Whether the Tribunal exceeded its decision-making power
44 The applicant submitted the first main error was that the Tribunal exceeded its decision-making power.
45 The applicant submitted that the Tribunal stood in the shoes of the Authority, and for the express purpose of deciding whether to "grant or refuse" the application. The applicant submitted that the Tribunal was led into error by accepting the Humane Society's invitation to do something which was beyond the authority of the statute, namely: "… to assess whether there is a good reason to kill sharks". The applicant submitted that the decision-making power was reg 77(1) of the Regulations which confined the power to either granting or refusing the relevant permission that had been applied for, not to decide to grant a permission unconnected to the application. Common law principles, the applicant submitted, precluded the imposition of conditions that would render any permission granted significantly different from that applied for. Indeed, the applicant submitted, much of what the Tribunal did was to vary the permission granted by the Authority below, and without regard to whether the variations were to be regarded as conditions or as something else.
46 The applicant submitted that the "relevant permission" here was to take sharks and that the provisions of reg 77(3) were not engaged.
47 The applicant submitted that there were several statutory indications that the decision-making function did not extend to reformulating what was sought in the way in which the Tribunal did, whether by the imposition of conditions or otherwise. The applicant submitted that there was statutory authority, as part of assessing the "mandatory considerations" (in reg 74(5) or otherwise), to determine whether the type of program proposed was necessary to manage the risk to human life or safety. The decision-maker must be satisfied that the program was truly one of the kind that could be applied for, that is, to take sharks that pose a threat to human life or safety by lethal means. But once that threshold requirement was satisfied, the applicant submitted, it was no part of the decision-making function to assess whether the type of program proposed was necessary to manage the risk to human life or safety.
48 So too, the applicant submitted, the conditions the Tribunal imposed, and the other variations it made, were outside the statutory power. The applicant submitted that the only available head of power was reg 77(2)(c) and that the Tribunal identified no object of the GBRMP Act to which the conditions (if they were conditions) were an appropriate attainment. The Tribunal did not seem to turn its mind at all to that requirement in the sense the statutory terms demanded, the applicant submitted. It was put orally that the Tribunal nowhere seemed to direct its mind to the grant or refusal on condition, according to the attainment of objects, the touchstone being to grant or refuse the application. It was submitted that the essence of the application was to enter to kill, that is, to conduct a lethal program. If the Tribunal was not prepared to grant the very essence of what was sought then that was a refusal, not a grant.
49 The applicant referred to the GBRMP Act's objects in ss 2A(1) and (2).
50 The applicant submitted that the conditions (and indeed the variations the Tribunal sought to make) ran contrary to the common law principles that attend decision-making powers of the kind which were cast upon the Authority. The applicant referred to Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111; 215 FCR 301, which it submitted recorded many of the principles that govern the extent to which it is lawful to impose conditions (recognising that this will vary according to the statutory scheme under consideration). Of particular relevance, the applicant submitted, was the discussion in Buzzacott at [163] and following of Mison v Randwick Municipal Council (1991) 23 NSWLR 734. The Court in Mison held, the applicant submitted, that:
a. if a condition imposed on a purported consent has the effect of significantly altering the development in respect of which the consent is made, then the purported consent is not a consent to the application;
b. if the effect of a condition is to leave open the possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which the application was made, then the purported consent is not, in fact, consent to the application.
51 The applicant also referred to Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; 130 LGERA 508, which was also referred to in Buzzacott (at [168] and following). The applicant submitted that in Winn, Spigelman CJ noted that a purported exercise of power (in that case, under an environmental planning statute) would not be valid unless it constituted a "consent to the application". The power to impose conditions, it followed, could not be exercised such that the exercise of the power failed to answer the description of a "consent" or a "consent to that application". Stein JA stated, the applicant submitted, that where a condition has the effect of significantly altering the development, or to leave open the possibility that the development carried out in accordance with the condition will be significantly different from that applied for, it does not amount to a consent to the application.
52 The applicant submitted that the Tribunal's variation of the permission granted by the Authority by the imposition of conditions and so as to "include" and "ensure" numerous other matters was so far from what was applied for as to amount to something entirely different from it. The Tribunal made no discernible attempt, the applicant submitted, to justify the imposition of those conditions and variations with sources of statutory power. It seemed simply to have been the result of its at-large inquiry into how and in what circumstances the control of sharks might take place.
53 The Authority limited its submissions to addressing this question of statutory construction as to the scope of the power to decide an application for, and if granted impose conditions on, a permission. The Authority adopted the construction of the present applicant on the present issue, being whether under reg 77 the power of the decision-maker was confined to either granting or refusing the relevant permissions and imposing certain limited conditions on any grant but did not extend to a grant subject to conditions that altered the nature of the relevant permission from that applied for.
54 The Authority submitted that those provisions did not empower the decision-maker to, in effect, grant a relevant permission that was substantially different from that which was the subject of the application. The Authority submitted that by reg 77(1), the decision-maker "must grant or refuse the permission" (Authority's emphasis). The use of the definite article "the" connoted that it was the relevant permission that had been applied for - for example, a program to take, by lethal means, animals that posed a threat to human life or safety - that the decision-maker must either grant or refuse. The Authority submitted that the function of the decision-maker was to determine, having regard to the statutory criteria, whether that application ought to be granted or refused.
