Consideration - Relevant and irrelevant considerations
64 The power of designation of a person as the port operator under s 14(1) is directed to the appointment of that person to carry out the functions of a port operator created by the Act. The Act creates, defines and regulates those functions and clothes a port operator with concomitant powers. The Act does not prescribe any particular pre-existing characteristics that a person must have to be designed as port operator except to the extent that s 14(2) requires that the Secretary (or delegate) must take certain matters into account and give weight to them as a fundamental element in making his decision.
65 I explained how a decision-maker must deal with matters that a statute requires him or her to "take into account" or "have regard to" in Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 at 181-183 [103]-[112] in terms that were approved by Jacobson, Lander and Foster JJ in Telstra Corporation Ltd v Australian Competition Tribunal (2009) 175 FCR 201 at 242 [267].
66 When s 14(2)(a) requires the Secretary to take into account the ability of the person to undertake the functions of a port operator, it contemplates him giving consideration to the person's characteristics so that, if given the powers and authorities that the Act creates and confers on a port operator, the person will be able to perform the functions of that office. Consideration of "the ability of the person" referred to in s 14(2)(a), cannot be confined to, or perhaps require assessment of, the person's pre-designation powers in respect of the port. The relevant powers that the person will exercise, if designated as port operator, do not derive from the person's antecedent rights to possession, ownership or control of land or waters. Those powers will derive, and derive only, from the statutory conferral of authority, once the Secretary designates the person as the port operator under s 14(1).
67 Likewise, consideration of, for example, a lawyer's ability to undertake the functions of a judge or harbourmaster cannot be linked to some notion of his or her existing ability to exercise the power that can only come with appointment to the office. A lawyer who had never practised law and had spent his or her life in maritime pursuits at sea or in control of port activities might have no, or insufficient, ability to be a judge but could be thought able to be a harbourmaster. The same is true of any situation in which a person is being considered for a job offer, appointment to an office or a promotion. At the time consideration is being given to the appointment of the person it would be unrealistic to consider, let alone focus on, some powers, rights or characteristics, that, of necessity, cannot yet exist, namely how the person would be able to exercise a function or power that the person will only be able to exercise if subsequently appointed, and then, by virtue of that appointment.
68 Without being either exhaustive or prescriptive, the matters that it would be open for the Secretary to take into account in respect of a person's ability for the purposes of s 14(2)(a), could include the person's financial capacity and resources to provide all, or some, of the resources, such as personnel, plant and equipment needed to discharge the functions of port operator, the fitness and propriety of the person and whether any draft plan prepared by the person appears to have addressed adequately or appropriately the requirements for the security of the port under the Act and Regulations. However, the precise details that the Secretary must take into account under s 14(2)(a) as to a person's ability will depend on the circumstances of each particular case. Those matters are not susceptible of, and should not be construed as having, greater prescription than conveyed by the general words of s 14(2)(a) itself. Moreover, the designation of a person as a port operator can occur before that person prepares a maritime security plan, or after, as was the present case, although it could also occur when a new port operator must be designated to replace an existing one. Thus, different considerations may be relevant under s 14(2) where a new port is being established from those where a new port operator must be designated for an established port.
69 The statement about cl 14 of the Bill in the Explanatory Memorandum on which the Citic parties relied cannot be determinative of the meaning of s 14 as enacted. The statement is, of course, an available aid to construction in the circumstances provided for in s 15AB(1) of the Acts Interpretation Act 1901 (Cth). However, French CJ, Hayne, Crennan, Bell and Gageler JJ said in Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257 at 268-269 [39], namely:
"'This court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' [Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself." (emphasis added)
70 The ordinary and natural meaning of the words of s 14(2)(a) does not convey the sense of the meaning of "ability" in which the Citic parties seek to use the statement in the Explanatory Memorandum set out at [57] above. Rather the portion of the statement emphasised by the Citic parties encapsulates the effect of the immediately preceding sentence: i.e. once a person has been designated as a port operator, that person is able to demonstrate that it has the relevant responsibilities. The Citic parties inverted the sense of the Parliamentary explanation of the purpose of the designation as port operator, to clothe the person with the statutory authority, into a sense of requiring the pre-existence of that authority as a necessary qualification for appointment. The argument has no coherence. I reject it.
