JURISDICTION AND STANDING
44 In Munkara No 1, I addressed arguments previously advanced by Santos as to whether there was before the Court a "matter" arising under a law of the Commonwealth and the closely related question of whether Mr Munkara had standing to sue for the final relief, namely a final injunction in the terms sought on the originating application: Judiciary Act 1903 (Cth), s 39B(1A)(c).
45 Santos has raised an additional argument with respect to that issue and invites the Court to revisit the questions of jurisdiction and standing to that limited extent.
46 Before turning to the additional argument, it is convenient to repeat what I said in Munkara No 1 on the topic:
JURISDICTION AND STANDING
39 On its terms, the originating application invokes the Court's jurisdiction under s 39B(1A)(c) of the Judiciary Act 1903 (Cth). It confers original jurisdiction on this Court in any matter 'arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter'.
40 The originating application does not invoke the Court's supervisory jurisdiction to review any decision or conduct of NOPSEMA, nor is NOPSEMA joined as a respondent.
41 For present purposes Santos makes no submissions with respect to whether the qualification in s 39B(1A)(c) of the Judiciary Act with respect of criminal prosecutions 'or any other criminal matter' applies, but reserves it position with respect to that issue. Its primary submission is that the Court does not have before it a 'matter' within the meaning of s 39B(1A)(c) of the Judiciary Act.
42 As Kiefel, Keane, Nettle and Gordon JJ observed in Palmer v Ayres (2017) 259 CLR 478:
26 A 'matter', as a justiciable controversy, is not co-extensive with a legal proceeding, but rather means the subject matter for determination in a legal proceeding - 'controversies which might come before a Court of Justice' (emphasis added). It is identifiable independently of proceedings brought for its determination and encompasses all claims made within the scope of the controversy. What comprises a 'single justiciable controversy' must be capable of identification, but it is not capable of exhaustive definition. 'What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships'.
27 The requirement that, for there to be a 'matter', there must be an 'immediate right, duty or liability to be established by the determination of the Court' reinforces that the controversy that the court is being asked to determine is genuine, and not an advisory opinion divorced from a controversy, and, further, that only a claim is necessary. A matter can exist even though a right, duty or liability has not been, and may never be, established.
(original emphasis, footnotes omitted)
43 The existence of a 'matter' cannot be separated from the existence of a remedy to enforce the substantive right, duty or liability: Abebe v Commonwealth (1999) 197 CLR 510, Gleeson CJ and McHugh J (at [32]). It is therefore necessary to have close regard to the relief sought in the proceeding: Australia Bay Seafoods Pty Ltd v Northern Territory (2022) 295 FCR 443, Besanko, Charlesworth and O'Bryan JJ (at [148]).
44 There plainly exists a controversy between Mr Munkara and Santos. The subject matter of their dispute is whether Santos presently has a duty under reg 17(6) of the Regulations (a law of the Commonwealth) to submit a revised environment plan. That is the question that Mr Munkara asks the Court to determine. If it be the case that Santos presently has an immediate duty to submit a revised environment plan, then it would follow that Mr Munkara, as a 'relevant person', has a present right to be consulted in the course of its preparation. In addition, it is not disputed that as an Aboriginal man he has an interest of the kind that the Act and the Regulations are designed to protect, at least insofar as the Act is concerned with the protection of cultural heritage as an aspect of the environment. That aspect of his interest is not wholly protected by the creation of the criminal offence in reg 8 of the Regulations. The answer to the question arising under reg 17(6) has very real and immediate consequences both for Santos and for Mr Munkara: cf Australia Bay Seafoods. There is nothing hypothetical about the question. I do not understand Santos to submit otherwise.
45 Rather, Santos' position is that there can be no 'matter' because the injunctive relief claimed on the originating application is not relief that the Court can grant, at least on Mr Munkara's application. The present case, Santos submitted, must be distinguished from cases in which an application for judicial review has been made in respect of a decision of NOPSEMA, and in which orders are sought against titleholders to preserve the subject matter of the judicial review proceeding: see for example Cooper.
46 Santos submitted that a person in the position of Mr Munkara may remonstrate to NOPSEMA for the exercise of its regulatory powers and then, if dissatisfied with the decision (or failure to make a decision as the case may be) he should commence an application for judicial review. It submitted that the present proceeding was 'unorthodox' because Mr Munkara did not invoke the Court's supervisory jurisdiction vis a vis NOPSEMA. It submitted that the suite of powers conferred on NOPSEMA were such as to give rise to an implication that it was for NOPSEMA to supervise the discharge by Santos of its obligations under the Act, and that Mr Mankara's rights to sue were therefore confined.
47 Whilst reference was made to a provision of the Act which relates to injunctions (namely s 611J), the Court was not given an explanation as to how it should be construed, nor as to how it supported the implication contended for, whether alone or in conjunction with other provisions.
48 On the basis of the submissions and material presently before me, I am not satisfied that the Act and Regulations should be construed so as to preclude Mr Munkara from seeking a final injunction to secure the performance by Santos of a duty that Mr Munkara submits has arisen on the facts and the law. There are three reasons for that conclusion.
