Maritime Union of Australia v Honourable John Anderson

the application 13 Notwithstanding late amendment, the application, as it stood at the conclusion of the hearing, contained numerous allegations that were either inconsistent with the applicants' concessions or submissions, or were not the subject of any argument addressed by them to the Court. There were, for example, no submissions made concerning pars 6(a)(ii), (b), (c), (d), (f) and 9 of the application. Further, the applicants conceded that, as Mr John Charles, Logistics Coordinator of WMCF deposed, there was no contract of affreightment yet made between WMCF and WBC, the relevant shipments having taken place pursuant to what were termed "fixing" letters and not pursuant to tender. The applicants are, therefore, taken to have abandoned a significant part of their application: see, e.g., pars 5(1)(i), 6(b)(i) and (ii), 6(e) and (f). In any event, Mr Charles was not subjected to cross-examination; his evidence was unchallenged; and, in consequence, those grounds would necessarily fail, there being no factual basis for them. 14 The substance of the applicants' case at hearing was simply that (1) the first respondent had misconstrued the word "service" in s 286 of the Act and, in consequence, had addressed the wrong question in deciding to grant the SVPs in question; (2) Ministerial guidelines perpetuated the same error and, in considering them, the first respondent had, therefore, had regard to irrelevant considerations; and (3) in making the challenged decisions, the first respondent had breached the rules of natural justice by not providing the applicants with an opportunity to make submissions about the availability of a licensed ship. The respondents not only denied the applicants' case but the first respondent also contended that the proceeding was incompetent. The applicants were not, so the first respondent said, persons aggrieved for the purpose of s 5 of the ADJR Act and were, therefore, unable to bring proceedings under that Act. They also lacked standing, so the first respondent said, to bring the application pursuant to s 39B of the Judiciary Act 1903. I discuss the matter of standing (and additional facts relating to it) below.

what is meant by "the service"? 15 I turn first to the question at the heart of this case, namely, what is meant by the word "service" in s 286(1)(a) of the Act? In order to answer that question, one must first consider the relevant statutory context. 16 Section 286 falls within Part VI of the Act, entitled "The Coasting Trade". Subject to the Act and, relevantly, s 286, a ship must be licensed pursuant to s 288 before it can engage in the coasting trade. The maximum period of a licence is three years. Licences are subject to conditions, one of which concerns the wages paid to seamen employed on licensed ships. Section 288 relevantly provides: (1) Subject to this Act, where a ship that is not licensed to do so engages in the coasting trade, the master, owner and agent of the ship are each guilty of an indictable offence punishable on conviction by a fine not exceeding $5,000. (2) Licences to ships to engage in the coasting trade shall be for such period, not exceeding 3 years, as is prescribed, and may be granted as prescribed. (3) Every licence shall be issued subject to compliance on the part of the ship, its master, owner, and agent, during such time as it is engaged in the coasting trade, with the following conditions: (a) That the seamen employed on the ship shall be paid wages in accordance with this Part; (b) That where a library is provided for the use of passengers, every seaman shall - where no library for their special use is provided - be entitled to obtain books therefrom under the same conditions as may regulate the issue of such books to the passengers. Section 289(1) stipulates: Every seaman employed on a ship engaged in any part of the coasting trade shall, subject to any lawful deductions, be entitled to and shall be paid, for the period during which the ship is so engaged, wages at the current rates ruling in Australia for seamen employed in that part of the coasting trade, and may sue for and recover those wages. Subject to provisos, none of which are presently relevant, pursuant to s 7(1) of the Act - [a] ship shall be deemed to be engaged in the coasting trade, within the meaning of this Act, if it takes on board passengers or cargo at any port in a State, or a Territory, to be carried to, and landed or delivered at, any other port in the same State or Territory or in any other State or other such Territory. By virtue of s 286, permits may be granted to unlicensed ships to engage in what would be the coasting trade, but for s 286(2). Section 286 relevantly provides: (1) Where it can be shown to the satisfaction of the Minister, in regard to the coasting trade with any port or between any ports in the Commonwealth or in the Territories: (a) that no licensed ship is available for the service; or (b) that the service as carried out by a licensed ship or ships is inadequate to the needs of such port or ports; and the Minister is satisfied that it is desirable in the public interest that unlicensed ships be allowed to engage in that trade, the Minister may grant permits to unlicensed ships to do so, either unconditionally or subject to such conditions as he or she thinks fit to impose. (2) The carriage, by the ship named in a permit issued under this section, of passengers or cargo to or from any port, or between any ports, specified in the permit shall not be deemed engaging in the coasting trade. (3) A permit issued under this section may be for a single voyage only, or may be a continuing permit. (4) A continuing permit may be cancelled by the Minister upon not less than 6 months' notice to the master, owner or agent of the ship of the Minister's intention to cancel it. (5) The Minister shall, within 14 days of the granting of a continuing permit under this section, or the notice of intention to cancel any such permit, notify in the Gazette the issue of the permit, or the giving of the notice, as the case may be, with particulars thereof. Subject to the Act and, relevantly, s 286, an unlicensed ship cannot lawfully engage in the coasting trade: s 288. A ship engages in the coasting trade if it takes on board cargo (or passengers) at an Australian port which is (or are) to be carried to another Australian port. It is immaterial that the ship loads but once and there is no element of regularity about its activity. Hence the Minister may, under s 286(3), grant a permit "for a single voyage", as well as "a continuing permit". 