55 Similarly, the Authority submitted, reg 77(2) did not empower the decision-maker to impose conditions the effect of which was to grant a relevant permission unconnected or different in nature to that applied for. The ancillary power to impose conditions could not be exercised in such a manner as to have the consequence that the exercise of the power failed to answer the description of a grant of "the" relevant permission that was the subject of the application under Div 2.3 of the Regulations. The Authority referred, by way of analogy, to Winn at [14] per Spigelman CJ, and also to Buzzacott at [161] and [168]-[179].
56 The Authority accepted that, in discharging its function of determining whether an application ought to be granted or refused, the decision-maker "must be satisfied that the animals pose a threat to human life or safety in so far as that is required to in turn be satisfied that (sic) the application is for a program of the relevant type". Moreover, the Authority submitted, if it was evident that the program would have an unacceptable impact on the conservation of the natural resources of the Marine Park, that is, if the particular use was inconsistent with the objects of the Act, then it was incumbent on the decision-maker to refuse the relevant permission. But the Authority submitted that, those matters being decided favourably to the applicant, it was not the role of the decision-maker to determine whether the type or program proposed was necessary to manage the risk to human life or safety.
57 The Authority submitted that if the attainment of the objects of the GBRMP Act would necessitate the imposition of conditions that would fundamentally alter the relevant permission from that applied for, then the appropriate course would be to refuse the application. Regulation 77(2)(c) would, however, allow for the imposition of conditions such as one requiring the permittee to explore during the term of the relevant permission alternative programs that would lessen the environmental impact on the Marine Park. That was because such a condition was appropriate to the attainment of the object of the GBRMP Act but did not have the consequence that the exercise of the power failed to answer the description of the grant of "the" relevant permission identified in reg 77(1).
58 In oral submissions, the Authority developed the submission that the provisions of the Regulation, particularly in relation to what is required to be contained in an application, made clear that there is a delineation of responsibility about the constituent elements of a proposed use and that the issue of reasonable and feasible alternatives is something that is squarely within the realm of responsibility of the applicant for a relevant permission and beyond the scope of the power of the decision-maker, as regulator, in and of itself to put forward. The decision-maker is acting as a regulator, the Authority submitted, and its role does not extend to creating a program that is to be the subject of the relevant permission. The Authority submitted that its particular skillset is in determining whether or not a program that has been applied for is consistent with the objects of the GBRMP Act, but not in determining what ought to be the constituent elements of that program
59 On this ground, the Humane Society submitted that the present applicant's claim that the Tribunal could not assess whether a lethal program actually worked to improve human safety was contrary to the way in which its case was conducted below. Its evidence and submissions were predominantly directed to persuading the Tribunal of the efficacy of the lethal program. The Humane Society submitted that it was also contrary to the way in which the Authority decided the application at first instance where it listed, as a factor that was "particularly important", that "the Program is effective in relation to its intended purpose of reducing the risk to bathers of shark attacks". This conclusion was based on information provided to it by the present applicant.
60 The Humane Society submitted that the Tribunal was required to consider the benefit and detriment of the Shark Control Program in considering whether it was a "reasonable use" within the objectives of the three relevant zones in which the Shark Control Program was proposed to be undertaken, referring to ss 2.2.2, 2.3.2 and 2.4.2 of the Zoning Plan, which itself was a mandatory consideration under reg 74(5)(a): Great Barrier Reef Marine Park Authority v Indian Pacific Pearls Pty Ltd [2004] FCAFC 277; 140 FCR 214, at [55] and [57]. As a corollary, it was submitted, consideration of the claimed benefits of the Shark Control Program was plainly not prohibited. Nor could any such intention be implied. The absurdity of such a prohibition was shown in this case, the Humane Society submitted, in that it would require that a decision-maker who was commanded to take a protective approach to the biodiversity of a marine park must - according to the present applicant - ignore the fact (as the Tribunal found) that there was no benefit to killing sharks.
61 The Humane Society submitted that the very thing that permission was being sought for was "a program to take animals or plants that pose a threat to (i) human life or safety" (Humane Society's emphasis). The purpose of the Shark Control Program was to reduce the risk of negative shark interactions with humans and this was the very thing the present applicant used to justify allowing the ecological damage caused by the Shark Control Program. To suggest that the Authority and the Tribunal were entitled to examine the program only to the extent that it facially answered that description was a recipe for the avoidance of a statutory responsibility. Understandably, neither the Authority nor the Tribunal was invited to take the approach that the applicant only now advocated.
62 The Humane Society submitted that the likely efficacy or utility of the lethal component of the Shark Control Program - involving findings as to its potential environmental consequences, findings as to whether or not there were alternatives to it which would not give rise to, at least, the risk of those environmental consequences, and thereafter balancing those matters - was far from being an irrelevant (prohibited) consideration but was, in fact, mandated by the GBRMP Act.