49 First, on its terms reg 17(6) imposes an obligation in either of the events referred to in paragraphs (a) or (b). Whether the obligation has arisen turns on an objective assessment that is not premised on the formation of a state of mind of NOPSEMA as the Regulator or any other person. There is no express provision conferring exclusively on NOPSEMA the power to determine whether Santos is presently in breach of the obligation. It is true that the Regulations make provision for NOPSEMA to make a request under reg 18. However, the circumstance that it has not done so does not mean that Santos is not presently in breach of any discrete obligation presently arising under reg 17(6). Similarly, NOPSEMA has the power to issue a direction to Santos under s 574 of the Act including in respect of matters concerned with the protection of Mr Munkara's asserted interests and concerns. Indeed it has already done so, albeit not to the extent of requiring that Santos submit a revised Pipeline EP. I do not consider that the fact or scope of NOPSEMA's power to issue a direction supports a construction that precludes a person in Mr Munkara's position from seeking an injunction with a view to enforcing any obligation that arises under reg 17(6). To the extent that Santos submitted that the originating application involves an usurpation of NOPSEMA's functions, I do not accept the submission.
50 Second, in the absence of an express provision precluding the grant of relief sought (should the obligation be proven), the Court should be slow to identify any such preclusion by way of implication, in light of the objects stated in reg 3. On the construction preferred by Santos, a 'relevant person' who became aware that a titleholder was in breach of reg 17(6), would be limited to remonstrating his or her concern to NOPSEMA, no matter how imminent the threatened harm. He or she would be required to seek redress for non observance with the statute (and hence the protection of their relevant interest) by indirect rather than direct means. The objects of the Act tend against such a construction, because they are directed to the prevention of environmental harm.
51 Third, the structure of the environment plan regime is that a 'relevant person' has a right to be consulted by the titleholder, not by NOPSEMA. In that respect the Act itself establishes an obligation and coextensive right as between the titleholder and the relevant person. It would frustrate the objects of the Regulations if the titleholder avoided the obligation to submit the revised environment plan and so avoided the consultation obligations under reg 11A by incorrectly concluding that the obligation had not been triggered. In that sense, the controversy is one that directly arises between Mr Munkara and Santos, and concerns rights and duties as between them. The circumstance that NOPSEMA may impose other consequences on a titleholder for non-compliance with reg 17 (including the withdrawal of acceptance of the environment plan) does not foreclose, by necessary implication or otherwise, other avenues of relief for (at least) persons who meet the description of relevant persons.
52 Santos drew the Court's attention to the voluminous correspondence passing between Mr Munkara's solicitors, Santos and NOPSEMA since December 2022 in which Mr Munkara asserted the very interest sought to be protected in this proceeding and urged NOPSEMA to exercise its powers, including its discretion under reg 18 to request Santos to submit a revised Pipeline EP. Those remonstrations may be relevant in the exercise of the Court's discretion to grant relief on the present application. However, I do not consider they inform the question of jurisdiction and standing. The evidence goes no further than to demonstrate that Mr Munkara (correctly) comprehends that there may exist alternate legal avenues to achieve the same object.
53 Finally, it should be observed that the arguments as to the availability of relief are closely related to the question of standing. I accept that a real question arises as to the geographical extent of Mr Munkara's 'interests' as that word is employed in reg 11A of the Regulations. However, whether the claim for relief is cast too broadly depends on facts that cannot be substantively determined on an urgent application such as the present. The extent of his interests in the area affected by the pipeline is properly a matter for the trial judge. It is neither possible nor appropriate to substantively determine it as a preliminary issue.
54 As to the test for standing more generally, the best guidance is that given by Gibbs CJ in Onus v Alcoa of Australia Limited (1981) 149 CLR 27 (at 35 - 36):
The case is therefore one in which two private citizens who cannot show that any right of their own has been infringed bring an action for the purpose of restraining another private citizen (Alcoa) from breaking the criminal law by acting in contravention of s.21 of the Relics Act. The question is whether they have standing to bring the action. If an attempt were made to frame an ideal law governing the standing of a private person to sue for such a purpose, it would be necessary to give weight to conflicting considerations. On the one hand it may be thought that in a community which professes to live by the rule of law the courts should be open to anyone who genuinely seeks to prevent the law from being ignored or violated. On the other hand, if standing is accorded to any citizen to sue to prevent breaches of the law by another, there exists the possibility, not only that the processes of the law will be abused by busybodies and cranks and persons actuated by malice, but also that persons or groups who feel strongly enough about an issue will be prepared to put some other citizen, with whom they have had no relationship, and whose actions have not affected them except by causing them intellectual or emotional concern, to very great cost and inconvenience in defending the legality of his actions. Moreover, ideal rules as to standing would not fail to take account of the fact that it is desirable, in an adversary system, that the courts should decide only a real controversy between parties each of whom has a direct stake in the outcome of the proceedings. The principle which has been settled by the courts does attempt a reconciliation between these considerations. That principle was recently stated in Australian Conservation Foundation Inc. v. The Commonwealth. A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action. The rule is obviously a flexible one since, as was pointed out in that case, the question what is a sufficient interest will vary according to the nature of the subject matter of the litigation.
(footnotes omitted)
55 In the present case there can be no suggestion that Mr Munkara is abusing the processes of the law, nor that he is a busybody, crank, or actuated by malice. His concerns are not merely intellectual or emotional. He has a direct stake in the outcome of the proceeding. His interest in the underlying subject matter is beyond that of an ordinary member of the public. The same considerations affect my consideration as to whether there exists a matter arising under a law of the Commonwealth within the meaning of s 39B(1A)(c) of the Judiciary Act. For the purposes of considering the limited application before me, I proceed on the basis that there is such a matter and that the relief is of a kind for which Mr Munkara has standing to sue.