17 Before the Minister can exercise the discretionary power conferred by s 286(1), the Minister must be satisfied that, "in regard to the coasting trade with any port or between any [Australian] ports", (1) there is no licensed ship available for the service; or (2) the service as carried out by a licensed ship or ships is inadequate to the needs of such port or ports; and (3) that it is desirable in the public interest that unlicensed ships be allowed to engage in the trade. In this case, the question is, what is meant by "the service" to which s 286(1) refers. 18 In the first instance, the satisfaction that the Minister is required to reach is "in regard to the coasting trade with any port or between any ports in the Commonwealth or in the Territories". The "service" referred to in par (a) and par (b) is in that trade with any such port or between such ports. In applying s 286, the port or ports will be those identified in the application for a permit made under that provision. The "service" to which these paragraphs refer is, therefore, the transportation or conveyance by ship of passengers or goods to the port or between the ports as identified in the application. 19 This conforms with the ordinary meaning of the word "service" when it is used in connection with the provision of transport for another, as in, for example, the expressions "bus service" or "train service". This, however, does not conclude the matter. In consulting the Oxford English Dictionary, it becomes apparent that the word "service" has a variety of shades of meaning. Thus, it may mean, particularly in this context: 32. Accommodation for conveyance or transit afforded by vehicles plying regularly on a route. Or, more generally: 21a. Assistance or benefit afforded by an animal or thing (or by a person as involuntary agent); the work which an animal or thing is made to do. The Macquarie Dictionary relevantly defines the word "service" as: 1. an act of helpful activity. 2. the supplying or supplier of any articles, commodities, activities, etc., required or demanded. 3. the providing or a provider of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance. …7. employment in any duties or work for another, a government etc. … 12. … the performance of any duties or work for another; helpful activity. Hence, in relation to transportation, the word "service" may refer to the regular practice of conveying passengers or goods by, in the present context, a ship plying a route to a port or between ports. Alternatively, it may mean, more generally, the actual benefit provided in a particular instance, as in this case, the sea transportation of passengers or goods to a port or between ports. The applicants argued for the former meaning. 20 The proper inquiry was, the applicants' counsel submitted, whether there were "licensed ships that will ply that particular coastal trade". On this argument, the Minister could not be relevantly satisfied in respect of s 286(1)(a) unless it was shown that there was no licensed ship "able and willing" to serve in that coastal trade. It was immaterial, the applicants' counsel submitted, that no licensed ship was able to take the proposed cargo (or passengers) on board at the relevant loading port at the time desired by the shippers (or passengers) and, indeed, none could do so for many months after the desired date. It was also immaterial, so counsel said, that a licensed ship that could sail the route was ill-suited to carrying (or unable to carry) the proposed cargo (or passengers). Hence the delegate erred, the applicants submitted, when, in looking to s 286(1)(a), the delegate inquired about the availability of a licensed ship for "the particular voyage or shipment". 21 Had the delegate addressed himself to the correct inquiry, he could not, so the applicants said, have been satisfied that there was no licensed ship available for the service. This was because (1) there was "no material before him that no licensed ship was available for the service (as distinct from the particular voyage or shipment)"; and (2) the evidence before the Court showed that CSL had a licensed ship available for the service. In relation to the second proposition, the applicants relied on evidence that CSL had tendered, though unsuccessfully, for the contract with WMCF. They might more properly have referred to CSL's response to the Department between 17 and 19 April 2000 concerning the availability of the "CSL Yarra". 22 In construing s 286, it is to be borne in mind that it creates an exception to the licensing regime contemplated by s 288. The exception, which is expressed in relatively broad terms, is directed to two matters - the unavailability of "the service" and the inadequacy of "the service" as carried out to the needs of the relevant port or ports. It is plain enough, I think, that the word "service" in par (a) has the same meaning in par (b) of s 286(1), although "the service as carried out" in par (b) must refer to the sea transportation to a port or between ports that is already being provided by licensed shipping. Further, par (b) requires a different inquiry from par (a), i.e, assuming there is a service being carried out by a licensed ship or ships, is it adequate to meet the needs of the port or ports as identified in the application? 23 The relevant inquiry under s 286(1)(a) is whether a licensed ship is "available" for "the service". The difficulty with the approach advanced by the applicants is that it makes the inquiry about availability so open-ended that it is virtually meaningless. It would be nonsense to say that a licensed ship was "available" for the service even though the ship could not make any voyage to the relevant port or between the relevant ports for, say, three years. In other words, whether a licensed ship is "available" can be answered rationally only if the question is asked with respect to a particular period of time. There is no time mentioned in s 286 and, in this circumstance, the relevant time must be the time referred to in the permit application. 24 As already noted, the "service" referred to in s 286(1)(a) is in "the coasting trade with any port or between any ports in the Commonwealth or in the Territories". If the coasting trade with any such port or between such ports involves the shipment out or in of a particular cargo (in this case, 32,000 tonnes of fertiliser) a licensed ship is not available for the relevant service in that trade if it cannot carry that cargo. In other words, in order to be "available" for the service, a licensed ship must be able to convey to a port or between ports the cargo that is part of the relevant coasting trade. A cargo will form part of that trade where it is desired, as in this case, to convey the cargo (here, fertiliser) from a port (here, Townsville) to other ports in Australia for a commercial purpose. The permit application will, of course, identify the cargo in question, for the purpose of applying s 286(1)(a). In other words, the relevant inquiry under s 286(1)(a) is whether there is a licensed ship capable of conveying the cargo that the shipper desires to ship to the port or between the ports identified at the time or times nominated in the application. 