Mineralogy Pty Ltd v Secretary of the Department of Infrastructure and Regional Development [2014] FCA 879
| IN THE FEDERAL COURT OF AUSTRALIA | |
| DATE OF ORDER: | |
| WHERE MADE: |
THE COURT ORDERS THAT:
1. The amended originating application for judicial review is dismissed.
2. The applicant do pay the costs of the respondents, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
| WESTERN AUSTRALIA DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 221 of 2014 |
| BETWEEN: | MINERALOGY PTY LTD (ACN 010 582 680) Applicant |
| AND: | THE SECRETARY OF THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT First Respondent CAPE PRESTON PORT COMPANY (ACN 147 842 153) Second Respondent |
| JUDGE: | MCKERRACHER J |
| DATE: | 20 AUGUST 2014 |
| PLACE: | PERTH |
REASONS FOR JUDGMENT
1 An important consideration for the operation of Australian ports is the provision of adequate security against various threats. There is a statutory arrangement which requires that, when deemed necessary, plans are to be put in place to ensure security is maintained at a port or part of a port. Mineralogy has interests in such a port for various reasons. It has attempted, so far without success, to have such a plan approved by the first respondent (Secretary). The Secretary has, however, approved such a plan for the commercial entity with which Mineralogy deals and with which it is in disputation. Mineralogy complains that this approval has seriously prejudiced its rights at and around the port. (The terms Secretary and Delegate will be used interchangeably in these reasons.)
2 In specific terms, Mineralogy objects to a decision of the Secretary, properly authorised under s 202(1) of the Maritime Transport and Offshore Facilities Security Act 2003 (Cth) (MTOFSA), made on 11 November 2013 to approve the maritime security plan (MSP) for a port facility operator (PFO) at the security regulated port (SRP), port of Cape Preston in the Pilbara region of Western Australia (Port). The plan was submitted by the second respondent (CPPC) on 14 August 2013.
3 The Secretary submits to any order the Court may make in the proceeding, save as to costs.
4 CPPC opposes this application.
5 Mineralogy contends that it is aggrieved by the decision, in substance, because:
1. Mineralogy is the port operator of the Port (PO), as designated by the Secretary, and is required to submit its own MSP under the MTOSFA.
2. Mineralogy is a party to the Iron Ore Processing (Mineralogy Pty Ltd) Agreement which is sch 1 to the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA) (State Agreement).
3. Mineralogy has entered into deeds (Facilities Deeds) with other parties to the State Agreement to construct facilities at the Port (Facilities) pursuant to project proposals approved by the Minister for State Development in accordance with cl 7 of the State Agreement.
4. There is a dispute relating to the Facilities Deeds, being WAD 110 of 2013 (Facilities Deeds Proceeding). The parties to the Facilities Deeds Proceeding are Mineralogy and Sino Iron Pty Ltd (as signatory to the Facilities Deeds), Korean Steel Pty Ltd (as signatory to the Facilities Deeds), CITIC Pacific Limited and CITIC Pacific Mining Management Pty Ltd (CITIC Parties).
5. The CITIC Parties are all related entities to CPPC.
6. The decision has, or will, adversely affect the interests of Mineralogy in submitting, and having approved, its own MSP as PO.
6 For reasons explained below, I consider the Secretary has a much wider discretion in relation to MSP approval than Mineralogy contends. Further, the consequence of the Secretary’s approval is less significant than Mineralogy contends. Mineralogy’s complaints cannot be sustained.
7 On 16 January 2013, Mineralogy submitted a proposed MSP for a PO to the Secretary. On 31 January 2013, the Secretary designated Mineralogy as the PO of the Port.
8 This was followed shortly after, on 13 February 2013, by CPPC submitting a proposed MSP for a PFO.
9 At the same time, the Port was declared to be an SRP under the MTOFSA by notice published in the Government Gazette. The designation of Mineralogy as PO for the Port was also published in that notice.
10 On 28 March 2013, Mineralogy informed the Secretary that it was entitled to exclusive tenure and rights in respect of the Port and objected to any CITIC Parties having any approval to conduct activities at the Port.
11 On 3 April 2013, Mineralogy, again submitted a further MSP for approval, its January draft having been rejected.
12 Similarly, the Delegate refused to approve the February CPPC proposed MSP on 12 April 2013. Shortly after, on 6 May 2013, CPPC submitted a new MSP for approval.
13 On 25 June 2013, the Delegate requested information from CPPC in relation to CPPC’s May MSP, including information to support the claim by CPPC to be the PFO. The letter emphasised the Delegate’s concern in relation to who actually operated the port facility at the Port. On the same day, CPPC responded to the Delegate’s request for information confirming that it operated all of the Facilities and associated marine assets and held the necessary approvals and authorisations to do so.
14 Shortly after, on 2 July 2013, the Delegate notified Mineralogy that she was proposing to revoke the designation of Mineralogy as PO. She invited submissions from Mineralogy in respect of that proposed revocation. As Mineralogy points out, this followed suggestions from the Western Australian Department of Transport (DOTWA) that Mineralogy’s designation as PO at the Port should be revoked. On 22 July 2013, Mineralogy responded to the Delegate’s request for information and proposed revocation of its designation as PO.
15 Two days after this, CPPC’s legal representatives wrote to the Secretary’s legal advisors concerning the status of CPPC as PFO.
16 On 30 July 2013, Mineralogy’s lawyers wrote to the Secretary’s lawyers in relation to the proposed revocation of the designation of Mineralogy as PO. They submitted that the activities of the CITIC Parties at the Port were ‘unlawful and irrelevant’ and that the CITIC Parties had ‘established a near complete lockout of Mineralogy’s personnel at the [P]ort and Mineralogy [had] commenced Federal Court proceedings to assert its rights and interests’. (Those are amongst several other sets of proceedings between the companies.)
17 On 1 August 2013, the Secretary, through its lawyers, confirmed with Mineralogy that it had no current intention to revoke Mineralogy’s designation as PO, provided that the judicial review proceedings then before Justice Rares in the Federal Court were resolved quickly.
18 Due to the lapse of time between lodging and approval, the proposed MSP lodged by CPPC in May 2013 was deemed to be refused on 2 August 2013.
19 CPPC then lodged a new MSP on 14 August 2013. On 12 October 2013, the Delegate requested information from CPPC pursuant to s 51(5) of the MTOFSA in relation to that MSP. Shortly after, on 18 October 2013, Mineralogy also submitted a new proposed MSP.
20 On 8 November 2013, CPPC responded to a request for information from the Delegate as to its August 2013 MSP. On 11 November 2013, the Delegate approved the CPPC August 2013 MSP (Decision).
21 On 28 November 2013, CPPC notified Mineralogy of matters relating to the approval of the CPPC August 2013 MSP. It provided a copy of the Port communications protocol, the content of which required certain cooperation of Mineralogy before access could be attained to the Port notwithstanding that Mineralogy was still the PO.
22 On 20 December 2013, Mineralogy requested that the Delegate provide a statement of reasons for approving the CPPC August 2013 MSP. On 31 January 2014, the Delegate issued a statement of reasons for approving that document.
23 On 2 February 2014, Mineralogy submitted a new proposed MSP which was subsequently refused by the Delegate on 2 May 2014.
24 A central provision of the MTOFSA is s 3, which explains by s 3(1) that the purpose of the Act is to safeguard against unlawful interference with maritime transport or offshore facilities. To that end, s 3(2) provides that the MTOFSA establishes a regulatory framework which centres around the development of security plans for ships, other maritime transport operations and offshore facilities.
25 According to s 3(3), it is expected that the implementation of a security plan should make an appropriate contribution to the achievement of the maritime security outcomes, which are described in s 3(4) as being:
…
(a) Australia’s obligations under Chapter XI-2 of the SOLAS Convention and the ISPS Code, including those with regard to the rights, freedoms and welfare of seafarers, are met;
(b) the vulnerability to terrorist attack of Australian ships, ports and other ships within Australia, and offshore facilities is reduced without undue disruption to trade;
(c) the risk that maritime transport or offshore facilities are used to facilitate terrorist or other unlawful activities is reduced;
(d) security information is communicated effectively among maritime industry participants and government agencies with security responsibilities for maritime transport and offshore facilities.
26 In the simplified overview of the MTOFSA in s 4, the MTOFSA is described as establishing ‘a scheme to safeguard against unlawful interference with maritime transport or offshore facilities’.
27 As Mineralogy explains, the International Convention for the Safety of Life at Sea, opened for signature on 1 November 1974, 1184 UNTS 3 (entered into force on 25 May 1980), as amended (SOLAS) is an international treaty concerned with the safety of merchant vessels to which Australia is a signatory. Following enhanced security measures in recent times, a new chapter was added to SOLAS consisting of the International Ship and Port Security Code (ISPS). MTOFSA constitutes Australia’s enactment of the ISPS. Pursuant to s 13 of the MTOFSA, the Secretary may declare that areas of a port are an SRP for the purposes of the MTOFSA. Once a port has been so declared, the Secretary may designate a person as the PO for the SRP: s 14 MTOFSA. Mineralogy was designated as the PO for the Port.
28 Although it is not directly relevant to this application, an SRP has three maritime security levels, with level 1 being the lowest level of security and level 3, the highest. Maritime security level 1 is in force at all times within an SRP: s 21 MTOFSA. Escalation to levels 2 and 3 arises in consequence of declarations made by the Secretary: s 22 MTOFSA.
29 The Secretary may also establish port security zones within an SRP: s 102 MTOFSA. Port security zones are areas where enhanced security requirements may be prescribed pursuant to the Regulations, including requirements as to access identity control and access restriction: s 105 MTOFSA. Three types of port security zones are prescribed by the Regulations. They are land-side restricted zones (LRZ), water-side restricted zones (WRZ) and cleared zones.
