppose the operations, there would be no error of law in having regard to the correct factual position. Any factual error, therefore, cannot be elevated to the category of a relevant error of law. 60 As to the matter of the bond, there appears to have been some oversight or misunderstanding by the Tribunal of the state of the evidence and contentions. In the reasons for decision of the Tribunal handed down on 15 December 2003, there is no reference to any suggestion that the amount of the bond in respect of Zen Pearls Pty Ltd should be either $50,000 or $7,500, or any other sum, nor is there any reference to the amount of the bond, either in respect of the permit granted to Indian Pacific Pearls Pty Ltd or to Zen Pearls Pty Ltd. On 1 March 2004, the Tribunal gave further reasons for decision and stated in par 3 of those reasons: '1. In clause 5.1 of the Deed to be executed by Zen Pearls Pty Limited, the sum of $7,500.00 is to be substituted for $50,000.' In its further reasons for decision on 15 March 2004, the Tribunal said: '1. In our further reasons for decision dated 1 March 2004 we foreshadowed the decisions we proposed to make but invited further submissions. … 3. Zen Pearls has said that it cannot increase the bond it has already put up from $7,500 to $50,000. However, we have not suggested that it should. A careful reading of our reasons shows that we intended a bond of $7,500 from Zen Pearls and a bond of $50,000 from Indian Pacific Pearls. As we understand it these bonds are already in place. They will satisfy the obligations created by the granting of the permits. 4. The Authority has accepted that the total of the bonds will not be more than $57,000 but has asked us to adjust the way they are apportioned. We do not propose to do this.' 61 Ground 4[f] of the appeal with respect to Zen Pearls Pty Ltd by the Great Barrier Reef Marine Park Authority asserted: '(f) In determining the bond that would be imposed upon Zen Pearls Pty Ltd pursuant to regulation 77 (formerly regulation 22) of the said Regulations, the learned Tribunal made errors of law in that: (i) at the hearing no challenge had been made by either the First Respondent or the Second Respondent to the bonds proposed to be imposed by Great Barrier Reef Marine Authority and the hearing had been conducted on the basis that no issue arose in respect of that matter; (ii) the bond selected ($7,500.00) cannot be supported by any of the material before the Tribunal; (iii) the bond selected is not a condition appropriate to the attainment of the objects of the Act within the meaning of paragraph 77(2)(c) (formerly paragraph 22(2)(c)).' 62 The Court did not have the benefit of submissions on behalf of either Indian Pacific Pearls Pty Ltd or Zen Pearls Pty Ltd. However, on the material before this Court, the contentions of the Authority referred to in ground 4f and (ii) are made out, and we would vary the orders of the Tribunal dated 15 March 2004 by deleting item 2(e). I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender and Madgwick.

AND: Indian Pacific Pearls Pty Ltd (ACN 056 098 287)

