Sino Iron Pty Ltd v Secretary of the Department of Infrastructure and Transport

3. LEGISLATIVE CONTEXT IN WHICH S 14 FALLS TO BE CONSTRUED 122 The proper construction of s 14 of the Act lies at the heart of the appeal. That section provides that: (1) The Secretary may, by notice published in the Gazette, designate a person as the port operator for a security regulated port. (2) In designating a person as a port operator, the Secretary must take into account: (a) the ability of the person to undertake the functions of a port operator; and (b) the physical and operational features of the port; and (c) the views of the person, or persons, responsible for managing the operations of the port. 123 A "security regulated port" is an area of a port intended for use either wholly or partly in connection with the movement, loading, maintenance or provision of "security regulated ships" which is declared to be a security regulated port (s 13, the Act). As is the case here, a port includes areas of water, or land and water, including buildings and installations, and areas of water outside the port for access to land-based facilities or for anchoring, and areas of open water between such areas and areas intended for such use (s 12). A "security regulated ship" includes Australian passenger ships, Australian cargo ships over a set tonnage used for overseas or interstate voyages, foreign passenger ships, and foreign cargo ships over a set tonnage in Australian waters proceeding to an Australian port (ss 15-17). 124 In requiring that the Secretary "take into account" the matters identified in s 14(2), the Secretary must give weight to them "as a fundamental element in making his determination": R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 (Mason J (Gibbs J agreeing at 324)). In other words, when required to consider material, the process of consideration must involve "'an active intellectual process' directed at the nominated subject-matter": Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 at 182 (Rares J, citing Black CJ in Tickner v Chapman (1995) 57 FCR 451) (approved in Telstra Corporation Ltd v Australian Competition Tribunal (2009) 175 FCR 201 at 242 [267] (the Court)). 125 It was not in dispute that the word "ability" in s 14(2)(a) refers to the suitability or capacity of the person to discharge the functions in question. However, the appellants contended that "ability" falls to be considered by reference to the pre-designation powers and responsibilities of the person and not to its powers and responsibilities on designation. It is said by the appellants that the Secretary failed to undertake that task and thereby failed to take into account a relevant consideration. 126 The proper approach to statutory construction was recently confirmed by a unanimous High Court in Federal Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 87 ALJR 588 (Unit Trend) at 597 [47] in the following passage: As French CJ, Hayne, Crennan, Bell and Gageler JJ said in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [(2012) 87 ALJR 98 at [39]]: "This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text." Context and purpose are also important. In Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [(2012) 87 ALJR 131 at [24]] French CJ and Hayne J said: The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, [(1998) 194 CLR 355 at [69]] "[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute"… That is, statutory construction requires deciding what is the legal meaning of the relevant provision "by reference to the language of the instrument viewed as a whole" [Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320; 55 ALJR 434; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; 72 ALJR 841], and "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed" [Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397 per Dixon CJ; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; 72 ALJR 841]. (Emphasis of French CJ and Hayne J) 127 The limitation for which the appellants contend does not appear in the text of s 14(2)(a) of the Act. However, as is emphasised in Unit Trend, context and purpose are also important. 128 In this regard, the functions of a port operator comprise an integral part of the regulatory framework created by the Act around the development and implementation of maritime security plans for the expressed purpose of safeguarding against unlawful interference with maritime transport or offshore facilities (s 3, the Act). 129 Within this framework, the port operator is one of a number of "maritime industry participants" who are defined in s 10 of the Act to mean: (a) a port operator; or (b) a port facility operator; or (c) the ship operator for a regulated Australian ship; or (d) the ship operator for a regulated foreign ship; or (da) an offshore industry participant; or (f) a contractor who provide services to a person mentioned in paragraphs (a) to (d); or (g) a person who: (i) conducts a maritime-related enterprise; and (ii) is prescribed in the regulations. 130 A "port facility operator" in turn means a person who operates a "port facility", being "an area of land or water, or land and water, within a security regulated port (including any buildings, installations or equipment in or on the area) used either wholly or partly in connection with the loading or unloading of security regulated ships" (the Act s 10). As mentioned, CPPC is the port facility operator with respect to the Declared Port. 131 There are four key components of the framework created by the Act of particular relevance on which I elaborate below, namely: the obligation imposed upon a port operator to have a maritime security plan; the obligations imposed upon others to comply with, and not to hinder compliance with, a maritime security plan; the capacity to establish port security zones within security regulated ports; and the Secretary's power to give additional directions in circumstances of heightened risk.

