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ENVIRONMENTAL LAW - Interlocutory hearing - applicant seeking stay of decision to grant permit to sink the ex-HMAS Adelaide as an artificial reef off the coast from Avoca - Whether applicant has shown reasonable prospect of success - whether the balance of convenience favours the applicant or the joined part of the State of New South Wales - where the jurisdiction of the Tribunal will be effectively defeated if the stay is not granted.

Administrative Appeals Tribunal Act 1975 (Cth)

Environment Protection (Sea Dumping) Act 1981 (Cth)

1. As a result of submissions made by interested parties, including a scuba diving group, the New South Wales Government agreed to sponsor the sinking of a retired navy frigate, HMAS Adelaide, as an artificial reef and dive site off the coast of New South Wales, north of Sydney. In due course an agreement was made between the New South Wales and Commonwealth Governments for the handing over of the ship and a lengthy process of planning, relating to the scuttling of the ship, began. This process has undoubtedly involved a good deal of inquiry of a scientific kind with a view to satisfying relevant decision-makers that the proposed sinking of the ship would not have adverse environmental effects.
2. The material before me suggests that this process was a thorough process and that potential areas of concern were identified and progressively eliminated. In due course a date was set for the scuttling of the ship. It was 27 March next, which is now only three days away. It appears that a weekend was deliberately chosen for the scuttling and that large crowds are expected to visit the area near Avoca Beach, which is the closest land to the place where the ship will be scuttled. Expenditure has been incurred on preparing what has been described as a State Government event, which will involve a number of activities additional to merely providing facilities from which people can view the scuttling.
3. Transport plans have been made to ensure that people can be brought to and from Avoca Beach and other areas where the sinking can be easily viewed, without creating traffic problems. I have no doubt that if the proposal to scuttle the ship on Saturday does not go ahead, the implementation of extensive planning will be delayed and much planning will probably be required to be carried out again, with the result that substantial costs will be incurred. The material before me suggests that the costs involved will not be minor and, on one view, might be more than half a million dollars, although probably less than a million dollars.
4. Added to that is the fact that there are a number of people who will no doubt be disappointed at missing out on the spectacle. I expect that there are already many people who have planned to watch the spectacle this weekend who will be disappointed if their plans are thwarted.
5. The scuttling of a ship for a dive site or artificial reef is, however, a significant event which warrants careful scrutiny before it takes place. This is apparent, if it would not otherwise be apparent, from the fact that the Commonwealth Government has passed special environment protection legislation relating to what is described as sea dumping which includes the placement of an artificial reef (Environment Protection (Sea Dumping) Act 1981 (Cth)).
6. The effect of this legislation is that to place an artificial reef without a permit is a serious criminal offence which can result in imprisonment for up to 10 years or a fine or both. Accordingly, the process of obtaining a permit to scuttle the ship as an artificial reef is a very important process and not one which is to be treated lightly. Until Monday there was no permit in place to permit the scuttling of this ship. A permit was granted on Monday by the Minister's delegate. It follows that, up until the granting of the permit on Monday, what is proposed next weekend would have been unlawful.
7. If the permit had not been given on Monday and there was no permit in place before this weekend, the scuttling of the ship would not have taken place. I am conscious of the fact that there has been an extensive process of state approvals that were necessary prior to the scuttling taking place and the requirements of that process were fully complied with. That is not to say, however, that the process of approval under Commonwealth legislation is not just as important.
8. The problem that lies behind this case seems to me to be that those who were involved in the process of planning decided to fix a date more or less firmly in place for the scuttling of the ship at a time when they had no permit and continued to keep the date in place although they were perilously close to reaching a point at which the plans would have to be called off because there still was no permit.