63 The Humane Society submitted that the present applicant now contended that the Tribunal misunderstood and exceeded its proper function. The root contention, the Humane Society submitted, was that the permission granted by the Tribunal was significantly different to that which was applied for and, on that basis, the Tribunal lacked jurisdiction to grant such a permission: because the present applicant applied for a permission to allow it to kill target shark species, it was not open to the Tribunal to only permit the killing of sharks for animal welfare reasons. The present applicant made no such submission below, although the Authority did.
64 The Humane Society submitted that the boundaries of the broad conditioning power in reg 77(2)(c) should be assessed against orthodox principles of legal rationality and reasonableness and by reference to the text, scope, subject matter and purpose of the legislation in question.
65 The Humane Society submitted that reg 77(1) authorised the grant of a "relevant permission" and did not in terms authorise only the grant of the permission applied for. Regulation 77(2) then provided a broad power to attach conditions limited only by the requirement that the condition is "appropriate to the attainment of the object of the Act".
66 The Humane Society submitted that, on 28 February 2005, the Authority issued a permit authorising the present applicant to carry out a program to "take" animals that pose a threat to human life or safety, being the Shark Control Program in the Marine Park.
67 The original permit was due to expire in 2010 and this triggered applications to renew it. On 15 May 2013, the Humane Society submitted, the present applicant applied to replace or continue an existing permission. That existing permission was Permit G04/8856.1, which authorised entry and use for the purposes of the "conduct of a Program to take animals or plants that pose a threat to human life or safety, being the Queensland Shark Control Program". In the existing permit, "take" bore its meaning in the GBRMP Act and "Queensland Shark Control Program" was undefined. Properly understood, the existing program was a permission to take animals or plants that posed a threat to human life or safety. So far as the words "Queensland Shark Control Program" imposed any limit, that limit could only be to narrow the permission otherwise granted.
68 With an application of that kind before it, the Tribunal did precisely what it was authorised to do, the Humane Society submitted. It granted the permission (order 1) and therefore granted what was sought. It then imposed a number of conditions which it considered were appropriate to the attainment of the objects of the GBRMP Act (orders 1 through 9). Each of the conditions was apt to provide for the longer-term protection and conservation of the environment, biodiversity and heritage values of the Great Barrier Reef Region, the Humane Society submitted.
69 Here, the Humane Society submitted, the present applicant applied for a "relevant permission" and it got one. The Zoning Plan specified that permission was required to use the various zones to take animals that pose a threat to human life or safety and that "take" is not limited to lethal means. That permission allowed it to "take" sharks by catching them. It also permitted the present applicant to "take" sharks by killing them in the interests of animal welfare. It was within the Tribunal's power to condition the permission in that way. And even if there was an implicit limitation that prevented the imposition of conditions that significantly changed that which was applied for, no such significant change occurred here.
70 The Humane Society submitted that the statutory context here was different to Buzzacott, Mison and Winn and that none of those authorities assisted the applicant. Here, there was an Act which authorised the grant of a relevant permission (as defined) and which authorised the imposition of conditions of any kind on that permission subject to the criteria in reg 77(2)(c). The present applicant's approach sought to add words to reg 77(2)(c) which did not appear there.
71 In addition, the Humane Society submitted, Mison and Winn involved different contexts. Those were cases concerning applications for development approval under New South Wales planning law. Under New South Wales planning law (both now, and as it stood at the times of Mison and Winn), where a particular application for development consent was made, a consent authority had power to grant "consent to that application" (emphasis added), not "consent to the application" as incorrectly quoted by the applicant. The Court of Appeal emphasised that language in Winn at [13], the Humane Society submitted.
72 The Humane Society submitted that it was fatal to this ground that, given the relative informality of the application that was made, there was no obvious baseline against which the permission that was sought could be compared with the permission that was granted, conditioned in the way it was by the Tribunal. Even if it was assumed that the application made by the applicant was, in effect, an application to continue doing what was being done under the expiring approval, to characterise that as "in essence, permission to enter and kill sharks" was a gross oversimplification of the nature of the application that was made. What was being sought was permission to enter into a zone and take sharks, having regard to the definition of "take" in the GBRMP Act. Under the Tribunal's decision, the applicant was allowed to enter into the zone and place drum lines at exactly the same locations as it had asked to place drum lines, the consequence of which was that to the extent that the hooks on the drum lines were baited, sharks would be taken. It is accepted by the Humane Society that, having regard to the conditions imposed by the Tribunal, the ability to euthanise sharks had been reduced and was different to what had been sought.
73 The Humane Society submitted that what was being sought was a right to enter the zones, catch sharks and, if they happened to be sharks which were on a list appended to the approval, euthanise the sharks. But if they were not sharks on that list, the applicant was to release them. The Humane Society submitted that what the Tribunal did by the conditions was to allow taking but in a subtly different form, so that what the Tribunal granted was not so significantly different to what was asked for that the Tribunal, in effect, did not approve the application at all.