71 I am of opinion that the submissions of the Citic parties and the Secretary misconceived the concept of the "ability" of Mineralogy that the delegate had to take into account under s 14(2)(a). Nor am I able to accept their argument that the delegate simply looked at the matters he set out in his reasons and discarded them. To the contrary, he adopted those matters, as appropriately qualifying Mineralogy for the designation. Once the misconception under which the Citic parties and the Secretary criticised Mineralogy's pre-designation power is put to one side, the delegate's reasoning appears to be rational and a fulfilment of his statutory functions. He reviewed the final draft plan in order to assess whether Mineralogy, in effect, knew what it would have to do if designated as port operator and had the "ability", in the sense I have explained above, to do it. That exercise was the task that s 14(2)(a) and (b) required the delegate to undertake.
72 Critically, one of the attachments to the final draft plan was the port security risk assessment prepared in early 2011 by Risk Resolution on Mineralogy's instructions. It appeared to be a comprehensive security assessment for the purposes of regs 3.05 and 3.40, being a matter that the delegate considered of particular relevance in his assessment of Mineralogy's ability. As I have noted at [29] above, the assessment referred to Citic's participation in its formation and to Mineralogy's financial strength to undertake the role of port operator.
73 In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1966) 185 CLR 259 at 272 Brennan CJ, Toohey, McHugh and Gummow JJ identified the practical restraints on judicial review in the following well-known passage:
"… a court should not be "concerned with looseness in the language … nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court continued: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision." (emphasis added; citations omitted)
74 The Citic parties' and the Secretary's criticisms of the delegate's reasons were essentially attempts to attack the merits of his decision in a manner not open in judicial review proceedings. For example, those submissions criticised the delegate for not considering that Mineralogy's leasehold interests in the port formed a minor part of its total area and did not include the bulk of water-side areas. Ordinarily, such an absence of rights over the realty (if water areas in a port can be so described) would be common to all persons, unless the port operator were a government. However, the authority of being a designated port operator under the Act overcomes any difficulty that would exist because the person did not have an interest in the real property. A police constable's lack of an interest in real property is no obstacle in his or her being able to exercise a common law or statutory power of entry onto land to effect an arrest if he or she satisfies the conditions stipulated by the law. So too, a port operator exercises the power under the Act to regulate, or cause, matters to be done with in the port.
75 Moreover, if a port operator were experiencing, for example, recalcitrance in complying with s 45 from a maritime industry participant in the port, the Secretary has extensive powers to seek to bring about compliance with the port operator's plan. Importantly, a maritime industry participant cannot engage in conduct that obstructs or hinders compliance with a maritime security plan of another participant pursuant to s 45(1). That obligation is enforceable by injunction proceedings. Where a port operator has given the relevant part of its maritime security plan or covering plan to an affected maritime industry participant, if that participant agrees in writing to the activities being covered by the covering plan, the participant must take all reasonable steps to comply with the covering plan (s 45(3)).
76 The provisions of s 45 demonstrate that the Parliament had ensured that, where co-operation between maritime industry participants was lacking, plans could be enforced. And, of course, the Secretary must approve each participant's maritime security plans under ss 50 and 51. The approval process enables the Secretary to ensure that discordant plans are harmonised before they are approved, and the Secretary also has power to direct variation, revision or cancellation of plans that are in force under ss 53-59 of the Act. The power to direct revision of a plan under s 55 is available where the Secretary is no longer satisfied that it adequately addresses the relevant requirements of a plan under Div 4 of Pt 3 of the Act.
