Consideration
61 It is a fundamental rule that a statutory authority having power to affect the rights of a person is bound to hear him, her or it before exercising the power. And, the obligation of the statutory decision-maker to afford procedural fairness "is not limited to cases where the exercise of the power affects rights in the strict sense. It extends to the exercise of a power which affects an interest or a privilege": FAI Insurances v Winneke (1982) 151 CLR 342 at 360 per Mason J. French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ applied what Mason J held in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at 352-353 [75]. The principle extends to a statutory licence under which a person affected by the exercise of the power may be deprived or impaired in the earning of his, her or its livelihood: Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222; Sanders v Snell (1998) 196 CLR 329 at 347-348 [45] per Gleeson CJ, Gaudron, Kirby and Hayne JJ.
62 Thus, Dr Findlay, as delegate, when using his power under s 22(2) of the Fisheries Act to vary or impose a new condition on fishing licences held by the claim group members for whom Malu Lamar held their native title in trust, had to afford those persons procedural fairness in respect of the proposed exercise of power. The source of that obligation was not, as Malu Lamar first propounded, s 24HA(7) of the Native Title Act, albeit that that section may have mirrored the general law (were it to have had a freestanding effect outside the scheme of Div 3 of Pt 2 of that Act read as a whole). Rather, the source was the common law obligation that attached to the exercise of the power when Dr Findlay was giving consideration to imposing a condition on fishing licences under s 22 of the Fisheries Act.
63 Moreover, as French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ said in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at 206-207 [82]:
compliance with an implied condition of procedural fairness requires the repository of a statutory power to adopt a procedure that is reasonable in the circumstances to afford an opportunity to be heard to a person who has an interest apt to be affected by exercise of that power. The implied condition of procedural fairness is breached, and jurisdictional error thereby occurs, if the procedure adopted so constrains the opportunity of the person to propound his or her case for a favourable exercise of the power as to amount to a "practical injustice" [Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 [37] as explained in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 337 [36], 342 [57]]. (emphasis added)
64 In Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 258-259 [11]-[13], French CJ, Gummow, Hayne, Crennan and Kiefel JJ said:
In Annetts v McCann [(1990) 170 CLR 596] it was said that it could now be taken as settled that when a statute confers power to destroy or prejudice a person's rights or interests, principles of natural justice regulate the exercise of that power [Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ]. Brennan J in Kioa v West [(1985) 159 CLR 550 at 609 (citation omitted)] explained that all statutes are construed against a background of common law notions of justice and fairness. His Honour said:
"[W]hen the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that 'the justice of the common law will supply the omission of the legislature'. The true intention of the legislation is thus ascertained."
The implication of the principles of natural justice in a statute is therefore arrived at by a process of construction. It proceeds upon the assumption that the legislature, being aware of the common law principles, would have intended that they apply to the exercise of a power of the kind referred to in Annetts v McCann [Salemi v MacKellar [No 2] (1977) 137 CLR 396 at 401 per Barwick CJ; at 451 per Jacobs J].
Observance of the principles of natural justice is a condition attached to such a statutory power and governs its exercise, as Brennan J further explained in Kioa v West [(1985) 159 CLR 550 at 609]. A failure to fulfil that condition means that the exercise of the power is inefficacious [FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 409 per Brennan J]. A decision arrived at without fulfilling the condition cannot be said to be authorised by the statute and for that reason is invalid [Salemi v MacKellar [No 2] (1977) 137 CLR 396 at 401 per Barwick CJ]. (emphasis added)
65 I am of opinion that the power to vary or revoke a condition of a commercial fishing licence, or to specify further conditions to which it is subject, conferred by s 22(2) of the Fisheries Act, necessarily requires the decision-maker to afford procedural fairness to a person whose livelihood may be affected by such a decision. The obligation to do so arises out of the construction of the Fisheries Act, that operates independently of any provision in the Native Title Act that might deal with particular native title rights and interests or future acts that might affect those rights or interests.
66 The members of the native title claim group for whom Malu Lamar was trustee were also "traditional inhabitants" within the meaning of the Fisheries Act whose rights, as traditional inhabitants under that Act, were affected by the 27 April decision (although the effect is likely not to have been adverse on those traditional rights). A decision under s 22(2) of the Fisheries Act to impose a new condition on commercial fishing licences affected all persons who held such licences issued under s 19. As the evidence established, some members of the claim group held an interest in commercial fishing licences. Because of that interest, that in part overlapped with their native title rights and interests, Malu Lamar conceived itself to be acting on their behalf in making its submission through the TSRA letter. Mr Nona explained, as best he could in his oral evidence, that whenever the Authority gave a future act notice (under s 24HA(7)), he and others considered it important to respond at least using a letter of that kind, in a standard form, in order to seek to protect their rights and interests, including their native title rights and interests.