3.1 Obligation to have a maritime security plan (MSP) 132 First, the port operator, together with other maritime industry participants, is required to have a MSP in place and to comply with it under ss 42 and 44 respectively. A contravention of either of these provisions constitutes an offence. Furthermore, a failure to comply with the Act can lead to the making of an enforcement order against the maritime industry participant by the Secretary under s 189 of the Act and an injunction under s 197. The Secretary must approve each MSP, together with any variations or revisions which the responsible participant may request or the Secretary direct, and may cancel such plans (Div 5, Part 3 of the Act). 133 The matters with which a MSP must deal with are specified by ss 47 and 48 of the Act and the Maritime Transport and Offshore Facilities Security Regulations 2003 (Cth) (the Regulations). These include a security assessment for the participant's operation, the security activities or measures to be implemented by the participant for the various maritime security levels, designated security officers responsible for implementing and maintaining the plan, and provision for declarations of security. As to the second of these matters, "level 1" is the default maritime security level for a security regulated port, regulated Australian ship and maritime industry participant, but the level may increase to level 2 or 3 if the risk escalates (ss 21 and 22). Changes in the maritime security level must be notified by the Secretary to the relevant maritime industry participant and, if that person is not the port operator, the port operator (ss 29 and 30). 134 The MSP must also demonstrate that its implementation will make an appropriate contribution towards the achievement of the "maritime security outcomes" specified in s 3(4) of the Act which include: a) reduction in the vulnerability of ships and ports to terrorist attack without undue disruption to trade; b) reduction in the risk that maritime transport facilities are used to facilitate terrorist or other unlawful activities; and c) effective communication of security information among maritime industry participants and relevant government agencies.

3.2 Obligations to ensure compliance by other actors 135 Secondly, the Act imposes obligations to ensure compliance with maritime security plans by other relevant actors. Specifically, s 45 provides that a maritime industry participant (the first participant) must not engage in conduct that hinders or obstructs compliance with the MSP of another such participant (the second participant) (s 45(1)). Furthermore, where the first participant's activities are covered by the MSP of the second participant (the covering plan), the first participant is relieved of the requirement to have a MSP but must take all reasonable steps to comply with the covering plan (s 45(2)). It is apparent from the scheme of the Act that the detail of how responsibilities are to be allocated between maritime security participants is a matter to be worked out in each case through the approval process for the MSPs for each regulated port and through on-going mechanisms for variation, revision and cancellation of the MSPs. 136 In addition, s 46 provides that the operations of a regulated Australian ship must not hinder or obstruct compliance with an MSP. That obligation is enforceable by a ship enforcement order made under s 195 by the Secretary directing the ship operator or master of a ship to act or refrain from acting, or by an injunction under s 197.

3.3 Port security zones 137 Thirdly, s 102 of the Act provides that the Secretary may, by written notice given to the port operator, establish one or more port security zones within the port of a type prescribed by the Regulations in accordance with s 103, including for the purpose of controlling the movement of people and ships within security regulated ports and restricting access to areas within such ports. In considering whether to establish a port security zone, the Secretary is required to have regard, among other things, to the views of the port operator, each person who controls an area of land to be included within the boundaries of the zone, and the relevant offshore facility operator (s 104). Ship security zones may also be established under s 106 of the Act by the giving of written notice to the ship operator of a security regulated ship and the relevant port operator to protect ships within those zones from unlawful interference. Power is conferred to make regulations regarding (among other things) access to such zones, for the management of people and goods within them, and for the movement, management or operation of vessels and vehicles within them, and penalties may be prescribed for offences against those regulations: see ss 105 and 109. The Act provides for monitoring and control through the conferral of limited powers on maritime security guards who may physically restrain a person, request identification and information, and remove a person, vehicle or vessel from a maritime security zone: Division 5, Part 8 of the Act.

3.4 Additional security measures 138 Finally, the Secretary may direct that additional security measures be implemented or complied with where an unlawful interference with maritime transport or offshore facilities is probable or imminent (s 33). Such a direction may be given to a maritime industry participant or an employee, passengers or other persons within the boundaries of the security regulated port (35(1)). Where the Secretary requires a port operator to communicate a security direction to specified maritime industry participants operating within the port, the port operator must as soon as practicable communicate the direction to those participants (s 35(3) and (4)). Where the direction is given to the participant by a port operator, by subs (7), "the direction is taken to have been given to the participant by the Secretary." Section 39 of the Act makes it an offence for a person to fail to comply with a security direction to whom the direction has been given or communicated.