REASONS FOR JUDGMENT FINKELSTEIN J: 63 I regret to say that I am unable to agree in the reasons of Spender and Madgwick JJ. In my opinion the Administrative Appeals Tribunal arrived at its decision having taken into account impermissible considerations. Accordingly, its decision should be set aside and, in lieu thereof, it should be ordered that no permits to conduct pearling operations be granted to the first and second respondents, Indian Pacific and Zen Pearls. 64 The Great Barrier Reef is the most important feature of the Australian coastline. It is the only one unquestionably accepted by international authorities as a portion of the World Heritage: Committee of Inquiry into the National Estate, Report of the National Estate, Canberra, 1974, 66. That report also recorded (at 67) that the authors saw great merit in various recommendations which had been made to them that legislative action be taken to set up a statutory authority to administer the Great Barrier Reef. 65 In response, the Great Barrier Reef Marine Park Act 1975 (Cth) was enacted. On the second reading of the Bill the then Minister for Environment said (Australia, House of Representatives, Debates, vol HR95, 1975, pp 2679-2680): "The Great Barrier Reef, a vast collection of islands and coral reefs, extends along some 1900 kilometres of the Australian coast. This nationally and internationally important marine ecosystem encompasses many unique forms of sea life, and is the largest and most complex expanse of living coral reefs in the world - quite possibly the largest which has ever existed. It is an area of unique beauty and of irreplaceable scientific value. Most simply, the Reef is a significant part of the world's heritage - a priceless heirloom which we must safeguard for future generations. … Undoubtedly the future declaration of marine parks and reserves will be difficult for most countries. Those with highly-developed technologies will be torn between the desire physically to exploit the sea's resources and the demands of conservationists and recreationists for areas to be reserved … While the Australian Government cannot stand apart from such conflicts of interest, it has decided that protection of our unique Barrier Reef is of paramount importance to Australia and the world. … This Bill proposes the establishment of a Great Barrier Reef Marine Park Authority which will examine the entire Barrier Reef region, determine which sections of the region should be proclaimed as part of the Great Barrier Reef Marine Park, and decide appropriate uses for its various sections. … However, conservation and protection of the Great Barrier Reef will be the paramount aim of the Authority in all zones of the Marine Park." 66 The object of the Marine Park Act is clear. It is stated in s 5 in the following language: "[t]o make provision for and in relation to the establishment, control, care and development of a marine park in the Great Barrier Reef Region". Part II of the Marine Park Act establishes the Great Barrier Reef Marine Park Authority. Broadly speaking, its functions in relation to the Marine Park are, according to s 7, to make recommendations and furnish information and advice to the Minister; to carry out research and investigations and provide educational, advisory and informational services; to act as a financial intermediary between the Commonwealth and Queensland governments; and to prepare zoning plans and make plans of management for the Park. The Authority consists of four members, one of whom represents the interests of the Aboriginal communities adjacent to the Park and all of whom are required to be persons "with qualifications or extensive experience in a field related to the functions of the Authority": s 10. 67 The Great Barrier Reef Marine Park, which is established by s 30, consists of such areas of the Great Barrier Reef Region as are declared by proclamation under s 31. Section 32 requires the Authority to prepare zoning plans for every area of the Marine Park. Section 32(7) specifies that in the preparation of a plan, regard shall be had to the following objects: the conservation of the Great Barrier Reef; the regulation of its use "so as to protect the Great Barrier Reef while allowing the reasonable use of the Great Barrier Reef Region"; the regulation of activities that exploit the resources of the Great Barrier Reef Region so as to minimize the effect of those activities on the Great Barrier Reef; the reservation of some areas of the Great Barrier Reef for its appreciation and enjoyment by the public; and the preservation of some areas of the Great Barrier Reef in its natural state. A zoning plan must be submitted to the Minister and laid before Parliament: ss 32 and 33. A zoning plan must identify the purposes for which a zone may be used or entered, and any entry or use may require authorization or notification, or be conditional or subject to directions. Entering or using a zone contrary to the permitted purposes, without permission or notification where required, or contrary to conditions or directions, is an offence which may result in the imposition of penalties: ss 38A to 38G. 68 The Great Barrier Reef Marine Park Regulations 1983 (Cth) establish procedures for the grant of permission by the Authority for the use of, or entry into, the various zones of the Marine Park. The procedures are substantially identical in the case of each zone. Speaking generally, the regulations require a written application specifying certain details to be submitted, that specified factors be considered by the Authority in considering the application, and that, after advertising the application and considering any written responses, and requiring any further particulars, the Authority will grant permission, conditionally or unconditionally, or refuse permission. 69 In 1996 Indian Pacific and Zen Pearls applied for and were subsequently granted the right to conduct pearling operations in the Central Section of the Marine Park. The Authority's power to grant that permission was then found in reg 22. The initial permits were granted for a period of one year. Before the expiry of the permits Indian Pacific and Zen Pearls applied for further permits over their existing as well as over additional areas. They each sought a further six year permit. A permit for five years was granted to Indian Pacific but the application by Zen Pearls was refused. Zen Pearls applied to the Administrative Appeals Tribunal for review of the refusal of its application and the Manbarra people (the third respondent) applied to review the decision to grant a permit to Indian Pacific. Both applications were heard at the same time. 70 The tribunal's decision, although lengthy, may be summarised briefly. The tribunal formed the view that the original permits to conduct pearling operations should not have been granted as the proposed use was not a reasonable general use. Permission should have been refused because of the effect on cultural and traditional values and the effect on existing use and amenity, viewed both from an ordinary perspective and from the perspective of the traditional inhabitants. 