Issues arising under state law - jurisdiction
122 The appellants also challenge the validity of the first authority upon grounds arising under the law of Queensland. As I have said, his Honour concluded that he did not have jurisdiction to entertain that aspect of the case. The appellants challenge that conclusion. A challenge to the validity of an action of a state government pursuant to state legislation would not, by itself, be within the jurisdiction of this Court. However it is well-established that in certain circumstances the Court may acquire jurisdiction in such matters because of the way in which they arise for determination. In Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261, at 278 Gibbs CJ said:
… when jurisdiction is conferred on the Federal Court with respect to a matter, that Court has jurisdiction to determine all the questions which form part of that matter, including questions which in themselves would not be federal in nature, and which accordingly the Federal Court would not have had jurisdiction to determine if they had arisen in separate proceedings. On the other hand … the Federal Court has no jurisdiction in respect of a matter simply because it is closely associated with a matter within jurisdiction.
123 At 290, Mason, Brennan and Deane JJ said:
[T]he content of a "matter" in s 76 and … the scope of federal jurisdiction in a proceeding are not restricted to the determination of the federal claim or cause of action in the proceeding, but extend beyond that to the litigious justiciable controversy between parties of which the federal claim or cause of action forms part.
124 From a practical point of view this Court has long adopted the approach proposed by the Full Court (Bowen CJ, Morling and Beaumont JJ) in Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219, where their Honours said:
The Court's jurisdiction is to determine each of the claims which together constitute a federal "matter". That jurisdiction cannot be limited, as the argument of the second and third respondents would suggest, to the determination of only those claims, federal or attached, which are successfully maintained. On the contrary, the jurisdiction is to entertain, and determine, all claims constituting a "matter", whatever their ultimate fate.
125 In more recent times the High Court considered the meaning of the expression "matter" in Ch III of the Constitution in Abebe v The Commonwealth of Australia (1999) 197 CLR 510. At par 35, Gleeson CJ and McHugh J observed, with regard to the judgment of Isaacs J in Pirrie v McFarlane (1925) 36 CLR 170 at 298:
We think that his Honour was intending to say no more than that the legislative power under s 77(ii) extended to removing into this Court the whole of a "matter", containing an inter se question, even though part of it was not concerned with the constitutional issue or, for that matter, with federal law. In that respect, his judgment anticipated the decisions of this Court in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd …, Fencott v Muller … and Stack v Coast Securities (No 9) Pty Ltd …, decisions which hold that a "matter" may include non-federal claims which are inseparable from federal claims arising out of a common substratum of fact.
Once it is accepted that a "matter" cannot be identified without regard to the remedies available in the court where it is litigated, it necessarily follows that the same legal controversy can give rise to separate matters because different courts may provide different remedies. …
126 Kirby J said at 215:
The meaning of the word "matter" is elusive. Established doctrine, not challenged in these proceedings, holds that the word has the same meaning in each of the sections in Chapter III in which it is used … . It does not connote "a legal proceeding" as the parties may have chosen to frame it … . Rather it refers to "the subject matter for determination in a legal proceeding" … . It is not any subject matter upon which the parties may disagree or about which they have a dispute susceptible to independent determination. It must be a subject matter which is apt for determination by a court of law by reference to some "immediate right, duty or liability" susceptible of determination by such a court … . Upon this notion of "matter" rest the restrictions which this Court has applied to legislative attempts to confer upon a Ch III court, including this Court, a jurisdiction to provide advisory opinions … or to decide abstract questions divorced from the actual administration of the law … .
127 At 222 his Honour said:
Viewed from this perspective it is hardly surprising that the decisions of this Court uphold the validity of laws made by the Parliament extending the jurisdiction of federal courts over non-federal claims which can be regarded as part of a single legal controversy.
128 Callinan J referred to the passages from Stack quoted above and continued at 276:
For the purposes of ss 75-77 of the Constitution, the term "matter" means the subject matter for determination in a legal proceeding … and not necessarily the legal proceeding itself in exactly the form in which it was first presented … .
The cases which held or affirmed that the Federal Court possessed accrued jurisdiction in respect of cases brought under the Trade Practices Act 1974 (Cth) … in order to enable that Court to determine completely a "matter" within ss 75 and 76 do not establish that jurisdiction may only be conferred on a federal court in relation to all matters in controversy at the inception of the process in respect of which either a review or an appeal is made available by statute. Those cases effectively hold no more than that the Federal Court has a jurisdiction no wider or greater than a jurisdiction to decide such non-federal claims as are inseparable from federal claims based upon the same factual situations.
129 Turning to the present proceedings, it seems that there are three "layers" to them. The first is the principal claim with which Cooper J was concerned, namely the claim to native title (the "native title claim"). The second layer is the challenge to the validity of the first authority and actions thereunder, which challenge is based upon the appellants' entitlement, as native title claimants, to procedural rights (the "notice question"). The third layer is the assertion that the first authority was, in any event, invalid by virtue of Queensland law (the "state law questions"). Cooper J expressed some doubts as to whether any of the issues raised in the notice of motion was within the jurisdiction conferred upon the Federal Court by subs 213(2) of the Native Title Act. That section provides:
Subject to this Act, the Federal Court has jurisdiction in relation to matters arising under this Act.
130 In Fejo v Northern Territory of Australia (supra), Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ considered the various conferments of jurisdiction upon the Federal Court pursuant to the Native Title Act and otherwise. With respect to subs 213(2) and s 39B of the Judiciary Act 1903 (Cth) (the "Judiciary Act")(which confers upon the Federal Court jurisdiction in any matter "arising under" any law made by the Parliament), their Honours referred to the earlier decisions in LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581 and Re McJannet; Ex parte Australian Workers' Union of Employees (Q) [No 2] (1997) 189 CLR 654 at 656 - 657, as establishing the extent of the jurisdiction conferred by the formula "arising under" a legislative provision. In McJannet the High Court considered the jurisdiction of the High Court to award costs in proceedings for prohibition addressed to the Judges of the Federal Court in connection with orders made pursuant to the Industrial Relations Act (1988) (Cth). Section 374(1) of that Act provided:
A party to a proceeding (including an appeal) in a matter arising under this Act shall not be ordered to pay costs incurred by any other party to the proceeding … .
131 At 656 - 657 the Court (Brennan CJ, McHugh and Gummow JJ) said:
The test for determining whether a proceeding is in a matter arising under the Act … is whether the right or the duty that is sought to be enforced owes its existence to a provision of the Act. That test follows from what was said with respect to s 76(ii) of the Constitution in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [(1945) 70 CLR 141 at 154], where Latham CJ said:
"One is compelled to the conclusion that a matter may properly be said to arise under a Federal law if the right or duty in question in the matter owes its existence to Federal law or depends upon Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law. In either of these cases, the matter arises under the Federal law. If a right claimed is conferred by or under a Federal statute, the claim arises under the statute.
132 Notwithstanding the doubts expressed by Cooper J as to whether any of the matters raised in the notice of motion could be said to arise under the Native Title Act, I consider that one aspect does so arise. The appellants seek to establish their claimed entitlement to procedural rights with respect to the grant of the first authority and actions pursuant to it and to enforce them. Those "rights" are, as they allege, created by the provisions of the Native Title Act. In that sense the claim arises under that Act and is within the jurisdiction conferred by subs 213(2).
133 Section 233 of the Native Title Act defines the term "future act" to include an act which "validly affects native title" to the extent that the act is valid other than because of provisions of the Native Title Act. According to s 253, the word "valid" includes "having full force and effect". Thus, in order to establish an entitlement to procedural rights under the Native Title Act, it is, in theory, necessary that the appellants demonstrate that the alleged future acts are, apart from the terms of the Native Title Act, valid. In effect, then, the appellants' case is that:
· to the extent that the grant of the first authority and actions pursuant thereto are otherwise valid, they are invalid because of the failure to observe the procedural rights conferred by the Native Title Act; and
· they are, in any event, invalid for reasons arising under the law of Queensland.
134 Both arguments seek to establish the invalidity of the first authority and actions pursuant thereto. The first ground for invalidity arises directly from the claimed conferment of procedural rights by the Native Title Act; the second ground does not. Nonetheless, both grounds depend upon the same facts in so far as concerns the "offending" conduct. Further, the grounds are inseparable to the extent that no question of procedural rights will arise if the appellants' argument concerning the state law questions is successful. I am of the view that the state law questions are within the jurisdiction of the Court and that Cooper J was in error in concluding to the contrary. In coming to this conclusion I have kept in mind the views of the majority of the High Court (Mason, Murphy, Brennan and Deane JJ) in Fencott v Muller (1982 - 1983) 152 CLR 570 at 610 where their Honours warn against review of a decision at first instance in this area save in the case of obvious error.
135 The appellants submit that the first authority and actions pursuant thereto are invalid pursuant to Queensland law because:
· the first authority failed to identify the location at which the buoy mooring was to be constructed;
· there had been no "categorization" of the relevant area as contemplated by regs 169A and 170 of the Transport Operations (Marine Safety) Regulation 1995;
· there was no power under state law to grant the first authority in relation to an area which was subject to a private interest without the consent of the interest-holder;
· the construction of the buoy mooring was not sanctioned pursuant to subs 86(2) of the Harbours Act 1955 (Qld) (the "Harbours Act"); and
· there was no compliance with the provisions of the Native Title Act as required by state law.
136 I doubt whetherthe appellants have standing to pursue these claims, given that they have not demonstrated any interest which may be affected by the issue of the first authority or any act pursuant thereto. This says nothing about their entitlement to interlocutory relief. In any event, these arguments are demonstrably erroneous. The first submission is that the first authority does not specify the latitude and longitude of the proposed buoy mooring. This issue is dealt with in the affidavit of Campbell Smith filed on 3 November 1999 and associated exhibits, especially at pp 248 - 345 of the appeal book. Mr Smith swears that an application was submitted on 12 July 1999 in the form of exhibit CS10 to his affidavit . The first authority was issued on 6 August. As appears from the extract from the judgment of Cooper J set out above, Mr Smith attended upon Captain Boath, the relevant issuing officer, drawing his attention to the fact that the co-ordinates had been omitted from the authority. He asked Captain Boath to amend the authority to include those co-ordinates and also to amend the time limit within which the mooring could be placed. Captain Boath agreed to both proposals and made the second amendment. He initialled the location at which the co-ordinates ought to have been inserted but did not insert them. This somewhat remarkable series of events has resulted in the first authority not containing a description of the approved location for the buoy mooring. However the original application identified that location in an appropriate way, and it was expressly referred to in the first authority.
137 Argument before us initially proceeded upon the assumption that there was a prescribed form which should have been adopted for the first authority. Regulation 126, which deals with the issue of authorities, seems to contemplate as much. However the parties have not been able to demonstrate that any form has been prescribed. In those circumstances there appears to be no legal requirement that an authority take any particular form orcontain any description of the proposed location. For all practical purposes reference can be had to the application which led to the issue of the first authority in order to identify the authorized location. There is nothing in this point.
138 Points two and three can be disposed of fairly quickly. Regulation 169A of the Transport Operations (Marine Safety) Regulation 1995provides:
Buoy mooring category areas
(1) The chief executive may, by gazette notice, define areas of Queensland waters as category areas for buoy moorings.
(2) The chief executive may define an area as--
(a) a category 1 area; or
(b) a category 2 area.
(3) An area that is not defined as a category 1 or 2 area is a category 3 area.
(4) The chief executive may, by written agreement with a person (a "mooring manager" ), vest in the person the management and control of buoy moorings within a category 1 area.
139 Subregulation 170(1) authorizes the chief executive to issue a buoy mooring authority for a category 2 area or a category 3 area. It is common ground that at the relevant time the chief executive had not exercised his power pursuant to reg 169A. The appellants submit that as a result, no part of Queensland waters was assigned to any one of the three categories. The respondents submit that any area not defined as category 1 or 2 is to be placed in the residual category 3. This is clearly correct. Thus the chief executive had authority to issue buoy mooring authorities for all areas of Queensland waters.
