Statutory interpretation - Whether exemption instruments made by Minister under the Fish Resources Management Act 1994 (WA) must be published in the Government Gazette - Meaning of 'instrument ... having legislative effect' in the Interpretation Act 1984 (WA) - Judgment pars [45] - [81], [82] - [98]

Statutory interpretation - Inconsistency - Whether a requirement by s 41 of the Interpretation Act for publication in the Gazette of exemption instruments made under s 7 of the Fish Resources Management Act is inconsistent with the terms and operation of the Fish Resources Management Act - Judgment pars [99] - [129]

Constitutional law - Separation of powers - General law principles - Divide between legislative power and executive power - Judgment pars [51] - [81]

Acts Interpretation Act 1901 - 1937 (Cth)

Acts Interpretation Act 1901 (Cth)

Acts Interpretation Act 1954 (Qld)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Customs Act 1901 (Cth)

Fish Resources Management Act 1994 (WA)

Fisheries Management Act 1994 (NSW)

Fisheries Management Act 2007 (SA)

Health Insurance Act 1973 (Cth)

Interpretation Act 1984 (WA)

Legislation Act 2001 (ACT)

Legislative Instruments Act 2003 (Cth)

Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (Cth)

Local Government Act 1993 (Qld)

Native Title Act 1993 (Cth)

Statutory Instruments Act 1946, 9 & 10 Geo 6, ch 36

Statutory Instruments Act 1992 (Qld)

Subordinate Legislation Act 1978 (SA)

Subordinate Legislation Act 1989 (NSW)

Subordinate Legislation Act 1992 (Tas)

Subordinate Legislation Act 1994 (Vic)

First Respondent : Mr R Mitchell SC & Ms M Georgiou

Second Respondent : Mr R Mitchell SC & Ms M Georgiou

Third Respondent : Mr R Mitchell SC & Ms M Georgiou

First Applicant : Environmental Defender's Office WA (Inc)

Second Applicant : Environmental Defender's Office WA (Inc)

First Respondent : State Solicitor for Western Australia

Second Respondent : State Solicitor for Western Australia

Third Respondent : State Solicitor for Western Australia

1 This decision involves only an issue of law. The issue is one of statutory interpretation and constitutional law.

2 Sea Shepherd Australia and Ms Burden seek judicial review of government decisions in relation to a policy described as the 'Shark Hazard Mitigation Strategy'. Part of that strategy involves setting baited drum lines in the Metropolitan Coastal Area and the South West Coastal Area to target three species of shark.[1] The three species of shark are all 'totally protected fish' under the Fish Resources Management Act 1994 (WA).[2]

3 The respondents are the State of Western Australia, the Premier of Western Australia, and the Minister for Fisheries. The respondents have made decisions in relation to the Shark Hazard Mitigation Strategy by relying upon two Exemption Instruments, numbered 2375 and 2376. I refer in these reasons to those exemption instruments in capitals. The Exemption Instruments purport to exempt various persons from the operation of the Fish Resources Management Act.[3] The exemptions purport to last from 21 January 2014 until 30 April 2014.

4 The Exemption Instruments have not been published in the Government Gazette. Sea Shepherd Australia and Ms Burden argue that the Exemption Instruments are 'instrument[s], made under any written law and having legislative effect' so that they were required to be published in the Gazette.[4]

5 The respondents deny that the Exemption Instruments have 'legislative effect'. Without legislative effect, publication in the Gazette was not required.

6 A fundamental difference between the parties therefore rests upon the divide between, on the one hand, an instrument which is administrative or executive in effect and, on the other hand, an instrument which is legislative in effect. This is the preliminary issue. As Professor Aronson and Dr Groves have observed, this is an issue which very few cases have considered.[5]

7 If an exemption instrument is not 'subsidiary legislation', because it is administrative in effect, then publication in the Gazette is not required. The proceedings will be at an end.

8 On the other hand, if an exemption instrument is subsidiary legislation, because it is legislative in effect, then at least two further issues arise. The two further issues are (i) whether Sea Shepherd Australia and Ms Burden have legal standing to challenge the decisions, and (ii) whether the Court should grant the relief sought, even though the relief relates to offencecreating provisions of the Fish Resources Management Act.

9 No submissions were made by the respondents on the further issues which arise if publication in the Gazette is required. Instead, the respondents say that if publication of the exemptions is required then an interlocutory injunction should not be granted because, notwithstanding the inadequacy of any relief other than an injunction, the balance of convenience weighs against the grant of an injunction.

10 The respondents argue that if publication in the Gazette is required then the balance of convenience still favours refusing an interlocutory injunction because it would preclude their defence on the further issues, and on any further proceedings, because the 'obvious response of the State ... would be to Gazette the Exemptions'.[6] Senior counsel for the State submitted that a reasonable time would need to be provided before the injunction could take effect so that drum lines could be removed.[7] He argued that publication in a Gazette could occur within hours,[8] so that the practical consequence is that no injunction would ever have any effect.

11 I have concluded that an exemption instrument is not subsidiary legislation. Publication in the Gazette is not required. This conclusion means that it is not necessary to decide this issue about the balance of convenience. I merely say that if I had concluded that publication in the Gazette was required, then, in the absence of any evidence concerning the speed at which publication in the Gazette could occur, it may be open to doubt whether the respondents could satisfy the Court that the balance of convenience against an injunction was in their favour.

Why this urgent application was tried as a preliminary issue

12 Sea Shepherd Australia and Ms Burden filed an application for an interlocutory injunction on Wednesday 26 February 2014.

13 On Friday 28 February 2014, the parties filed their submissions.

14 On Tuesday 4 March 2014, the parties confirmed that all of the evidence and all of the relevant submissions on the central issue in dispute between them could be dealt with at the hearing. The central issue raises the legal question concerning whether the Exemption Instruments were required to be published in the Gazette.

15 Despite agreement on the essential question, Sea Shepherd Australia and Ms Burden initially persisted in their opposition to having the matter heard as a preliminary issue. There are two reasons why this course was not an efficient means of case management.

16 First, an interlocutory injunction application requires consideration of whether there is a serious issue to be tried at a final hearing and, if so, whether the balance of convenience favours granting the injunction.[9] In this case there was nothing to be gained by making a preliminary determination of whether this issue is seriously arguable only to hear the same argument again at a final hearing. I have all the material before me which is necessary to decide this point.

17 The legal representatives of all parties have also given considerable thought to the issue involved, as the following sequence shows:

(i) prior to 17 December 2013, the Environmental Defender's Office obtained preliminary advice on the lawfulness of actions by the respondents;[10]

(ii) on 14 February 2014, copies of extracts of the exemptions were provided to the Environmental Defender's Office,[11] following which oral advice was provided by counsel to the Environmental Defender's Office;[12]

(iii) on 21 February 2014 written advice was provided to the Environmental Defender's Office;[13]

(iv) on 28 February 2014, extremely comprehensive written submissions were filed by both parties; and

(v) I have received comprehensive, careful, and wellpresented oral submissions.

18 Secondly, there is no advantage for Sea Shepherd Australia and Ms Burden in opposing a final determination of the preliminary issue. To the contrary, a determination only that there is a serious issue to be tried would generally preclude injunctive relief.

19 In McClure v The Mayor and Councillors of the City of Stirling (No 2),[14] Beech J explained:[15]

In the context of proceedings which challenge the validity of legislation (including delegated legislation), special considerations arise on an application for an interlocutory injunction. In the absence of compelling grounds, it is the duty of the court to respect and to defer to the enactment of the legislature until that enactment is adjudged to be invalid.

20 In Richardson v The Forestry Commission,[16] Mason CJ held that the application of this principle 'foreclose[d]' the balance of convenience in favour of the Forestry Commission on an application for an interlocutory injunction. The interlocutory injunction sought in Richardson was to restrain acts by the Forestry Commission, including cutting down and removing trees, which was alleged by Mr Richardson to be unlawful under the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (Cth).

21 In the absence of a determination that the enactment is invalid, this deference to the enactment of the legislature would be a significant obstacle to any interlocutory injunction sought by Sea Shepherd Australia and Ms Burden.

22 In these circumstances, counsel for Sea Shepherd Australia and Ms Burden agreed at the hearing on 4 March 2014 that the fundamental issue between the parties should be tried as a preliminary issue.

23 During the hearing it became common ground that the preliminary question was as follows:

Are the Exemption Instruments which are made under s 7(2)(c) of the Fish Resources Management Act (WA) 'subsidiary legislation' for the purposes of s 41 of the Interpretation Act 1984 (WA) with the effect that the Exemption Instruments are invalid or inoperative?

24 For the reasons I explain below, the answer to this question is 'no'.

The Fish Resources Management Act

25 The Fish Resources Management Act was assented to on 2 November 1994. Its objects are to develop and manage fisheries and aquaculture in a sustainable way; and to share and conserve the State's fish and other aquatic resources and their habitats for the benefit of present and future generations.[17]

26 The Minister for Fisheries is a body corporate under the Act.[18]

27 The Act is divided into twenty parts which contain wide ranging provisions concerning fish and fisheries.

28 Some of the provisions which are relevant to this case concern the grant of licences and permits. Section 4 defines both licences and permits as 'authorisations'. A permit is an interim managed fishery permit or a permit granted under section 80 (for processing fish). Section 4 defines a licence as any of the following

(g) any other licence provided for in the regulations.

29 Part V of the Act is concerned with general regulation of fishing. It has divisions regarding prohibited fishing, protected fish, bag and possession limits, and general penalties.

30 In the division of Part V which concerns protected fish, s 45 of the Act provides that a class of fish may be prescribed to be totally protected fish; or commercially protected fish; or recreationally protected fish, for the purposes of this Act. Section 46 then provides for offences in relation to totally protected fish. Those offences include that a person must not take any totally protected fish. Section 4 defines 'take' as including matters such as catching, capturing, killing or destroying fish by any means.

31 The key provision of the Fish Resources Management Act in this case is s 7. That section is in the first part of the Act which is concerned with preliminary matters. Section 7 provides as follows.

(1) The Minister may, by instrument in writing, exempt a specified person or specified class of persons from all or any of the provisions of this Act.

(2) The Minister may only grant an exemption under subsection (1) for one or more of these purposes

(f) community education about compliance with this Act;

(b) must be in a form approved for that purpose by the CEO; and

(c) must be accompanied by the prescribed fee (if any).

(5) An exemption may be granted subject to such conditions as the Minister thinks fit and specifies in the instrument.

(6) The Minister may, if he or she thinks fit, by further instrument in writing

(b) delete, vary or add to any conditions imposed in relation to that exemption.

(7) A person must not contravene a condition of an exemption.

Penalty: In the case of an individual, $10 000 or, in the case of a body corporate, $20 000.

32 A consequence of the very detailed oral submissions by counsel tonight was that five subissues emerged. Those subissues are as follows.

33 First, what is meant by 'instruments ... having legislative effect' in the definition of 'subsidiary legislation' in s 5, and applied to s 41, of the Interpretation Act 1984 (WA)?

34 Secondly, can instruments which exempt individuals or groups of individuals from the operation of an Act have 'legislative effect' so that they fall within the definition of 'subsidiary legislation' in s 5 of the Interpretation Act?

35 Thirdly, does the Fish Resources Management Act impliedly exclude the operation of s 41 of the Interpretation Act in relation to exemption instruments under s 7?

36 Fourthly, do the Exemption Instruments in this case have legislative effect?

37 Fifthly, if s 41 of the Interpretation Act applies, and if the Exemption Instruments have legislative effect, then does the failure to publish those Exemption Instruments in the Gazette mean that they are invalid or inoperative?