4. CONSTRUCTION OF S 14(2)(a) AND (b) OF THE ACT 139 As explained, the appellants urge that the person's "ability" in s 14(2)(a) of the Act must be considered by reference to such pre-designation powers and responsibilities as the person might have to monitor or control the areas to which its functions would relate and not by reference to its 'powers' once designated as port operator. In the appellants' submission, "[t]he predicate of the scheme of [the Act and the regulations made thereunder] is that a prospective port operator will have such rights and responsibilities in respect of access to and management of a declared port as are required to exercise the functions of the port operator." It was on this basis that the appellants submitted that it was necessary for the Secretary to consider Mineralogy's pre-designation capacities to undertake its responsibilities if designated as port operator, including the limits of Mineralogy's tenure within the Designated Port, and the breakdown in relations between Mineralogy and the sole facility operator for the port, CPPC. 140 The appellants' submission must be rejected. No error is shown in this respect in the approach of the primary judge and the Secretary. 141 First, to the extent that reliance in construing s 14(2) was placed upon regulations made under the Act, the submission is based upon the erroneous premise that an Act can be construed by reference to subordinate legislation: see, eg, City of Kwinana v Lamont (2013) 201 LGERA 334 at 347 [65] (Murphy, Mazza JJA and Edelman J). This is not to say, however, that the Regulations may not further define the functions of the port operator and therefore be relevant in this sense to the assessment of ability in the individual case. 142 Secondly, s 14(2)(a) in its terms imposes no such limitation upon the matters to which the Secretary may have regard in taking into account the person's ability to undertake the functions of a port operator. As the primary judge held at [70], the natural and ordinary meaning of the words of s 14(2)(a) do not convey that limitation. Mineralogy's construction would read words into the section which do not appear. 143 Thirdly, there is no reason why s 14 should be so construed. To confine the question of ability to the pre-designation powers of the person would be to ask the Secretary to engage in a hypothetical exercise. What would be the utility, one might ask, of considering the fitness or suitability of a person to assume responsibility for such vital functions divorced from the framework of statutory powers and obligations which exist to facilitate the discharge of those functions. The Act already creates a comprehensive framework of enforceable obligations in order to achieve its objects. It does not need to 'piggyback' on the rights of private landholders in order to enable the port operator or other maritime security participants to undertake their functions, as the submissions of the appellants imply. This is especially so where, as here, those functions have no parallel outside of the Act and their discharge may require coercive and enforcement powers which can be conferred only by statute. As the primary judge found at [67]: 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. 144 I am reinforced in this view by the fact that it is apparent from other provisions of the Act that the port operator may not be the person who controls areas within the security regulated port. For example, s 29 requires the Secretary to notify the maritime industry participant who controls an area within a security regulated port of a maritime security level and, if that person is not the port operator, the port operator. Similarly, among other things s 104 requires the Secretary in establishing a port security zone to have regard to the views of the port operator and each person who controls an area of land within the proposed zone. 145 This is not say that within the broad parameters of the discretion in s 14(1) it would be impermissible for the Secretary to take into account, for example, the extent of tenure held by a person within the security regulated port, as indeed the Secretary's reasons suggest he did. 146 In the fourth place, the existence of disharmony between different maritime security participants for a security regulated port could not displace their obligations under the Act, including those with respect to the MSP of each other once approved (see [133] above), or the capacity for those obligations to be enforced if they should fail to comply with them such as by way of an enforcement order under s 189 of the Act or an injunction under s 197 (see [134] above). The Act does not rely upon voluntary co-operation between private entities who are maritime security participants: primary judge at [78]. As the primary judge also pointed out at [76], the separate approval process for the MSPs which each maritime security participant must have in place also enables the Secretary to ensure that discordant proposed MSPs, which may be the product of disagreement between participants, are harmonised. Further, provision exists for their later variation, revision or cancellation if, for example, difficulties in their implementation should arise. As such, the primary judge correctly at [79] rejected the argument that the Secretary failed to take into account, as a relevant consideration in undertaking the stask of designating the port operator, the fact that the Citic parties did not agree to the final draft of the plan or were in dispute with Mineralogy. 147 Finally, the Secretary did not fail to take into account the physical and operational features of the port under s 14(2)(b). As the primary judge held at [82]: In [10] of his reasons [the Secretary] expressly referred to those matters having been set out in the final draft plan. The draft address 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. (Emphasis in original)