71 The tribunal took much the same view in relation to the applications the subject of the review. Nevertheless the tribunal was persuaded to grant the permits for a short period because at the time of the initial grants it was "clear that the applicant companies['] proposals were long term and could not be viable or produce any commercial return unless the original permits were extended for up to twelve years", notwithstanding that the Authority had not promised that the original permits would be extended and that Mr Crimp, the director of the two companies, was always aware of the risk of non-renewal. The tribunal also had regard to the fact that the pearl farming had continued for six years (the time it took for the review to conclude) without significant trouble. In fact the farming had reduced the impact on cultural and heritage values and on existing use and amenity which would be felt by the continuation of the activity. The tribunal said that it would be a reasonable general use to allow the continuation of pearl farming for a further two years "to enable some commercial return on the activity to the applicants [from harvesting pearls during the period]." In reaching its conclusion the tribunal also took into account the fact that the original grant of the permits had been by consent, the delay in challenging those permits and the reduction of cultural and heritage values and existing use and amenity resulting from the incorrect but lawful grant of the original permits. 72 The principal issue for determination on this appeal is the nature and scope of the power to grant "a relevant permission": that is, a permission which is required under a provision of a zoning plan with respect to the purposes for which a zone may be used or entered: see the definition of "relevant permission" in former reg 4(1); now reg 3(1). As I have said, the power to grant the relevant permission was conferred by reg 22. The matters to be taken into account in considering that application were listed in reg 18(4); they are now to be found in reg 74(5). If reg 18(4) is to be construed as excluding from consideration the fact that Indian Pacific and Zen Pearls should receive some additional return on their capital, then the applicant is entitled to succeed. 73 Regulation 18(4) lists twelve topics (more if sub-topics are included) to which the Authority was required to have regard when considering an application. The issue that presents itself is whether these topics were exhaustive or merely an inclusive list of factors to be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, 39. Regulation 18(4) did not expressly limit the Authority's consideration solely to the enumerated factors, unlike, for example, the legislation considered in Friends of Hinchinbrook Society Inc v Minister for Environment (1997) 77 FCR 153. On the other hand, the regulation did not expressly indicate that other factors may be taken into account: compare South Oxfordshire District Council v Secretary of State for the Environment [1981] 1 WLR 1092. Accordingly, deciding whether the Authority could consider factors other than those listed falls to be considered by reference to general principles of construction. 74 The enumeration of specified objects, considerations and details is common throughout the Marine Park Act and the Marine Park Regulations. For example, reg 10 (which dealt with permission to enter and use areas of the Far Northern Section of the Great Barrier Reef) and reg 33 (which concerned unzoned areas), as with reg 18(2) in relation to the Cairns Section, Central Section and Mackay/Capricorn Section, set out the information to be contained in an application for a relevant permission. These regulations required details identifying the applicant, the area sought to be used or entered, the purposes for which permission was applied for, "any prudent and feasible alternatives to the proposed use or entry", the proposed location of use or entry, the proposed movements within the zone, the period of time sought for permission, the means of transport in and out of the zone, and "any other information that the Authority may reasonably require and has asked the applicant to provide." Regulation 10(4) in relation to the Far Northern Section set out an identical, and reg 34 in relation to unzoned areas a similar, list of factors which the Authority "must have regard to" in considering an application. Other regulations contain additional matters to be considered when dealing with specific kinds of applications. 75 In my view the list of factors in reg 18(4) was intended to be exhaustive. What follows are my reasons for that conclusion. The first reason is that the list is long and detailed. The considerations include environmental, heritage, and amenity concerns; practical issues such as transport, health and safety, and arrangements for repairing damage; and the financial capacity of the applicant to develop large projects. Regulation 18(4) appears "as comprehensive as might be thought necessary … [I]t is hard to think of any other criteria … which could be relevant": Re Brasted [1979] 1 NZLR 400, 405. 76 Second, there are the topics themselves. It cannot be said that the topics are "so generally expressed that is not possible to say that [the decision maker] is confined to these … considerations": cf The Queen v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322, 329. Here the opposite is true. The listed topics are detailed and specific. They do not contemplate a wide-ranging general investigation: NZI Financial Corporation Ltd v New Zealand Kiwifruit Authority [1986] 1 NZLR 159, 171. There is one possible exception. Regulation 18(4)(j) required the Authority to consider "any other requirements for ensuring the orderly and proper management of the Marine Park" (emphasis added). But even this topic was not open-ended. It was expressly limited in its scope to the proper management of the Marine Park. 77 Third, to the extent that the financial situation of an applicant is relevant, it is covered by reg 18(4)(1) which was concerned with the capacity of an applicant to undertake his proposed activity. This tells against the permissibility of giving consideration to an applicant's financial interests. 