Sub-issue 1: Instruments having legislative effect in s 5 and s 41 of the Interpretation Act

1.1 The requirement for publication of subsidiary legislation

38 Section 41 of the Interpretation Act provides as follows:

1. Publication and commencement of subsidiary legislation

(1) Where a written law confers power to make subsidiary legislation, all subsidiary legislation made under that power shall

(b) subject to section 42, come into operation on the day of publication, or where another day is specified or provided for in the subsidiary legislation, on that day.

39 Section 42 deals with matters such as laying regulations, rules, local laws and bylaws before Parliament, and disallowance.

40 Section 5 provides that 'subsidiary legislation'

means any proclamation, regulation, rule, local law, by-law, order, notice, rule of court, local or region planning scheme, resolution, or other instrument, made under any written law and having legislative effect.

41 No submissions were made concerning the history of s 5 and s 41 of the Interpretation Act and in the circumstances of urgency I have not been able to trace clearly the origins of those sections. It may be that they are the successor provisions to the original provision in Commonwealth legislation requiring statutory rules to be sent to the Government Printer and to be published or notified in the Gazette where required by any Act.[19]

42 Counsel for Sea Shepherd Australia and Ms Burden submitted that the purpose of s 41 was as described by Stephen J in Watson v Lee,[20] in the context of the Acts Interpretation Act 1901 (Cth) as amended: to 'provide a mechanism for parliamentary oversight of delegated legislation and, no less importantly, allow those whom such laws effect to learn of their making and of their terms.' This submission can be accepted. It can also be accepted that, as counsel submitted in reply, upon publication in the Gazette, subsidiary legislation stands referred to the Joint Delegated Legislation Committee for consideration.[21] Matters for consideration by that committee include whether the subsidiary legislation is within power, has unintended effect on a person's existing rights or interests, and contains only matter that is appropriate for subsidiary legislation.[22]

43 But accepting each of these consequential matters concerning the purpose and effect of publication in the Gazette does not substantially assist to answer the ancillary question of statutory construction concerning which instruments have legislative effect.

44 As I explain below, the question whether an instrument made under a written law has 'legislative effect' can give rise to extremely fine distinctions. This may be one reason why many jurisdictions have abandoned this test and adopted instead the formality contained in specific legislation addressing subsidiary legislation_._[23] That legislation is generally modelled on the Statutory Instruments Act 1946, 9 & 10 Geo 6, ch 36 which generally provides for the publication of instruments, other than Orders in Council, by focusing upon whether the form of the words used by the relevant legislation involve a reference to 'statutory instrument' or whether the primary Act deems an instrument made under it to be legislative, or whether this is prescribed.

1.2 The meaning of 'legislative effect' in the Interpretation Act

45 As I have explained, the central issue to be decided concerns the operation of the definition of 'subsidiary legislation' in s 5 of the Interpretation Act: 'any proclamation, regulation, rule, local law, by-law, order, notice, rule of court, local or region planning scheme, resolution, or other instrument, made under any written law and having legislative effect' (emphasis added).

46 Although I received comprehensive submissions concerning the meaning of 'legislative effect' in other legislative contexts, and in the law generally, the task of statutory construction must begin and end with the statutory text; historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text.[24] The primary focus must therefore be upon the text of s 5 and its meaning within the Interpretation Act itself.

47 The difficulty is that although s 5 requires that each instrument in the list of instruments must have 'legislative effect' before it is subordinate legislation, there is no further illumination about the meaning of 'having legislative effect'.

48 There is nothing of assistance in the second reading speech of the Interpretation Bill 1984 (WA).[25]

49 Nor can much assistance be gleaned from the use of the concept of 'subsidiary legislation', as defined, on other occasions in the Interpretation Act, other than that the potential scope for subsidiary legislation is wide. The width of the potential scope appears from s 43 of the Interpretation Act.

50 Section 43 of the Interpretation Act contains general provisions about subsidiary legislation. Some examples of the broad scope which s 43 provides for subsidiary legislation are as follows.

(i) A power to make subsidiary legislation includes a power to amend or repeal any such subsidiary legislation.[26]

(ii) Where a written law confers power on a person to make subsidiary legislation for any general purpose and also for any incidental special purpose, the enumeration of the special purposes shall not derogate from the generality of the powers conferred with reference to the general purpose.[27]

(iii) A power to make subsidiary legislation may be exercised either in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified case or class of case.[28]

(iv) A power to make subsidiary legislation may be exercised so as to make, as respects the cases in relation to which it is exercised, the same provision for all cases in relation to which the power is exercised, or different provision for different cases or classes of case, or different provisions for the same case or class of case for different purposes of the legislation.[29]

(v) Subsidiary legislation may also be made[30]

(ii) throughout the State or in a specified part of the State;

(b) so as to require a matter affected by the legislation to be

(i) in accordance with a specified standard or specified requirement;

(ii) approved by or to the satisfaction of a specified person or body or a specified class of person or body;

(c) so as to confer a discretionary authority on a specified person or body or a specified class of person or body; and

(d) so as to provide, in a specified case or class of case for the exemption of persons or things or a class of persons or things from the provisions of the subsidiary legislation, whether unconditionally or on specified conditions or conditions additionally imposed and either wholly or to such an extent as is specified or otherwise determined.

1.3 The general meaning of 'legislative effect'

51 In the absence of any clear guidance within the Interpretation Act concerning the meaning of 'instrument, made under any written law and having legislative effect' it is of assistance to turn to other contexts and general law approaches relevant to 'legislative effect'. The notion of a dividing line between instruments which have legislative effect and those which have administrative effect was not a new concept when the Interpretation Act was enacted. The concept of separation of powers has a long history. That concept informed decisions involving antecedent Commonwealth legislation many years before the Interpretation Act. And it also informed decisions concerning the availability of judicial review which have, in turn, been relied upon by the Full Court in the interpretation of s 5 of the Interpretation Act in this State.[31] Although this development of the concept of 'legislative effect' has the nature of the common law casebycase decisionmaking, as French CJ has observed it 'is also a characteristic of the application by courts of broadly stated statutory provisions, the interpretation, fleshing out, and application of which the legislature has left to the courts'.[32]

52 The concept of separation of powers has a long and revered history. Nearly two centuries before Montesquieu's The Spirit of the Laws (1748), Bodin wrote that '[a] state cannot fail to prosper where the sovereign retains those rights proper to his majesty, the senate preserves its authority, the magistrates exercise their legitimate powers, and justice runs its ordinary course'.[33]

53 The first three chapters of the Constitution of the Commonwealth of Australia are also structured upon this divide into (i) the Parliament, (ii) the Executive, and (iii) the Judiciary. Each of these chapters corresponds with different concepts of power: legislative, executive or administrative, and judicial.

54 As Professor Craig has said, the boundaries between these spheres of power are 'notoriously difficult' to determine.[34] This is particularly the case because each of legislative, executive and judicial power can involve incidental powers from other fields. It has been said in relation to the boundary between judicial power and nonjudicial power that there is no single test or combination of necessary or sufficient factors to bring a power within judicial power.[35] An example of the blurring of powers is the chameleon doctrine.[36] The same is true of the boundary between legislative and executive power.

55 The difficulty in identifying a dividing line between the different spheres of power is one reason why the concept of a separation of powers is now very unfashionable.[37] Professor Aronson and Dr Groves point to the development of descriptions such as 'quasi-legislative' and 'quasijudicial' as illustrations that the labels are 'hopelessly out of date as an exercise in description'.[38] Quasi ('as though it were') is often treated as nothing more than a Latin tag to deem something to be something which it is not. And in R v Toohey; Ex Parte Northern Land Council,[39] Mason J said that 'the modern view, now received doctrine, is that the classification of powers is not a sound criterion for the operation of precise rules of law'.

56 Despite modern scepticism, the division of powers remains of real importance in a number of areas of law, particularly constitutional law. This case, and the division required by the Interpretation Act 1984, is one context in which the importance of the distinction remains. It is necessary to determine on which side exemption instruments fall of the dividing line between the executive and the legislative.

(ii) The division between legislative and administrative instruments

57 In written and oral submissions both counsel relied heavily upon decisions concerning the meaning of 'a decision of an administrative character' within s 3(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). There are significant differences between the context in which that question is asked in the Administrative Decisions (Judicial Review) Act and the context in which the question in this case arises under the Interpretation Act. The former concerns those 'decisions' which are to be the subject of review. The latter concerns the legislation, and instruments of legislative effect, which is to be the subject of publication in the Gazette.

58 The different context of these decisions means that caution must be exercised before applying the approach from those cases to the different legislative context in this case.

59 Nevertheless, there are good reasons to have regard to those cases. As I explain below, one reason is that they have been applied by a decision of the Full Court of this Court in relation to the meaning of 'subsidiary legislation' under the Interpretation Act.[40]

60 Another reason to have regard to the cases on s 3 of the Administrative Decisions (Judicial Review) Act is that the leading decision upon which many of those cases rely, Commonwealth v Grunseit,[41] actually concerned legislation which was much more closely aligned with a provision like that in the Interpretation Act in this case.

61 A third reason is that the ultimate question being asked in those cases is probably the same as the ultimate question to be asked in this case: does the decision or instrument share sufficient of the general characteristics or effects of legislation that it can be described as (i) legislative in character or effect or (ii) administrative in character or effect.

62 The leading decision is that of Latham CJ (with whom McTiernan J agreed) in Commonwealth v Grunseit.[42] One issue in that case concerned whether a direction given by the Minister for the Army on 17 August 1942 was an order, rule, or by-law 'of a legislative and not an executive character' within the meaning of s 5(4) the National Security Act 1939 1940. That subsection applied the requirement in s 48 of the Acts Interpretation Act 1901 1937 for laying certain instruments before Parliament.

63 In the Chief Justice's judgment, he explained that the legislation in that case was based upon an assumption that it is possible to draw a distinction between instruments which are of a legislative character and those which are of an executive character. He said that the distinction was not always easy to draw. But his Honour then described[43] what is now a significant starting point[44] for the divide between a legislative act and an administrative act:

The general distinction between legislation and the execution of legislation is that legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases. Attention has been given in the United States of America to this distinction for the purpose of applying the doctrine which is there accepted of the separation of legislative, executive, and judicial power. My brother Williams referred to the case of J W Hampton Jr & Co v United States,[45] where it was said: 'The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law.'

64 The reference by the Chief Justice to legislation determining the content of a law as a rule of conduct or a declaration as to power, right or duty has been referred to on many occasions. It has been described as a 'hallmark of the exercise of legislative power'[46] and a 'rudimentary distinction'.[47]

65 In the Full Court of the Supreme Court of Western Australia, in Norton v The Queen,[48] RobertsSmith J (with whom Wallwork J and Pidgeon AUJ agreed) also referred to one of the decisions under the Administrative Decisions (Judicial Review) Act which had followed Commonwealth v Grunseit. Roberts-Smith J applied the same approach to s 5 of the Interpretation Act treating 'legislative effect' in the same manner as 'legislative character' (and in contrast with 'administrative character'), an approach open on the wide variety of meanings of 'effect':

... the distinction is essentially between the formulation of rules of law having general application and the application of general rules to particular cases.

66 Nevertheless, although this formulation may be the 'essential' distinction, and although this approach of Latham CJ may be a 'hallmark' or important consideration, it cannot be decisive.

67 One reason why the approach of Latham CJ cannot be decisive is because, as explained above, s 43(7) of the Interpretation Act specifically contemplates that a power to make subsidiary legislation may be exercised in relation to any specified case or class of case. This appears to contemplate the possibility of subsidiary legislation which applies general rules to specific cases.