140 As to the assertion that there was no power to grant an authority without the consent of interest-holders, neither the Act nor the Regulations expressly recognizes any "interest" in Queensland waters. There is no prescribed procedure for dealing with so-called interest-holders. In any event, as the appellants have not established that they are "interest-holders", there is nothing in the point.
141 The appellants also submit that the placement, establishment or construction of the buoy was invalid unless the sanction of the relevant minister was first obtained pursuant to s 86 of the Harbours Act. That section provides that:
(2)(a)
No Harbour Board or Local Authority and no person whomsoever shall commence or construct any harbour works or other works of any kind, or place any pile or other structure in, on, over, through, or across any foreshore or any land lying under the sea within Queensland waters or any land lying under any harbour (including any navigable river), whether the foreshore or land is alienated or held from the Crown or not, nor attempt any of these things, without the sanction of the Governor in Council previously obtained in the manner provided by subsection three of this section.
142 Section 86 was continued in force pursuant to s 236 of the Transport Infrastructure Act 1994 (Qld). It was further extended until 31 December 1999 by the Integrated Planning and Other Legislation Amendment Act 1999 (Qld). Pursuant to s 236 of the Transport Infrastructure Act the Minister assumed the authority previously conferred upon the Governor in Council pursuant to s 86.
143 Since 1994 the Queensland Parliament has enacted a series of acts which seek to co-ordinate transport planning. That legislation commenced with the Transport Planning and Coordination Act 1994 (Cth) which gave wide powers to the chief executive of the relevant department. It also authorized both the minister and the chief executive to delegate their powers under that Act or under any other act, including sub-delegation if authorized by the act in question. Thereafter Parliament enacted the Transport Infrastructure Act and the Transport Operations (Marine Safety) Act 1994 (Qld) together with numerous other pieces of legislation. The Transport Operations (Marine Safety) Act authorized the Governor in Council to make marine safety regulations "about marine safety and issues affecting marine safety (subs 208(1)) and offered as an example of such subject matter "the establishment, registration and control of buoy moorings." Pursuant to 218 an express power was given to make regulations "about … approving the establishment of buoy moorings". It is clear that the Act authorizes the Governor in Council to provide by regulation for the establishment, registration and control of buoy moorings. Given the attempt to integrate the statutory approach to transport policy and these express references to buoy moorings, it seems most unlikely that Parliament intended that a general provision such as s 86 of the Harbours Act should remain in force in so far as it affects buoy moorings, notwithstanding the specific provisions made in the Transport Operations (Marine Safety) Act.
144 The Governor in Council has made regulations pursuant to that Act, in particular, reg 169 set out above. In connection with that power reg 171 provides as follows:
(1) The chief executive may issue a buoy mooring authority only if the chief executive is satisfied that the mooring does not significantly interfere with -
(a) marine safety; or
(b) the effectiveness or efficiency of the Queensland maritime industry.
(2) If a buoy mooring is to be established within a port, the chief executive may authorise a person to establish a buoy mooring only if the applicant satisfies the chief executive the port authority for the port has approved of the establishment.
145 Although one should not use the regulations to construe the Act, there is nothing about the regulations which is inconsistent with the regulation-making power. If such regulations are authorized by the Transport Operations (Marine Safety) Act, then it follows that s 86 of the Harbours Act has been impliedly repealed in so far as it applies to the establishment of buoy moorings. That does not mean that s 86 was left with no function. It would have had application to many situations not involving buoy moorings and no doubt was continued in force for such purposes.
146 The appellants also submit that the first authority is void because of the provisions of s 13A(1) of the Acts Interpretation Act (1954) (Qld) which provides:
An Act enacted after the commencement of this section affects native title only so far as the Act expressly provides.
147 As I have previously observed, no attempt has been made to prove the existence of native title and so it is not possible for the appellants to rely upon this provision.