30 The MTOFSA and the Regulations establish, by a statutory scheme, a system of ensuring security for SRPs in Australia. The scheme extends to ships, other maritime transport operations and offshore facilities. It is a requirement of the scheme that certain maritime industry participants (MIPs), including POs and PFOs, have and comply with an MSP: s 42(1) MTOFSA. Mineralogy was the PO of the Port pursuant to s 14(1) of the MTOFSA.
31 As Mineralogy and CPPC point out, when establishing a port security zone, the Secretary is bound to have regard to the views of the PO: s 104 MTOFSA. (The Secretary may also declare a ship security zone to operate around a ship while the ship is within a port: s 106 MTOFSA.)
32 Multiple MSPs are contemplated in busier ports. It is certainly the case that both the PO (Mineralogy) and the PFO (CPPC) are required by the MTOFSA to have an MSP: s 42(1) MTOFSA.
33 Each of those MSPs are required to include, by s 47 of the MTOFSA:
(a) a security assessment;
(b) the security measures to be implemented at each maritime security level;
(c) designations of persons responsible for implementing the plan;
(d) provisions for the declarations of security; and
(e) a demonstration that the MSP will make an appropriate contribution to the achievement of the maritime security outcomes.
34 The Regulations, as will be seen, also provide for specific requirements as to the contents of MSPs.
35 The evidence in this application has included a number of draft or proposed MSPs and the approved CPPC MSP.
36 Suppression orders have been made in respect of parts of the contents of those MSPs which may be related to national security. The orders were necessary in the interests of justice as the dispute could not be satisfactorily addressed and considered without the MSPs being in evidence. Mineralogy was entitled to have the dispute resolved. Determination of this dispute does not require detailed consideration of that material in these reasons.
37 The secretary is required to approve an MSP where satisfied that the MSP adequately addresses the requirements of both the MTOFSA and the Regulations and must reject the MSP if not so satisfied. These are the central features of s 51 of the MTOFSA, which is at the core of the dispute in this application. That section provides as follows:
51 Approval of maritime security plans
(1) If the Secretary is satisfied that the plan adequately addresses the relevant requirements under Division 4, the Secretary must:
(a) approve the plan; and
(b) give the participant written notice of the approval.
(2) If the Secretary is not satisfied that the plan adequately addresses the relevant requirements under Division 4, the Secretary must:
(a) refuse to approve the plan; and
(b) give the participant written notice of the refusal including reasons for the refusal.
(3) In determining whether the plan adequately addresses the relevant requirements under Division 4, the Secretary may take account of existing circumstances as they relate to maritime transport, and offshore facility, security.
Failure to approve plan within consideration period
(4) If:
(a) a maritime industry participant gives the Secretary a maritime security plan; and
(b) the Secretary does not approve, or refuse to approve, the plan within the consideration period;
the Secretary is taken to have refused to approve the plan.
Secretary may request further information
(5) The Secretary may, by written notice given to the participant within the consideration period, request the participant to give the Secretary specified information relevant to the approval of the plan.
(6) The notice must specify a period of not more than 45 days within which the information must be given. However, if more than one notice is given to the participant under subsection (5), the total of the periods specified in the notices must not exceed 45 days.
Consideration period
(7) The consideration period is the period of 60 days commencing on the day on which the Secretary received the plan, extended, in relation to each notice already given under subsection (5), by a number of days equal to the number of days falling within the period:
(a) commencing on the day on which the notice under subsection (5) was given; and
(b) ending on:
(i) the day on which the information requested in that notice was received by the Secretary; or
(ii) if the information is not given within the period specified in that notice—the last day of that period.
38 There are important definitions contained in s 10 of the MTOFSA, including the definition of ‘port facility operator’ as being ‘a person who operates a port facility’. A ‘port facility’ means:
an area of land or water, or land and water, within a [SRP] (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.
39 The status of a person as a PFO depends, therefore, on the nature of the activities that the person undertakes in respect of a port which has been declared to be an SRP.
40 The status of a person, here Mineralogy, as a ‘port operator’ depends not on the activities undertaken by that person but on an act of designation as such by the Secretary pursuant to s 14(1) of the MTOFSA.
41 As indicated, both the PO and the PFO (there may be several or a number of the latter) are required to have MSPs. It is an offence to operate as a PO or PFO without there being a plan in force: s 43(1) MTOFSA. It is an offence to operate contrary to the plan where there is a plan in force: s 44(1) MTOFSA.
42 Key provisions within the MTOFSA are those comprising Div 4 of Pt 3, namely, ss 47, 48 and 49, which make provision for the content and form of MSPs. In short form, s 48 provides that the Regulations may prescribe specific matters ‘that are to be dealt with’ in MSPs. Part 3 of the Regulations prescribes such matters. I will examine these provisions in more detail below when considering the grounds.
43 As previously explained, s 51 of the MTOFSA provides for the approval of MSPs. There are significant provisions beyond s 51 of the MTOFSA which make it clear that, as would be expected, in dealing with the threats to which the legislation is directed, plans may be adjusted from time to time. An MIP may, by written notice accompanied by a copy of an MSP, request the Secretary to deal with approval, variation, revision and cancellation of MSPs. That is the essential work of Div 5 of Pt 3 of the MTOFSA.
44 The security arrangements at a SRP contemplate close cooperation between the PO and PFOs, single or plural. Mineralogy describes this as a hierarchy with the PO at the top of it. This is a description which Mineralogy embrace, adopting in part the terminology used by Rares J in Sino Iron Pty Ltd v Secretary of the Department of Infrastructure and Transport (2014) 308 ALR 496 (at [77]). (The Full Court appeal judgment is presently reserved.) I do not take the reference to ‘hierarchy’ in his Honour’s judgment to be suggesting that the PO has some supreme power over the Port. To the contrary, it is clear that the MTOFSA contains its own mechanisms to ensure that security outcomes can be imposed, in particular, the powers the Secretary has to enforce requirements in MSPs if necessary: Sino Iron at [78]).
45 It is true, as Mineralogy point out, that POs must:
(a) receive information as to:
1. the declaration of port security zones and ship security zones from the Secretary: s 102 and s 106 MTOFSA;
2. incident reports from PFOs, ship masters and offshore facility operators and, generally: ss 180(3), 178(2)(c) and (3), 179A(2)(c), 181(3); and
(b) notify maritime security level changes by the Secretary to other MIPs;
(c) report maritime transport or offshore facilities security incidents: s 171(1) and s 177 MTOFSA;
(d) communicate security directions from the Secretary to specified MIPs: s 35(3) MTOFSA;
(e) designate a port security officer (PSO): reg 1.20;
(f) monitor and inform others of ships security zones: reg 6.95;
(g) along with the relevant PFOs, monitor and control access to LRZs: reg 6.33 and reg 6.35; and
(h) monitor and inform others of WRZs: reg 6.70.
46 Further, under the Regulations, the content of a PO MSP must include:
(a) measures to prevent unauthorised access to port security zones or ship security zones: reg 3.55(a);
(b) procedures to respond to threats and breaches of security, evacuation, and drills and exercises: reg 3.55(b);
(c) procedures for responding to security directions from the Secretary: reg 3.55(c); and
(d) mechanisms for consultation between the PO and other MIPs: reg 3.60.
47 It is true, therefore, as contended for by Mineralogy, that a PO for an SRP has a fundamental role in managing security.
48 That is not, however, in my view, to diminish the role played by a PFO insofar as its MSP is referable to its facility. Thus, the Regulations set out some similar requirements in relation to PFO MSPs. Of particular focus in this application is that a PFO MSP, including the CPPC MSP, is required to include:
(a) the name and contact details of the PSO of the SRP and each port service provider conducting operations within the facility: reg 3.105; and
(b) a mechanism for consultation between the PFO and the PO: reg 3.130.
49 Mineralogy contends that WRZs of ship security zones are only the responsibility of the PO pursuant to reg 6.70, as neither the MTOFSA nor the Regulations place any responsibilities on the part of the PFOs as to WRZs.
50 It is necessary to consider the surrounding factual circumstances in more detail before coming to the arguments.
51 Mineralogy make much of the fact that, at the time of the Decision, the parties were (and still are) in serious contest in a number of commercial disputes and that this was known to the Delegate and was an issue of which she should have taken notice. CPPC say this is entirely irrelevant. The Delegate has statutory functions to ensure that approval of an MSP accords with the objects and purposes of the MTOFSA, namely, amongst others, to reduce vulnerability to terrorist attack of Australian ships, ports and other ships within Australia and offshore facilities without undue disruption to trade: s 3(4) MTOFSA. (While security is very important, the MTOFSA also requires that it should be attained without undue disruption to trade, which, in the context of exports at this Port, is intended to be in high volume and for high value.)
52 Mineralogy is the holder of mining tenements located within the Port and has been attempting to have its own MSP approved by the Secretary. That has not yet occurred. CPPC has also experienced setbacks in this regard. Its PFO MSP submitted in February 2013, when refused, was accompanied by reasons indicating that s 5.4 of the MSP, which dealt with the establishment of a WRZ, was not authorised by the MTOFSA or Regulations and that only a PO could request establishment of a WRZ pursuant to reg 3.80. That is one of the topics now under attack by Mineralogy in the current MSP.
53 Also in rejection of the February draft CPPC MSP, the Delegate pointed out that there was no ‘Accompanying Document - Contact Details’, in the MSP providing contact details for Mineralogy, an MIP at the Port. This is a further issue attacked by Mineralogy in relation to the approval of the CPPC MSP under consideration.
54 When CPPC submitted a further draft MSP to the Delegate, on 29 April 2013, that version did not refer to Mineralogy but it was explained at the time that the author, Mr Andrew Leahy, was ‘unaware of [Mineralogy’s] official status’. (This does seem somewhat curious but tends to typify the general hostility, distrust and miscommunication between the parties. I hasten to add that the high quality of presentation of arguments by senior counsel for both Mineralogy and CPPC portrayed none of those unfortunate qualities.)