68 Another reason was given in Queensland Medical Laboratory v Blewett.[49] In that case, the question for the Federal Court was whether a determination by the Minister for Community Services and Health was an executive act or a legislative act. The determination was that a new pathology services table should be substituted for the existing table in Sch 1A of the Health Insurance Act 1973 (Cth). Justice Gummow held that it was a legislative act even though a decision not to reclassify would have been an administrative act.[50]

69 Justice Gummow explained that the approach of Latham CJ in Commonwealth v Grunseit, which contrasts the general rule of conduct with the particular rule, cannot be a sufficient distinction between legislative and administrative acts. In a passage which has been subsequently cited with approval,[51] his Honour explained that from the point of view of the legislature 'individual norms' which apply only to the action of a single person on a single occasion may still be classed as laws, even though the operation of such laws must necessarily be upon particular cases.[52] And from the point of view of the executive, Professor Stewart had earlier written of the breadth of executive power and how 'we have been disabused of the notion that administrators are simply the executory amanuenses of the legislative will'.[53]

70 In Queensland Medical Laboratory v Blewett, Gummow J reached the conclusion that the decision was legislative in character by focusing upon the fact that the Minister had acted in a manner which had 'the immediate effect of changing the content of a law as a rule of conduct or declaration of power, right or duty'[54] (emphasis added).

71 Counsel for Sea Shepherd Australia and Ms Burden focused very heavily upon this statement by Gummow J in Queensland Medical Laboratory v Blewett. As I explain below, counsel's submission was that every exemption changes the content of the law because it exempts subject matter from the application of the law. There are three difficulties with this submission.

72 First, the approach of Gummow J was never posited as a general test. His Honour was making an observation that the Minister had made a decision which had the effect that part of an Act ceased to have effect and was replaced by another part (as a schedule of the relevant Act). His Honour's observations about changing the content of the law must be seen in the context that the result was 'the same as if the Schedule had been changed by an amending statute'.[55]

73 Secondly, if the submission of counsel for Sea Shepherd Australia and Ms Burden were correct then every licence, every permit, and every permission given in an instrument under any legislation would have legislative effect and require gazettal. At the very least, as counsel acknowledged, there could be many licences and permits which would require gazettal.[56] This could not be the approach that the legislature could be taken to intend[57] by the use of the words 'instrument ... having legislative effect'.

74 Thirdly, the only case to which I was referred, and the only case which I have located which concerned the characterisation of the nature of an exemption instrument reaches the contrary conclusion. This is the decision of the Full Court of the Federal Court in Ministry of Industry and Commerce v Tooheys Ltd.[58]

75 In that case, the Minister refused to make a determination under s 273 of the Customs Act 1901 (Cth) that item 19 of a customs tariff applied to particular goods. A determination that item 19 applied would have meant that no duty would have been payable on the relevant goods. One question for the Full Federal Court was whether the Minister's refusal to make a determination was 'a decision of an administrative character' within the meaning of s 3(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Full Court held that it was such a decision. The Court quoted with approval from the trial judge as follows:[59]

When, therefore, a decision is made by the Minister to make a determination under s 273 of the Act in relation to item 19 of the Tariff he is deciding that specific goods fall within the general description contained in that item and should be allowed in at a lower rate of duty or at no duty at all. Item 19 of the Tariff, in effect, lays down a general rule by describing in broad terms the goods which are to have the benefit of exemption or a lower rate of duty and s 273 read with other provisions of Pt XVI enables the Minister in his discretion to apply that general rule to particular cases. In my view this does not amount to changing the law. He is simply applying it in the exercise of his discretion to a particular set of circumstances. This may amount to doing the work which Parliament may have done had it been equipped to specify in advance all the goods it intended to cover but it does not follow from this that the Minister's decision is legislative in character.

76 For these three reasons, the remarks of Gummow J should not be treated as a test for 'legislative effect'.

77 I have explained that the approach to the determination of whether an instrument under the Fish Resources Management Act has 'legislative effect' begins by focusing upon the instrument and asking whether the instrument creates (i) a rule of conduct or a declaration as to power, right or duty (in which case it has legislative effect), or (ii) whether it applies the law in particular cases.

78 As I have explained, that approach cannot be finally determinative of the legislative effect of an instrument. So the tendency in the cases has been to consider a wide range of additional factors or indicia. The relevance of these factors to determining whether an instrument has legislative effect or administrative effect can only be because each of these factors is one of the usual characteristics of legislation. The more of these indicia which are present in an instrument, the more likely it is that the instrument will have legislative effect. Understood in this way, the approach of Latham CJ is no more than one broad description of one general characteristic of legislation.

79 A more recent decision in which a number of other factors indicating legislative characteristics is the decision of the Full Federal Court in RG Capital Radio Ltd v Australian Broadcasting Authority.[60] An application for special leave to appeal from that decision to the High Court of Australia was dismissed on the basis that there was 'no reasonable doubt of the correctness of the decision'.[61]

80 The question posed for the Full Court of the Federal Court in that case was whether a decision to determine a licence area plan was a decision of an administrative character within the meaning of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Some of the factors upon which the Full Court focused, which I have summarised and adapted, are as follows:

(i) the greater the control that Parliament has over the power reposed in the executive the more legislative the instrument will be in effect;

(ii) a requirement of wide public consultation before an instrument takes effect is an indicator that it has legislative effect;

(iii) the wider the range of considerations that the decisionmaker is entitled to take into account, the more likely the instrument will be characterised as legislative in effect;

(iv) a broad nature and impact of the decision will be another indicator of legislative effect;

(v) the absence of executive control of the decision indicates that it has a legislative effect; and

(vi) the omission of a power of merits review by an administrative tribunal is another indicator of legislative effect.

81 These are not exhaustive factors. At the end of the day, the question of whether an instrument has legislative effect is to be answered by considering whether the instrument bears sufficient resemblance to legislation, having regard to those qualities usually present in legislation. The more legislative qualities that are present in the instrument the more it is likely to have a legislative effect.

Sub-issue 2: Can exemption instruments under the Fish Resources Management Act have legislative effect?

82 Much of the focus of submissions was on this subissue.

83 Counsel for Sea Shepherd Australia and Ms Burden submitted that every exemption, other than those which might be purely procedural or evidentiary in character, is legislative in effect because every exemption changes the law.[62]

84 In contrast, senior counsel for the respondents submitted that instruments which give effect to exemptions under the Fish Resources Management Act are never instruments which have legislative effect.

85 The submission by counsel for Sea Shepherd Australia and Ms Burden was that the Exemption Instruments involved taking an administrative step, but that it was an administrative step which had legislative effect.[63] As I have already explained, he relied heavily upon the decision in Queensland Medical Laboratory v Blewett. As I have already explained, the approach of Gummow J in that case was not intended as a general test. Nor can it be applied as such.

86 I accept the submission by senior counsel for the respondents that exemption instruments under the Fish Resources Management Act will never be instruments of legislative effect within s 5 of the Interpretation Act. This is for three categories of reason, in combination, set out below.

2.1 The exemptions apply a rule to a particular case

87 The first reason that supports the administrative effect of exemptions made under s 7 of the Fish Resources Management Act is that those exemptions are better understood as applying a general provision to particular cases rather than creating a rule of conduct.

88 Whilst I accept that this broad factor deriving from Latham CJ is not always easy to apply, the approach of the Full Federal Court in Ministry of Industry and Commerce v Tooheys Ltd[64] is apt. As I have explained, in that case the general rule described in broad terms the goods which were to have the benefit of exemption or a lower rate of duty. The Minister had a power to apply that general rule to particular cases.

89 So too, the same approach applies in s 7 of the Fish Resources Management Act. The section prescribes a general rule in broad terms concerning the power to exempt a specified person or specified class of persons from all or any of the provisions of this Act. That broad rule is conditioned upon a requirement that one or more of seven listed purposes is satisfied. The issue of an exemption instrument is then an application of that general rule.

2.2 Other important indicators of legislative effect are absent

90 Other matters, discussed above, which are indicators of legislative effect are also absent from exemptions.

91 First, there is little control, and none expressed in the Fish Resources Management Act, that Parliament has over the power reposed in the Minister.

92 Secondly, there is substantial executive control over the exemption power reposed in the Minister. Section 7(6) permits the Minister, if he or she thinks fit, by further instrument in writing, to vary or revoke an exemption or delete, vary or add to any conditions imposed in relation to that exemption.

93 Thirdly, there is no requirement for any consultation, still less any wide public consultation before the exemptions take effect.

94 Fourthly, the range of considerations of which the Minister is permitted to take into account is limited to the seven factors provided in s 7(2).

95 There are two contrary matters relied upon by counsel for Sea Shepherd Australia and Ms Burden. One supports their case, but the other is neutral.

96 The factor which supports their case is the omission of a power of administrative review by the State Administrative Tribunal. This is an indicator of legislative effect. But it is not decisive especially when weighed against all the matters discussed above. Further, the Fish Resources Management Act also omits a power of administrative review from other instruments which are not of legislative effect: aquaculture leases,[65] and exclusive licences to take fish.[66]

97 The factor which is neutral is the power to exempt, and the actual exemption in this case for, the State of Western Australia. Counsel for Sea Shepherd Australia and Ms Burden submitted that this exemption changed the content of the law because s 8(1) of the Fish Resources Management Act provided that the Act binds the Crown. I have already explained that this is not the correct approach to apply. But, in any event, I do not accept this submission. The provision in s 8(1) merely removes doubt which might otherwise exist[67] concerning whether the State of Western Australia should be treated in the same way as any other natural person subject to the Act.[68]

2.3 Incongruity with exemptions having legislative effect

98 There is a third reason why exemptions under the Fish Resources Management Act do not have legislative effect. This is because there is an incongruity which arises if exemptions are instruments of legislative effect. Section 47 of the Interpretation Act provides that 'any act done under subsidiary legislation shall be deemed to be done under the written law under which the subsidiary legislation was made'. The incongruity which arises is between (i) acts done under an exemption from the operation of the Fish Resources Management Act, and (ii) those same acts being deemed to be done under the Fish Resources Management Act.

Sub-issue 3: Does the Fish Resources Management Act impliedly exclude a requirement of Gazettal?

99 Since I have concluded that exemption instruments made under s 7 of the Fish Resources Management Act do not have legislative effect, it is not strictly necessary to consider this subissue. However, I have considered this subissue below because

(i) a number of the matters relied upon by senior counsel for the respondents for the previous subissue are matters which are better understood as concerned with this subissue; and

(ii) those matters were fully argued and I should express my conclusion in relation to them.

100 I commence my discussion of this sub-issue with an explanation of how it arises and then I explain why if, contrary to my conclusion above, exemption instruments have legislative effect then s 41 of the Interpretation Act is impliedly excluded by the Fish Resources Management Act.

3.1 Section 41 does not apply if the intent or object of the Fish Resources Management Act is inconsistent with that application

101 Section 3 of the Interpretation Act provides that

(1) The provisions of this Act apply to every written law, whether the law was enacted, passed, made, or issued before or after the commencement of this Act, unless in relation to a particular written law

...

(c) in the case of subsidiary legislation, the intent and object of the Act under which that subsidiary legislation is made is inconsistent with such application.

102 Section 3 therefore qualifies s 41 of the Interpretation Act. In other words, if the intent and object of the Fish Resources Management Act is inconsistent with a requirement for gazettal of Exemption Instruments then s 41 will not apply to require publication in the Gazette.

