Stuart v Minister for Transport

Supreme Court of NSW|2024-11-21|Before: McNaughton J

JUDGMENT

This matter came before me, at short notice, on 21 November 2024, in the Duty List. It was before the Court by way of summons, filed that day by Ms Stuart on behalf of Rising Tide, a community activist movement particularly concerned with climate change, against the Minister for Transport for the State of New South Wales. Rising Tide was intending to hold a 3 day event in Newcastle (which was part of a longer 10 day event covering both Newcastle and Canberra) in relation to which the Minister had gazetted a Notice. The Notice was due to come into effect at 5:00pm that day and purported to exclude vessels and people from a large area of the waters of Newcastle Harbour and offshore, called an exclusion zone. If valid and effective, this Notice would have effectively excluded from the zone the conduct of water-based activities planned by Rising Tide over the ensuing three days.
Ms Stuart sought a declaration that the Notice was invalid and of no legal effect, and an order quashing the Notice. I heard evidence from Ms Stuart, who was cross-examined, and submissions on behalf of the parties. Following the hearing, I made the orders as set out at the end of this judgment. I provided brief reasons at the time of the making of those orders. I indicated at the time that I would provide more detailed reasons, which I now do.
The grounds relied upon in the summons were set out as follows: "The power under s 12(2) and 12(3) of the Act [12] On the proper construction of the Act, the purpose of the Minister's power under s 12(2) and (3) of the Act excluding vessels and people from specified areas in relation to a special event is to facilitate the safe carrying out of that special event on the waterways within the specified areas, called the exclusion zone. [13] That is, the exercise of the Minister's power to exclude vessels and people from the exclusion zone under s 12(2) and (3) presupposes the carrying out of the special event to which the zone relates. Ground 1: The Notice is ultra vires [14] If the Notice would interfere with, frustrate or prevent the Rising Tide special event from being carried out, the Minister's power was exercised, and the Notice was issued, upon an incorrect basis in relation to the power granted under the Act and in particular s 12 of the Act. [15] As outlined at paragraphs [12] and [13] above, on the proper construction of the Act, the purpose of the power conferred on the Minister to issue a notice in relation to a special event is to facilitate the safe carrying out of that special event. [16] Section 12(2) and subs (3) do not authorise the Minister by a notice to prohibit the operation of vessels in specified navigable waters during a special event, nor to exclude vessels and people from specified areas during that special event, where the effect of the notice is to interfere with, frustrate or prevent the carrying out of the special event to which the exercise of the power and the notice relates. [17] To the extent that the effect of the Notice is to frustrate, interfere with or prevent the carrying out of the special event to which the Notice relates, it is beyond the power granted by the Act."

Factual and Legal Background

In addition to the oral evidence of Ms Stuart, she also relied upon her affidavit, affirmed 21 November 2024, together with an affidavit of Timothy Rayner (the solicitor with carriage of the matter for Ms Stuart), affirmed 21 November 2024. Also tendered during the hearing were a map marking the location of Horseshoe Beach, on the southern side of Newcastle Harbour; a large map of Horseshoe Beach; and a large map of the area surrounding Throsby Creek.
Rising Tide intended to hold a 10 day event consisting of 7 days in Newcastle and 3 days in Canberra ("the Rising Tide Event"). Three of the days in Newcastle, Friday 22 November 2024 to Sunday 24 November 2024, involved a number of activities on the waterways off Horseshoe Beach ("the planned Rising Tide water-based activities").
The objects of the Marine Safety Act 1998 (NSW) ("the Act") set out in s 3 are: 3 Objects of Act The objects of this Act are as follows - (a) to ensure the safe operation of vessels in ports and other waterways, (b) to promote the responsible operation of vessels in those waters so as to protect the safety and amenity of other users of those waters and the amenity of occupiers of adjoining land, (b1) to provide an effective framework for the enforcement of marine legislation, (c) to provide for the investigation of marine accidents and for appropriate action following any such investigation, (d) to consolidate marine safety legislation.