55 On 3 May 2013, CPPC submitted a further PFO MSP to the Delegate, in response to which on 15 May 2013 the Delegate asked Mineralogy to provide copies of various project agreements, including mining right and site lease agreements, facilities deeds, the Fortescue consideration agreement, and coordination deed (Project Agreements), which were described as being necessary for:
the purposes of all relevant decision-making. This includes the decision whether to approve Mineralogy’s MSPs. It also includes consideration of a MSP submitted in relation to the [Port] by [CPPC] …
56 Additionally, at some time prior to 23 May 2013, DOTWA submitted an MSP as the PO, notwithstanding that that role was then held by Mineralogy. It appears that moves were afoot to attempt to displace Mineralogy.
57 A similar request for the Project Agreements was made by the Delegate to CPPC on 25 June 2013 as Mineralogy did not provide the Project Agreements to the Delegate. In that correspondence, the Delegate stated that:
[t]he Department has also received a draft MSP from Mineralogy which states that it operates the same facility or facilities as those nominated in the CPPC draft MSP.
I note that CPPC’s draft MSP does not reference Mineralogy as being involved in the operation of these facilities, nor does Mineralogy’s draft MSP make reference to CPPC.
Given the apparent conflict between the two draft MSPs submitted to the Department, it is not clear what would be the respected roles, functions, powers, rights and responsibilities of Mineralogy or CPPC in regard to the proposed operations at these facilities and therefore who operates these facilities and therefore who operates these facilities and therefore who is the [PFO] under the [MTOFSA]. Before any approval can be given for any MSP in relation to this facility or these facilities, this conflict must be resolved on the basis of clear evidence.
58 The Delegate subsequently took the view that it was appropriate and consistent with the legislation to take the pragmatic view as to who was factually in control at the Port, or the relevant part of the Port, rather than to determine that by reference to the Project Agreements.
59 The basis of this view of the Delegate was presumably that, although Mineralogy was the registered holder of mining tenements over areas of land and sea bed in and around the Port, CPPC was in fact conducting operations (on behalf of a related company CITIC Pacific) at the Port and undertook the shipping operations. The CITIC Parties had constructed the Facilities within the Port to export the magnetite concentrate produced by the Sino Iron Project pursuant to project proposals approved under a State Agreement and various other agreements. Those are the only Facilities presently at the Port.
60 In addition to holding the mining tenements, which enabled Mineralogy to enter in the various Project Agreements, the 31 January 2013 designation of Mineralogy as the PO for the Port has been the subject of challenge by CPPC. As noted, that challenge gave rise to the judgment of Rares J referred to above. The challenge was unsuccessful and at the time of producing these reasons, an appeal is presently reserved. Relevantly, for present purposes, in the course of the hearing before Rares J, the Secretary agreed that jurisdictional error on the part of the Delegate had occurred and that orders should be made to set aside the designation. Relevantly, to this factual excursion, that position had been made known to all parties by mid-2013. The Secretary’s view on that matter was ultimately not accepted by Rares J in his Honour’s judgment.
61 Nevertheless, on 2 July 2013, the Delegate informed Mineralogy in writing that she proposed to revoke Mineralogy’s designation as PO, restating the request that the Project Agreements be provided. That communication made clear that, at the time, the Delegate considered access to the Project Agreements was essential to resolve the conflict created by the fact that neither of the draft MSPs acknowledged any right on the part of the other company to be an operator.
62 By 22 July 2013, Mineralogy had provided copies of the Project Agreements to the Secretary. Those agreements specify that Mineralogy or its contractor was to be the PO of the Port and that the Facilities, the operation and maintenance of the Facilities were to vest in Mineralogy.
63 Pending the hearing of the judicial review proceeding before Rares J, the Delegate’s solicitors agreed not to revoke Mineralogy’s designation as PO. However, in the interim, CPPC wrote to the Delegate on 24 July 2013 refusing to provide the Project Agreements and making the submission that, on the proper interpretation of s 10 of the MTOFSA, the identity of the PFO was a matter of fact, that is, who is in fact presently working or using the relevant Facilities in connection with the loading or unloading of security regulated ships.
64 The proceeding before Rares J was heard on 11 and 12 September 2013, with judgment being delivered dismissing the application on 5 February 2014.
65 On 2 August 2013, the Delegate’s solicitors informed CPPC that the May 2013 MSP had been deemed to be refused by the effluxion of time. They also provided CPPC with the preliminary views of the Delegate as to inadequacies of the MSP, including the fact that the accompanying document failed to list the details of the PSO and that the MSP did not provide details of the port owner and PO for the Port.
66 CPPC submitted a further PFO MSP on 15 August 2013 which was ultimately approved and is the subject of the challenge in this application. That MSP declined to specifically acknowledge Mineralogy as the PO because that issue was then the subject of judicial review proceedings. CPPC also attached a letter to that MSP indicating that DOTWA should be appointed as PO of the Port. An accompanying document required by reg 3.105 of the Regulations did not contain details of Mineralogy’s PSO. It also purported by s 5.4 of the MSP to specify a WRZ within the SRP, access to which would be controlled by CPPC. The MSP also dealt with ship security zones.
67 In correspondence on 12 October 2013, the Delegate pointed out to CPPC that Mineralogy was still the PO at that time and the draft MSP made only generic reference to a PO and the contact details of for the PO’s PSO. The absence of the details of the PO’s PSO required by reg 3.105 of the Regulations was pointed out to CPPC, as was the absence of a mechanism for consultation between the PFO and the PO in relation to the coordination of security related activities.
68 Shortly after this, Mineralogy submitted its draft MSP, indicating that Mineralogy would provide security functions for the entirety of the SRP, with the role of CPPC being limited to the transhipment operations. It identified who would hold the position of the PSO. The Mineralogy MSP was accompanied by a document which gave the identity of the PSO, as required by reg 3.35 of the Regulations.
69 On 25 October 2013, CITIC Pacific, being the parent company of CPPC, wrote to the Secretary enclosing a joint advice from senior counsel (including a former commonwealth Solicitor-General). The letter from CITIC Pacific drew attention to two aspects of the joint advice, noting that it was not appropriate for the Secretary to proceed on the basis that Mineralogy was a validly appointed PO, having regard to the previously communicated position that, in the Secretary’s view, the Decision to appoint Mineralogy was invalid. Also emphasised was the observation that it would open to the Secretary to appoint an entity as a temporary PO, notwithstanding that the decision of the Federal Court (Rares J) was reserved at that stage. It noted: ‘indeed, there are many obvious and good reasons why such a step can and should be taken by the Secretary urgently.’
70 That correspondence also suggested that the Secretary should appoint DOTWA as the PO and that CPPC’s MSP should be approved.
71 That letter appears to have been forwarded to the Delegate, whose name appears in handwriting on the face of the correspondence. The letter and its enclosure were discovered by the Secretary.
72 There is little doubt that the lobbying against Mineralogy at this stage was intensifying. On 8 November 2013, CPPC also wrote to the Delegate reiterating the admission by the Secretary that the appointment of Mineralogy as PO had been infected by jurisdictional error. It also pointed to the fact that there were no arrangements currently in place for consultation or coordination of security arrangements between MIPs and that the arrangement set out in s 3 of CPPC’s MSP concerning consultation coordination and communication, including between CPPC and the PO, could be implemented irrespective of the identity of the PO. The letter concluded as follows:
CPPC’s recommendation is that you proceed as follows:
(1) the [DOTWA] should be designated as [PO] at least until the current court proceedings are finally resolved and its [PO] MSP should be approved as soon as possible; and
(2) CPPC’s [PFO] MSP should be approved.
73 Significantly, in my view, despite this lobbying, the submissions made by CPPC concerning DOTWA were not accepted or followed by the Secretary. The Secretary made the Decision to approve the CPPC MSP on 11 November 2013. Mineralogy did not become aware of this approval until 10 days later. On 20 December 2013, Mineralogy requested Reasons and they were provided on 31 January 2014.
74 Mineralogy contend that the making of the Decision was:
(a) not authorised by the MTOFSA in pursuance of which it was purported to be made (s 5(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act));
(b) an improper exercise of the power conferred by the MTOFSA (s 5(1)(e) ADJR Act), in that:
(i) an irrelevant consideration was taken into account (s 5(2)(a) ADJR Act);
(ii) a relevant consideration was not taken into account (s 5(2)(b) ADJR Act);
(c) involved an error of law (s 5(1)(f) ADJR Act);
(d) lacked evidence or material to justify the making of the Decision (s 5(1)(h) ADJR Act);
(e) made in breach of the rules of natural justice (s 5(1)(a) ADJR Act); and
(f) otherwise contrary to law (s 5(1)(j) ADJR Act).
75 Mineralogy provides particulars of those grounds as follows:
2. The Delegate found that the document accompanying the MSP did not set out the contact details of the Port Security Officer (PSO) of the Port ([23] of the Statement of Reasons: Approval of Maritime Transport Security Program Pursuant to the Maritime Transport and Offshore Facilities Security Act 2003 dated 31 January 2014, contrary to the mandatory requirement of reg 3.105 of the Maritime Transport and Offshore Facilities Security Regulations 2003 [(Cth) (Regulations]. The Delegate makes no finding whether the name of the PSO, also required, was set out.
3. As such:
(a) by reason of not meeting the two mandatory requirements of regulation 3.105 of the [Regulations], the decision is not authorised by the MTOFSA in pursuance of which it was purported to be made (s 5(1)(d) ADJR Act);
(b) lacked evidence or material to justify the making of the Decision (s 5(1)(h) ADJR Act); and
(c) the decision was otherwise contrary to law [s 5(1)(j) ADJR Act].
4. The Delegate took into account an assumption that [Mineralogy] had not supplied [CPPC] with contact details of the PSO, and that [CPPC] was therefore unable to include it in its MSP.
5. At the time of the decision, the Delegate was in possession of [Mineralogy's] MSP, which contained details of [Mineralogy's] PSO.