103 It is sometimes a difficult question of degree to determine whether an implied legislative intention exists in a particular Act which is inconsistent with a provision in the Interpretation Act. An example of the difficulty in determining whether there exists an implication of inconsistent legislative intention is Pfeiffer v Stevens.[69] In that case, the Minister, acting under the Local Government Act 1993 (Q), sought to extend an interim local law twice. After the first extension, Mr Pfeiffer was prosecuted. The Acts Interpretation Act 1954 (Q), s 23(1), permitted the Minister's power to be exercised 'as the occasion required'. Mr Pfeiffer said that s 23(1) was inconsistent, by implication, with the power in the Local Government Act to extend the interim local law to the end of a period gazetted by the Minister.

104 The majority concluded that the provisions were consistent. In the majority, McHugh J said that an[70]

intention contrary to the Acts Interpretation Act may appear not only from the express terms or necessary implication of a legislative provision but from the general character of the legislation itself ... [In Blue Metal Industries Ltd v Dilley] the Privy Council said[71]

in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole.

3.2 Implied inconsistency because exemption instruments are treated as having the same effect as licences and permits

105 The first reason for implied inconsistency between s 41 of the Interpretation Act and the Fish Resources Management Act if s 7 exemption instruments were to have legislative effect is as follows. Licences and permits (authorisations) issued to particular individuals under the Fish Resources Management Act are not legislative in effect, and do not require publication in the Gazette unless expressly provided. But exemption instruments are treated in the same general way as licences and permits.

(i) The decision of the Full Court in Wilkes v Johnsen

106 The commonality of licences, permits and exemptions was considered in this State in the context of the Fish Resources Management Act in Wilkes v Johnsen.[72] Mr Wilkes had been convicted of offences under the Fish Resources Management Act, including an offence under s 46(b), s 52 and s 222 of that Act for 'being in possession of totally protected fish (eight undersized marron)'.[73]

107 Mr Wilkes appealed from his conviction to the Full Court of the Supreme Court. He argued that s 46(b) of the Fish Resources Management Act was inconsistent with s 211 of the Native Title Act 1993 (Cth).[74] He succeeded on his appeal against the conviction for possession of totally protected fish.

108 Section 211 of the Native Title Act 1993 provided that, in certain circumstances, 'the law does not prohibit or restrict the native title holders from' fishing in 'exercise or enjoyment of [their] native title rights and interests'. One of those circumstances described by s 211 was where[75]

a law of the Commonwealth, a State or a Territory prohibits or restricts persons from carrying on the class of activity other than in accordance with a licence, permit or other instrument granted or issued to them under the law.

109 Mr Wilkes submitted that the relevant provisions of the Fish Resources Management Act fell within s 211. In other words, although Mr Wilkes was prohibited from carrying on fishing for a certain size of marron, that was an activity which was permitted if an 'instrument of exemption' is granted by the Minister for Fisheries.

110 The respondent in Wilkes accepted that s 46 of the Fish Resources Management Act 'prohibits or restricts persons from carrying on the class of activity'. But the respondent argued that the exemption did not fall within the words of s 211 of the Native Title Act: 'other than in accordance with a licence, permit or other instrument granted or issued to them under the law'. The respondent submitted that an exemption was unlike a licence or permit (or instrument of that nature) because the exemption did not 'license' or 'permit' the activity. Instead, the respondent said, the exemption removed a statutory prohibition and took the person exempted outside the scope of the Fish Resources Management Act.

111 The Full Court, by majority, rejected this submission. The majority held that s 211 of the Commonwealth Native Title Act has the effect of permitting fishing by native title holders, contrary to the provisions of s 46 of the State Fish Resources Management Act, provided that they comply with s 211(2). Section 46 of the Fish Resources Management Act was therefore inconsistent with s 211 of the Native Title Act and was, to that extent, inoperative.[76]

112 The majority of the Full Court were Kennedy and Wheeler JJ. The relevant part of their Honours reasoning concerns their explanation for why an exemption under the Fish Resources Management Act was of the same nature as a licence or permit.

113 Justice Kennedy (who agreed generally with Wheeler J)[77] described the definitions of 'licence', 'permit', and 'exemption'. His Honour explained that both licences and permits were also defined as both being an 'authorisation'. All of these definitions remain in the Fish Resources Management Act. Then Kennedy J continued:[78]

In probably the majority of cases, there will be a distinction between a licence or permit, which constitutes an authority to do that which would otherwise be prohibited (or be wrongful or illegal), as to which see Edwards v O'Connor [1991] 2 NZLR 542 at 550, and an exemption, which, when granted, excludes the action in question from the scope of the prohibition. But in the Fish Resources Management Act, 'a licence or permit' on the one hand, and 'an exemption' on the other, have very much the same effect.

114 The reasons why his Honour considered that an exemption had the same effect, and served many similar purposes,[79] as a licence or permit were as follows:

(i) In relation to the administration of the Fish Resources Management Act, licences, permits and exemptions are dealt with in the same way. A fishery officer can require a person to say whether the person holds an authorisation or exemption.[80] And a fishery officer may require any person to produce for inspection any authorisation or exemption which the person says that he or she holds, or in the fishery officer's opinion should be held by that person.[81]

(ii) In any proceedings for an offence against the Act, the production of a certificate in a certain form which refers to an authorisation or exemption is evidence of the facts stated in the certificate.[82]

115 Justice Wheeler similarly concluded that the Fish Resources Management Act uses the expression 'exemption' in a manner consistent with ordinary usage; that is, as a species of licence or permit.[83] Her Honour gave the following additional reasons:

(iii) After making the observation (described at (ii) above) that for evidentiary purposes concerning the production of a certificate, both exemptions and authorisations are dealt with identically, her Honour also observed that the heading to that evidence section (s 212) is 'Evidence of licensing matters'.[84] It is now headed 'Authorisations etc; evidence as to'. I do not place any weight in this case upon the section hearing to s 212. It is sometimes said that regard can be had to the section heading as extrinsic material even though it does not form part of the Act due to s 32(2) of the Interpretation Act.[85] But where these headings have not been authenticated as having been contained in the Bill which passed through Parliament then the assistance to be gleaned from them as extrinsic materials is likely to be, at best, very limited.[86] I have been unable to authenticate the section heading to s 212.

(iv) As a matter of ordinary usage, which is how the expressions are used in the Fish Resources Management Act, the expressions 'licence', 'permit' and 'exemption' are different ways of expressing the same practical effect that without the instrument will not be free to undertake an activity which those having the instrument may undertake. Any difference is one of degree, in that a 'licence' will often be an instrument which can be fairly readily obtained by satisfying certain criteria or payment of a fee, while an 'exemption' has often the connotation of something relatively rare or difficult to obtain.[87]

(iii) Both authorisations and exemptions permit the doing of particular acts which are otherwise prohibited.[88]

(iv) There would appear, in many cases, to be a discretion whether to issue authorisations and exemptions and each may be issued subject to a broad range of conditions. As Her Honour explained:

By way of examples, the Minister may grant an exemption for "any purpose", while the Executive Director may grant an exemption for a range of specified purposes, and in either case the exemption may be subject to such conditions as the Minister or Executive Director thinks fit, which conditions may be varied (s 7(2), s 7(3), s 7(5) and s 7(6)). A managed fishing licence or interim managed fishing permit "may" be granted by the Executive Director if criteria specified in the relevant management plan are satisfied; it may be subject to any conditions specified by the Executive Director; and the conditions may be varied, unless they are specified in the management plan itself (s 66(1), s 66(2), s 69(1)(b), s 69(3) and s 69(4)).

116 Another reason, additional to those given by Kennedy and Wheeler JJ, why the Fish Resources Management Act treats an exemption in the same manner as a licence or permit is that the Fish Resources Management Act provides for exemptions, like authorisations (permits and licences), to be entered on a register.[89]

(ii) The subsequent reception of Wilkes v Johnsen

117 The decision of the Full Court of the Supreme Court of Western Australia in Wilkes was considered by the Full Court of the Supreme Court of South Australia when the same issue arose under the South Australian legislation in Dietman v Karpany.[90] Justice Blue, with whom the other judges agreed on this point,[91] said that 'the Western Australian Act in many respects equated an exemption with a licence or permit'.[92] But his Honour distinguished the operation of the South Australian Fisheries Management Act 2007 (SA), saying that 'the provisions of the Western Australian Act were very different to those of the South Australian Act.'[93]

118 An appeal to the High Court of Australia was allowed.[94] But nothing was said in the judgment of the High Court concerning any analogy with the Western Australian legislation, which is perhaps unsurprising given the forceful expression from the bench of the inutility of drawing analogies from other legislation.[95]

3.3 Provisions in the Fish Resources Management Act treat exemption instruments and subsidiary legislation differently

119 There is a second reason for implied inconsistency between s 41 of the Interpretation Act and the Fish Resources Management Act. Provisions of the Fish Resources Management Act indicate that the legislature should not be taken to intend that exemption instruments under s 7 of that Act should be treated as subsidiary legislation and published in the Gazette. Those provisions are as follows.

120 Sections 262 and 263 of the Fish Resources Management Act treat matters which are clearly subsidiary legislation differently from exemptions.

121 Under s 262, subsidiary legislation involving orders, regulations and management plans 'in force under this Act' are to be available for inspection at the head office of the Department and available for inspection free of charge to members of the public. This is not required of exemptions, details of which are instead to be included in the Department's annual report.

122 It is also noteworthy that orders, regulations and management plans are described as having been made 'under this Act'. Exemptions are not, although if they were subsidiary legislation then they would be part of the Act and made under the Act.[96]

123 Section 125 of the Fish Resources Management Act is concerned with a register of authorisations (licences and permits) and exemptions.

124 Section 263(b) also makes express provision for public notification of exemptions in the annual report of the Department.

125 Both of these provisions are concerned with particular public notification of exemptions and access to that information. Both are indicative of an inconsistency with a general rule for publication of exemptions in the Gazette.

(iii) Sections 44(1) and 55(1)

126 Sections 44(1) and 55(1) of the Fish Resources Management Act specifically provide that prohibited fishing orders issued under s 43 and instruments relating to management plans made under pt 6 are subsidiary legislation.

127 The express provision in those cases to instruments of that kind being subsidiary legislation, even though those instruments have already been held by judicial decisions be legislative in character,[97] suggests the contrary intention in relation to instances such as exemptions which are, at best, more difficult to characterise as subsidiary legislation.

(iv) Sections 28, 43, 54, 64, 97, 115, 119, 122, 213, 251

128 Each of these sections concerns miscellaneous matters about which provision is specifically made that there should be publication in the Gazette. The miscellany includes matters such as:

(i) a Minister's management plan for a fishery (s 28(3));

(ii) an order prohibiting persons from engaging in fishing activity of a specified class (s 43(1)) but not authorisations permitting matters such as a person to engage in fishing activity in a managed fishery (s 66(2)); and

(iii) aquaculture leases (s 97(9)) but not aquaculture licences, nor authorisations (licences and permits).

129 Each of these points shows a careful consideration of matters, whether subsidiary legislation or not, which required Gazettal and provision for those matters to be published in the Gazette. Again, the absence of such a provision in relation to exemptions is yet another indication of inconsistency with s 41 of the Interpretation Act if s 7 exemptions were held to have legislative effect (requiring publication in the Gazette).

Sub-issue 4: Do the particular Exemption Instruments have legislative effect?

130 This sub-issue does not strictly require consideration since I have concluded that exemption instruments under s 7 do not have legislative effect or, if they do, publication in the Gazette is not required because of an implied inconsistency with the Fish Resources Management Act.

131 It is sufficient to note in relation to this sub-issue, that the particular Exemption Instruments also demonstrate the same lack of indicia of legislative effect. For instance, in relation to the hallmark criteria described by Latham CJ in in Commonwealth v Grunseit,[98] the Exemption Instruments were issued by reference to the general purpose of 'public safety' (s 7(2)(c)) under the Fish Resources Management Act, a matter which was not challenged. They were applied to particular circumstances: to the State of Western Australia and particular named people (including a number of employees); for a particular activity; within a particular area; for a particular period; and subject to a list of conditions.