Part 2 of the Act is headed "Safety of navigation". Division 1 is headed "General provisions". Of critical importance in this matter is s 12, which is found in Div 1. It is headed "Restrictions on vessels and people in navigable waters during special events". It reads: 12 Restrictions on vessels and people in navigable waters during special events (1) In this section, special event means a major race for vessels or other event that may affect the safety of navigation in any particular waters. (2) The Minister may prohibit or regulate the operation of vessels in specified navigable waters during a special event by notice published in the Gazette. (3) The Minister may, without limiting subsection (2), exclude vessels and people by such a notice from specified areas (the exclusion zone) during the event concerned and impose any other restrictions of a kind that may be imposed under section 11. (4) An authorised officer may direct - (a) a person in an exclusion zone, or (b) a person operating a vessel in an exclusion zone, to move out of the exclusion zone or comply with any restrictions imposed in accordance with section 11. (5) A person who - (a) continues to operate a vessel, or (b) allows a vessel to remain in an exclusion zone, or (c) remains in an exclusion zone, or (d) does not comply with restrictions imposed under section 11, in contravention of a direction by an authorised officer is guilty of an offence. Maximum penalty - 10 penalty units. (6) Nothing in this section affects any regulation or notice under section 11 that prohibits or regulates the operation of vessels or any power relating to the navigation or other use of vessels conferred on any person or body by the marine legislation or the National law. (7) In any proceedings for an offence against this section, proof of the publication of a notice in accordance with this section is not required until evidence is given to the contrary. (Emphasis in italics added.)
In response to the planned Rising Tide water-based activities, by a notice dated 13 November 2024 and published in the New South Wales Government Gazette, No 449, 15 November 2024, at 15-16 (NSWGG-2024-449-11) ("Gazette No 449"), the Minister purported to establish an exclusion zone under section 12(2) of the Act on the waters of Newcastle Harbour and offshore from 5:00pm on Thursday 21 November 2024 to 8:00am Monday 25 November 2024. This notice was revoked on 19 November 2024 ("the Revoked Notice") and replaced by an updated notice.
The Revoked Notice was in the following terms: "MARINE SAFETY ACT 1998 MARINE NOTICE Section 12(2) REGULATION OF VESSELS - EXCLUSION ZONE Location Newcastle Harbour - Downstream of Tourle Street Bridge, Dyke Point and the imaginary line between Walsh Point and the prolongation of Ross Street, Stockton and offshore within a radius of one nautical mile from Nobbys Head lighthouse. (as attached map). Duration 5:00pm Thursday 21 November 2024 to 8:00am Monday 25 November 2024 Detail An EXCLUSION ZONE will be established on the waters of Newcastle Harbour and offshore as specified above for the safety of users of the waterway. The zone will be patrolled by Police and Maritime vessels. No unauthorised vessels or persons other than commercial vessels associated with port operations are permitted to enter the Zone and to do so may be an offence (Marine Safety Act 1998, s.12(5) - Maximum Penalty $1,100.00). Transit Provisions Vessel operators wishing to transit the exclusion zone may only do [sic] with the approval of Maritime or Police, and by using specified transit lanes indicated on the attached map in yellow. Vessel operators using a transit lane must comply with any direction given by Police or Maritime relating to the manner of navigation of their vessel, and must not remain in the exclusion zone. Failure to comply with any such direction will result in the vessel no longer being authorised to be in the exclusion zone. For full details visit the Transport for NSW website - https://www.nsw.gov.au/driving-boating-and-transport/using-waterways/restrictions-and-closures/marine-notices Marine Notice NH24102 Date: 13 November 2024 Darren Wood Director North - TfNSW Maritime Delegate" (Emphasis in original.)
The Revoked Notice was replaced by a subsequent amended notice dated 18 November 2024 and published in the New South Wales Government Gazette, No 452, 19 November 2024, at 1-2, NSWGG-2024-452-1 ("the Notice"), by which the Minister purported to establish an exclusion zone pursuant to s 12(2) of the Act, on the waters of the Newcastle Harbour and offshore ("the Exclusion Zone") in the following terms: "MARINE SAFETY ACT 1998 MARINE NOTICE Section 12(2) REGULATION OF VESSELS - EXCLUSION ZONE Revocation and Replacement This Marine Notice revokes and replaces Marine Notice NH24102 published in NSW Government Gazette 449 of 15 November 2024 at p15. Location Newcastle Harbour - Downstream of Tourle Street Bridge, Dyke Point and the imaginary line between the southern boundary of the Park Fuels Pty Ltd fuel terminal on Kooragang Island and Stockton North Boat Ramp, Stockton, and offshore as shown on the attached map. Duration 5:00pm Thursday 21 November 2024 to 8:00am Monday 25 November 2024 Detail An EXCLUSION ZONE will be established on the waters of Newcastle Harbour and offshore as specified above for the safety of users of the waterway. The zone will be patrolled by Police and Maritime vessels. No unauthorised vessels or persons other than commercial vessels associated with port operations are permitted to enter the Zone and to do so may be an offence (Marine Safety Act 1998, s.12(5) - Maximum Penalty $1,100.00). Transit Provisions Vessel operators wishing to transit the exclusion zone may only do [sic] with the approval of Maritime or Police, and by using specified transit lanes indicated on the attached map in yellow. Vessel operators using a transit lane must comply with any direction given by Police or Maritime relating to the manner of navigation of their vessel, and must not remain in the exclusion zone. Failure to comply with any such direction will result in the vessel no longer being authorised to be in the exclusion zone. For full details visit the Transport for NSW website - https://www.nsw.gov.au/driving-boating-and-transport/using-waterways/restrictions-and-closures/marine-notices Marine Notice NH24102 Date: 18 November 2024 Darren Wood Director North - TfNSW Maritime Delegate" (Emphasis in original.)