67 Importantly, the Fisheries Act operates as a law of general application, indifferently on native title rights and interests and the rights of others, including, traditional inhabitants, TVH and TIB licensees, to conduct commercial fishing in the protected zone. The 27 April decision had an effect that had a dual character. It affected the rights of all existing commercial fishing licence holders, whoever they might be, who earned a livelihood by using hookah equipment.
68 The Fisheries Act itself also had the incidental character of being a past act that had derogated from the native title rights and interests of native title holders, for whom Malu Lamar was trustee, to fish using hookah equipment. However, from the time of the enactment of the Fisheries Act in 1984, whatever native title rights and interests then existed to conduct commercial fishing activities became regulated by that Act's requirement for a person who wished to engage in commercial fishing to hold a commercial fishing licence issued under s 19. Such a licence, necessarily, would be subject to any variation, revocation or supplementation of conditions imposed under s 22 of the Fisheries Act. Any native title right or interest, as found by Finn J in the 2010 determination, to engage in commercial fishing in the protected zone was, first, non-exclusive and, secondly, already regulated by the Fisheries Act and the Treaty and could only be enjoyed in accordance with their provisions.
69 However, the 27 April decision did not regulate or affect the right of traditional inhabitants to fish traditionally. Thus, while the imposition of a condition on all commercial fishing licences prohibiting the use of hookah equipment necessarily derogated from the rights of native title holders who held such a licence, it did so by limiting the field of activities by which all persons with such a licence could fish commercially. The right to apply for and be granted a commercial fishing licence under s 19 of the Fisheries Act did not require a person to have native title rights, albeit, the Fisheries Act, implementing the Treaty, could and did give certain preferences to persons who were defined as traditional inhabitants, who necessarily were persons within the claim group with pre-existing native rights and interests.
70 McHugh, Gummow, Kirby and Hayne JJ cautioned in Project Blue Sky 194 CLR at 392 [97]:
Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act.
However, here, the issue is not whether the legislation invalidates a future act, but rather whether the 27 April decision was a future act, as defined in s 233(1)(c)(i) of the Native Title Act, being a decision that, apart from that Act, "validly affects native title". Thus, the validity of the 27 April decision falls to be determined as a decision made under s 22 of the Fisheries Act.
71 The validation that s 24HA(3) confers operates on the grant or modification of a licence "under legislation" that is valid. In my opinion, the words "is valid (including because of this Act)" as used in s 24HA(2)(a) refer to the character of the legislation under which the future act is, or is intended to be, created. Thus, s 24HA(2) applies to a future act consisting, relevantly for present purposes, of the grant of a licence under valid legislation that relates, as the 27 April decision clearly does, to the management or regulation of living aquatic resources. The future act that s 24HA(3) validates is the grant of a licence "under legislation", being valid legislation.
72 In BHP 351 ALR at 497 [27], North, Dowsett and Jagot JJ noted:
the Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth) referred to s 24HA(7) of the NTA (which imposes notification requirements on acts covered by the section) and stated, in that regard, that a failure to notify under that regime "will not affect the validity of the future act". There is no discernible difference between this provision and the other procedural provisions in Div 3 of Pt 2 of the NTA. (emphasis added)
73 The Explanatory Memorandum also identified that the target of the Parliament in s 24HA(2)(a) was the validity of the legislation under which the future act was made, as opposed to the validity of the actual grant of a licence or other permission itself. That aid to legislative construction, accords with the scheme of the Act, since s 233(1)(c)(i) provides that a future act is an act that, "apart from this Act, either … validly affects native title in relation to the land or waters to any extent". In other words, a future act has to be an act, apart from the Native Title Act itself, including s 24HA, that is or has the character of being a valid administrative or executive decision that has been made in accordance with the law. If it were not, then it could not "validly" affect anything. The use of the expression "under legislation" in s 24HA(2), to refer to valid legislation, necessarily imports that the grant of the licence, being the relevant future act in fact was made validly itself "under legislation".