77 I reject the Citic parties' argument that, as the principal user and Mineralogy's nominated port facility operator, their consent to Mineralogy's port security plan was necessary. That argument was misconceived. If correct, it would give any person within a port an effective veto over, first, who could be designated as port operator and, secondly, what the port operator, as the statutory appointee with overall responsibility for the security of the port, could require, or create obligations for, others to do under s 45. The argument only has to be appreciated for what it was to see it is unworkable. The Act created the hierarchy of authority for the provision of security in a security regulated port. While co-operation between maritime industry participants is desirable, and would be the ordinary and sensible course, the Act contained its own mechanisms to ensure that, where co-operation is absent, security outcomes can be imposed.
78 The ability of Mineralogy to undertake the role of port operator did not depend on its commercial relationship with the Citic parties. The recent breakdown in their relationship was not relevant to the delegate's decision-making. The Act prescribed how maritime industry participants had to conduct themselves and gave powers to the Secretary to enforce requirements in maritime security plans. If another participant hinders or obstructs a port operator in complying with its plan or does not comply with it themselves, the Act gives the Secretary powers to deal with that participant. The Act did not give a person in the position of the Citic parties a right to veto, or urge against, the designation of a person as a port operator merely because those parties had a dispute or were, or one was, not prepared to co-operate with the other. Those matters did not bear on Mineralogy's ability to undertake the functions of port operator.
79 For these reasons, the argument that the delegate failed to take into account, under s 14(2), that the Citic parties did not agree to the final draft of the plan or were in dispute with Mineralogy must be rejected. In any event such agreement was premature. The delegate was not considering the approval of the plan at the time he exercised his power to designate the port operator. He recognised in [9.2] of his reasons that Mineralogy's draft plan proposed CPPC as port facility operator and that it would have its own plan: i.e. it was a draft that the Secretary was yet to approve. He correctly recorded that that was how the parties had proceeded at the minuted meetings in 2012. Mr Robinson's unchallenged evidence was that no-one, including the Citic parties, ever suggested that Mineralogy not be the port operator. All the meetings proceeded on the agreed basis that it would be designated.
80 However, the Citic parties stated at the meeting of 22 October 2012, through Mr Larbey, that they were reviewing the security plans (i.e. the part of Mineralogy's plan they had seen and their own) "to make sure all ok in terms of what we are required to do". That did not suggest that the Citic parties no longer agreed that Mineralogy would be port operator. The commercial differences between Mineralogy and the Citic parties became more pronounced late in 2012, to the point where the Citic parties' port facility operator's security plan apparently did not recognise Mineralogy's role as port operator as noted in Mr Rankin's email to the delegate of 29 November 2012. However, its draft plan was only that of a port facility operator. Capt Heppingstone took a similar position in his email of 17 December 2012. He articulated in a general way that the Citic parties had issues as to some of the content of Pt 6 of Mineralogy's draft plan and wanted to see the whole plan. That desire was expressed in the context that the Citic parties saw themselves as providing more of the security for the port than Mineralogy in the port's regulatory structure, not as undertaking a different role or suggesting that Mineralogy's draft plan, as port operator, was misconceived because Mineralogy should not have been in that office.
81 The allocation, between maritime industry participants in a port, of particular security responsibilities under draft plans was not a matter that s 14(2) required the Secretary to take into account in considering the designation of a port operator.
82 Nor did the delegate fail to take into account the physical and operational features of the port under s 14(2)(b) in the ways complained of. In [10] of his reasons he expressly referred to those matters having been set out in the final draft plan. The draft addressed the matters concerning the port's security that were affected by the physical and operational features. While the delegate's discussion of the matters arising under s 14(2)(b) was brief, in context it was sufficient. The matters in s 14(2)(b) are essential considerations because the person(s) being considered for designation as port operator must not only have "the ability … to undertake the role of a port operator" as required by s 14(2)(a), but must be able to do so for the particular port, having regard to its characteristics. Thus, while many of the considerations that ordinarily would arise under s 14(2)(a) will have regard to the particular port, that provision expressly used the indefinite article "a" to qualify "port operator".