As at 20 November 2024, the link referred to above for "full details" on the website contained the following information: "Marine notices Transport for NSW issues marine notices for vessel operators. These notices give safety advice about potential hazards, special events, and closures. Check notices before you go boating Transport for NSW issues marine notices with safety advice for vessel operators. Check notices before you go boating to see if there are potential hazards or special events on the waterway. […] The notice types we publish include navigation warnings, and aquatic event licence or special event 'exclusive use' conditions. Transport for NSW publishes notices online and most also appear in the NSW Government Gazette. They're also distributed to organisations such as Marine Rescue and print media. Penalties for breaching notices Notices are required under the Marine Safety Act 1998. Once a notice is published, it's an offence to breach it. You can be fined for failing to leave an area set aside for an exclusive use/special event. […] Aquatic event licences and special events A special event marine notice must be published when a special event is declared. The notice advises the public of areas closed to recreational navigation. They're issued when a body is given 'exclusive use' of waters. This may be to conduct an activity under an aquatic licence, or another event affecting navigation safety. The notices may describe the parameters of the 'exclusive use' area, the time and date, and how the area is marked off. The notices warn the public of events, so they don't, for example, accidentally move into the middle of a race, a dangerous set of construction works, or a fireworks barge." (Emphasis in original.)
It can be noted that only s 12(2) of the Act was mentioned in the heading of the Notice, but that s 12(3) also appeared to be relied upon in the body of the Notice given it purported to exclude vessels and people. Subsection (2) is phrased: "The Minister may prohibit or regulate the operation of vessels in specified navigable waters during a special event by notice published in the Gazette". (Emphasis added.) Subsection (3) provides: "The minister may, without limiting subsection (2), exclude vessels and people by such a notice from specified areas (the exclusion zone) during the event concerned […]". (Emphasis in italics added.)
I also note that Sch 11 of the Marine Safety Regulation 2016 (NSW) provides that there is a fee specified of $227.00 per hour for "[a]ttendance by an authorised officer at a special event or aquatic activity, if attendance is a condition of an aquatic licence".
An "aquatic activity" is defined in s 18(1) of the Act to mean: 18 Regulation of organised aquatic activities in navigable waters (1) In this section - aquatic activity means - (a) a race, competition or exhibition (whether or not involving vessels or equipment) that is conducted in or on any navigable waters, or (b) any other activity (whether or not involving vessels or equipment) that is conducted in or on any navigable waters and that restricts the availability of those waters for normal use by the public. […]
Further, s 18(1) provides "conduct an aquatic activity includes promote or organise the activity". Section 18(2) provides that the regulations may prohibit or regulate the conduct of aquatic activities, and s 18(3) provides that any such regulation may prohibit the conduct of aquatic activities without a licence or other approval from the Minister.
Regulation 97 of the Marine Safety Regulation provides: 97 Aquatic activities to be licensed (1) A person must not conduct an aquatic activity unless the person - (a) is the holder of an aquatic licence in respect of the aquatic activity, and (b) is conducting the aquatic activity in accordance with the conditions of the licence, and (c) does not conduct the aquatic activity for longer than 14 days on any 1 occasion. […] The maximum penalty for failing to comply with this provision is 100 penalty units (that is, a fine of $11,000.00) [1] .
A person is not required to hold an aquatic licence for certain activities set out in reg 97(2): 97 Aquatic activities to be licensed […] (2) A person is not required to hold an aquatic licence to conduct any of the following activities in or on navigable waters if the conduct of the activity will not restrict the availability of those waters for normal use by members of the public or vessel operators or cause an increased risk of danger to the public or vessel operators and complies with any conditions advised by the licensing official - (a) an aquatic activity comprised of or involving the use of surfboards or other similar craft including stand up paddle boards, or (b) a swimming competition, or (c) a fishing competition, or (d) [a surf life-saving activity], or (e) any other aquatic activity approved by the responsible licensing official in writing, when conducted in accordance with any conditions approved by the responsible licensing official in writing. […]
Regulation 97(3) provides a further exception not presently relevant.
Regulation 98 provides that there are two classes of aquatic licences: one for commercial aquatic activities, and another for all other (non-commercial) aquatic activities. Regulation 99 provides further details including the number and duration of activities an aquatic licence may authorise and provides that it may authorise the exclusive use of an area of navigable waters. Regulation 100 sets out additional requirements for applications. Notably reg 100(3) provides that: "[t]he responsible licensing official may require the applicant to pay an additional fee to cover any costs reasonably incurred by the Minister in the publication of a notice under section 12 of the Act in connection with the event to which the application relates".
It can be noted that the structure of these provisions including the provision for the fee set out in Sch 11 of the Regulations seems to indicate that a "special event" which underpins the establishment of an exclusion zone often, but not always (that is, if covered by the exceptions set out in reg 97(2)), requires an aquatic licence.
In answer to a query by the Court prior to the hearing, the parties informed the Court that no aquatic licence had been obtained in relation to the planned Rising Tide water-based activities. Other than the observation that it appears those planned activities may require such a licence (or perhaps approval in writing under reg 97(2)(e)), in my view, nothing more flows from this for the purposes of my determination. For instance, it does not appear that there is any particular time frame in which such an application must be made, and at the time of the hearing before me there was arguably still time to do so (albeit practically unlikely). Furthermore, it was not beyond doubt that such a licence would necessarily be required.
Turning now in more detail to the evidence of Ms Stuart. In her affidavit Ms Stuart set out that Rising Tide is a grassroots climate action group which specifically focusses its activities on Newcastle Port because it is the largest coal port in the world, and they are calling for stronger action from the government. There are 6760 people on their mailing list, as well as larger numbers following the group on Instagram and Facebook. Ms Stuart has been a full-time volunteer with Rising Tide since June 2023 and currently is a member of the National Steering Team, Newcastle hub co-ordinator and media spokesperson.
Rising Tide first received notice of the Exclusion Zone in Newcastle Harbour on Friday 15 November at 7:24pm by way of an email to one of Ms Stuart's colleagues who forwarded it to her shortly after. This attached the Revoked Notice.
In the email, Paul Hearfield, Manager Waterways Operations - Hunter, NSW Maritime stated: "Due to next weeks [sic] events on and around Newcastle Harbour and due to safety concerns, an Exclusion Zone will be established that restricts navigation. The attached Gazette Notice and Marine Notice explains the restrictions in further detail. Please note that there are available 'Transit Lanes' indicated on the attached documents as yellow lines. The Transit Lanes will be the only means of transiting through the exclusion zone."
On 18 November 2024 at 5:16pm, Rising Tide received notice of the amended exclusion zone in Newcastle Harbour (the Notice) (which also revoked the Revoked Notice) by way of email to one of Ms Stuart's colleagues, who forwarded it to her shortly after.
Ms Stuart stated that the "2024 People's Blockade and Newcastle Protestival: Flotilla + Beach Fun" consisted of seven days in Newcastle plus three days in Canberra. A copy of the program for the Newcastle section of the Rising Tide Event was annexed. She stated that the full program contained a number of on-water activities off Horseshoe Beach and that "[t]his program will change if the exclusion zone notice remains in place and all on-water activities will move to the land to the extent they can or else be cancelled".
Ms Stuart further stated that the central three days, Friday 22 November 2024 to Sunday 24 November 2024 inclusive, were to revolve around a planned symbolic flotilla of the Newcastle Harbour, off Horseshoe Beach. That part of the event was called the "Newcastle Protestival: Flotilla + Beach Fun" event. The three day program included music, speeches, children's activities on the beach and activities on the water, such as a "youth open mic", kayak games, including kayak relays and kayak polo, karaoke, and a "floating dance party" on a pontoon.
In her affidavit, Ms Stuart also stated: "The flotilla is intended to take place from 9am Friday 22 November until 11am Sunday the 24 November off Horseshoe Beach close to the shore. My role in the program is I am MCing on Sunday morning and I will be speaking at press conferences on Horseshoe Beach."
Ms Stuart also stated in her affidavit: "If it weren't for the exclusion zone notice, I had intended to participate in the flotilla in the Newcastle Harbour to protest the Government's inaction on the climate crisis. I had intended to paddle out on a kayak, to take part in the "Youth Open Mic" that is scheduled to occur on the water on Friday at 1pm. I had intended to spend time on a pontoon called the 'art raft'. […] Our intended program of events will have to change dramatically to try to accommodate the exclusion zone notice. If the exclusion zone notice remains in place, the organising committee intends to remove all on-water activities from the program. If the exclusion zone notice remains in place I intend to listen to music in Foreshore Park and the press conferences will likely happen in the park. I am personally aware that people have travelled from as far as South Australia, Victoria and Queensland bringing equipment to participate in the planned water-based activities. I have spoken to many [which was clarified in oral evidence to be 'dozens'] people planning to participate in the Rising Tide event and overwhelmingly people have told me that they intend not to go onto the water because of the exclusion zone notice, but they want to otherwise."
The waters off Horseshoe Beach where the planned Rising Tide water-based activities were intended to be held are within the Exclusion Zone as described in the Notice.
It is convenient to note at this point that I have examined the program which was tendered. Included among the many events in the program, on Friday at 8:00am, "The Great Pontoon & Art Raft Launch & begin the 50 hour Blockade!" is listed. (Emphasis added.)
In oral evidence in chief, Ms Stuart stated that the Rising Tide organising committee had been in contact fairly regularly with the New South Wales Police over quite a few months. As of Thursday the previous week, her understanding was that the police were going to allow the group to paddle near the shore of Horseshoe Beach, but they would not be allowed to go into the shipping channel marked by two buoys which the police would monitor. She understood there were no concerns raised about the pontoons.
In cross-examination, Ms Stuart agreed that the Rising Tide Event was originally expecting about 10,000 people over 10 days, which included some days in Canberra, but they were no longer expecting that many people. She agreed that many of the planned activities were to occur on land, and they could occur, perhaps with some modification for some, despite the purported Exclusion Zone. She agreed it was intended to obtain a permit for the protest but that it had been rejected by the Supreme Court the previous week [2] . Ms Stuart agreed she had been involved in last year's protest and as part of that protest 109 people had engaged in civil disobedience at the end of the protest, on the water when they were not supposed to be there. She agreed with the proposition that Rising Tide promotes civil disobedience, and that civil disobedience gives a protest better publicity.
Ms Stuart was also candid in acknowledging that it was likely there would be civil disobedience as part of the 2024 protest, and that irrespective of what the Court did that day, whether or not it set aside the Notice, it was likely there would be civil disobedience at the protest.
In response to a suggestion in cross-examination that the Exclusion Zone did not cover the whole of the watercourse in the Newcastle Harbour area, and that if the Notice remained in place people would still be able to protest by entering the water at the Carrington Boat Ramp, Ms Stuart said she could think of a quite a few logistical challenges they would face. (I observe at this point that Google Maps shows it would take 55 minutes to walk from that location to Foreshore Park, and a further five minutes to Horseshoe Beach, given the boat ramp is significantly up-river.) Ms Stuart stated: "The location would be challenging, because currently all of our equipment is across ‑ like, is at Foreshore Park, which is within walking distance and, yeah, I guess we haven't arranged transport for that. That's one thing that I can think of. The other thing is that the size of the beach, I imagine, would be too small for the number of participants. I also understand that there's events that happen on the weekend. I believe cricket happens at the Pat Jordon Oval maybe on Sunday ‑ Saturday. I'm not a hundred percent sure at all, but I have a vague recollection. Yeah, those are some of the things that have come to mind."
However, she accepted that an on-water protest could happen off Connelly Park (that is, adjacent to the Carrington Boat Ramp). Ms Stuart also accepted in cross-examination that the planned paddle out currently to be conducted off Horseshoe Beach into the river could be moved to a location off Nobbys Beach, to the east, no longer covered by the purported Exclusion Zone.
A group of questions was also put to Ms Stuart on the basis of an assumption that even without the Notice being in place, any group activity on the waterways as indicated would still be unlawful. Ms Stuart agreed that if she made that assumption, she would still not take a kayak out as she would be concerned about breaking the law.
In essence, Ms Stuart's evidence was that the effect of the Notice, if valid, would be effectively to prevent the planned Rising Tide water-based activities from proceeding as planned.

Reasons for decision

Whether or not the Notice was valid requires an exercise of statutory construction. Counsel on behalf of Ms Stuart contended, and I accepted, that the various principles guiding statutory construction leant in her favour.
First, a plain reading of s 12 of the Act, which provides a power to restrict vessels and people from specified navigable waters, indicates that any exercise of the power pre-supposes the carrying out of a special event on the water, with a view to safely regulating and thereby facilitating such an event. Not only is this obvious from a reading of the section as a whole, I note in particular that s 12(1) provides "In this section, special event means a major race for vessels or other event that may affect the safety of navigation in any particular waters"; and further note the words "during a special event" in s 12(2) and "during the event concerned" in s 12(3). Although no event was specified in the Notice, taking into account all of the circumstances, I came to the view that the effect of the Notice which purported to establish an exclusion zone, was, paradoxically, to exclude (rather than facilitate) the particular special event in relation to which the Notice was issued, that is, the planned Rising Tide water-based activities.
If one then turns to viewing s 12 in the context of the Act more broadly, one can see that s 12 is directed specifically to special events. There are various other general powers and offence provisions which exist to regulate waterways, including where a particular form of activity on the waterways puts safety in jeopardy. For instance, there are powers in relation to speed limits, wash limits and other restrictions in s 11 of the Act; the harbour master's powers in s 88 of the Act; the offence provision in s 13 prohibiting the operation of a vessel negligently, recklessly, or at a speed or in a manner dangerous to the public; the offence provision in s 14 of unreasonable interference with the lawful use of navigable waters (or adjoining land) by other persons; the power to give directions under s 15A, where an authorised officer may give a direction in relation to a contravention of s 14, or to ensure the safety of a person or prevent damage to property in, on or near navigable waters, contravention of which is an offence.
I have also had regard to s 33 of the Interpretation Act 1987 (NSW) which provides that in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object. In my view, the establishment of exclusion zones so as to facilitate the safe running of special events assists in promoting the objects of the Act, especially s 3(a) and (b) as set out at [6] above.
The website information set out in full above at [11] which explains the special event notices is entirely consistent with the plain reading of s 12, for instance: "The notices warn the public of events, so they don't, for example, accidentally move into the middle of a race, a dangerous set of construction works, or a fireworks barge."
In addition, other (unrelated) notices (also before the Court) which happen to appear in the same Government Gazette as the Revoked Notice (Number 449 - Roads and Transport, are in notably different terms to both the Revoked Notice and the Notice, but are all entirely consistent with the plain reading of s 12 of the Act. For example, Marine Notice SO2467, dated 8 November 2024, was published in Gazette No 449 at 3, and relevantly states: "Location Lake Albert, Wagga Wagga. Duration On the following dates and times: • 8:00am to 6:00pm - Saturday 16 November 2024. • 8:00am to 6:00pm - Sunday 17 November 2024. Detail Powerboat demonstrations will be conducted on the navigable waters of Lake Albert as specified above. High-speed power vessels which will be active in the area, presenting a significant potential hazard to other waterway users. An EXCLUSION ZONE comprising the entirety of Lake Albert is specified during the event, which will effectively close the Lake to all other vessel users between the above times for this event. The Zone will be monitored by event officials and control vessels. Unauthorised vessels and persons are strictly prohibited from entering the Exclusion Zone during the times above." (Emphasis added.) Marine Notice NH2507, dated 8 November 2024, was published in Gazette No 449 at 6-7, which relevantly states: "Location Murwillumbah, Tweed River. Duration On the following dates and times: 6:30am to 4:30pm - Sunday 17 November 2024. 6:30am to 4:30pm - Sunday 2 March 2025 Detail A series of rowing races will be conducted on the navigable waters of the Tweed River over two separate days as specified above, presenting a significant potential hazard to other waterway users. An EXCLUSION ZONE from the Rowing clubhouse to 200 metres downstream is specified during the event. The Zone will be indicated by markers on the foreshore, buoys on the finish line and will be monitored by control vessels near the boundary. Unauthorised vessels and persons are strictly prohibited from entering the Exclusion Zone during the times above." (Emphasis added.) And Marine Notice NH2471, dated 11 November 2024, was published in Gazette No 449 at 9, and relevantly states: "Location Cudgen Creek, Kingscliff - from 300m upstream of the road bridge to 200m downstream of the boat ramp. Duration • 6:00am to 10:00am - Sunday 1 December 2024. Detail A series of swimming races will be conducted over the navigable waters of Cudgen Creek, Kingscliff at the location specified above, presenting a significant potential hazard to other waterway users. An EXCLUSION ZONE is specified during the event and will be indicated by buoys on the start and finish lines. The Zone will be monitored by control vessels on or around the boundary. Unauthorised vessels and persons are strictly prohibited from entering the Exclusion Zone during the above times." (Emphasis added.)
When these notices are compared to the Revoked Notice and the Notice, it can immediately be seen that the latter notices have specified no special event that would present any potential hazard to other waterway users which would necessitate the establishment of an exclusion zone. Rather, it is the very event itself (the planned Rising Tide water-based activities) which would necessarily be excluded from the zone if the Notice was valid.
Counsel on behalf of Ms Stuart also contended that the principle of legality was engaged. In Tabcorp Holdings Limited v State of Victoria [2016] HCA 4 at [68] the High Court stated: "The principle of legality, as a principle of statutory construction, requires that clear language be used in legislation if a person is to be deprived of a valuable right."
Ms Stuart conceded that s 12(2) points in both directions, given it provides a power to limit fundamental freedoms and rights for some classes of persons and/or vessels whilst promoting the fundamental freedoms and rights of others by providing an exclusive use, or facilitated use, of waterways for others. However, because the provision impinges upon freedom of movement, freedom to gather and assemble, and criminal liability is attached to a failure to comply with a direction relating to an exclusion zone, the preferred construction would be one which involves the least interference with those fundamental freedoms.
I am of the view that the principle of legality submission reinforces the plain reading submission. The valuable right upon which s 12 infringes is the freedom to use public waterways (subject to safety constraints provided elsewhere in the Act) at any time. A plain reading of s 12 requires there to be a special event in relation to which an exclusion zone is declared in order to encroach upon that right, even if the encroachment is for a limited time, the zone being, in essence, to facilitate the safe conduct of that special event. Otherwise, s 12 would be tantamount to a banning notice, unrelated to any particular event. This would require clear language. I am not of the view that s 12 provides such a power.
In summary, the exercise of the power set out in s 12 is premised on the existence of a special event to be conducted on water. Section 12 does not provide power to issue a notice to effectively prohibit the particular special event in relation to which the notice was issued.
In finding for Ms Stuart, I considered and rejected the arguments put on behalf of the Minister, as follows.
First, it was contended that there were preliminary issues of futility and delay. The futility argument was that if the Notice was struck down, the Revoked Notice would revive. This argument was dealt with by the Court giving Ms Stuart leave to amend the summons to include the Revoked Notice.
The delay argument drew attention to the lateness of the application, made only shortly before the purported Exclusion Zone was to come into effect (that is, at 5:00pm in the same afternoon of the hearing). The Minister argued that the summons raised the necessity to determine a jurisdictional fact - that is, whether the effect of the Notice was to frustrate or interfere with the special event which in turn raised significant factual issues. It was contended that it was at least uncertain on the evidence as to which on-water activities could occur on land, and which events could occur further to the west in the creek where there is the boat ramp and the rowing club. There was no explanation as to why the application had not been made on Monday or Tuesday of that week which was when the Notice was notified to Rising Tide. In response to this submission, Ms Stuart's counsel submitted that the Notice was not gazetted until Tuesday, which made the Notice operative, and that given the other responsibilities of the organisers of the Rising Tide Event which commenced on Tuesday, the delay did not amount to disentitling conduct.
As to the delay argument, I was of the view that the issues raised on behalf of the Minister did not impede the ability of the Court to determine the validity of the Notice. Given the nature of the legal issue, together with the evidence that was before the Court which gave sufficient information as to the integrated nature of the planned activities involved in the Rising Tide Event, including the planned Rising Tide water-based activities, there was sufficient material for the Court to grapple with the key issues set out in the summons. Although it was unfortunate the matter was brought on so late, that did not disentitle Ms Stuart to relief.
As to the additional submission in relation to futility, it was contended that whether or not the Notice was set aside, the event would be unlawful because it was an unlicensed aquatic activity. As mentioned above, there is no apparent time constraint preventing an application for such a license to be made, and I could not assume that the event would inevitably otherwise be unlawful.
A further submission on futility was made to the effect that the evidence showed that whether or not the Notice was set aside, people were going to be engaging in civil disobedience. That fact, it was contended, would go to the exercise of my discretion. The argument was put as follows: "It goes to your discretion as to whether your Honour chooses to set aside the notice now. If those people go in the water in the face of the notice, your Honour doesn't set it aside, and they later want to say that the notice is invalid, they can take that point in proceedings."
I was not of the view that I should exercise my discretion to dismiss the summons on the basis that the evidence indicated that people may engage in civil disobedience. I could not see how that issue could properly bear upon my discretion in considering the validity or otherwise of the Notice.
The Minister's counsel made a number of submissions as to the precise wording of s 12 of the Act and why the section was not predicated on the existence of a special event. I did not find those submissions persuasive as they did not accord with the clear and plain words of the section.
Counsel for the Minister then contended that if a s 12 notice meant that an organiser could not hold the event they wanted to have, they could change the event in order to have it fall outside the Exclusion Zone. The evidence in relation to the availability of the boat ramp upriver and the offshore beaches was referred to. An example was given that s 12 would permit the Minister to declare an exclusion zone such that the Sydney to Hobart Yacht Race participants were not permitted to go into a particular part of Sydney Harbour because there were going to be other vessels moving around. I did not find this example (nor another one given in oral submissions) analogous to the situation before me, and thus not useful. The Sydney to Hobart example was premised on the existence of a special event, being the Sydney to Hobart race, being allowed to proceed in essentially the same way - that is, to sail from Sydney to Hobart.
Counsel for the Minister then contended that the special event in question was in truth a 10 day protest event across Newcastle and Canberra, most of which was to occur on land. It was also noted that the Notice did not extend to all of the waters in the Newcastle region. It did not run into the waters along the river or up the creek, nor into the northern channel of the river, nor off the coastal beaches. It was contended that the Notice did not exclude most of the planned activities in any event, given they were mostly on land, over a 10 day period. I was not persuaded that the special event was properly characterised in this way. From a plain reading of s 12, and in the context of the Act as a whole, a special event means a special event on water, hence my characterisation of the special event in this judgment being "the planned Rising Tide water-based activities".
This argument of the Minister also highlighted the problem that the Notice did not, in any event, specify any special event, despite the s 12 power clearly being premised upon the existence of a special event.
The issue as to whether s 12 can wholly extinguish an event was also the subject of submissions by the Minister. Counsel for the Minister accepted that s 12 does not allow the event to be extinguished, begging the question of "what is the event". He again contended the event was the 10 day protest across Newcastle/Canberra, most of which was to occur on land.
However, as discussed above, in my view, s 12 does not permit such a characterisation. It can be remembered that a "special event" is defined in s 12(1) as "a major race for vessels or other event that may affect the safety of navigation in any particular waters". This definition cannot realistically encompass events on land. The terms of subsections (2) and (3) reinforce the water-based nature of a special event. The argument, therefore, that the Exclusion Zone merely regulates rather than extinguishes the event, given that most of it is on land, must fail.
As to the submission that the planned Rising Tide water-based activities could still occur on water but on waters outside the purported Exclusion Zone, the submission must also fail given, based on the evidence and my own knowledge of the Newcastle area, in my view their re-location would so substantially alter the character of the planned Rising Tide water-based activities to such an extent that they would become a wholly different event.
It was also argued that given no aquatic licence had been sought, it could not be said that the Exclusion Zone would frustrate or prevent the event as, without an aquatic licence, the event would be unlawful in any case. (I note the contention that it would "interfere" with the event was not ultimately pressed by Ms Stuart). As stated above, there did not appear to be any time constraint in relation to applying for an aquatic licence, and in any event, I could not assume that the event, absent the Exclusion Zone, would inevitably be unlawful.
As to the final submission made by the Minister that the Notice did not make entering the Exclusion Zone unlawful, but rather that an offence was only committed if a person contravened a direction by an authorised officer, and thus the jurisdictional fact was not established, this submission was not made good. Clearly, the issuing of the Notice is a critical step in establishing an exclusion zone. Section 12(3) is expressed in terms of the Minister excluding vessels and people. The question of how an exclusion zone is enforced is not relevant to the question of the Minister's power to declare such a zone.

Conclusion

It is for the above reasons that I made the declaration that the Notice (together with the Revoked Notice) is invalid and of no legal effect because it exceeds the powers granted by s 12 of the Act, and an order in the nature of Certiorari quashing both of the notices.
Whilst skilful submissions were made on behalf of the Minister, the plain reading of s 12 of the Act is not such that a notice establishing an exclusion zone can effectively exclude the particular special event in relation to which the notice was issued.
As to costs, I did not make an order in favour of the plaintiff for costs because the summons was filed very late, within only hours of the purported Exclusion Zone coming into effect. Amongst other things, this gave the Minister very little time to reflect on the strength of the arguments put against her.

Orders

Accordingly, I made the following orders: 1. Declare that Notice issued in the Government Gazette, numbered NSWGG-2024-452-1, on 19 November 2024 is invalid and of no legal effect because it exceeds the powers granted by s 12 of the Marine Safety Act 1998 (NSW). 2. Grant leave for the summons to be amended to include relief claiming a declaration that the previous Notice issued in the Government Gazette, numbered NSWGG-2024-449-11, on 15 November 2024 is invalid and of no legal effect because it exceeds the powers granted by s 12 of the Marine Safety Act 1998 (NSW). 3. Declare that the previous Notice issued in the Government Gazette, numbered NSWGG-2024-449-11, on 15 November 2024 is invalid and of no legal effect because it exceeds the powers granted by s 12 of the Marine Safety Act 1998 (NSW). 4. Order, in the nature of certiorari, quashing the Notice issued in the Government Gazette, numbered NSWGG-2024-452-1, on 19 November 2024 and the former Notice issued in the Government Gazette, numbered NSWGG-2024-449-11, on 15 November 2024. 5. No order as to costs.

Endnotes

One penalty unit is $110: Crimes (Sentencing Procedure) Act 1999 (NSW), s 17; Interpretation Act 1987 (NSW) s 3(3) and Sch 4.
Commissioner of Police v Coglin [2024] NSWSC 1412. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 February 2025

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