74 In Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 505-506 [75]-[76], Gaudron, McHugh, Gummow, Kirby and Hayne JJ explained why an expression of a cognate kind to that in s 24HA(2), such as "decision made under this Act", operates like a "grant made under [valid] legislation". They said:
When regard is had to the phrase "under this Act" in s 474(2) of the Act, the words of that sub-section are not apt to refer either to decisions purportedly made under the Act or, as some of the submissions made on behalf of the Commonwealth might suggest, to decisions of the kind that might be made under the Act. Moreover, if the words of the sub-section were to be construed in either of those ways, s 474(1)(c) would be in direct conflict with s 75(v) of the Constitution and, thus, invalid. Further, they would confer authority on a non-judicial decision-maker of the Commonwealth to determine conclusively the limits of its own jurisdiction and, thus, at least in some cases, infringe the mandate implicit in the text of Ch III of the Constitution that the judicial power of the Commonwealth be exercised only by the courts named and referred to in s 71.
Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression "decision[s] … made under this Act" must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all" [See Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615 [51], per Gaudron and Gummow JJ; at 618 [63], per McHugh J; at 646-647 [152], per Hayne J]. Thus, if there has been jurisdictional error…, the decision in question cannot properly be described in the terms used in s 474(2) as "a decision … made under this Act" and is, thus, not a "privative clause decision" as defined in s 474(2) and (3) of the Act [See Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 635, per Gaudron and Gummow JJ]. (emphasis added)
75 It is common ground that the delegate committed a jurisdictional error in imposing the condition prohibiting the use of hookah equipment because he did not consider the TSRA letter. Therefore, the 27 April decision was no decision at all. It follows there was no "grant" of anything under valid legislation, being the Fisheries Act (within the meaning of s 24HA(2) of the Native Title Act), on which s 24HA could have operated to confer validity. However, that result is not because of any non-compliance with s 24HA(7), but because the 27 April decision purported to affect every commercial fishing licence held by any person, regardless of the source of the licensee's status to hold it, including native title rights and interests or rights as a traditional inhabitant. A future act must satisfy, independently of the Native Title Act, including s 24HA, the elements of the definition of "future act" in s 233(1). That is, the future act, if it is validly to affect native title, must be an act under valid legislation and the grant itself, comprising the future act to which s 24HA(2) refers, must be made lawfully (or validly) in accordance with that legislation.
76 In my opinion, the Parliament did not intend that the Native Title Act generally, or Div 3 of Pt 2 in particular, would be a vehicle to validate decisions that themselves were not authorised to be made or were not made under the valid legislation that the decision-maker purported to rely on to make them. Here, the requirement in s 233(1)(c), that a future act had "apart from this Act ... validly [to affect] native title in relation to the land or waters to any extent", conveyed in the plainest of terms the Parliament's intention that any future act which the Native Title Act intended to validate, independently of that Act, had to have been made in accordance with law.
77 A decision "under" s 22(2) of the Fisheries Act will not be validly made unless the decision-maker affords procedural fairness to the persons whose interests are, or may be, affected by the decision. In this case, the submissions made in the TSRA letter were relevant to Dr Findlay's consideration of whether to make the 27 April decision. Procedural fairness required him to consider those submissions and to give them such weight as he saw fit. But, he never considered those submissions before coming to his decision. It follows that the 27 April decision is a decision affected by jurisdictional error and invalid.
78 The evident purpose of the Parliament, in defining a future act in s 233(1)(c) as one that has the characteristic of validity under the legislation pursuant to which it is made, and then validating that act under the applicable provision of Div 3 of Pt 2 of the Native Title Act and, in particular in this case, s 24HA, is to enable the nation's parliaments, executive governments and the community to have certainty that the Native Title Act would not operate to invalidate (except so far as Div 3 of Pt 2, or some other provision of that Act expressly provided), governmental decisions or future acts that were made in accordance with valid laws and would otherwise affect native title. However, it was not the purpose of the Parliament to validate acts that were not made lawfully in accordance with the legislation under which they purported to have been made. Rather, the Parliament intended to protect lawfully made future acts from any consequence of what, otherwise, would be their apparent inconsistency with the provisions of the Native Title Act.
79 For those reasons, I am of opinion that the 27 April decision to impose a condition on all commercial fishing licences under s 22(2) of the Fisheries Act to prohibit the use of hookah equipment was no decision at all and invalid.