83 Hence, s 14(2)(b) required the Secretary to take into account the particular port in relation to the person(s) whose designation as port operator he was considering. In that way a person who may have the ability to be a port operator may, at the same time, not be suitable for the particular port because of the size or complexity of its physical or operational features. The delegate, himself, had declared the Port to be a security regulated port earlier on the same day as he made his designation of Mineralogy as port operator. Here, the final draft plan was written about how Mineralogy proposed to act as port operator of the Port of Cape Preston. The delegate had already considered the draft on that basis in [9] and [9.2] of his reasons, hence his brief, but sufficient, reference to those matters in [10]. The reasons showed that the delegate understood the relevant features of the Port from his review of the draft plan. That was his statutory function.
84 I reject the Citic parties' argument that their views had to be sought under s 14(2)(c). In my opinion, the expression "responsible for managing the operation of a port" in s 14(2)(c) refers to the person or persons with the overall responsibility for managing the operations of the port, and not to persons with functions that affect or are relevant to the operation of parts of the port. If every person who had responsibility for managing any infrastructure or operational matters in various parts of a port were caught by s 14(2)(c), a very wide net would be cast. The expression in s 14(2)(c) should not be read to extend to persons who do not have broad overall management responsibility for the operations of the port.
85 The Citic parties were not persons responsible for managing the operations of the Port. Rather, they were persons responsible for managing some operations in certain areas of the Port. They were not able to point to any agreement or source of rights that gave them power to manage the operations of the Port. Such rights as they had derived from their agreements with Mineralogy and nothing in those, to which they referred in argument, conferred such a right. The agreement between Citic and CPPC was a private arrangement between those two corporations, amongst the Citic parties themselves, that could not, and did not, confer any status as to the public role of managing the operations of the Port. That agreement did not affect Mineralogy's position as the Citic parties' effective landlord. The Citic parties would be the first users of the Port, would have a role as a, or the only, port facility operator and would conduct the transhipping and export operations. However, those were private activities that did not amount to a responsibility for managing the operations of the Port. That was the role of the harbourmaster and the State, to whose views the delegate did have regard.
86 I reject the Secretary's arguments that the delegate made a jurisdictional error in designating Mineralogy as port operator and his suggestion of an "operational lacuna". As I have explained those arguments misconceived the proper construction of s 14(2)(a) and (b). The delegate explained, in his reasons that the Port was not managed by a State port authority, but the State had appointed a harbourmaster and was supportive of the arrangements set out in Mineralogy's draft plan at [11]-[14]. The delegate referred to a similar arrangement that operated in eight other Western Australian ports that operated for the export of resources. The Secretary did not explain why his delegate, in following an established operational precedent under the Act, made a jurisdictional error. Here, the delegate acted on the bases he disclosed in his reasons. The State was supportive of Mineralogy's draft plan, having had detailed involvement in its formulation. Both the Secretary, through the Department, and the State had worked with the port operators in the other eight major resource ports in the State. The delegate explained why, in the established context of apparently successfully operating resource ports, he considered that designation of Mineralogy, for the Port, was appropriate. In doing so, he had regard to the views of the State, and the harbourmaster as the person who was responsible under the Shipping and Pilotage Act for managing the operation of the port for the purposes of s 14(2) and, in particular s 14(2)(c).
87 The Secretary's next argument, that the draft plan did not disclose how Mineralogy might undertake its functions as port operator in relation to the development of theoretical further infrastructure, has no substance. How would a person know what to do for the security of a facility for that may not even be thought of or be in a planning stage, let alone constructed? That question was left unexplained by the Secretary. No doubt when new infrastructure is planned or ready for building approvals, the Secretary and the port operator will have a keen interest in dealing appropriately with security issues in relation to that infrastructure and its relevance to the port. The proponent will be a new or existing maritime industry participant with its own obligations under the Act. The Act expressly provides for revision and variation of plans, as I have explained. The Secretary must be involved in reassessing what will be required, if and when, the planning for new infrastructure reaches the point where this should be done. A draft plan, such as Mineralogy's, is not deficient because it does not box at shadows.
88 It follows that the Secretary's "concession" that a jurisdictional error affected the delegate's decision was misconceived.