25 Whether there is a licensed ship available for the relevant service is a question of fact that is not for a court to determine. Section 286(1) makes the Minister's discretionary power depend upon him reaching a requisite state of satisfaction. That is, it must be shown to the satisfaction of the Minister that there is no licensed ship available for the service. Whether the Minister is so satisfied will depend upon the circumstances of the case. The matters relevant to the Minister's inquiry will depend, in large part, on the permit application (e.g., whether for a continuing or single voyage permit, the specified port or ports, the nominated time or period of time for the desired voyage and the nature of the cargo). In conformity with this, the Navigation (Coastal Trade) Regulations require that an applicant for a permit (whether master, owner, charterer or agent of a ship) utilise a form that requires the disclosure of this information: see regs 25 and 28. In a practical sense, the application fixes the scope of the Minister's inquiry under s 286(1)(a). 26 In the course of the Minister's consideration, questions may arise as to whether a licensed ship is "available for the service" even though it may be less suitable than an unlicensed ship which is also available for the voyage. Suitability is, obviously enough, different from availability. The Minister may form the view that it cannot be shown that there is no licensed ship available for the service although the licensed ship is not as suitable for the proposed voyage as an available unlicensed ship. A point may be reached, however, where a licensed ship is considered so unsuitable for the relevant service that the Minister is satisfied that it is not available for it at all. That is, the Minister may form the view that it can be shown that a licensed ship is not available because the licensed ship is entirely unsuitable for the voyage. These are matters calling for an exercise of judgment on the Minister's part. 27 Prior to the enactment of the ADJR Act, Gibbs J said, in Buck v Bavone (1976) 135 CLR 110 at 118-119, that: In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts. In this case, orders for review are sought on the ground set out in s 5(1)(f) of the ADJR Act, i.e, error of law, as well as in s 5(1)(e) and (f) discussed below. As the majority of the High Court said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 276: [W]hile the subjective nature of the decision no longer can be said to immunise the decision from review, it is necessarily of relevance to the issue of whether there has been an error of law. 28 In each instance in this case, WBC applied for a single voyage permit to be granted to an unlicensed ship. The service that was the subject of each application was the accommodation for sea transit of 32,000 tonnes of fertiliser from Townsville to certain specified Australian ports commencing on or about a nominated date. In each instance, the material before the delegate showed that there was no licensed ship available to undertake the voyage at the time nominated in the permit application. In the case of the second application, the delegate apparently gave consideration to the question whether a licensed ship was available for the service, for the purposes of s 286(1)(a), though it had a capacity of 5,000 tonnes less than that required for conveyance of the cargo and was unable to commence loading until some days after the nominated loading date. In each case, the delegate satisfied himself, after appropriate inquiry and upon the material before him, that there was no licensed ship available for the service for which application was made. In the circumstances, neither of the challenged decisions is shown to have involved an erroneous construction of s 286(1) of the Act. 29 By way of postscript, I note that this case is not illuminated by legislative history. It is true that the history of the coasting trade provisions makes it clear that, as the applicants contended, they were intended to protect Australian ship-owners and seamen by providing that all ship-owners, whether Australian or foreign, engaging in the coasting trade were to comply with the same minimum conditions for the employment of seamen and, in particular, to pay them at Australian wage rates. See, for example, Parliamentary Debates, House of Representatives, 16 July 1912, p 815; also Parliamentary Debates, House of Representatives, 1 July 1920, at 2506. Section 286 was introduced into the Act in something like its present form by Act No 1 of 1921. (Section 286(1) was amended to its current form in 1995.) The contemporary parliamentary record indicates that the genesis of the present s 286 was the absence of licensed shipping services for isolated communities, especially in north-western Australia, and the fear that a strict application of the coasting trade provisions would cause those communities to lose what few services they had: see Parliamentary Debates, House of Representatives, 1 July 1920, at 2506-7 and 30 September 1920, at 5217. In the course of these debates, the word "service" was occasionally used casually to denote, apparently, an ongoing system of transport. There is no indication that serious consideration was given to the operation of the word "service" in its statutory context. 30 The use of extrinsic material of this kind in the interpretation of an Act is governed by s 15AB of the Acts Interpretation Act 1901 (Cth). At best that material confirms that the meaning of s 286(1) is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act. (s 15 AB(1)(a)) As I have shown, the question of availability is necessarily referable to the time period and cargo specified in the permit application. A licensed ship cannot be said to be "available" for the service if it is not available at (or about) the nominated period of time to carry the specified cargo in the coasting trade with the specified port or between the specified ports. The construction, for which the applicants contend, though it may perhaps derive weak support from the legislative history, would lead to capricious and absurd results that cannot have been intended. For that reason, it should not be adopted: see Lake Macquarie Shire Council v Aberdare County Council (1970) 123 CLR 327 at 332-33 and Public Transport Commission (NSW) v Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 350. See also Bennion, Statutory Interpretation (2nd ed.), pp 322-328 and Pearce and Geddes, Statutory Interpretation in Australia (3rd ed.), pp 25-26. Moreover, the interpretation given to s 286(1)(a) in these reasons would not restrict the proper application of s 286(1)(b), for, as already noted, that paragraph requires a different inquiry, directed to the adequacy of an existing service to meet the needs of a port or ports identified in the application.