6. As such:
(a) the Delegate took into account an irrelevant consideration (s 5(1)(e) and s 5(2)(a) ADJR Act);
(b) failed to take into account a relevant consideration (s 5(1)(e) and s 5(2)(b) ADJR Act); and
(c) failed to accord Mineralogy natural justice as to whether or not it had or could have supplied [CPPC] with the name and contact details of the PSO (s 5(1)(a) ADJR Act).
7. The Delegate based her decision on the advice of CPPC that CPPC was ‘of the view that the arrangements set out in the MSP could be implemented irrespective of the identity of the [PO]’ ([27]-[28] of the Reasons). Regulation 3.130 of the [Regulations] states that the MSP must set out a mechanism for consultation between the [PO] and the [PFO].
8. As such:
(a) an irrelevant consideration was taken into account (s 5(1)(e) and s 5(2)(a) ADJR Act);
(b) the decision involved an error of law (s 5(1)(f) ADJR Act); and
(c) the decision was otherwise contrary to law (s 5(1)(j) ADJR Act).
9. The Delegate also failed to accord natural justice to [Mineralogy] to provide its response to how CPPC would implement the arrangements concerning consultation, coordination and communication it undertook to implement ([27] of the Reasons) (s 5(1)(a) ADJR Act).
[Mineralogy's] draft MSP
10. In addition to the existence of the Facilities Deeds Proceeding, [Mineralogy] in its capacity as [PO] had an MSP under review by the Delegate covering substantially the same area as [CPPC’s] MSP, at the time of the decision to approve [CPPC’s] MSP.
11. As such:
(a) the Delegate failed to take into account relevant considerations being (s 5(1)(e) and s 5(2)(b) ADJR Act):
(i) whether [CPPC] had a legal entitlement to operate the Facilities;
(ii) insofar as [CPPC's] and [Mineralogy's] MSPs overlap, whether [Mineralogy] should have been the party undertaking functions under the MTOFSA and the [Regulations] for the area covered by [CPPC's MSP]; and
(iii) the impact that [CPPC's] MSP would have on [Mineralogy] as [PO]; and
(b) the Delegate failed to accord [Mineralogy] natural justice by denying [Mineralogy] the opportunity to be heard on (s 5(1)(a) ADJR Act):
(i) the CITIC Parties and [CPPC's] actual contractual rights in relation to the Facilities; and
(ii) insofar as [CPPC's] and [Mineralogy’s] MSPs overlap, [Mineralogy's] MSP being approved to the exclusion of [CPPC's] MSP.
12. The Delegate failed to consider:
(a) whether the area which would otherwise constitute a port facility is used for loading or unloading of security regulated ships (definition of ‘port facility’ in the MTOFSA s 10); and
(b) the contractual arrangements between [Mineralogy] and other parties to the State Agreement, from which [CPPC] draws any rights to use the Facilities, in concluding that [CPPC] was a [PFO] as defined (MTOFSA s 10).
As such, the Delegate failed to take into account relevant considerations in determining [CPPC] was a [PFO] (s 5(1)(e), s 5(2)(b) ADJR Act).
13. The Delegate also failed to afford [Mineralogy] natural justice by determining that [CPPC] was the [PFO] for the Facilities without hearing from [Mineralogy] on the matter (s 5(1)(a) ADJR Act).
14. The Delegate stated that there was no MSP approved on behalf of a PO ([24] of the Reasons). The decision to approve the MSP of a [PFO] before the MSP of the [PO]:
(a) was not authorised by the MTOFSA in pursuance of which it was purported to be made (s 5(1)(d) ADJR Act);
(b) failed to take into account a relevant consideration, being the lack of a [PO] MSP (s 5(1)(e), s 5(2)[b] ADJR Act); and
(c) involved an error of law (s 5(1)(f) ADJR Act).
Mineralogy’s designation as [PO]
15. The Delegate based her decision on the advice or suggestion of CITIC Pacific (a related entity to [CPPC]) that [DOTWA] should be appointed as [PO] and that it was not appropriate for the [Secretary] to proceed on the basis that Mineralogy was the [PO] in light of the [Secretary’s] previously communicated view that the decision to appoint [Mineralogy] was invalid.
16. As such:
(a) the Delegate took into account an irrelevant consideration (s 5(1)(e), s 5(2)(a) ADJR Act);
(b) the Delegate lacked evidence or material to justify the making of the decision (s 5(1)(h) ADJR Act);
(c) the decision involved an error of law (s 5(1)(f) ADJR Act); and
(d) the decision was otherwise contrary to law (s 5(1)(j) ADJR Act).
17. The Delegate also failed to accord natural justice to Mineralogy by failing to give an opportunity to Mineralogy to provide its response to CPPC’s view that [DOTWA] should be appointed as [PO], despite Mineralogy holding that designation.
76 The Delegate’s Reasons provided on 13 January 2014 pursuant to s 13 of ADJR Act indicate that the Delegate made a factual finding that CPPC operates the port facility at the Port and applied that test for the approval of the MSP. She considered that the MSP adequately addressed the relevant requirements of Div 4 of Pt 3 of the MTOFSA. She considered those requirements at some length in her Reasons and made a finding pursuant to s 47(1)(e) of the MTOFSA that the implementation of the CPPC MSP would make an appropriate contribution towards the achievement of maritime security outcomes.
77 Within the Reasons, the Delegate noted that, at the time, Mineralogy was the designated PO for the Port, but that Mineralogy did not hold an approved MSP.
78 The Reasons also noted that reg 3.105 of the Regulations required that an MSP must be accompanied by a document setting out the name of, and contact details for the PSO for the SRP. The Reasons noted that the document entitled ‘Accompanying Document’ which CPPC submitted with its MSP did not include the contact details for the PO. The Delegate indicated that she had raised that issue with CPPC, who had informed her that Mineralogy did not have an approved MSP (which was clearly correct factually) and that Mineralogy had refused to make the contents of its draft MSP available to CPPC (which also seems to be correct). The Delegate said she took this to mean that Mineralogy had not supplied CPPC with the contact details for the PSO and, therefore, CPPC was unable to include this information in the MSP.
79 The Delegate noted that to the best of her knowledge Mineralogy had not established a port security committee or other process or mechanism for consultation or coordination of port security arrangements with MIPs. (I pause to note that the latter requirement as well as the supply of the contact details for the PSO were requirements of the PO (Mineralogy) pursuant to reg 3.105.)
80 The Delegate also noted that reg 3.130 required that the MSP for a PFO set out a mechanism for consultation between the PFO and the PO. Although there had been no express reference in CPPC’s MSP to Mineralogy being the designated PO, she had accepted that the assurance of CPPC that the arrangements set out could be implemented irrespective of the identity of the PO.
81 Mineralogy contends that the Reasons do not address any of the following matters, namely:
(a) the ongoing dispute between Mineralogy and the CITIC Parties as to who is entitled to operate the Port under the Project Agreements;
(b) any analysis of CPPC’s legal entitlement to carry out the functions which it purports to carry out within the Port as set out in the CPPC MSP; and
(c) Mineralogy’s MSP which covers substantially the same operations as those set out in the CPPC MSP.
82 I propose to deal with the arguments advanced in support of the grounds in the same order in which they have been raised by Mineralogy and responded to by CPPC. There is one preliminary matter.
83 As PO, Mineralogy would be required to have an MSP pursuant to s 42(1)(a) of the MTOFSA. It is the position that it cannot operate as a PO unless there is an MSP in place: s 43(1) MTOFSA. It has made a number of unsuccessful attempts to obtain approval for an MSP. One of the complaints raised by Mineralogy is the failure of the Delegate to take into account its MSP, but, of course, there is no MSP at this stage, but simply a draft. It would be inappropriate to rely on and consider the content of such a draft especially when it may, as was the case here, be rejected.
Failure to comply with MTOFSA and Regulations
84 Mineralogy contends that the MTOFSA and the Regulations set out mandatory requirements that must be satisfied where the Secretary approves a PFO MSP. It argues that the failure to comply with these requirements results in the Decision being unauthorised under the MTOFSA by virtue of s 5(1)(d) of the ADJR Act, involving an error of law (under s 5(1)(f) of the ADJR Act) and being otherwise contrary to law (under s 5(1)(j) of the ADJR Act).
85 Mineralogy contends that ‘not authorised’ for the purposes of para (d) signifies a decision that is expressly or impliedly forbidden: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (at [29]). For an error of law to be involved in a decision, the error must have contributed to the decision, or it must be impossible that it did not so contribute: Bond (at [46]). A decision that is non-compliant with the Act on which it was purportedly made will be otherwise contrary to law.
Mandatory contents of PFO MSP – reg 3.105 and reg 3.130
86 There is a significant distinction drawn between the parties in relation to this aspect of the case. This distinction arises at a number of levels. Mineralogy contends that an MSP submitted to the Secretary ‘must’ comply with the requirements of the MTOFSA and the Regulations, and the Secretary must refuse it if it does not. According to Mineralogy, there is no discretion for the Secretary to approve a non-complying MSP. In this regard, Mineralogy says the accompanying document did not set out Mineralogy’s PSO as required by reg 3.105, and that whether CPPC was aware of the identity of the PSO or whether Mineralogy ‘had not supplied CPPC with the contact details for its PSO’ is immaterial to the non-compliance. Similarly, Mineralogy submits that reg 3.130 of the Regulations requires that a PFO MSP must set out a mechanism for consultation ‘between the [PFO] and the [PO]’ and, as recognised by the Secretary, Mineralogy was the PO for the Port and the purported consultation arrangements as set out in CPPC’s MSP provided ‘minimal detail’ regarding consultation. They argue that by excluding any reference to Mineralogy, the PO for the Port, from their purported consultation mechanisms, CPPC failed to present an MSP which set out a mechanism for consultation between CPPC and the PO, instead presenting a generic mechanism.