132 The same absence of other indicia of legislative effect applies to the particular Exemption Instruments. There is little control that Parliament has over the power reposed in the Minister; and there is substantial executive control by the Minister over the exemption power (under s 7(6), if he thinks fit to vary or revoke the Exemption Instruments, or delete, vary or add to any conditions imposed).

Sub-issue 5: Does the failure to publish the Exemption Instruments mean that they are invalid or inoperative?

133 In light of the conclusions I have reached on the first four sub-issues it is not necessary to decide this sub-issue. In any event, senior counsel for the respondents conceded that if publication in the Gazette were required then the Exemption Instruments would be inoperative. This concession was properly made.[99]

134 As I explained at the outset of these reasons, this hearing involved a purely legal question. It is a legal question which is not without considerable difficulty at the margins. The line between a legislative act and an administrative act is blurred. Almost a century ago, the Donoughmore Report of the Committee on Ministers' Powers observed that it is 'difficult in theory and impossible in practice to draw a precise dividing line between the legislative on the one hand and the purely administrative on the other; administrative action so often partakes of both legislative and executive characteristics.'[100]

135 Other jurisdictions have solved this problem by enacting Legislative Instruments Acts which reduce the question to a formal matter of expression of legislative intention. And even in relation to the type of question in this case, in different legislative contexts other jurisdictions have expressly required gazettal of exemptions.[101]

136 Although (i) the line between instruments having legislative effect and those having administrative effect is sometimes very difficult to draw, (ii) the authorities do not always speak with one voice, and (iii) almost no authority is directly applicable to the Interpretation Act section involved in this case, some clarity is possible. That clarity can be obtained by approaching the expression 'having legislative effect' as requiring comparison between the effect which legislation has generally with the effect of the instrument concerned. Relevant factors for this comparison have been recognised in cases where similar questions have been asked.

137 The application of this approach in this case means that exemption instruments, and particularly these Exemptions Instruments, made under s 7 of the Fish Resources Management Act, do not have legislative effect. I would also conclude that even if they did have legislative effect, then the requirement for publication of exemptions in the Gazette in s 41 of the Interpretation Act would be inconsistent with the scheme and provisions in the Fish Resources Management Act.

138 For these reasons the preliminary question must be answered, 'no'.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SEA SHEPHERD AUSTRALIA LTD -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 66 (S)

Practice and procedure - Exceptional costs orders - Whether no order should be made as to costs - Concept of 'public interest' litigation - Genuine assertion of environmental concern without prospect of personal gain - Arguable case - Novel questions of general importance - Contribution of proceedings to understanding of the law - Implication of proceedings for section of the public other than individual litigants

Fish Resources Management Act 1994(WA)

Interpretation Act 1984(WA)

First Applicant : Environmental Defender's Office WA (Inc)

Second Applicant : Environmental Defender's Office WA (Inc)

First Respondent : State Solicitor for Western Australia

Second Respondent : State Solicitor for Western Australia

Third Respondent : State Solicitor for Western Australia

1 The principal proceedings in this case involved judicial review of government decisions in relation to a policy described as the 'Shark Hazard Mitigation Strategy'. Part of that strategy involves setting baited drum lines in the Metropolitan Coastal Area and the South West Coastal Area to target three species of shark. The three species of shark are all 'totally protected fish' under the Fish Resources Management Act 1994 (WA). The applicants in the principal proceedings, Sea Shepherd Australia and Ms Burden, sought relief including an injunction to restrain the decisions and conduct implementing the strategy.

2 On 4 March 2014, a preliminary issue was tried in this action. The preliminary issue concerned whether particular Exemption Instruments made under s 7(2)(c) of the Fish Resources Management Act are 'subsidiary legislation' for the purposes of s 41 of the Interpretation Act 1984 (WA) with the effect that the Exemption Instruments are invalid or inoperative. The answer give to this question was 'no'. The effect of this answer was that the proceedings brought by Sea Shepherd Australia and Ms Burden were effectively concluded. The only issue that remains is costs.

3 The usual order as to costs is that the successful parties (here, the respondents) are entitled to payment of their costs. The respondents seek an order that Sea Shepherd Australia and Ms Burden pay their costs which the parties have helpfully, and with cooperation, agreed to fix at $19,000. Sea Shepherd Australia and Ms Burden submit that there should be no order as to costs or, alternatively, an order that they pay only a percentage of the respondents' costs. Sea Shepherd Australia and Ms Burden say that the usual order should not be made because the 'rare and exceptional circumstances' of the case justify departure from the usual order as to costs.[102]

4 The essential question is whether in all the circumstances of this case, there are reasons which are rare and exceptional from the usual course of litigation and which justify this Court making no order as to costs despite the usual rule being that successful parties (here, the respondents) are generally entitled to their costs. The circumstances in this case are sufficiently rare and exceptional. The appropriate order is that there should be no order as to costs.

5 It is not necessary to set out the general costs principles at length. They are very well known. In broad summary they are as follows.[103]

(i) The Court has a general discretion to award costs and, 'without limiting [that] general discretion ... the Court will generally order that the successful party to any action or matter recover his costs'.[104]

(ii) Costs are 'compensatory' in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.

(iii) As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.[105]

(iv) The circumstances in which the Court will depart from the usual order for costs are rare and exceptional.[106]

6 In written costs submissions all the parties relied heavily upon two decisions. The first is the decision of the majority of the High Court of Australia in Oshlack v Richmond River Council.[107] The second is the decision of the majority of the Court of Appeal in this State in Roe v Director General, Department of the Environment and Conservation for The State of Western Australia.[108] Both of those decisions are considered below.

7 Neither decision is determinative of this application. Nor does either decision apply to this case as directly as the parties contended. This is unsurprising in circumstances in which decisions in relation to costs are often heavily dependent upon the particular facts of the case.

8 In Oshlack, the issue concerned proceedings brought by Mr Oshlack against a developer and the Richmond City Council in the Land and Environment Court of New South Wales. Mr Oshlack sought to impugn consent that the Council had given to a development. The primary judge dismissed the application but ordered that there be no order as to costs. The factors which the primary judge took into account included the following description in the High Court:[109]

(i) the relaxation of standing under s 123 of the Land and Environment Court Act 1979 (NSW);

(ii) the characterisation of proceedings as 'public interest litigation' with the 'prime motivation' being the upholding of the 'public interest and the rule of law';

(iii) The desire by Mr Oshlack to ensure obedience to environmental law and the lack of anything that he had to gain from the litigation 'other than the worthy motive of seeking to uphold environmental law and the preservation of endangered fauna';

(iv) the stance of Mr Oshlack being shared by a 'significant number of members of the public'; and

(v) the basis of the challenge was arguable and had raised and resolved 'significant issues' as to the interpretation and administration of statutory provisions which had implications for the Council, the developer and the public.

9 The decision was upheld by majority when the appeal reached the High Court of Australia. The issue for the High Court was not how that Court would have exercised its discretion. Instead, as Kirby J expressed the point in the majority, the question was whether it was 'open' to the primary judge 'to conclude that a departure from the ordinary compensatory rule was appropriate'.[110] Or, as Gaudron and Gummow JJ expressed the point also in the majority, it was whether the reasons given by the primary judge were 'definitely extraneous to any objects the legislature could have had in view in enacting s 69' of the Land and Environment Court Act[111] which provided for costs to be in the discretion of the Court.

10 In Roe v Director General, Department of the Environment and Conservation for The State of Western Australia,[112] the Court of Appeal in this State considered whether an order for costs should be made in favour of the State which had succeeded in resisting two applications by Mr Roe challenging decisions by the Director General of the Department of Environment and Conservation. The decisions granted permits to Woodside Energy Ltd and to the Commissioner of Main Roads to clear native vegetation in the Kimberley region.

11 The majority of the Court of Appeal, Martin CJ and Murphy JA, emphasised the wellestablished principles concerning the rare and exceptional character of the circumstances required to justify a departure from the usual order and the great care that must be taken in making such an order.[113] Nevertheless, the circumstances in that case were considered exceptional for five reasons, in combination.[114]

(i) The proceedings were brought in the public interest.

(ii) The proceedings assisted to clarify legal issues of importance under the Environmental Protection Act 1986 (WA) and the resolution of novel questions of general importance by a court has been considered a relevant factor in the exercise of the court's costs discretion in proceedings said to be in the public interest.[115]

(iii) Mr Roe had an arguable case which could not be characterised as frivolous, or lacking in substance or foundation.

(iv) Mr Roe was asserting a public interest, without prospect of personal gain or advantage. Mr Roe brought the proceedings as a law boss of the Aboriginal people who are the traditional owners of the relevant land. He commenced the proceedings in the genuine belief that he was advancing the interests of the cultural group which he believes he represents, and without prospect of personal gain or advantage.

(v) There is a special relationship between the Aboriginal people and their land.

A difficulty for assessment of the appropriate costs order in this case

12 It is necessary to remark on the manner in which the primary application was brought in order to explain one significant difficulty in relation to this assessment of whether an exceptional costs order should be made.

13 On 26 February 2014, an application was brought for an interlocutory injunction to restrain the respondents from implementing the strategy pending the final hearing. Sea Shepherd Australia and Ms Burden sought an urgent hearing of the interlocutory injunction. Although their application had been brought some weeks after the commencement of the Shark Hazard Mitigation Strategy, the implementation of that strategy, and the effect of the exemptions, ends on 30 April 2014. The urgency of their application apparently arose because after that date the exemptions will have run their course. The matter will be purely hypothetical. There will be nothing of substance about which to adjudicate.

14 The primary basis upon which the interlocutory injunction was resisted was what appeared to be a short legal issue concerning whether the Exemption Instruments are subsidiary legislation. The respondents urged the hearing of only this point as a preliminary issue. For reasons I explained, it was very difficult to understand why Sea Shepherd Australia and Ms Burden initially wished to proceed with an application for an interlocutory injunction.[116] Nevertheless, at the hearing, all parties agreed that this legal issue could be heard as a preliminary issue. Sea Shepherd Australia and Ms Burden respectfully pressed for an urgent resolution of the legal issue. The legal issue was resolved. It determined the proceedings.[117]

15 There is one substantive difficulty that this course of proceeding has caused for the determination of this application for costs. That difficulty is that another issue in the proceedings, which did not need to be decided, was whether Sea Shepherd Australia and Ms Burden had standing to seek relief.

16 The reason why issues of standing might have a material effect on the result is that the issues of standing and costs are not independent. This point was made by Kirby J who was a member of the majority in one of the cases upon which Sea Shepherd Australia and Ms Burden placed great emphasis, Oshlack v Richmond River Council.[118] As his Honour said in a later case, Oshlack involved reliance upon the existence of 'special legislation in New South Wales' a feature of which involved 'enlarged' standing rules.[119]

17 In written costs submissions, the respondents appeared to submit that this Court should determine the costs issue on the basis that Sea Shepherd Australia and Ms Burden had no standing to seek the relief they claimed. The respondents distinguished the decision in Roe v Director General, Department of the Environment and Conservation for The State of Western Australia[120] on the basis that standing in that case was not in dispute.[121] And the respondents submitted that a general interest in litigation by the public does not establish 'public interest' litigation for the purposes of an award of costs.[122]

18 In response to correspondence from the Court, the respondents subsequently clarified that they did not seek resolution of the dispute concerning standing.[123] Hence, no party now seeks to have the question of standing determined solely for the purposes of an assessment of costs. This is an understandable position. To have a trial of the question of standing would merely burden the parties with costs that they had otherwise avoided.[124] This is particularly so because the respondents sought an oral hearing if this Court were to determine the issue of standing.