the guidelines - an irrelevant consideration? 31 On 24 June 1998, Ministerial approval was given to "Guidelines for Granting Licences and Permits to engage in Australia's Domestic Shipping Trade" ("the Guidelines"). The Guidelines relevantly read: Purpose This document sets out the legislative provisions and administrative practices for the issue of licences and permits to engage in the Australian coasting trade. … Single Voyage Permits SVPs exist for circumstances where there is a one-off unavailability of suitable licensed ships. A SVP is issued for a particular vessel to carry a nominated number of passengers or amount of cargo between specified ports on particular days. Permits may only be issued where licensed tonnage is not available or inadequate and it is in the public interest. The assessment of availability, inadequacy and the public interest has regard to a requirement for the maintenance of supplies, production, service or contractual obligations that could not be met by using licensed ships. Ships issued with permits would be expected to meet the standards of safety and working conditions of international conventions to which Australia is a party. Ships issued with permits will be liable for port State control inspections by the Australian Maritime Safety Authority. · Availability A licensed ship may be considered unavailable if the operator cannot guarantee that it will be presented to ship cargo according to a schedule that meets the reasonable needs of the shipper. Licensed ships may also be unavailable if they have contractual arrangements, which give other shippers priority at short notice. · Adequacy of licensed services A licensed ship is considered inadequate when it is not suitable to perform the task. Suitability may be determined on the basis of the delivery requirements of the shipper, the technical characteristics of the ship in question and the capacity of the ship to transport cargo safely. The delivery requirements of shippers are the primary determinants of whether licensed vessels are adequate and in particular whether the cargo can be delivered in a timely, sound and uncontaminated condition. Translating this to a practical level, cargo may be required to be containerised or delivered in bulk or transported in food grade holds or be available at the unloading port on a particular date, etc. Let it be assumed that the delegate had regard to the Guidelines. The applicants submitted that the Guidelines were an irrelevant consideration, because they did not reflect the construction of s 286(1) that was advanced by them and to which I have already referred. Thus, the applicants submitted that the Guidelines were wrong in stating that SVPs were intended to meet "one-off unavailability of suitable licensed ships". 32 For the reasons already stated, I reject the applicants' submissions concerning the proper construction of s 286(1)(a). It follows that I reject their contention, which was premised on acceptance of that construction, that the delegate fell into error to the extent that he considered the Guidelines.

denial of natural justice? 33 The applicants contended that, prior to the making of each decision, they were entitled to an opportunity to make submissions concerning the availability of a licensed ship for the service. Because they were not given that opportunity, they were, so they said, denied natural justice (or procedural fairness). 34 In support of these submissions, the applicants relied on the observations of Mason J in Kioa v West (1985) 159 CLR 550 at 582-587 and Deane J in Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 653. In this case, however, the challenged decisions did not affect the applicants' interests as specifically and immediately as in Kioa v West and in Haoucher. The applicants' claimed entitlement was said to arise from the fact that they represent seamen employed on licensed ships and that their objects are to protect and promote their members' interests. They assert that "their members' employment opportunities are directly affected by the grant of single voyage permits". The claim is that, if unlicensed ships are permitted to engage in what, but for s 286 (2), would be the coasting trade, then there will be less work available for those of the applicants' members who are engaged on licensed ships. Even if accepted, the claim is, at best, one of indirect detriment suffered by a section of the workforce generally. 35 In Kioa v West at 584, Mason J stated as follows: The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. … But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. (Emphasis added) As Lehane J said in Botany Bay City Council v Minister for Transport and Regional Development (1996) 66 FCR 537, affmd (1996) 45 ALD 125 ("Botany Bay CC") at 553: There is a clear distinction, and authorities binding on me treat it as an important distinction for these purposes, between decisions affecting the rights or interests of particular individuals and those affecting the interests, indiscriminately, of members of the public at large or of the members of a section of the public. In that case, his Honour held that, since the challenged decision (relating to runway use at Sydney airport) affected only the interests of the public, or of a section of the public, and not the interests of particular individuals, then the decision was not one which gave rise to an entitlement to procedural fairness, including an entitlement to be heard. Earlier, in Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 ("Queensland Medical Laboratory"), Gummow J held, at 637, that decisions to make recommendations about the replacement of the schedule of fees payable to pathologists under the Health Insurance Act 1973 and to replace the schedule did not affect the rights, interests and expectations of pathologists, other medical practitioners and patients in a sufficiently individual direct and immediate way as to attract with regard to persons in these groups the duty to act fairly. In the present case, a decision upon an application for a permit under s 286(1)(a) directly and immediately affects the applicant (in this case, WBC) and the shipper (in this case, WMCF) and, possibly, the shipper's customers. It does not, however, have the same direct and immediate effect upon the applicants or those of their members who are employed on licensed ships. Although there are important differences between this case and the cases to which I have referred, those differences do not make the distinction mentioned by Mason J in Kioa v West, by Lehane J in Botany Bay CC and by Gummow J in Queensland Medical Laboratory any less relevant to this case. The applicants have not established that the interests of seamen employed on licensed ships are affected by a decision to grant a permit under s 286(1)(a) in a sufficiently direct and immediate way as to entitle them, as representing the seamen, to be heard before a permit is granted. 36 The second basis for the applicants' natural justice claim was that previous Ministerial guidelines had accorded the applicants an opportunity to provide information concerning the grant of a permit under s 286 of the Act. In this connection, the applicants relied particularly on Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 ("CCSU"). In that case, the evidence showed that, ever since the Government Communications Headquarters ("GCHQ") began in 1947, prior consultation between the official and trade union sides about important alterations in the terms and conditions of service of staff had been "the invariable rule". It was held that, if there had been no question of national security involved in the case, the appellants would have had a legitimate expectation that the Minister would consult them before issuing an instruction which affected their conditions of service: see [1985] AC at 401. 37 CCSU does not assist the applicants' case. On the contrary, ithighlights the difficulties with it. In this case, the evidence shows that, at the time the challenged decisions were made, there was no rule or practice pursuant to which the applicants might be heard. On the contrary, the former Ministerial guidelines had been replaced by the current guidelines, which contain no basis for saying that the applicants had any legitimate expectation that they would be heard before the grant of a permit under s 286(1)(a). (It may well be, of course, that legitimate expectations are not relevant to the question whether, as a matter of construction, in relation to a decision to issue a permit, there is an obligation to afford natural justice to persons such as the applicants: cf Botany Bay CC at 556, referring to Kioa v West at 617-618 per Brennan J and Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 40-41 per Brennan J.) The applicants had, so it seems to me, no "legitimate expectation" of being consulted after the new guidelines became operative in June 1998. As has been said many times, leaving aside questions of estoppel, the Executive cannot preclude itself from adopting new policies or new guidelines, providing they fall within the ambit of the relevant statutory duty or discretion: see, e.g., Attorney-General (NSW) v Quin at 17-18 per Mason CJ.