87 Mineralogy argued that the Delegate purportedly satisfied herself as to compliance with reg 3.130 by relying on the ‘view’ of CPPC that the arrangements set out in the MSP could be implemented irrespective of the identity of the PO. Mineralogy argues that s 51 of the MTOFSA required that the Delegate be satisfied with compliance and that such satisfaction was based on the Delegate’s own independent inquiry, not simply assurances from the party that has submitted the MSP that it is indeed compliant with the Regulations. By proceeding in such a way, Mineralogy contends the Secretary acted in a manner not authorised by the MTOFSA.
88 I am unable to accept these arguments. An important starting point is that the critical aspect of the power contained in s 51(1) was that the decision-maker be ‘satisfied’ of the relevant matter. A provision of such nature turns on the subjective state of mind of the decision-maker. The existence of such a state of satisfaction has been described as a relevant jurisdictional fact or precondition for the exercise of power. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J (at [127]-[137]) (footnotes omitted):
127 However, none of these matters needs further be explored in the present case. This is because the attack upon the decision of the Tribunal is not directed to the exercise of a discretionary power. Rather, this is a case where the legislature has made “some fact or event a condition upon which the existence of which the jurisdiction of a tribunal or court shall depend” . The court or tribunal cannot give itself jurisdiction by erroneously deciding that the fact or event exists. The fact or event may turn upon the limits of constitutional power but no question of “constitutional facts” arises in the present case. I have identified earlier in these reasons two jurisdictional factors. Further attention to the second of them is required.
128 The requirement which flowed from a combination of ss 36 and 65 of the Act that, before granting a protection visa, the Minister and, on review, the Tribunal be “satisfied” that the prosecutor was a refugee presented an issue as to whether the prosecutor met a criterion which, if satisfied, entitled him to the grant of the visa in question.
...
130 The “jurisdictional fact”, upon the presence of which jurisdiction is conditioned, need not be a “fact” in the ordinary meaning of that term. The precondition or criterion may consist of various elements and whilst the phrase “jurisdictional fact” is an awkward one in such circumstances it will, for convenience, be retained in what follows. In Bankstown Municipal Council v Fripp, Isaacs and Rich JJ pointed out that, with the object of preventing litigation on questions of jurisdictional fact, the legislature may introduce into the criterion elements of opinion or belief by the decision-maker. Section 65 of the Act is an example. The prosecutor was entitled to the grant of a visa only if the Minister were “satisfied” that the prosecutor answered the description in s 36(2).
131 A determination that the decision-maker is not “satisfied” that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable under s 75(v) of the Constitution. This is established by a long line of authority in this Court which proceeds upon the footing that s 75 is a constitutional grant of jurisdiction to the Court.
…
136 Later, in Buck v Bavone, Gibbs J observed, in the course of construing the powers conferred upon a board established under the Potato Marketing Act 1948 (SA), that it was not uncommon for statutes to provide that a decision-maker shall or may take certain action if satisfied of the existence of certain specified matters. His Honour noted that the nature of the matters of which the authority is required to be satisfied often largely will indicate whether the decision of the authority can be effectively reviewed by the courts. His Honour continued:
“In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.”
137 This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.
(emphasis added)
89 The Delegate expressly stated that she had the requisite state of satisfaction that the MTOFSA requires. There is (correctly) no challenge based on lack of good faith or unreasonableness.
90 The other critical aspect of s 51(1) is that the decision-maker need only be satisfied that the MSP in question adequately addresses the relevant requirements under Div 4. The question of adequacy or inadequacy means that the decision-maker is engaged in an evaluative judgement. This requires the decision-maker to not simply tick boxes. Rather, they are involved in a decision-making process, reinforced by s 51(3), which provides that in determining whether the Secretary is satisfied whether a plan adequately addresses the relevant requirements under Div 4, the Secretary ‘may take account of existing circumstances as they relate to maritime transport, and offshore facility, security’. Section 51(5) takes this further by saying that the Secretary may also seek and take account of other information ‘relevant to the approval of the plan’. These are broad concepts, none of which suggests that the requirements under the MTOFSA and Regulations may be dispensed with, but they suggest that the Secretary is to engage in a process of evaluation of all of the circumstances to form a view as to whether he or she is satisfied that the plan adequately addresses the relevant requirements under Div 4.
91 In regard to the objects and purposes of the legislation, this exercise is far removed from box ticking. The plain meaning of the words makes it clear that any non-compliance or degree of non-compliance with a particular requirement is but a starting point in the analysis by the Delegate. There is no legislative suggestion that an absence of one or two aspects of the requirements set out under Div 4 of Pt 3 would be such as to totally invalidate any approval granted in respect of a plan. Taking into account the language, subject matter and objects of MTOFSA in the sense required by Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (at 389), there is no reason to conclude that each of the suggested instances of non-compliance alleged by Mineralogy would result in the invalidity of the Decision to approve CPPC’s MSP.
92 Dealing with reg 3.130 of the Regulations, this was clearly a question of evaluation on the part of the Delegate as to whether she was satisfied that the plan adequately addressed the requirements. Undoubtedly, the Delegate had regard to surrounding circumstances, including the fact that although Mineralogy was the PO, it had no MSP. Regulation 3.130 does not prescribe the particular mechanism for consultation. The Delegate was entitled to be satisfied that the assurances given by CPPC in its MSP set out mechanisms, including the commitment to on-going consultation, attendance at all meetings and communication procedures.
93 There was a proposal on the part of the Delegate to make an evaluation. It is impossible to conclude there was some oversight, as the Delegate had expressly raised with CPPC, in the form of a request under s 51(5) of the MTOFSA, her concern about the lack of express reference to Mineralogy as the PO and arrangements for consultation and communication between CPPC and Mineralogy (in the event that the MSP was to be approved while Mineralogy remained the PO). In the 8 November letter of response, CPPC made clear that the arrangements as to coordination and consultation with the PO specified in the MSP, including the nomination of a PSO as the primary point of contact and participation in the port security committee (once established) would apply regardless of the particular identity of the PO. In particular, CPPC confirmed that the measures would be implemented with Mineralogy if it remained the PO. There is no reason to think that a mechanism which is of a general nature, and will therefore apply in any circumstance, fails to adequately address the requirements of the Regulations. Mineralogy appear to argue that the use of the definite article in reg 3.130 meant that the PO must be specified by name in any proposed mechanisms for consultation. I accept the submission for CPPC that the use of the definite article is simply necessary because there will only ever be one PO at any port at any given time. It is impossible to read anything more into the use of the definite article in reg 3.130.
94 The submission by Mineralogy that the Delegate was not permitted to have regard to CPPC’s ‘assurances’ is quite inconsistent with the content of s 51(3) of the MTOFSA. It is clear that the Delegate requested from CPPC specific information as to the mechanisms for consultation, thereby expressly invoking s 51(3). (She also, consistently with s 51(7), advised that the consultation period would be adjusted to take into account the request for further information.)
95 As to reg 3.105, there is at least some scope in relation to this regulation for what I took to be a modified argument advanced at the hearing of the application for Mineralogy that while it is open to the Secretary to be ‘satisfied’ that the plan ‘adequately’ addresses the relevant requirements, it is not possible to be so satisfied if the plan does not address the requirements at all.
96 CPPC argues that the information required to be given under reg 3.105 is a different type of information from that required under reg 3.130. That is because the information required pursuant to reg 3.105 is not part of the plan. Regulation 3.105(a) provides that an MSP for a PFO must be accompanied by a document setting out the name of and contact details for the PSO of the SRP in which the facility is located. It is significant that the PFO must keep this information current by virtue of reg 3.106, which requires the PFO to, within two days after the PFO become aware of any change in the information given under reg 3.105, notify the Secretary in writing of the change and is liable to a penalty for failure to do so. Of course, this information may well change from time to time.
97 There is no obvious reason why approval would be required from the Delegate in relation to the information notified. The object of reg 3.105 and reg 3.106 is to ensure that the MSP is accompanied by the MSP a document which sets out the name of and contact details for the PSO, which may change from time to time. This is a mechanism for simply advising the Secretary. The requirement in reg 3.105(a) of the Regulations is explicitly not a requirement about or the contents of a plan. It is specifically directed to the contents of a document that must accompany a plan. While this might seem a pedantic distinction, it can be understood in the context of changes which might occur from time to time to a plan. Variations to the plan itself require an entirely different process of approval by the Secretary. Notification of a change under reg 3.106 is simply a matter of communication.
98 There is further support, in my view, for this construction. As noted, Div 4 is comprised of only three sections which are as follows:
Division 4—Content and form of maritime security plans
47 Content of maritime security plans
(1) A maritime security plan for a maritime industry participant must:
(a) include a security assessment for:
(i) the participant’s operation; or
(ii) if the participant has more than one maritime security plan—the operations or locations covered by the plan; and
(b) set out the security activities or measures to be undertaken or implemented by the participant under the plan for maritime security levels 1, 2 and 3; and
(c) designate, by name or by reference to a position, all security officers responsible for implementing and maintaining the plan; and
(d) make provision for the use of declarations of security; and
(e) demonstrate that the implementation of the plan will make an appropriate contribution towards the achievement of the maritime security outcomes.
(2) The security assessment under paragraph (1)(a) must:
(a) take into account any documents required in writing by the Secretary to be taken into account; and
(b) address any matters prescribed in the regulations.
48 Prescribed content for maritime security plans
The regulations may prescribe specific matters that are to be dealt with in one or more of the following:
(a) each maritime security plan;
(b) each maritime security plan for a particular kind of maritime industry participant;
(c) each maritime security plan for a particular class of a particular kind of maritime industry participant.
49 Form of maritime security plans
(1) A maritime security plan must be:
(a) in writing; and
(b) prepared in accordance with any requirements set out in the regulations.