9. In the last few weeks, a group has apparently formed itself in the area near Avoca Beach, which is opposed to the sinking of the ship. It is now an incorporated society called the No Ship Action Group Inc. It may be that it did not begin any activity until comparatively recently, but then there was no permit that it could challenge in this tribunal until Monday. Whatever is said about the lack of activity from this group in the past cannot be said about its activity when it heard of the grant of the permit because, on the day following the granting of the permit, application was made to the Tribunal for review.
10. The matter was referred to me late yesterday and I decided to list the matter before me this morning. When the matter was called on for directions, Ms Needham, of senior counsel, announced her appearance for the State of New South Wales and sought an order that the State of New South Wales should be joined as a party in the proceedings, in addition to the respondent, who is the Commonwealth Minister for Environment Protection, Heritage and the Arts. That application was not opposed and I made an appropriate order. The affidavit on which Ms Needham moved says that the application is made on instructions from the Department of Premier and Cabinet and the Land and Property Management Authority. Although the actual party is the state, the interests that have been particularly put forward in the hearing today have been the interests of the department and the authority.
11. The first question which arises in matters such as this is whether the tribunal has jurisdiction. All parties are agreed that the Tribunal does have jurisdiction, pursuant to s 24 of the Sea Dumping Act, which confers jurisdiction relating to decisions made by the Minister under ss 19, 20, 21 or 23 of the Act. The permit is provided for in s 19. The respondent and the joined party agree that the applicant, No Ship Action Group Inc, has standing to make the application.
12. In those circumstances, jurisdictional questions do not arise for my consideration. What does arise, however, is the applicant's application for a stay of the decision underlying the grant of the permit pending the determination of the matter. The obvious reason for the application and its urgency is that if no stay is granted, the vessel will be scuttled on Saturday. I had at first thought it might be possible to adjourn the matter this morning until either Thursday or Friday to enable a little further time for preparation of the application. However, Ms Needham informed me at the outset this morning that the vessel would, at 6 am tomorrow morning, be towed through Sydney Harbour and out of the Heads and once out of the Heads, would, in all probability, not be permitted to re-enter the Harbour.
13. It followed that no opportunity for further preparation was available and the matter needed to proceed immediately. That, of course, has the consequence that the evidence before me is much less satisfactory than one would ordinarily expect. The primary case sought to be made by the applicant relates to the potential presence on the vessel of what are called Polychlorinated Biphenyls or PCBs. It seems accepted that these are chemicals which are particularly dangerous and it also seems accepted that if there were significant PCBs on the vessel then, at the very least, they ought to be removed before it is scuttled.
14. What the joined party says, however, is that, to the extent to which they were on the vessel, they have been removed and the vessel is now safe. Unsurprisingly, the joined party is in a much better position than the applicant in presenting evidence on this topic because of the processes that has been undergone over the last months and years to prepare for the scuttling. The only evidence which is adduced by the applicant is in the form of an affidavit by its solicitor, Kirsty Ruddock, which contains material in frankly wholly inadmissible form, even in an application before the Tribunal, which suggests that there might be PCBs on the vessel and relies in part on the fact that only five samples were taken from the vessel as part of the process to test for PCBs.
15. This evidence on any hearing would, of course, not go very far at all. The chairman of the applicant has made a visit to the vessel recently and took some photographs and these raise, in his mind, some concerns. However, he has no relevant expert qualification, although he does have qualifications as an engineer. If one is looking to consider whether there is any issue relating to PCBs, the more productive source of information seems to me to be the material that has been tendered on behalf of the joined party.
16. I begin by saying very clearly that this material does not suggest positively any presence of PCBs. The most one can get from it is the possibility of lines of inquiry. So, for example, a letter to the New South Wales Department of Lands from the Australian Department of Defence, dated 25 June 2008, refers to "a list of known compartments containing Polychlorinated Biphenyl and Beryllium". Even much more recent material, including a report as late as 5 March from an undoubted expert in the area, John Polglase, does not speak in unequivocal terms when it refers to PCBs. For example, Mr Polglase says, on page 10 of his report:

1. Were this the situation of the evidence at the end of the hearing, it does not require any great skill to predict what the result would be. However, this is not the end of the hearing, this is two days after the permit, which is questioned in these proceedings, was issued, and three days before the scuttling of the ship which would render any right of review entirely nugatory.
2. Well, I think I now need to consider some of the matters that are pertinent to a determination of whether there should be a stay under s 41 of the Administrative Appeals Tribunal Act 1975 (Cth). Such a stay may be granted "if the tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review." Generally, applications for stays raise issues not dissimilar to those known to equity lawyers in connection with the grant of an interlocutory injunction. The matters upon which to focus are the prospects of success and the balance of convenience.
3. It is not possible, having regard to what I have said, to say a lot about the prospects of success. The problem is that it is not known what evidence might be available. I am sure it will be said that this means that the case involves - and perhaps I can be pardoned what might seem a pun - a fishing expedition, but I think it is more than that.
4. What, as I have said before and I repeat, is at the heart of this case is the very limited amount of time which has been permitted for examination of the issues in circumstances in which it is the joined party who has alone determined what that timeframe will be. It seems to me that providing the balance of convenience operates sufficiently in favour of the applicant, there is enough in this case to justify the application going forward and not being dismissed merely on the basis that there are no prospects of success.
5. Now, the balance of convenience here, as often is the case, is also very difficult. On the one side is the cost that will be incurred by the State of New South Wales, if a stay is granted, and I accept that that is considerable. However, on the other side is the very important fact that the right of review conferred by the Australian Parliament on, in the facts of this case, the applicant, will be rendered nugatory. As is probably apparent from what I have been saying to date, it seems to me that it is this aspect of the balance of convenience that is of particular significance.
6. The merits review system, which was established in Australia in 1975 by the Commonwealth Parliament, and which has been accepted as part of the administrative law of Australia ever since, to the extent to which the states have adopted similar merits review systems, seems to me to be a very important aspect of government now in Australia. It is a matter which, it seems to me, decision-makers at the state level ought to have in the forefront of their minds when considering projects which will ultimately require approval under Commonwealth legislation where there is a right of review in the Administrative Appeals Tribunal.
7. Conduct which will render that right nugatory as a result of unilateral decision making by someone who ultimately becomes a party in proceedings in the Tribunal, will be looked at carefully in applications such as this. Frankly, it seems to me that a decision-maker, such as the person who determined the date for the sinking of this ship, should have had in mind the existence of the Commonwealth legislation, should have had in mind the existence of the right of review in the tribunal and should have so fixed the timing of the sinking of the ship as to give an opportunity to persons or bodies who would have standing to challenge the decision to grant the permit under the legislation, an opportunity, first, to think about whether they wished to challenge the decision, and secondly, if minded to do so, to undertake that course.
8. If some decision had been made which postponed the scuttling of this ship until a month or more after the granting of the permit there would have been an opportunity for that process to occur. Cases such as this case, and I will come to this in a moment, are cases which will always be expedited in the Tribunal and dealt with as quickly as they possibly can be. If a case turns out to have no merit after the applicant has been given an opportunity to put on evidence supporting the case, then application can always be made for the dismissal of the case in a summary fashion.
9. But to propose the scuttling of a ship which would otherwise have been unlawful and plan that it should take place when there is no permit in existence and persist in the proposal to carry out the scuttling, even though the date is only a few days after the granting of a permit, seems to me to be a course of action that decision-makers ought to think carefully about in the future. It seems to me that the balance of convenience is very significantly in favour of the granting of a stay in this matter, subject only to there being a real basis for the claim. As I have said, I am satisfied that there is a real basis for the claim. In those circumstances I propose to stay the decision of the Minister and its operation until the determination of this matter, or until further order.
10. It will be appropriate for this matter to proceed at the earliest opportunity and I will now hear the parties on that issue.

I certify that the twenty-five (25) preceding paragraphs are a true copy of the reasons for the decision herein of Justice Downes, President

Signed: ...............[sgd]...........................................................

Solicitor for the Respondent: Australian Government Solicitor

Solicitor for the Joined Party: Mr Adam Gerard, NSW Crown Solicitor's Office