standing 38 I have left to last the question whether the applicants have standing to bring the present proceeding. 39 The direct legal effect of the grants of single voyage permits pursuant to s 286(1)(a) was to authorise unlicensed ships to carry specified cargo from a specified port to other specified ports between specified dates. As already stated, the challenged decisions directly and immediately affected the applicant (in this case, WBC) and the shipper (in this case, WMCF) and, possibly, the shipper's customers. That does not mean, however, that the applicants were not "persons aggrieved" in the requisite sense. 40 The applicants rely on their status as representative bodies whose objects are to protect their members' employment interests. They point to the fact that the number of permits granted under s 286 has increased over recent years. They say that the Court should infer from the evidenced facts that WBC will make more applications for SVPs to ship WMCF's fertiliser in unlicensed ships. They claim that because more permits are being granted, unlicensed ships are able to compete more effectively than before with licensed ships for the domestic transport of cargo. As we have seen, unlicensed ships are not required to comply with s 289 of the Act (which requires seamen to be paid at current Australian rates). The applicants say that unlicensed ships usually employ foreign crew and have significantly lower labour and overall operating costs. The result is, so the applicants claim, that the grant of permits under s 286(1) diminishes the work available for licensed ships and, in turn, their members' employment opportunities. 41 In relation to standing, the applicants also rely on an agreement that they have made with CSL. The agreement arose out of industrial action and an associated court proceeding which, in turn, arose out of circumstances said to be relevant to the question of standing. As already noted, CSL was amongst the unsuccessful tenderers for the proposed contract of affreightment with WMCF. CSL's tender involved the use of one or other of its two licensed ships, the "River Yarra" and the "River Torrens". In early 2000, CSL apparently notified the MUA of its intention to re-flag the "River Yarra", because CSL was unable to secure sufficient work in Australian domestic shipping to justify the ship's retention for that shipping. Subsequently, in May 2000, CSL notified the MUA that "it thought the better course was to sell the 'River Torrens' and retain the 'River Yarra' in the Australian domestic shipping trade". At the same time, CSL advised that there would be a number of consequential redundancies. Industrial action and a court proceeding followed. Eventually the parties reached a negotiated settlement. It was agreed that the industrial action would cease and that CSL would retain the crew of the "River Torrens" in employment until 25 June 2000. Further, it was agreed that, if this proceeding was successful and "as a consequence long term contracts in the Australian coasting trade become available, then CSL Australia will actively pursue those contracts on a commercially viable basis, with a view to providing further employment opportunities for Australian seafarers". The applicants claim, therefore, to have an economic interest in the outcome of the current proceeding sufficient to give them standing. 42 The first respondent contends that (1) the relief sought by the applicants could have no legal or practical utility; and that (2) the applicants' interest in the outcome was "too remote and slight to make them persons aggrieved". All the respondents challenge the applicants' claims that the evidence establishes that the increase in the granting of permits results in less work on licensed ships. They also say that the Court cannot infer that WBC will repeat its applications for SVPs to carry WMCF's fertiliser in unlicensed ships. There is, so the respondents submit, no admissible evidence to this effect. For the reasons given below, it is unnecessary to determine these matters. 43 As Lehane J remarked in Botany Bay CC at 556 and 568, a person may be a person aggrieved by a decision within the meaning of s 5 of the ADJR Act notwithstanding that he or she is not entitled to procedural fairness in respect of that decision. Section 3(4) of the ADJR Act relevantly provides that, in that Act, a reference to a person aggrieved by a decision includes a reference "to a person whose interests are adversely affected by the decision". In Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 at 437-438, Ellicott J stated, in a passage which has been frequently cited with approval, that: The words 'a person who is aggrieved' should not in my view be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the making of the decision. It is unnecessary and undesirable to discuss the full import of the phrase. I am satisfied from the broad nature of the discretions which are subject to review and from the fact that the procedures are clearly intended in part to be a substitution for the more complex prerogative writ procedures that a narrow meaning was not intended. This does not mean that any member of the public can seek an order of review. I am satisfied, however, that it at least covers a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public. In many cases that grievance will be shown because the decision directly affects his or her existing or future legal rights. In some cases however the effect may be less direct. It may affect him or her in the conduct of a business or may, as I think is the case here, affect his or her rights against third parties … . See Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50 at 65; Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462 at 472-4; and Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124 ("AIMPE") at 133. For present purposes, it is, I think, appropriate to determine the question of standing, as it arises under the ADJR Act and under the Judiciary Act, by reference to the same general law tests for standing. 44 The law of standing has been recently considered by the Full Court in Transurban City Link Ltd v Allan (1999) 168 ALR 687 ("Transurban"). In that case, the respondent, Mr Allan, sought to bring an end to the Melbourne City Link Project by challenging a decision to issue a certificate under s 93O of the Development Allowance Authority Act 1992 (Cth). The issue of a certificate had the effect of transferring the tax benefits of infrastructure project borrowings from the borrower to the lender. The issue of the certificate was a condition precedent to the coming into operation of the agreement for the project. The difficulty faced by Mr Allan was that the condition precedent was satisfied when the certificate was received by the respective parties. As the Full Court said at 698-699: Assuming that the other conditions precedent to the operation of the agreement were also satisfied, then the agreement, which was given statutory force by virtue of s 14 of the City Link Act, came into operation. Thereafter, the rights of the parties were determined by the agreement and the City Link Act. The agreement made provision for various events which might adversely affect the parties, but the withdrawal or declaration of invalidity of a certificate … was not one of them. As it turns out, upon a challenge to the issue of the certificate, there was nothing Mr Allan or any other member of the public could do that would adversely affect the rights of the parties to the agreement and, in particular, prevent performance of the agreement and the construction of the project. … It follows that by the time Mr Allan sought review of the … decision on 13 March 1996, the relevant condition precedent was to be regarded as satisfied or waived. The Court concluded, at 699, that any interest that Mr Allan had in the decision to proceed with the City Link Project was an interest which is too remote from the decision he seeks to review, just as the interest of the Foundation in [Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493] was too remote from the exchange control decision, and in [Re McHattan and Collector of Customs (NSW) (1977) 18 ALR 154] the interest of the customs agent in avoiding being sued for negligent advice was too remote from the decision of customs on the applicability of certain tariff classifications. Similarly, in [Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250], the interest of a pharmaceutical company in opposing the introduction into the market of a competitor's drug was not sufficiently proximate to the decision to permit registration of the drug under the Therapeutic Goods Act 1989 (Cth). The first respondent relies on the Full Court's decision for the proposition that, in the present case, the applicants' interest in the challenged decisions is too remote to give them standing. 45 In order to evaluate this submission, it is necessary to consider the authorities relied on by the Court in Transurban in more detail. In the Conservation Foundation case, the High Court held that the appellant had no interest in challenging a decision made under regulations affecting foreign exchange. The case affirmed that a plaintiff has no standing to bring an action to prevent the violation of a public right if he or she has no interest in the subject matter beyond that of any other member of the public. That is to say, if no private right of the plaintiff is affected, the plaintiff has standing to sue only if he or she has a special interest in the subject matter of the action. See also Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 35-36; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 at 558; and Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Limited (1998) 194 CLR 247 ("Bateman's Bay") at 265. In explaining the concept of "special interest" Gibbs J said in the Conservation Foundation case, at 530: [A]n interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. Aicken J also said, at 511: The 'interest' of a plaintiff in the subject matter of an action must be such as to warrant the grant of the relief claimed. I do not mean that, where the relief is discretionary, locus standi depends on showing that the discretion must be exercised favourably. What is required is that the plaintiff's interest should be one related to the relief claimed in the statement of claim. This observation was noted with approval in Bateman's Bay at 266. As the Full Court observed in Transurban at 697: If the relief sought could never further the interest of an applicant or the failure to grant it harm him or her, common sense would suggest that the applicant for judicial review would lack standing. 46 The Full Court acknowledged, however, that certain remarks of Brennan J in McHattan (set out below) may have indicated a contrary view. Of those remarks, the Full Court in Transurban said at 697-698: [W]hat his Honour there said has to be understood by reference to the context in which the case arose. The applicant to the tribunal was a customs agent. The decision of which review was sought was the classification of certain goods for customs purposes. The applicant had advised an importer about the rate of duty payable. As a result of the decision he was potentially liable to the importer for negligent advice. Apart from an alleged injury to his reputation for having given wrong advice, he clearly had no interest at all in the subject matter of the decision. His Honour held that the applicant was not a person who had standing to apply to the tribunal just because the outcome of the review would either leave him liable to be sued or alternatively free him from the possibility of suit. The case does not stand for the contrary proposition that a person totally unaffected by the outcome of the review can have standing. It stands only for the proposition that the mere outcome of the review may not suffice to give standing. The Full Court concluded at 698: In summary, the question of standing to review an administrative decision is to be determined by reference to the interest which the applicant has in the decision which is under review. It is to be determined by reference to the nature and subject matter of the review and the relationship which the applicant individually or a representative body may have to it. An interest in the outcome of the review may give standing. But there will be no standing where the actual outcome of the review will not affect the applicant. There will be a question of degree involved in many cases. 47 If the applicants had made out their case (contrary to my view), would the actual outcome of that review have affected them? Their claim for relief was as follows: (1) An order quashing or setting aside the [decisions] and revoking the [permits]. (2) Further, or in the alternative, a declaration that the decisions were invalid. (3) A declaration that the guidelines in relation to the grant of single voyage permits and continuing voyage permits approved by the Minister for Workplace Relations and Small Business on 24 July 1998 are invalid. (4) An order that the first Respondent be prohibited from making any further decision in relation to the grant of a single or continuing voyage permit in relation to any voyage the subject of the tender otherwise than by reference to the service set out in the tender. I reiterate, lest it be forgotten, that the evidence of Mr Charles (WMCF) showed, and the applicants conceded, that this case did not concern any voyage "the subject of the tender". There was no factual basis shown for the relief referred to in par (4). Further, as I commenced by saying, this is an application for an order of review of two decisions, one made on 22 March 2000 and the other on 20 April 2000, to grant a single voyage permit under s 286(1)(a) of the Act. Pursuant to the first permit, the "Algarve" completed final discharge of the cargo that it had carried from Townsville on 23 April 2000. Pursuant to the second permit, the "J Emma" completed final discharge of the cargo that it had carried from Townsville on 23 May 2000. The application for an order of review was made on 20 April 2000. At that time, it might have been possible for the applicants to seek orders, by way of interlocutory relief, preventing any apprehended harm being done them by the second decision. It is difficult to see that anything might have been done at that stage in relation to the first decision. The voyage that had been authorised by the first permit was virtually complete. At the time the application for review was originally made, the applicants would have gained nothing by an order of the kind sought in par (1) of their claim for relief as it stood at that time. As it happened, the applicants did not challenge (or, indeed, mention) the second decision until the application was amended on 11 May 2000. The voyage authorised by the second permit was then well under way. Again, it is difficult to see that anything might have been done then to prevent any apprehended harm. Certainly, in a practical sense, there is nothing that the applicants would have gained then (or now) if the decisions were set aside, as par (1) of the claim for relief seeks. By 11 May 2000, it was too late for licensed ships, manned by the applicants' members, to undertake the voyages. 48 From the applicants' standpoint, the position is no different with respect to the declarations about the validity of the decisions sought in par (2) of the claim for relief. The applicants would not have avoided any of the harm that they allege flows from the two decisions had declarations of this kind been made when each was first sought. Moreover, any such declaration would have made the authorisations given by the permits null and void and the voyages under them unlawful. 49 In these circumstances, the applicants have no standing to challenge the two decisions that are the subject of their application for orders of review. That is, they have no standing to seek the relief identified in pars (1) and (2) of their claim for relief. Since they have no standing to challenge these decisions, they have no standing to seek any relief that might flow consequentially upon that challenge. As the Further Amended Application dated 2 June 2000 shows, the relief sought in par (3) was consequential relief of this kind. The application sought review of only the two decisions to grant single voyage permits. It did not challenge any other decision or conduct. 50 In reaching this conclusion, I have not relied on the decision in Australian Foreman Stevedores Association v Crone (1988) 20 FCR 377 ("Crone"), notwithstanding that the first respondent cited it in support of his case. In that case, Pincus J held that the applicants, who were trade unions and some of their members, did not have standing to challenge the importation of two vessels intended to assist one of the respondents in its shipping business. The applicants claimed standing on the basis that the proprietor of the business did not employ union labour and that the importation would disadvantage employers who did, with adverse consequences for their employees who were union members. His Honour held, at 380-381, that the applicants had not shown that "the slight proportionate increase in shipping capacity available to non-union shipping companies represented by the two vessels is of sufficient significance to give the applicants standing". Further, his Honour held, at 381, that there was "no basis on which it could possibly be found that, but for the importation of these vessels, [an employer of union labour] would have got the contract", which was, according to his Honour, at the centre of the case. 51 I accept that there are similarities between that case and this. Indeed, the first respondent adduced evidence that: For the year ending 30 June 1998, the total volume of cargo reported by port authorities to have been loaded in the Australian coasting trade was 52,522,341 tonnes. For the year ending 30 June 1999, the total volume of cargo reported by port authorities to have been loaded in the Australian coasting trade was 48,387,900 tonnes. The 64,000 tonnes of fertiliser that were together carried by the "Algarve" and the "J Emma" amounted to a very small proportion of the annual tonnage carried in the coasting trade. Referring to Crone, the first respondent relied on this fact to support the proposition that the challenged decisions were, on any view, of too slight a significance to afford the applicants standing in this case. 52 Plainly enough, however, the decision in Crone turned on the facts of the case. The facts of the present case are not the same and, in particular, the decisions under review and the interests relied on to give standing are different from that in Crone. I do not think it is appropriate to decide the question of standing upon the basis of the tonnage carried by the ships to which the challenged permits were granted. Of course, any individual permit will almost inevitably concern only a small proportion of the annual volume of domestic shipping. Denying standing to challenge permits on this ground could well leave the applicants without a remedy against a series of alleged errors that, in the aggregate, could well affect their members' employment prospects considerably. The first respondent's approach does not, it seems to me, adequately reflect the nature of the interests that the applicants claim in the decisions under review in this case: cf Bateman's Bay at 267. 53 The applicants relied upon the decision of Gummow J in AIMPE. In that case, the applicant challenged the respondent's refusal to furnish it with a statement of reasons (pursuant to s 13(1) of the ADJR Act) for his decision in providing a manning notice under s 47AM(22) of the Income Tax Assessment Act 1936 ("the Tax Act"). At the request of a shipowner, notice had been provided for a ship that was being built. The applicant was one of the unions that had participated in the administrative procedures giving rise to the notice. The effect of the notice was to give the shipowner special treatment under the Tax Act if the shipowner complied with the terms of the notice. In this event, it was likely that there would be a reduction in the number of the applicant's members employed upon the ship. Any such reduction in manning levels would, so the applicant said, impair the safe and efficient operation of the ship. It was in this context that Gummow J found there was standing on the applicant's part. His Honour stated at 133-4: [T]he applicant does have a sufficient interest to constitute it a person aggrieved by the decision of the Secretary. It is true that the shipowner might not comply with the manning notice and even it if did the applicant might manage to obtain what it says should be its full component of the crew. However, in my view (and in the circumstances of the case) there flows from the decision of the Secretary a danger and peril to the interests of the applicant that is clear and imminent rather than remote, indirect or fanciful, and the applicant has an interest in the matter of an intensity and degree well above that of an ordinary member of the public. I accept that, as the first respondent says, AIMPE is distinguishable from the present case. In that case, there was much yet to be done by the shipowner to comply with the decision. There was a practical utility in the applicant's request for reasons and, possibly, in any consequential application for review. For the reasons already given, the applicants in this case have no such live interest in the outcome of a review of the challenged decisions. 54 I also reject the applicants' submission that it acquired standing by virtue of its agreement with CSL. As a result of that agreement, the applicants might have obtained an advantage from CSL if they won the case. An applicant does not acquire standing, however, simply because the outcome of a review of an administrative decision might afford the applicant some consequential benefit from a third party. The terms of this agreement could not give the applicants an interest in the decision under review which they otherwise lacked. This was the point of the observation made by Brennan J in McHattan and discussed by the Full Court in Transurban at 697-698 (in a passage set out above). Brennan J said at 157 that The interest of which s 27(1) [of the Administrative Appeals Tribunal Act 1975] speaks is an interest which is affected by the decision to be reviewed, not by the review. The outcome or possible outcome of the proceedings is not the criterion for determining whether the proceedings have been duly instituted, and the relevant interest must be one which is affected by the [decision] whatever the outcome of a review might be. As the Full Court remarked at 698, an applicant's standing is not established by a showing that the review might have a practical consequence for him or her; though the applicant will not have standing if the review outcome can have no effect at all upon the applicant's interests. 55 In the United States, the jurisdiction of federal courts is constrained by the constitutional requirement that there be a "case" or "controversy": see US Constitution, Art III s 2. There is a similar requirement in Chapter 3 of the Constitution of the Commonwealth of Australia. Although there are important constitutional differences between Australia and the United States, the High Court has referred to the United States jurisprudence in this area for its "persuasive guidance" when examining the limits of judicial power under Chapter 3: see, e.g., Conservation Foundation at 550-551 per Mason J. In the United States, the doctrine of mootness, which is seen as distinct from the question of standing, will place a dispute outside the jurisdiction of the courts if, at any stage of the proceedings, there is no longer a "real and substantial controversy admitting of specific relief through a decree of a conclusive character": see Aetna Life Insurance Co v Haworth, 300 US 227, 240-41 (1937). As a consequence of the requirement that for an exercise of federal judicial power there must be a controversy, there is also a requirement in the United States that a party invoking the jurisdiction have a personal stake in the outcome: see United States Parole Commission v Geraghty 445 US 388, 397 (1980). The Full Court in Transurban discussed the position in the United States at 700-01, as did Merkel J, who was the primary judge: see Allan v Development Allowance Authority (1999) 93 FCR 264 at 276-78. As Merkel J said at 277: [F]ramed in the language used by the US courts, the appropriate question is not whether an applicant continues to have standing, but rather, whether the matter has become moot as a consequence of the applicant's changed circumstances. In the language of US courts, so far as the applicants in this case are concerned, their challenges to the decisions under review were moot from inception. In the United States, one exception to the mootness rule is where the challenged actions complained of are capable of repetition, yet evade review because of the factual circumstances, such as the short duration of the order the subject of complaint. For example, in Roe v Wade 410 US 113 (1973), the Supreme Court allowed a suit challenging the constitutionality of Texas' abortion legislation to continue, notwithstanding the fact that none of the plaintiffs were still pregnant by the time the appeal reached the Court. This exception will not apply, however, where the dispute became moot before the action was even commenced: see Renne v Geary 501 US 312, 320-21 (1991). 56 This case does not require me to decide whether the applicants (or others in the position of the applicants) would have standing to challenge a decision to grant a permit under s 286(1) of the Act where the ship to which the permit issued had yet to sail. I do not do so. That is a question for another day. In this case, there was no evidence (and the applicants did not contend) that they would be unable to file timely applications challenging decisions under s 286(1) of the Act. In another case, an applicant who wishes to challenge a decision of this kind may seek interlocutory relief to protect any present interest in the subject matter of the review. Perhaps too, in an appropriate case, a court in Australia could properly entertain an application for review where it is established the challenged decisions are being repeated, but evade review because of, for example, the short duration between the decisions and their irremediable implementation. summary 57 For the reasons stated, the applicants did not have standing to bring this review application; and, even if they did, they have not made out the grounds upon which they relied to challenge the decisions in question. Accordingly, I would dismiss the application with costs. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Counsel for the Applicants: Mr W T Houghton QC with Mr S R Horgan

Solicitor for the Applicants: Maurice Blackburn Cashman

Counsel for the First Respondent: Mr A L Cavanough QC with Mr C M Caleo

Solicitor for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: Mr C M Maxwell QC with Mr J R Birrell

Solicitor for the Second Respondent: Mallesons Stephen Jaques

Solicitor for the Third Respondent: Blake Dawson Waldron

Dates of Hearing: 1 and 2 June 2000