(2) A maritime security plan must include:
(a) if the Secretary has not established any port security zones under subsection 102(1) within the area covered by the plan, and the participant proposes that the Secretary should establish such a zone or zones within that area—a map that shows each proposed zone; and
(b) if the Secretary has established a port security zone or zones under subsection 102(1) within the area covered by the plan:
(i) a map that shows each such zone; and
(ii) if the participant proposes that such a zone be changed—a map that shows the proposed change; and
(iii) if the participant proposes that the Secretary should establish an additional port security zone within that area or revoke the establishment of an existing port security zone within that area—a map that shows the zones that would be established within that area if the proposal were accepted.
(3) The maritime security plan for a port operator for a security regulated port must include a map of the whole security regulated port.
99 It will be noted that there is nothing in s 47 which encompasses the requirement in reg 3.105 concerning an accompanying document. In relation to s 48, it is true that while this provision does provide that the Regulations may prescribe ‘specific matters that are to be dealt with …’ in MSPs, the language of reg 3.105 does not refer to an MSP, but rather, an accompanying document.
100 The terms of s 49 again demonstrate the distinction that reg 3.105 is directed to an accompanying document, not a plan.
101 This is more than an overly technical distinction. The MTOFSA and Regulations are certainly specific as to usage of ‘plan’ or ‘accompanying document’. There would be no logical requirement for approval of a variation of a plan to be made in relation to the detail referred to in reg 3.105 and reg 3.106. Similarly, the details of a PFO required in reg 3.100 may change from time to time (such as contact details for the PFO). Again, there is no discernible reason why the approval of the Secretary would be required for a variation of the plan as to that aspect of detail. Regulation 3.106 also applies to changes to information required pursuant to reg 3.100.
102 Once again, and perhaps more importantly, it is not as though the Delegate overlooked the requirements of reg 3.105 and reg 3.130. Indeed, the question had arisen on a number of occasions. It is clear that the Delegate expressly concluded that the CPPC MSP did adequately address the requirements under Div 4 and expressly took account of the requirement in reg 3.105. The Delegate reached this conclusion by making a factual finding that CPPC had been unable to supply the name of, and contact details of, the PSO because Mineralogy had not supplied that information to the CPPC (this is expressly recorded in the Delegate’s Reasons at [23]). That conclusion was eminently sensible in light of the stand-off between the two companies and the fact that there was an obligation on the part of a PO (Mineralogy) to supply that information to CPPC in the first place by virtue of reg 3.15. It would be, as CPPC submits, a curious consequence of non-compliance by Mineralogy with reg 3.15 that it could succeed on a validity attack on the MSP for non-inclusion of the details which Mineralogy was required to have supplied to CPPC an PFO.
103 There is an issue concerning this topic as to whether it was raised at all in the Grounds supporting Mineralogy’s application for judicial review. CPPC contend that it has not been raised in the amended originating application for review. Mineralogy contends that it falls within grounds 14(b) and 11. CPPC argue that the submissions in support of this issue should be ignored. No application to amend was made by Mineralogy when this issue was drawn to its attention. I do not consider that the grounds deal with the security zone issue, but will nevertheless go onto consider the argument lest that conclusion be wrong.
104 Mineralogy point out that PFOs have no power or responsibility under the MTOFSA to either request the declaration of, or control of, WRZs. WRZs are established on request of a PO in accordance with reg 3.80 which provides:
3.80 Water-side restricted zones
(1) If a port operator wishes the Secretary to establish a water-side restricted zone, the maritime security plan for the port operator must set out:
(a) the purpose for the proposed establishment of the zone; and
(b) the boundaries of the zone; and
(c) if applicable, the period when, or the circumstances in which, the zone is in force; and
(d) the security measures and procedures to be taken to control access into the zone by people, vessels or things; and
(e) steps to be taken to inform people that a water-side restricted zone is in force and that entry into the zone without authority is an offence; and
(f) the name or position of the person or persons responsible for the security measures, procedures or steps referred to in paragraphs (d) and (e).
(2) A maritime security plan for a port operator must set out security measures and procedures to monitor and control access to water-side restricted zones, including measures to detect and deter unauthorised access to those zones.
105 Mineralogy argue that once established, it is the PO who has the responsibility to give notice of the boundaries of the WRZs in accordance with reg 6.65 and reg 6.70 which are in the following terms:
6.65 Identification of zones
(1) The boundaries of a water-side restricted zone must be clearly identifiable.
(2) The port operator for the security regulated port in which the water-side restricted zone is established must give notice of the establishment and the boundaries of the water-side restricted zone by:
(a) water-based identification measures (such as buoys, picket boats and booms); or
(b) land-side signs; or
(c) posting, publishing or broadcasting notices; or
(d) using any other means that have the effect of informing persons in or in the vicinity of the security regulated port about the establishment of the zone and its boundaries.
6.70 Duties of port operator
(1) If the Secretary gives notice of the establishment of a water-side restricted zone, the port operator for the security regulated port in which the water-side restricted zone is established must ensure that persons who are in, or in the vicinity of, the security regulated port are informed, in accordance with the maritime security plan, that:
(a) access to the zone is controlled; and
(b) any unauthorised entry into the zone is an offence under these Regulations.
(2) The obligation in subregulation (1) has effect even if the zone has not yet come into force.
(3) A port operator for a security regulated port must monitor access to any water-side restricted zone established in the port.
Penalty: 200 penalty units.
(4) An offence against subregulation (3) is an offence of strict liability.
(5) A port operator must ensure that the security measures and procedures to control access to water-side restricted zones detect and deter unauthorised access to those zones.
106 So it is the PO that must monitor access to WRZs in accordance with reg 6.70 and failure to do so is an offence of strict liability under reg 6.70(4). Mineralogy argues that CPPC’s MSP purports to both specify the boundaries of the WRZ within the Port and, further, attempts to designate functions to itself in the monitoring and control of access to the WRZ. Mineralogy contends that both of these functions are reserved to it as PO.
107 This topic in the CPPC MSP was also identified by the Secretary in the CPPC February MSP, which was rejected, but not in relation to the MSP now under challenge. Mineralogy complain that the usurping of its functions has been approved by the Delegate in approving the CPPC MSP, and that in declaring any type of port security zone, including the WRZ, the Secretary was bound to take into account the views of Mineralogy, which has not occurred. This requirement arises by virtue of s 104 of the MTOFSA, which is in the following terms:
104 Matters to be considered in establishing port security zones
In establishing a port security zone, the Secretary must have regard to the purpose of the zone, and take into account:
(a) the existing physical features of the port; and
(b) the existing operational features of the port; and
(c) the views of:
(i) the port operator; and
(ii) each person who controls an area of land (including any buildings on the land) that is to be included within the boundaries of the zone; and
(iii) the offshore facility operator for each security regulated offshore facility (if any), all or part of which is to be included within the boundaries of the zone.
108 Further, Mineralogy complain that the CPPC MSP also states that CPPC will establish ships security zones in accordance with the MTOFSA and Regulations. Again, Mineralogy complain, pursuant to reg 6.95, that it is the PO, not the PFO, that must monitor and control access to ships security zones.
109 Mineralogy point out that it complained about these deficiencies in writing to the Delegate on 28 November 2013. The response by the Delegate was a letter dated 6 December 2013 stating that ‘[as] no such zones have been established at the [Port], the question of offences under these provisions (and of any malfeasance of public office) does not arise’.
110 Allied to this complaint is a slightly different assertion that, despite approving an MSP which called for the creation of port security zones and which was predicated on their existence, the Secretary has not established such port security zones. Mineralogy argue that in those circumstances, there has been a failure by the Delegate to consider how the CPPC MSP ‘will make an appropriate contribution towards the achievement of the maritime security outcomes’ as required by s 47(1)(e) of the MTOFSA.
111 Once again, I am unable to accept these arguments.
112 The starting point is s 49(2)(a) of the MTOFSA, which provides that:
(2) A maritime security plan must include:
(a) if the Secretary has not established any port security zones under subsection 102(1) within the area covered by the plan, and the participant proposes that the Secretary should establish such a zone or zones within that area—a map that shows each proposed zone; …
113 The short point is that the Secretary had not, as at August 2013, as Mineralogy’s submissions appear to acknowledge, established any port security zones (including any WRZs) for the Port under s 102(1) of the MTOFSA.
114 It is only if and when the Secretary considers a WRZ should be established within an area covered by the CPPC MSP that the relevant considerations arise. Nothing in the MSP can possibly alter the power of the Secretary under s 102 to declare zones. Nor is it capable of altering or ‘usurping’ the functions of a PO that arise under the Regulations in respect of such declared zones. It is consistent with the objects of the MTOFSA for the CPPC MSP to contain information relating to activities and measures to be undertaken in the relevant area. It is required by reg 3.125(1)(b) to address ‘measures to prevent unauthorised access to the port facility, to ships moored at the facility and to any port security zones established within the boundaries of the port facility’. The submission is premature because the power has not yet been exercised. It is an entirely hypothetical future process, which, when it is carried out, will be carried out, presumably, in accordance with the MTOFSA and Regulations. The response from the Delegate was correct.
Failing to have regard to relevant considerations
115 It is common ground that in determining whether the Secretary failed to have regard to a relevant consideration the Court must look at the considerations that the Secretary was bound to consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (at [15]). The considerations the Secretary was bound to consider were those expressly stated and those determined by implication from the subject matter, scope and purpose of the MTOFSA. In assessing relevant considerations the Secretary is required to engage in an ‘active intellectual process’. Relevant factors cannot simply be jettisoned or given cursory examination in order to put the consideration to one side: Telstra Corporation Ltd v Australian Competition & Consumer Commission (2008) 176 FCR 153 (at [103]-[108); Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59 (at [44]-[45]).
116 The specific matters which Mineralogy identifies as relevant considerations which have been overlooked are the identity of Mineralogy as PO, the entitlement of CPPC to operate the Facilities and the terms and effect of the Mineralogy MSP.