78 Fourth, there is the structure of reg 18. Regulation 18(2) enumerated the information that must be supplied in an application for permission. If further information were required, reg 18(2)(k) provided for "any other information that the Authority may reasonably require and has asked the applicant to provide" (emphasis added). In a similar fashion reg 18(5) provided for additional matters to be taken into account when the application was for traditional fishing or hunting and gathering. The need to provide further detail, (bringing to a total nineteen topics for consideration on an application for traditional fishing or hunting and gathering), suggests that reg 18(4) was intended to be comprehensive. 79 Fifth, the listed topics, though specific and detailed, are not unduly restrictive. The Authority had to consider matters as broad as "the objective of the zone", "cultural and heritage values", and "the conservation of the natural resources". These matters require evaluation and judgment: NZI Financial Corporation Ltd v New Zealand Kiwifruit Authority [1986] 1 NZLR 159, 171. 80 Sixth, the nature and structure of the Marine Park Act support the conclusion. The purpose of the Marine Park Act is to ensure the "orderly and proper management" of the Marine Park. Its object is not as wide-ranging as, for example, the general benefit to Australia: compare Murphyores Incorporated Pty. Ltd. v The Commonwealth of Australia (1976) 136 CLR 1. This is not consistent with decision-making which is to roam over a wide and undefined area. 81 Seventh, the conclusion is supported by sound administrative practice. I have already noted that there are many instances in the Marine Park Act and Regulations which appear, on their face, to contain a comprehensive list of topics to be complied with or taken into account. A different conclusion would remove the certainty established by that framework. It would then be difficult to define the limits of the Authority's power, and would put both the Authority and an applicant in the difficult situation of not knowing what matters are to be taken into account: NZI Financial Corporation Ltd v New Zealand Kiwifruit Authority [1986] 1 NZLR 159, 171. 82 Eighth, the members of the Authority are qualified in matters relating to conservation and the Great Barrier Reef, and one member represents the interests of the traditional inhabitants. The members are not qualified to assess the financial interests or expectations of an applicant: The Phosphate Co-operative Company of Australia Limited v Environment Protection Authority (1977) 138 CLR 134, 140. 83 Having explained why reg 18(4) should be held to contain a comprehensive list of topics for consideration, it is still necessary to consider whether the economic interests of Indian Pacific and Zen Pearls fall within any of the listed topics. The only possible candidates are reg 18(4)(a) by which the Authority was required to have regard to "the objective of the zone" and reg 18(4)(j) where the Authority was required to consider "any other requirements for ensuring the orderly and proper management of the Marine Park". 84 The objectives of the relevant zones were to "provide opportunities for reasonable general use consistent with the conservation of the Great Barrier Reef Marine Park" and to "provide for the conservation of the Great Barrier Reef Marine Park while providing opportunities for reasonable general use in areas that are free from trawling and generally free from shipping" (emphases added). These objectives obviously permit a wide range of matters to be taken into account. However, they must be matters which concern, or are directed toward, the Marine Park itself. A "reasonable" use of the Marine Park deals with the effect of that use upon the Marine Park. The expectations engendered as a result of the grant of the original permits, the delay in challenging those permits and the financial expectations and interests of Indian Pacific and Zen Pearls, do not bear upon the reasonableness of any use. Nor are any of those matters relevant to the "orderly and proper management of the Marine Park". The phrase "orderly and proper management of the Marine Park", when read in context, is concerned with the "control, care and development" of the Marine Park. Attempts to make good the consequences of a mistaken decision by the Authority are not matters that fall within this category. 85 Even if I were wrong in my conclusion that reg 18(4) contained an exhaustive list of topics, the considerations which motivated the tribunal to grant the permits are, in any event, irrelevant on general principles in any event. First, the essential nature of the permission process is directed toward the conservation of the Marine Park and not toward the promotion of the fishing or mariculture industries. Second, the consideration that Indian Pacific and Zen Pearls should be allowed "some commercial return" on their investment is an indeterminate consideration. What is a reasonable rate of return? On what capital expenditure should the return to be calculated? Is the efficiency of the applicant to be taken into account? Is it necessary to have regard to the possibility of other profitable ventures to which Indian Pacific and Zen Pearls could have employed their capital? And so on. If these issues are to be given proper consideration the hearing could take weeks. Even if a broad-brush approach were taken, the task would still be difficult and time-consuming. The real point is this. The role of the Authority is to consider the conservation of cultural and heritage values, and the preservation of existing use and amenity of the Marine Park. Bearing in mind the controlling values of the Marine Park Act and Regulations, it is simply irrelevant to the regulation of the Great Barrier Reef that a wrongly granted permit may have engendered expectations and adversely affected financial interests. The issue for the Authority is only what is best for the Marine Park, not what is best for an applicant who may have been put in an unfortunate position by being wrongly granted a permit. 86 These are the reasons why I would set aside the tribunal's decision. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate: Dated: 21 October 2004 Counsel for the Applicant: Mr M Fellows

Solicitor for the Applicant: Great Barrier Reef Marine Park Authority

Counsel for the Third & Fourth Respondents: Mr A Preston

Solicitor for the Third & Fourth Respondents: Central Queensland Land Council Aboriginal Corporation

Date of Hearing: 9 August 2004

Date of Judgment: 21 October 2004

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