5.1 Construction of s 14(2)(c) 148 The primary judge held at [85] that the Citic parties were not persons responsible for managing the operations of the Declared Port for the purposes of s 14(2)(c) whose views must therefore be taken into account. Rather, his Honour consider that the Citic parties 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. 149 I would respectfully take a different view. 150 I agree with Buchanan J that the reference to a "person responsible for managing the operations of the port" for the purposes of s 14(2)(c) of the Act is not limited to those who may be charged with a public role of managing port operations but includes those who, by reason of private arrangements, may be described as having such responsibility. 151 First, the Act does not differentiate between ports operated by a State port authority on the one hand, and those, such as the Declared Port, that are operated by resource companies or otherwise by persons engaged in private enterprise on the other hand. The anterior question posed by s 14(2)(c) which the decision-maker must decide (ie, who is the "person [or persons] responsible for managing the operations of the port"), must be considered in that context and is not framed so as to exclude the possibility that persons in private enterprise might have that responsibility. 152 Secondly, the narrow construction of s 14(2)(c) adopted by the primary judge would not, in my view, further the objects of that provision. Read in context, s 14(2)(c) imposes an obligation to obtain the views of the person (or persons) responsible for managing operations of the port in question in order to assist the Secretary to make an informed decision about who to designate as port operator. Given that, in making that decision, the Secretary must also have regard among other things to the physical and operational features of the port by s 14(2)(b), it makes sense to require the Secretary to have regard to that person's views, as such a person is likely to be well placed to provide that and other potentially relevant information. Limiting, therefore, those whose views must be sought to those persons vested with a public role of managing port operations would not, in my view, promote this purpose, and therefore is not to be preferred: Project Blue Sky v Australian Broadcasting Association (1998) 194 CLR 355 at 382 [70]; Acts Interpretation Act 1901 (Cth), s 15AA. 153 In this regard, the primary judge appeared to consider that the purpose of s 14(2)(c) was to afford those persons whose views must be sought an opportunity to be heard. In other words, in his view the provision imposed a statutory requirement to accord procedural fairness to such a person. It may be that this comprises part of its object although I consider that unlikely. No equivalent opportunity is afforded in relation to the designation of other maritime security participants under the Act. Nor is the designation of a particular person to assume particular statutory functions a decision of such a nature as would ordinarily attract a right of procedural fairness to third parties. It is difficult to see how the rights and interests of others would be affected so as to attract any such procedural right at common law in line with the principles recently affirmed by the High Court in Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at 658-9. Nonetheless, even if that is part of the purpose, that does not mean that the provision is not also intended to achieve the object of ensuring that an informed decision is made on a matter of intense public importance. 154 Thirdly, I do not consider that s 14(2)(c) necessarily assumes that only one person will be responsible for managing the operations of a security regulated port. In this regard, no party contended that the views of Mineralogy should not have been taken into account under s 14(2)(c), as the Secretary found. Nor in any event does anything in s 14 of the Act suggest that the views of other persons, such as those of the harbourmaster, might not also be taken into account.

5.2 Failure to have regard to CPPC's views contrary to s 14(2)(c) 155 I agree with Buchanan J that CPPC was a person whose views should have been taken into account by reason of its responsibilities for managing the operations of the Declared Port under private arrangements. I gratefully adopt his Honour's detailed reasons at [57]-[73] for that finding. 156 It is apparent from the Secretary's reasons and, in particular, from the list of "evidence or other material" which he identified as the basis of his findings, that the Secretary did not take the views of CPPC into account in making his decision. No submission was made to the contrary. Nor, rightly in my view, was it disputed that the requirement in s 14(2)(c) to take into account the views of the person(s) responsible for managing the operations of the port is a relevant consideration which the Secretary was bound to take into account in the sense used in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 (Mason J); see also Craig v South Australia (1995) 184 CLR 163 at 179; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 339-340 [41]. It follows that the decision falls within the potentially overlapping grounds of review under s 5(1) of the ADJR Act including, as the appellants contend, that the decision was an improper exercise of the power (s 5(1)(e), ADJR Act).

5.3 Discretion to grant relief 157 The appellants seek orders to quash or set aside the Secretary's decision. The question of whether relief should be granted, as well as the form of the relief, is discretionary: see s 16 of the ADJR Act, exercisable by this Court on appeal under Federal Court of Australia Act 1976 (Cth), s 28(1). Thus, for example, the Court may decline to grant relief under s 16 of the ADJR Act where it would be futile or where the failure to have regard to a relevant consideration could have had no material effect on the decision under review: see, eg, Martincevic v Commonwealth (2007) 164 FCR 45 at 64 [67] (the Court); Kamha v Australian Prudential Regulation Authority (2005) 147 FCR 516 at 536 [87] (the Court). In my opinion, no such considerations apply here; nor did Mineralogy contend otherwise. It is not possible in my view to exclude the possibility that the port operator's views might have affected the Secretary's decision to designate Mineralogy as port operator under s 14(1). Furthermore, to exclude that possibility would, in my view, potentially undermine the object of s 14(2)(c) in ensuring that a decision is made which is properly informed.

6. CONCLUSION 158 In those circumstances, I agree with Buchanan J that the appeal should be allowed and that the decision of the Secretary's delegate should be set aside. I also agree with the orders that Buchanan J proposes as to costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.