117 Mineralogy argue that as the identification of Mineralogy’s PSO was a mandatory requirement, it must be a relevant consideration to consider whether such a person exists if the Delegate is to purport to approve an MSP absent compliance with that requirement.
118 Mineralogy argue that the sequence in which MSPs are to be approved is apparent from the MTOFSA and the Regulations. It is argued that an MSP for a PFO is required to have reference to a PSO, therefore, there is no circumstance in which a PFO’s MSP could be approved prior to the position of PSO being designated by the PO. Moreover, Mineralogy point to the fact that the Delegate was actually in possession of a Mineralogy MSP, which set out the details of Mineralogy’s PSO, and the Delegate failed to have regard to that relevant consideration.
119 The obligation imposed by the MTOFSA is for the contact details and name of the PSO to be identified in an accompanying document by virtue of reg 3.105(a). As previously noted, there is no requirement that that identity and details be contained within the MSP itself. Further, there is no support for the suggestion that the Delegate failed to have regard to this consideration. For reasons expressed above, it is clear that the Delegate did address this issue. This ground cannot succeed.
CPPC’s entitlement to operate port facilities
120 Mineralogy suggests that in determining whether to approve a PFO MSP, the Secretary must satisfy himself or herself that the applicant for such an MSP is authorised to be a PFO within the meaning of the MTOFSA for the specific Facilities that they purport to operate. Mineralogy argues that in light of the dispute as to who is actually entitled to control and operate the Facilities located within the boundaries of the Port to which the CPPC MSP relates, the Secretary was obliged to enquire further. Mineralogy notes that the Delegate did make requests to both Mineralogy and CPPC for the provision of the Project Agreements in order to obtain ‘clear’ evidence as to the respective functions of each company. Having requested and ultimately obtained those documents from Mineralogy, it is contended by Mineralogy that apparently no regard was had to them. The Reasons did not address the contents of the legal agreements at all. Following the submission of CPPC to the Delegate that the identity of the PO was a matter of fact, Mineralogy contends that the Delegate approached the matter on that basis, and made her decision based solely on the contents of the CPPC MSP, disregarding the content of the Project Agreements which she had requested.
121 Mineralogy argues that CPPC’s legal rights, or lack thereof, a relevant consideration that the Delegate was bound to address, particularly in circumstances where she was aware of the dispute as between Mineralogy and the CITIC Parties, and was in possession of the Project Agreements.
122 I am unable to accept this submission. As a starting point, Mineralogy has never disputed that CPPC is in fact operating the Facilities at the Port. Moreover, it is the repeated complaint of Mineralogy to the Secretary that CPPC has wrongly ‘established a near complete lockout of Mineralogy’s personnel at the port’. This submission was repeated in oral submissions and argument. Although Mineralogy asserts that this involves a breach of private agreements between Mineralogy and the CITIC Parties, there is no doubt that CPPC is in fact occupying the Port and operating the Facilities.
123 It may well be that the Delegate took some time to adopt her final approach which, I accept, expressly accords with the definition under the MTOFSA, but I consider there is no doubt that she made the correct finding based on the contents of the CPPC MSP and her own observations that the Port and marine operations of the Port constitute a port facility and that CPPC, for the purposes of the MTOFSA, operates the facility.
124 As noted, Mineralogy does not question this reality.
125 There is nowhere to be found in the MTOFSA or the Regulations a requirement on the part of the Delegate to enquire as to the intricate legal arrangements between private parties. The Delegate’s concern is to comply with s 51 of the MTOFSA in order to achieve the purpose of the MTOFSA which is, amongst other things, to reduce vulnerability to terrorist and other attacks to Australian ships without undue disruption to trade: s 3(4) MTOFSA. The definition contained in the MTOFSA makes it clear that it is directly concerned with the control and regulation of the activities of those who are actually operating Facilities within SRPs. Throughout, the real question for the Delegate was, and appropriately was, who in fact was operating the Facilities? There is no logical or statutory requirement for the Delegate to look behind the realities. It is not a situation of a complete stranger trespassing by usage of the Facilities, in which case the definition of PFO would hardly be met. There is a dispute as to the respective entitlements, but the determination of who is, in reality, operating the port facility, as defined in s 10 of the MTOFSA, has been correctly made by the Delegate. I accept the submission for CPPC that the legislature could hardly have expected the Delegate to enact the same function that the Courts are being asked to do in relation to the dispute between the corporate parties as to the legal entitlements pursuant to the contractual documentation. Trade should ensue, subject to the MSP.
126 Mineralogy argues that although the Secretary was aware that Mineralogy did not have an approved MSP, there is no actual consideration of that factor apparent in the Reasons. It is common ground that, at the time, of the Decision, Mineralogy had before the Secretary its own draft MSP for approval. It covered the same Facilities within the Port as the CPPC MSP, with the exception that Mineralogy’s MSP indicated that CPPC would be responsible for transhipping and would operate the transhipping facilities under its own PFO MSP. It is also common ground that the Reasons do not suggest that there was consideration by the Delegate of the draft Mineralogy MSP. Mineralogy submits that the security measures proposed in a PFO MSP should align with those proposed by the PO in order to avoid any gaps in the overall management of security in the Port, to ensure effective communication amongst MIPs and relevant government agencies, and to reduce the risk of contradictory measures being implemented. Mineralogy submit that in determining whether an MSP for a PFO will make an appropriate contribution towards the achievement of maritime security outcomes, including the outcome under s 3(4)(d) of the MTOFSA that ‘security information is communicated effectively amongst [MIPs]’, a delegate must consider the contents of the PO’s MSP or, alternatively in this case, the fact the MSP has not yet been approved. Mineralogy complain that the only consideration apparent in the Reasons relates to an acceptance of CPPC’s view that their communications protocol could be implemented irrespective of the identity of the PSO and, presumably, the contents of that PO’s MSP. Mineralogy argue that the Delegate was required to consider how CPPC’s MSP could be implemented and would achieve an appropriate contribution towards the achievement of the maritime security outcomes, including alignment with the PO’s MSP.
127 Mineralogy’s complaint is that in approving the CPPC MSP, the Delegate did so in effect to the exclusion of Mineralogy’s MSP, given the crossover between the two MSPs. According to Mineralogy, the approval was given without consideration of, firstly, the impact that the CPPC MSP would have on Mineralogy’s functions as PO, particularly, given that the CPPC MSP purported to give CPPC functions reserved in the PO in relation to WRZs, and, secondly, whether Mineralogy should have been the party given responsibility for the security functions contained in the CPPC MSP. It was argued that a failure by the Delegate to consider the contents of the draft Mineralogy MSP, including Mineralogy’s proposed security arrangements for WRZs, a function that only Mineralogy is authorised to undertake, constituted a failure by the Secretary to consider how the CPPC MSP demonstrated that the implementation of the plan would make ‘an appropriate contribution towards the achievement of maritime security outcomes’ as required by s 47(1)(e) of the MTOFSA.
128 I am unable to accept these submissions. The task required under s 51 was to reach a state of satisfaction as to whether or not the plan submitted by CPPC adequately addressed the relevant requirements under Div 4. There is no suggestion in s 51 that the Secretary ‘must’ consider a proposed MSP by another MIP. Despite expansive provisions as to what is required to be considered for an MSP, no such consideration is to be found. Unlike the mandatory requirement for the Secretary to approve a plan when satisfied to the requisite degree, other matters such as those described in s 51(3), are permissive. If a draft MSP which has been lodged is considered to be a relevant existing for the purposes of s 51(3), the Secretary may consider it.
129 As noted above, the MTOFSA and Regulations contemplate multiple plans potentially being in place in respect of an SRP. They all have to work together. Contrary to the submission advanced for Mineralogy, there is nothing in the legislation which suggests that an MSP submitted by a PFO must be compatible with what is only a draft of another proposed MSP. Nothing in the MTOFSA or Regulations articulates, as appears to be advanced for Mineralogy, that the MSP of a PFO must be subservient to the draft MSP of the PO. Requiring consideration to be given to what is simply a proposed plan would invite speculation about the prospects of approval of such a proposed plan. It may well be that the draft MSP of the other MIP, in this case Mineralogy, may in turn come to be rejected if not adequately addressing the relevant requirements. Indeed, this has occurred with Mineralogy plans to date.
130 It is well established that relying on irrelevant material in a way that affects the exercise of power is to make an error of law and to exceed the authority or powers given by statute. Where such an error occurs, a decision-maker does not have authority to make the decision (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (at [82])).
Mandatory requirements of MTOFSA
131 Mineralogy contend that the Delegate made the Decision based on a consideration that ‘Mineralogy had not supplied CPPC with the contact details for its PSO, and therefore CPPC was unable to include this information in the MSP’. It is argued that such a consideration is an irrelevant consideration for the purposes of s 51 of the MTOFSA, which leaves no room for consideration that a party was unable to comply with the requirements of Div 4, particularly in circumstances where the Secretary was in possession of Mineralogy’s PSO details.
132 This must be dealt with in the same manner as the previous argument concerning the PSO details. Section 51(3) expressly permits the Secretary to take account of existing circumstances relating to maritime transport and offshore facility. It is quite incompatible with s 51(3) that the Delegate be prohibited from having regard to information made available in response to a request made by the Secretary pursuant to s 51(5) of the MTOFSA. It would defeat the statutory purpose if the Delegate were permitted to have regard to such information but not draw any inferences from it. This challenge is, in reality, a merits challenge, that the inference was not open. Plainly, the inference was open. The relevant function being exercised was the consideration by the Delegate of whether the CPPC MSP adequately addressed the relevant requirements under Div 4. As an evaluative judgement is called for by s 51(3), there is no sound basis to imply a prohibition on the Delegate taking into account factual conclusions regarding the contents and adequacy of a plan and material submitted in relation to it. The suggestion that s 51 of the MTOFSA leaves no room for consideration that a party was unable to comply with a requirement is inconsistent with the nature of the evaluative judgement called for by s 51(3) of the MTOFSA.