19 My assessment in relation to costs therefore proceeds, with due concern for proportionality, in the absence of any final determination of standing. Nevertheless, and although I do not take this into account against the respondents, there is a degree of discomfort in the reliance by the respondents on the failure of Sea Shepherd and Ms Burden to prove standing in circumstances in which the respondents had urged that the preliminary issue be heard in the absence of any argument concerning standing.

The legal questions involved in the hearing of the preliminary issue

20 The central legal issues raised at the hearing of the preliminary question were whether under the Fish Resources Management Act exemption instruments generally, or the particular exemption instruments which were issued, have 'legislative effect' within the definition of 'subsidiary legislation' in s 5 of the Interpretation Act or whether the Fish Resources Management Act impliedly excluded a requirement of publication in the Government Gazette.

21 In my reasons for decision I divided these questions into five subissues as follows.[125]

(i) What is meant by 'instruments ... having legislative effect' in the definition of 'subsidiary legislation' in s 5, and applied to s 41, of the Interpretation Act?

(ii) Can instruments which exempt individuals or groups of individuals from the operation of an Act have 'legislative effect' so that they fall within the definition of 'subsidiary legislation' in s 5 of the Interpretation Act?

(iii) Does the Fish Resources Management Act impliedly exclude the operation of s 41 of the Interpretation Act in relation to exemption instruments under s 7?

(iv) Do the Exemption Instruments in this case have legislative effect?

(v) If s 41 of the Interpretation Act applies, and if the Exemption Instruments have legislative effect, then does the failure to publish those Exemption Instruments in the Gazette mean that they are invalid or inoperative?

The reasons why an exceptional order should be made

(i) A genuine assertion of environmental concern without prospect of personal gain

22 I accept that the Sea Shepherd and Ms Burden did not, in the words of the respondents' submission, 'clearly establish' standing. This was a matter of dispute. Nevertheless, the Sea Shepherd and Ms Burden had, at least, a genuine belief that they were 'asserting a public interest, without prospect of personal gain or advantage'.[126] It was common ground that their primary motivation for bringing the proceedings was a concern for environmental protection.[127]

23 The Fish Resources Management Act is also, on its plain terms, legislation which is concerned with environmental protection. Section 3 of the Fish Resources Management Act sets out its purpose as including development and management of 'fisheries and aquaculture in a sustainable way' and to 'share and conserve the State's fish and other aquatic resources and their habitats for the benefit of present and future generations'. Whether exemption instruments had properly exempted bodies from compliance with the Act is a matter of environmental concern.

24 The case brought by Sea Shepherd Australia and Ms Burden was arguable. It was not frivolous or lacking in substance or foundation. Aspects of it raised very difficult issues.

(iii) The proceedings raised novel questions of general importance

25 Another consideration which militates in favour of an order that there be no order as to costs is that the application raised questions of general importance and of some novelty. It is well established that these matters are relevant to whether the usual costs order is made. In Re Mersey Railway Co (No 1)[128] the English Court of Appeal considered an issue concerning the priority of a judgment creditor in relation to an order made under the Railway Companies Act 1867 (30 & 31 Vict c 127). The essence of the dispute involved statutory construction but Cotton LJ (with whom the other judges agreed on this point) said that costs should not be awarded because 'it would be hard to order the judgment creditor to pay them in a novel case of so much general importance and of some difficulty'.[129]

26 Another example is one commonly overlooked aspect of the decision in Liversidge v Anderson.[130] In that case, although Lord Atkin was in dissent on the primary issue, his Lordship was in a majority who considered that the importance of the case was such that costs 'should not be asked for'. Mr Valentine Holmes, then junior counsel to the Treasury, replied that he 'should not dream of asking for them on behalf of the Home Secretary'.[131]

27 Viewed only from the perspective of the immediate pleading issue between the parties, Liversidge might, at first glance, have appeared to be an unimportant case concerning an application for particulars of a defence in an action for false imprisonment. But the importance of the decision, the legal issues involved, and the resonance of Lord Atkin's powerful dissent, went far beyond the litigation itself.

28 The novelty and importance of the legal question raised was also a significant factor that was considered more recently in Ruddock v Vadarlis.[132] In that case, the applicants were a solicitor and a civil liberties association. They brought applications against the Commonwealth seeking the release to the Australian mainland of rescuees from a foreign vessel, the M V Tampa. The vessel had been secured by Australian troops. The relief was granted by the primary judge. A majority of the Full Federal Court overturned the decision of the primary judge. But, by majority, the Full Federal Court ordered that there be no order as to costs of either the appeal or the application before the primary judge. Amongst the factors relied upon by the majority were (i) the novelty and importance of the questions of law, (ii) the division of judicial opinion on these issues, and (iii) the lack of any financial gain to the applicants in bringing their claims.[133]

29 Senior counsel for the respondents submitted in writing that the issue in the present case was 'only whether a particular kind of statutory instrument required publication in the Gazette before coming into operation'.[134] It is always possible to characterise an issue in a narrow manner which aligns it closely with the facts of the case. Liversidge, on a narrow characterisation, was only a case concerned with the provision of particulars of a defence.

30 As between the parties in this case, the immediate issue was whether Exemption Instruments should be published in the Government Gazette, a course which senior counsel for the respondents said could be accomplished within minutes. But there were considerably wider legal and factual ramifications of the issue in this case which were matters of novelty and importance, and also matters upon which there was a division of judicial opinion.

31 I start, however, with the alleged wider legal ramifications that I reject. Counsel for Sea Shepherd Australia and Ms Burden said that a broad issue of public importance that was raised by the proceedings was that 'if the Ministerial exemptions in question in this proceeding could be characterised as subsidiary legislation ... then many, many more exemption instruments were implicated by the question presented'.[135] This echoed a submission that he made at the hearing of the preliminary issue which was that every exemption, in every statute, was legislative in effect (and implicitly that no statute impliedly excluded the requirement of publication of subsidiary legislation in the Government Gazette).

32 In costs submissions, counsel for Sea Shepherd Australia and Ms Burden pointed to exemption provisions in the Environmental Protection Act 1986 (WA) s 6, Mining Act 1978 (WA) s 19, Conservation and Land Management Act 1984 (WA) s 57A, and Forest Products Act 2000 (WA) s 31.

33 This submission is incorrect. The assumption is that exemption instruments under the Fish Resources Management Act are materially identical to every other exemption instrument for the purposes of characterising whether the instrument has 'legislative effect' within the definition of 'subsidiary legislation' in s 5 of the Interpretation Act irrespective of whether the relevant Act impliedly excludes a requirement of publication in the Government Gazette. This assumption is plainly wrong. Exemptions from the operation of legislation or parts of legislation can take a very wide variety of forms and have a wide variety of effects. Each statute must be assessed on its own terms.

34 This point can be highlighted by reference to substantial and material differences in the examples cited by Sea Shepherd Australia and Ms Burden:

(i) The Environmental Protection Act s 6, provides for exemptions of a different scope from the Fish Resources Management Act; it requires approval of the Governor for the exemption as well as for the revocation of the exemption; it requires publication in the Gazette of reasonable notice of an intention to revoke the power (but not publication of the exercise of the power); it deems the exemption to be 'regulations' (and hence subsidiary legislation) but only for the purposes of applying s 42 of the Interpretation Act which is then varied in effect. Section 42 deals with matters such as laying regulations, rules, local laws and bylaws before Parliament, and disallowance;

(ii) The Mining Act, s 19, contains a power of exemption from part or all of the Act that, again, is of a different scope from the Fish Resources Management Act; it also specifically requires any such exemption instrument to be published in the Government Gazette as soon as is practicable after its execution;[136]

(iii) The Conservation and Land Management Act, s 57A, is concerned with an exemption from a specific section of the Act in relation to a proposed management plan for land under the Act; the proposed management plan (but not the specific exemption) is specifically required to be published in the Government Gazette; and

(iv) The Forest Products Act, s 31 concerns the Minister's power of exemption of the Forest Products Commission from any matter, or any aspect of a matter, mentioned in a particular subsection of the Act dealing with a statement of corporate intent; it also provides that such exemptions are to be noted in the Commission's statement of corporate intent.

35 Although I reject the submission that the litigation concerned the effect on exemption instruments generally, there were a number of novel and important aspects of the legal issues raised by Sea Shepherd Australia and Ms Burden. These aspects of the case went beyond the environmental issue concerning whether exemption instruments had properly exempted bodies from compliance with the Fish Resources Management Act.

36 Perhaps most significantly, the central legal issue raised was the boundary between an instrument 'having legislative effect' and an instrument having 'executive effect'. As I explained in my principal reasons,[137] quoting from Stephen J, the immediate consequence of that distinction concerned whether there was 'a mechanism for parliamentary oversight of delegated legislation and, no less importantly, allow those whom such laws effect to learn of their making and of their terms'.

37 This boundary, and these consequences, deriving from the Interpretation Act are matters of significant importance not merely to this case but in the application of the boundary instruments having potential legislative effect.

38 The legal question involving the Interpretation Act was also one of some novelty, and difficulty. The only decision concerning the relevant section of the Interpretation Act to which senior counsel for the respondents referred during the hearing was a brief discussion in the Full Court in this State in Norton v The Queen.[138] The novelty of the question in that case was perhaps why the Full Court borrowed, by analogy, from the approach taken to differently worded legislation in the different context of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The cases in relation to that legislation have, in turn, borrowed from the approach of Latham CJ in the High Court of Australia in Commonwealth v Grunseit[139] in the context of the differently worded Acts Interpretation Act 1901 1937 (Cth). But the approach of Latham CJ is not an exclusive test. Nor did I accept the submissions of counsel for Sea Shepherd Australia and Ms Burden that the approach of Gummow J in Queensland Medical Laboratory v Blewett[140] is, or was intended to be, a test to be applied. Further, other cases have supplied lists of potentially relevant factors but without always indicating why those particular factors are necessarily relevant to the assessment of whether an instrument is of legislative or executive effect (or, in the context of the Administrative Decisions (Judicial Review) Act, whether the instrument is of an 'administrative character').

(iv) The proceedings have assisted to clarify legal issues

39 This matter, referred to in Roe, is also a relevant consideration although it is closely associated with point (iii) above. As I explained above, and in the principal reasons in this matter, the issue concerning the boundary between legislative and executive effect is a difficult question which has given rise to fine distinctions and sometimes different tests. In Western Australia, in the context of s 5 of the Interpretation Act the case law is almost nonexistent.

(v) Implications for a section of the public other than the litigants

40 Apart from the matters described above at point (iii), there is a further manner in which the proceedings will have implications for a section of the public other than the individual litigants. This is a matter recognised as relevant to the discretion to make no order as to costs.[141] Its significance in this case is coupled with the lack of any personal gain or advantage to Sea Shepherd Australia and Ms Burden.

41 At the hearing of the application, senior counsel for the respondents explained why the respondents did not simply take the action of publishing the two Exemption Instruments in the Gazette, irrespective of whether they were required to do so by a proper construction of the Interpretation Act and the Fish Resources Management Act. Senior counsel said:[142]

These [two] exemptions were numbered 2375 and 2376. They are consecutively numbered, I'm instructed, starting at 1001 in 1996. So, as a practical matter, there will be hundreds of operative exemptions which people currently think exempt them from criminal liability under the [Fish Resources Management Act] and if that's wrong, well, the sooner we discover that, the better.

(vi) Other matters: efficiency and public policy

42 Two other factors are relevant to the exercise of the discretion to make an order that there be no order as to costs. The first is relevant, although I accept the respondents' submission that this matter is of limited assistance in this case. The second is not relevant.

43 The first factor is that from the time the application was filed, Sea Shepherd Australia and Ms Burden acted in a manner to bring the issue before the Court with a minimum of cost and delay. This is, of course, a point which could be made in many, many contested applications. In a perfect world this could be said of every application. Nevertheless, the applicants consented to the respondents' proposal that the application be heard as a single preliminary issue rather than an interlocutory injunction. Submissions were filed in a short period of time and their counsel presented a focused and efficient argument.

44 The second matter to which the applicants referred is the depth of public controversy surrounding the respondents' shark control programme. Sea Shepherd Australia and Ms Burden urged me to take judicial notice of national and international media attention and controversy surrounding the programme. They urged me to consider the Parliamentary debates about the programme. They referred to rallies against the programme.

45 Even if judicial notice of these matters could be taken, it is very difficult to see how any conclusion drawn from these matters could be relevant to an assessment concerning costs orders. The interest of the public is not what is meant by the legal phrase 'public interest'. Indeed, as I explain in the conclusion to these reasons, the legal phrase 'public interest' is pregnant with ambiguity, uncertainty, and indeterminacy. Even if the extent of public concern was relevant to determining 'public interest', in the absence of expert evidence how could the depth and extent to which vocal public responses are truly representative be measured by a court? How could a court assess whether public concern about a programme means that litigation concerning the programme is in the interests of the public? Would such an assessment require examination of the validity or justification of the public concern? Does this require the court to engage in an exercise of weighing any arguments concerning the merits of the policy with arguments of demerit? These type of questions are classically issues of policy. They are questions which the legislature, advised by experts, and accountable to the public, is far better suited to answer. This is so even if, in some quarters, a distinction between legal principle (the domain of the judiciary) and public policy is not considered fashionable.

46 My conclusion is that the appropriate costs order in this case is the rare, and exceptional, order that there be no order as to costs. In conclusion it is necessary, however, to make three points.

47 The first point is that many of the cases relied upon by the parties for the exercise of the costs discretion in those cases often turn upon particular circumstances. Analogy can be deceptive. This can particularly be illustrated by reference to the decision in Oshlack upon which both parties placed considerable emphasis.

48 Oshlack was an appeal from the exercise of a costs discretion rather than an exercise of that discretion afresh. In Hanlon v Brookes,[143] Callaway JA said:

It is almost invariably the case that the judge at first instance is better placed to deal with the costs after a long trial and counsel seeking leave ordinarily has a difficult task. The test is not whether we should have exercised the discretion in the same way as his Honour did but whether there was or were a ground or grounds on which he could reasonably do so.

49 For this reason, the task faced by an appellant seeking to overturn a discretionary decision in relation to costs has been described as 'extraordinarily difficult'.[144] Where, as in Oshlack, the discretionary decision is not overturned this still leaves open the possibility that the opposite conclusion could have been reached. Only Kirby J expressly said that he would have reached the same conclusion as the primary judge.[145]

50 Further, very shortly after Oshlack, the High Court (including Kirby J) refused special leave and awarded costs against an applicant who sought to enforce environmental laws for the benefit of the general public.[146] The applicant in that case had been refused special leave to appeal from a decision that struck out its statement of claim and gave only limited leave to replead.

51 The second point is that, contrary to the apparent suggestion in some of the written submissions, the exercise of the costs discretion is not a matter of 'counting' which of the factors present in one case or another are present in the instant case. Different factors may have different weight in different cases. Nevertheless, it is established that none of the factors upon which I have relied will generally be sufficient, by itself, for there to be sufficiently exceptional circumstances to depart from the usual rule as to costs. For instance, it 'has not generally been considered a sufficient basis' for departing from the usual costs order that a case raises important and difficult questions of law affecting many people.[147] It is not sufficient that the applicant sought no financial gain from the litigation.[148] It is not sufficient that proceedings be characterised as 'public interest'.[149]

52 The third point concerns the emphasis placed by the parties in this case on the notion of 'public interest'. As Buss JA said in dissent in Roe, but not on this point, 'there are no special rules as to costs which apply to socalled "public interest" litigation'.[150] The concept of 'public interest' can also create difficulty. As Gaudron and Gummow JJ explained,[151] it is a 'nebulous concept'[152] unless given 'further content of a legally normative nature' and can distract attention from the legal issue at stake. In Ruddock v Vadarlis (No 2),[153] Black CJ and French J said that '[t]he term [public interest] may best be seen as an envelope or class description for a range of circumstances which, upon examination, may be found to be relevant to the question whether there should be a departure from the ordinary rule that costs follow the event'.

53 This is not to follow the dissenting decision of McHugh J (with whom Brennan CJ agreed) in Oshlack, but the ambiguity about 'public interest' does lend force to his Honour's remarks that the concept of 'public interest' does not describe[154]

any principle or criterion that would enable other courts to distinguish this case from prosecutions, and constitutional and administrative law matters that are matters of public controversy in which there is a public interest in the outcome of the litigation or which involve an analysis of statutory provisions which should prove helpful in other cases. Without an organising principle to apply or a set of criteria to guide, there is a real danger that, by invoking the 'public interest litigation' factor in cases that affect the public interest or involve a public authority, an award of costs will depend on nothing more than the social preferences of the judge, a dependence that will be masked by reliance on the protean concept of public interest litigation.

54 In light of my conclusion that there should be no order as to costs it is not necessary to consider the alternative submission of Sea Shepherd Australia and Ms Burden that they should bear only a portion of the costs of the respondents.

[1] Notice of Admitted Facts, 4 March 2014, [5], [12].

[2] Notice of Admitted Facts, 4 March 2014, [12].

[3] Notice of Admitted Facts, 4 March 2014, [8] and Attachments 2 and 3.

[4] Interpretation Act 1984 (WA) s 5, s 41.

[5] Aronson M and Groves M, Judicial Review of Administrative Action (5th ed, 2013) 86 [2.500].

[6] Respondents' written submissions, 28 February 2014, [44].

[9] Workplace Access and Safety Pty Ltd v Mackie [2014] WASC 62 [26].

[10] Affidavit of Mr Pearlman, sworn 27 February 2014, [7].

[11] Affidavit of Mr Pearlman, sworn 27 February 2014, [20].

[12] Affidavit of Mr Pearlman, sworn 27 February 2014, [22].

[13] Affidavit of Mr Pearlman, sworn 27 February 2014, [22].

[14] McClure v The Mayor and Councillors of the City of Stirling (No 2) [2008] WASC 286 [49].

[15] Castlemaine Tooheys Ltd v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148, 155 - 156 (Mason ACJ); Davids Holdings Pty Ltd v Byrnes (1987) 71 ALR 251, 251 (Brennan J); Richardson v The Forestry Commission [1988] HCA 10; (1987) 164 CLR 261, 275 - 276 (Mason ACJ).

[16] Richardson v The Forestry Commission [1988] HCA 10; (1987) 164 CLR 261, 276.

[17] Fish Resources Management Act 1994 (WA) s 3(1).

[18] Fish Resources Management Act 1994 (WA) s 9.

[19] Rules Publications Act 1903 (Cth).

[20] Watson v Lee [1979] HCA 53; (1979) 144 CLR 374, 394.

[21] Western Australia, Standing Orders, Legislative Council, December 2013 Reprint, Schedule 1, 10.6.

[22] Western Australia, Standing Orders, Legislative Council, December 2013 Reprint, Schedule 1, 10.6.

[23] For instance, Legislative Instruments Act 2003 (Cth), Legislation Act 2001 (ACT), Statutory Instruments Act 1992 (Qld), Subordinate Legislation Act 1989 (NSW), Subordinate Legislation Act 1978 (SA), Subordinate Legislation Act 1992 (Tas), Subordinate Legislation Act 1994 (Vic).

[24] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98, 107 [39] (French CJ, Hayne, Crennan, Bell & Gageler JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46 [47] (Hayne, Heydon, Crennan & Kiefel JJ).

[25] Western Australia, Parliamentary Debates, Legislative Assembly, 3 May 1984, 7843 (Mr Grill, Minister for Transport).

[26] Interpretation Act 1984 (WA) s 43(4).

[27] Interpretation Act 1984 (WA) s 43(5).

[28] Interpretation Act 1984 (WA) s 43(7)(a).

[29] Interpretation Act 1984 (WA) s 43(7)(b)(i).

[30] Interpretation Act 1984 (WA) s 43(8).

[31] Norton v The Queen [2001] WASCA 207; (2001) 24 WAR 488.

[32] Apotex Pty Ltd v SanofiAventis Australia Pty Ltd [2013] HCA 50; (2013) 304 ALR 1 [18].

[33] Bodin J, The Six Books of the Commonwealth (1576; M Tooley (trans) (1955)).

[34] Craig P, Administrative Law (7th ed, 2012) 379 [12-012].

[35] Attorney-General (Cth) v Alinta Ltd [2008] HCA 2; (2008) 233 CLR 542, 577 [93] (Hayne J; Gummow J agreeing).

[36] R v Spicer; Ex Parte Australian Builders' Labourers' Federation [1957] HCA 81; (1957) 100 CLR 277, 305 (Kitto J).

[37] Eg Rubin E, Beyond Camelot: Rethinking Politics and Law for the Modern State (2005).

[38] Aronson M and Groves M, Judicial Review of Administrative Action (5th edn, 2013) 12 [1.80].

[39] R v Toohey; Ex Parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, 225.

[40] Norton v The Queen [2001] WASCA 207; (2001) 24 WAR 488.

[41] Commonwealth v Grunseit [1943] HCA 47; (1943) 67 CLR 58.

[42] Commonwealth v Grunseit [1943] HCA 47; (1943) 67 CLR 58.

[43] Commonwealth v Grunseit [1943] HCA 47; (1943) 67 CLR 58, 82.

[44] Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee [1945] HCA 55; (1945) 72 CLR 37, 66 - 67 (Latham CJ); Hamblin v Duffy [1981] FCA 38; (1981) 50 FLR 308, 314 (Lockhart J); Minister for Industry & Commerce v Tooheys Ltd [1982] FCA 128; (1982) 42 ALR 260, 265 (the Court); Aerolineas Argentinas v Federal Airports Corporation (1995) 63 FCR 100, 107 (Beazley J); Norton v The Queen [2001] WASCA 207; (2001) 24 WAR 488, 520 (Roberts-Smith J).

[45] J W Hampton Jr & Co v United States [1928] USSC 69; (1928) 276 US 394, 407.

[46] Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476, 512 - 513 [102] (Gaudron, McHugh, Gummow, Kirby & Hayne JJ); Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24; (2013) 298 ALR 1, 24 [88] (Hayne J).

[47] Heli-Aust Pty Ltd v Cahill [2011] FCAFC 62; (2011) 194 FCR 502, 545 [116] (Flick J).

[48] Norton v The Queen [2001] WASCA 207; (2001) 24 WAR 488, 520.

[49] Queensland Medical Laboratory v Blewett [1988] FCA 423; (1988) 84 ALR 615.

[50] Queensland Medical Laboratory v Blewett [1988] FCA 423; (1988) 84 ALR 615, 635 - 636. See Minister for Industry and Commerce v Tooheys Ltd [1982] FCA 128 [1982] FCA 128; (1982) 42 ALR 260, 265 - 268 (the Court).

[51] The Public Service Association and Professional Officers' Association Amalgamated of NSW v Director of Public Employment [2012] HCA 58; (2012) 293 ALR 450, 463 [41] fn 88 (French CJ); RG Capital Radio Ltd v Australian Broadcasting Authority [2001] FCA 855; (2001) 113 FCR 185, 194 - 195 [44] - [47] (the Court).

[52] Queensland Medical Laboratory v Blewett [1988] FCA 423; (1988) 84 ALR 615, 635 [46].

[53] Stewart R, 'The Reformation of American Administrative Law' (1974) 88 Harv Law Rev 1667, 1806.

[54] Queensland Medical Laboratory v Blewett [1988] FCA 423; (1988) 84 ALR 615, 635 [48].

[55] Queensland Medical Laboratory v Blewett [1988] FCA 423; (1988) 84 ALR 615, 635 [49].

[57] Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378, 389 [25] (French CJ and Hayne J) quoting Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby & Hayne JJ).

[58] Ministry of Industry and Commerce v Tooheys Ltd [1982] FCA 128; (1982) 42 ALR 260.

[59] Ministry of Industry and Commerce v Tooheys Ltd [1982] FCA 128l (1982) 42 ALR 260.

[60] RG Capital Radio Ltd v Australian Broadcasting Authority [2001] FCA 855; (2001) 113 FCR 185.

[61] RG Capital Radio Limited v Australian Broadcasting Authority [2001] HCATrans 599.

[64] Ministry of Industry and Commerce v Tooheys Ltd [1982] FCA 128; (1982) 42 ALR 260.

[65] Fish Resources Management Act 1994 (WA) s 97(1), s 97(5), s 100.

[66] Fish Resources Management Act 1994 (WA) s 251.

[67] Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1, 21 - 22 (Mason CJ, Deane, Dawson, Toohey, Gaudron & McHugh JJ).

[68] See also Fish Resources Management Act 1994 (WA) s 8(2).

[69] Pfeiffer v Stevens [2001] HCA 71; (2001) 209 CLR 57.

[70] Pfeiffer v Stevens [2001] HCA 71; (2001) 209 CLR 57, 73 - 74 [56].

[71] Blue Metal Industries Ltd v Dilley [1969] UKPCHCA 2; (1969) 117 CLR 651, 656; [1970] AC 827, 846.

[72] Wilkes v Johnsen [1999] WASCA 74; (1999) 21 WAR 269.

[73] Wilkes v Johnsen [1999] WASCA 74; (1999) 21 WAR 269, 273 [12] (White J), 285 [68] (Wheeler J).

[74] Wilkes v Johnsen [1999] WASCA 74; (1999) 21 WAR 269, 285 [70(b)] (Wheeler J).

[75] Native Title Act 1993 (Cth).

[76] Wilkes v Johnsen [1999] WASCA 74; (1999) 21 WAR 269, 292 [103], [105] (Wheeler J).

[77] Wilkes v Johnsen [1999] WASCA 74; (1999) 21 WAR 269, 271 [1].

[78] Wilkes v Johnsen [1999] WASCA 74; (1999) 21 WAR 269, 271 - 272 [5].

[79] Wilkes v Johnsen [1999] WASCA 74; (1999) 21 WAR 269, 272 [10].

[80] Fish Resources Management Act 1994 (WA) s 189(1)(b).

[81] Fish Resources Management Act 1994 (WA) s 190(1)(a).

[82] Fish Resources Management Act 1994 (WA) s 212(1).

[83] Wilkes v Johnsen [1999] WASCA 74; (1999) 21 WAR 269, 290 [94].

[84] Wilkes v Johnsen [1999] WASCA 74; (1999) 21 WAR 269, 290 [94].

[85] Re Honourable G D Kierath, Minister for Heritage; Ex parte City of Fremantle [2000] WASCA 156; (2000) 22 WAR 342, 359 [62] (Wheeler J; Wallwork J agreeing).

[86] The Ombudsman v Moroney [1983] 1 NSWLR 317, 324 - 325 (Street CJ).

[87] Wilkes v Johnsen [1999] WASCA 74; (1999) 21 WAR 269, 289 - 290 [91].

[88] Wilkes v Johnsen [1999] WASCA 74; (1999) 21 WAR 269, [94].

[89] Fish Resources Management Act 1994 (WA) s 125(1).

[90] Dietman v Karpany [2012] SASCFC 53; (2012) 112 SASR 514.

[91] Dietman v Karpany [2012] SASCFC 53; (2012) 112 SASR 514, 518 [14] (Gray J); 525 [38] (Kelly J).

[92] Dietman v Karpany [2012] SASCFC 53; (2012) 112 SASR 514, 530.

[93] Dietman v Karpany [2012] SASCFC 53; (2012) 112 SASR 514, 530 [66].

[94] Karpany v Dietman [2013] HCA 47; (2013) 88 ALJR 90.

[95] Karpany v Dietman [2013] HCATrans 236 (9 October 2013).

[96] Interpretation Act 1984 (WA) s 46(1).

[97] Shine Fisheries Pty Ltd v Minister for Fisheries [2002] WASCA 11 [50] (Kennedy J, Pidgeon & Ipp JJ agreeing); Austral Fisheries v Minister for Primary Industry and Energy [1992] FCA 351; (1992) 37 FCR 463, 471 - 472 (O'Loughlin J); Latitude Fisheries Pty Ltd v Minister for Primary Industry and Energy [1992] FCA 385; (1992) 110 ALR 209, 228 - 229 (French J); Australian Fisheries Management Authority v Gilmore [2009] FCA 1369 [7] (Besanko J); Lamason v Australian Fisheries Management Authority [2009] FCA 245 [149] - [150] (Spender J); Secretary, Department of Primary Industries and Energy v Collins [1992] FCA 61; (1992) 34 FCR 340, 345 (Heerey J).

[98] Commonwealth v Grunseit [1943] HCA 47; (1943) 67 CLR 58, 82.

[99] See Watson v Lee [1979] HCA 53; (1979) 144 CLR 374, 378 (Barwick CJ), 393 (Stephen J, Aickin J agreeing).

[100] Report of the Committee on Ministers' Powers (the Donoughmore Committee) (1932) (HMSO Cmd 4060) 19, quoted in RG Capital Radio Ltd v Australian Broadcasting Authority [2001] FCA 855; (2001) 113 FCR 185, 194 [40] (the Court).

[101] For instance, Fisheries Management Act 2007 (SA) s 115; Fisheries Management Act 1994 (NSW) s 221IF. But cf RG Capital Radio Ltd v Australian Broadcasting Authority [2001] FCA 855; (2001) 113 FCR 185, 198 [58] (the Court).

[102] Roe v Director General, Department of the Environment and Conservation for The State of Western Australia [2011] WASCA 57 (S) [13] (Martin CJ & Murphy JA).

[103] Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 543 (Mason CJ), 567 (McHugh J).

[104] Supreme Court Act 1935 (WA) s 37; Rules of the Supreme Court 1971 (WA) O 66 r 1(1).

[105] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 97 [67] (McHugh J).

[106] Roe v Director General, Department of the Environment and Conservation for The State of Western Australia [2011] WASCA 57 (S) [13] (Martin CJ & Murphy JA).

[107] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.

[108] Roe v Director General, Department of the Environment and Conservation for The State of Western Australia [2011] WASCA 57 (S).

[109] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 80 81 [20] (Gaudron & Gummow JJ).

[110] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 127 [144].

[111] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 84 [31].

[112] Roe v Director General, Department of the Environment and Conservation for The State of Western Australia [2011] WASCA 57 (S).

[113] Roe v Director General, Department of the Environment and Conservation for The State of Western Australia [2011] WASCA 57 (S) [13] citing South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) [1998] HCA 35; (1998) 72 ALJR 1008, 1008 - 1009 [5] [6] (Kirby J); Buddhist Society of Western Australia (Inc) v Shire of SerpentineJarrahdale [1999] WASCA 55 [11] (the Court).

[114] Roe v Director General, Department of the Environment and Conservation for The State of Western Australia [2011] WASCA 57 (S) [14] [24].

[115] Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 211 [73]; Save the Ridge Inc v Commonwealth [2006] FCAFC 51; (2006) 230 ALR 411 [11] [12].

[116] Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66 [15] [21].

[117] Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66.

[118] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.

[119]South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) [1998] HCA 35; (1998) 72 ALJR 1008, 1009 [6] (Kirby J).

[120] Roe v Director General, Department of the Environment and Conservation for The State of Western Australia [2011] WASCA 57 (S).

[121] Written submissions of the respondents [12].

[122] Written submissions of the respondents [22].

[123] Letter to the Court dated 16 April 2014.

[124] Re Minister for Immigration & Ethnic Affairs (Cth); Ex Parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624 (McHugh J).

[125] Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66 [33] [37].

[126] Roe v Director General, Department of the Environment and Conservation for The State of Western Australia [2011] WASCA 57 (S) [22] (Martin CJ & Murphy JA).

[127] Respondents' written submissions [20].

[128] Re Mersey Railway Co (No 1) (1888) 37 Ch D 610.

[129] Re Mersey Railway Co (No 1) (1888) 37 Ch D 610, 619.

[130] Liversidge v Anderson [1941] UKHL 1; [1942] AC 206.

[131] Liversidge v Anderson [1941] UKHL 1; [1942] AC 206, 283.

[132] Ruddock v Vadarlis (No 2) (2001) 115 FCR 229.

[133] Ruddock v Vadarlis (No 2) (2001) 115 FCR 229, 241 242.

[134] Respondents' written costs submissions [15].

[135] Sea Shepherd Australia's supplementary costs submissions [34].

[136] Mining Act 1978 (WA) s 19(1)(b).

[137] Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66 [42].

[138] Norton v The Queen [2001] WASCA 207; (2001) 24 WAR 488, 520 (RobertsSmith J).

[139] Commonwealth v Grunseit [1943] HCA 47; (1943) 67 CLR 58.

[140] Queensland Medical Laboratory v Blewett [1988] FCA 423; (1988) 84 ALR 615.

[141] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 80 81 [20], 91 [49] (Gaudron & Gummow JJ); Attrill v Richmond River Shire Council (1995) 38 NSWLR 545, 556 (Kirby P, Clarke JA agreeing).

[143] Hanlon v Brookes (1997) 15 ACLR 1626, 1632. See also Spotless Group Ltd v Premier Building and Consulting Pty Ltd [2008] VSCA 115 [10] (Redlich JA).

[144] Transport Accident Commissioner v O'Reilly [1998] VSCA 106; [1999] 2 VR 436, 457 (Ormiston JA); Apache Northwest Pty Ltd v Department of Mines and Petroleum [2012] WASCA 167 [109] (Newnes JA; Martin CJ & Beech J agreeing).

[145] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 127 [144].

[146] South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) [1998] HCA 35; (1998) 72 ALJR 1008.

[147] Construction Forestry Mining & Energy Union v Queensland Coal & Oil Shale Mining Industry (Superannuation) Ltd [2003] FCA 1174; (2003) 132 FCR 516, 519 [6] (Wilcox J).

[148] Ruddock v Vadarlis (No 2) (2001) 115 FCR 229, 237 238 (Black CJ & French J); Save the Ridge Inc v Commonwealth [2006] FCAFC 51; (2006) 230 ALR 411 [15] (the Court).

[149] Roe v Director General, Department of the Environment and Conservation for The State of Western Australia [2011] WASCA 57 (S) [15] (Martin CJ & Murphy JA).

[150] Roe v Director General, Department of the Environment and Conservation for The State of Western Australia [2011] WASCA 57 (S) [95].

[151] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 84 [30].

[152] See South Melbourne City Council v Hallam (No 2) (1994) 83 LGERA 307, 311 (Tadgell J).

[153] Ruddock v Vadarlis (No 2) (2001) 115 FCR 229, 236 (Black CJ & French J).

[154] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 100 [75].