Representations as to Mineralogy’s role as PO
133 Mineralogy point to the 25 October 2013 communication from CITIC Pacific to the Deputy Secretary of the Department enclosing legal advice referred to above and the CPPC letter of 8 November 2013. It is submitted that the Delegate took into account the CPPC letter of 8 November 2013 and the earlier communication, including the CITIC Parties’ views that DOTWA should be appointed as PO and that Mineralogy’s designation should be ignored. It is argued by Mineralogy that this submission was ‘effectively accepted by the Delegate’. It is also argued that in doing so the Delegate took into account an irrelevant consideration in determining whether to approve the CPPC MSP and to approve the CPPC MSP with only a cursory consideration of Mineralogy’s role as PO.
134 This argument is somewhat surprising. There is nothing to suggest that the Delegate, in approving the CPPC MSP, had regard to the course suggested in the 25 October 2013 letter. Indeed, far from ‘effectively accepting’ the assertions, the Delegate clearly proceeded on an entirely different basis. The Delegate’s Reasons expressly recognised that Mineralogy was the designated PO and expressly took that into account in considering the relevant requirements under Div 4 of Pt 3. In reaching her decision, the Delegate had regard to a list of materials which did not include the letter of 25 October 2013 and the counsel advice of 23 October 2013. More importantly, at no stage in her reasoning did she consider the adequacy of the CPPC MSP on the assumption that DOTWA would be the PO or that Mineralogy was not, or would not continue to be the PO. Those factors make clear that the Delegate most certainly did not take into account and/or act upon the submissions advanced to her in the CITIC Pacific letter of 25 October.
135 It is true that the 8 November 2013 letter was considered by the Delegate, but there is nothing in that correspondence which would lead to a conclusion that the Delegate therefore considered the earlier correspondence. Of course, the Delegate considered the 8 November 2013 letter because it was sent by CPPC expressly in response to the Delegate’s request for information dated 12 October 2013. At no stage did the letter refer to or adopt the correspondence which had been sent by a different CITIC party to a different person within the Department on 25 October 2013.
136 It is also true that the November letter noted the concession made by the Secretary as to the jurisdictional error in the appointment of Mineralogy, but it expressly proceeded on the assumption that the designation of Mineralogy was effective. There could hardly be complaint by Mineralogy that the Delegate relied upon a letter which contained an assurance by CPPC that it would deal with Mineralogy as the PO regardless of what was happening elsewhere.
Lack of evidence or material – ADJR Act s 5(1)(h)
137 Mineralogy point to the fact that the Delegate was in possession of the Mineralogy draft MSP which set out the identity of the PSO as being two particular officers who were identified by name. Mineralogy complain that, in contrast, the Delegate’s decision appears to be based on the existence of a particular fact, Mineralogy not having a PSO, in circumstances where the Delegate was aware that the fact did not exist and it was incorrect to say that Mineralogy did not have a PSO.
138 I cannot accept this submission. The Delegate did not make the Decision on the basis that Mineralogy did not have a PSO. The Delegate did not ‘dispense with the mandatory requirement’ in reg 3.105 on the basis that there was no PSO.
139 In contrast, the Delegate made clear in her Reasons that she proceeded on the basis that CPPC had been unable to include the contact details for Mineralogy’s PSO in its MSP because it had not been supplied with those contact details by Mineralogy. As CPPC submits, if anything, that reasoning presupposes that there was at the relevant time a PSO, but the contact details of the PSO had not been provided.
Natural justice – ADJR Act s 5(1)(a)
140 Mineralogy argue that the exercise of the Secretary’s power should have been fair, with fairness not being an abstract concept but essentially practical: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (at 14). Where a decision is apt to adversely affect the interests of a party, that party is entitled to be accorded procedural fairness in the making of the decision: Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 (at 658-659). The specific content of the right to procedural fairness will be determined by reference to the particular case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (at [26]).
141 Specifically, Mineralogy assert that the Decision was apt to adversely affect Mineralogy in numerous respects as it:
(a) gives CPPC security functions over port Facilities which, in the port action, Mineralogy maintain they have no right to operate, and over which Mineralogy hold tenure, and did so without consideration of CPPC’s legal right to operate;
(b) approved CPPC’s MSP to the exclusion of Mineralogy’s MSP, which covered the operation of the same port Facilities;
(c) approved CPPC’s MSP in circumstances where CPPC refused to acknowledge Mineralogy as the PO, and did not reference Mineralogy’s PSO; and
(d) approved CPPC’s arrangements concerning consultation, coordination and communication, without reference to Mineralogy’s functions as PO, and Mineralogy’s own requirements to set out arrangements in its MSP in accordance with reg 3.60 of the Regulations.
142 Further, Mineralogy argues that the Decision was made in circumstances where the Delegate:
(a) influenced by the submissions of CPPC, appears to have determined that they were not required to look to CPPC’s legal rights to operate the Facilities in making the Decision;
(b) has made a finding that Mineralogy did not supply CPPC with their PSO details, and on that basis it could not be included in the CPPC MSP;
(c) has had regard to the ‘view’ of CPPC that is arrangements concerning consultation, coordination and communication could be implemented irrespective of the identity of the PO, without turning her own mind to the question; and
(d) has received detailed, although unsolicited, legal advice form CPPC as to the Delegate’s ability to essentially ignore Mineralogy’s designation as PO.
143 In light of the above, and in the light of the adverse impact on Mineralogy in approving the CPPC MSP, Mineralogy contend that the content of the procedural fairness required in this case should at least have consisted of seeking Mineralogy’s views and submissions on:
(a) the identity of Mineralogy’s PSO;
(b) CPPC’s arrangements concerning consultation, coordination and communication as included in their MSP, and how such arrangements would integrate with Mineralogy’s functions;
(c) why Mineralogy’s MSP should have been approved to the exclusion of CPPC’s MSP;
(d) the relevance of CPPC’s legal rights, or lack thereof, to operate the Facilities;
(e) the ability for the Delegate to in effect ignore Mineralogy’s designation as PO; and
(f) establishing the port security zones, as required by s 104 of the MTOFSA.
144 Mineralogy contend that the first time Mineralogy became aware that the CPPC MSP had been approved was on 21 November 2013 and that if it had been aware that the Delegate was contemplating approving the CPPC MSP, Mineralogy would have made submissions to the Delegate in that regard. Mineralogy submit that the Delegate should have sought Mineralogy’s views on the above, and those views having not been sought, Mineralogy was denied procedural fairness in the making of the Decision.
145 The suggestion that Mineralogy had no idea that the Delegate was contemplating approval of the CPPC MSP is difficult to understand. It is true that the ultimate communication of approval to Mineralogy was delayed and indirect, but Mineralogy had been aware that CPPC had been seeking approval for a PFO MSP for the Port since, at least, March 2013. Mineralogy had made, or caused to be made, written submissions in relation to it.
146 But, more importantly, closer consideration is required as to what rights of Mineralogy were affected by the Decision. In my view, the Decision to approve the CPPC MSP does not affect the rights or interests of Mineralogy in such a way as to give rise to an obligation on the part of a Delegate to accord procedural fairness to Mineralogy in simply approving an MSP for CPPC as the PFO.
147 The first task is to identify the administrative power being exercised in this case by the Delegate. That power was the power under the MTOFSA to approve or reject CPPC’s MSP. The question will be whether the exercise of that power is apt to affect adversely the interest of the party affected: Plaintiff S10/2011 per Gummow, Hayne, Crennan and Bell JJ (at [66]). The exercise of this power does not have the same impact, especially on Mineralogy, as the appointment of an entity as operator of a port, which was the power considered by Rares J. In this instance, the approval of CPPC’s MSP had none of the adverse consequences that Mineralogy has suggested. Mineralogy, itself, still has a similar right and obligation to seek and obtain approval of its own MSP. If and when Mineralogy’s MSP is approved, it can then proceed with relevant activities coordinating with CPPC in relation to various matters, taking into account the MSPs of both the PO and the PFO. Importantly, for present purposes, the reality is that it is CPPC that is conducting all activities of any significance at the Port and it was its interests, not some future potential interest of Mineralogy, that was affected by the Secretary’s Decision.
148 Each of the points at (a) to (f) (above at [143]) has been canvassed in the preceding grounds. I have rejected Mineralogy’s arguments on each point. It is not apparent why the Delegate who also reached a decision inconsistent with Mineralogy’s arguments would consult Mineralogy for its views in the context of consideration of a PFO MSP. It is clear from the evidence that at the date of approval, CPPC was the only active entity at the Port. If that position were to change in the future then, at that time, there would be a need for cooperation and perhaps variations of MSPs. No such consideration arose as at the date of approval of the CPPC MSP.
149 Further, the approval of the CPPC MSP has no effect at all on Mineralogy’s arguments being advanced in other litigation to the effect that Mineralogy has the exclusive right to occupy and operate the Facilities.
150 I consider that the Delegate was correct in dealing with the matter on the basis that the only relevant question before her was whether CPPC was in fact operating the port Facilities at the Port such that it needed to have an approved MSP. This approach also had no bearing on any underlying dispute between CPPC and Mineralogy as to who is legally entitled to occupy and operate the Facilities.
151 Finally, in my view it is not correct to describe the approval decision by the Delegate as being ‘to the exclusion of Mineralogy’s MSP’. Mineralogy is the PO and required to have an MSP. It has an interest in having any application for approval of its own proposed MSP considered by the Secretary pursuant to s 51. As has been stated several times, the intention of the legislation is that there may be several MSPs at a port. There is no evidence to support its complaint that the approval of the CPPC MSP will cause the Secretary to refuse to eventually approve Mineralogy’s MSP.
152 As each of Mineralogy’s arguments has failed, the orders will be that:
1. The amended originating application for judicial review is dismissed.
2. The applicant do pay the costs of the respondents, to be taxed if not agreed.
| I certify that the preceding one-hundred and fifty-two (152) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. |
Associate:
