On 21 February 2014, the Federal Court of Australia delivered its decision in the matter of Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for Sustainability, Water, Population and Communities (No 2)  FCA 117.
The decision provides an interesting demonstration of the limits of judicial review as a constraint on government action.
In 2012, Seafish Tasmania Pelagic Pty Ltd (Seafish) purchased the FV Margiris, the world’s second-largest fishing trawler, which Seafish renamed the Abel Tasman.
Seafish intended to use the Abel Tasman to fish for mackerel and redbait within Australia’s “Small Pelagic Fishery” (SPF) zone.
According to the judgment, “at the time when the Abel Tasman arrived in Australia, [Seafish] had reasonable grounds for believing that it would be able lawfully to deploy that vessel in the SPF to target, fish and process the quota fish species mentioned.”
However, Seafish’s proposal to use the Abel Tasman became highly controversial in Australia, due to significant concerns over the environmental impacts of the Abel Tasman (often described in the Australian media as a “Super Trawler”) and its potential impacts on the local fishing industry.
The political controversy came to a head on 11 September 2012, when the Government introduced a Bill to amend the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to allow the Environment Minister to prohibit a “declared commercial fishing activity” pending assessment of the activity by an expert panel. Those amendments came into effect on 19 September 2012.
The amendments allowed the Environment Minister to make an “interim declaration” (having effect for up to 60 days) if the Environment Minister agreed with the Fisheries Minister that there was “uncertainty” about a commercial fishing activity’s environmental impacts, and that it was appropriate that the activity be prohibited while consultation took place to determine whether a “final declaration” should be made.
Once an interim declaration was made, the Minister was required to publish a notice and invite persons adversely affected by the declaration to make submissions.
Once the submission period ended, the Environment Minister was able to make a “final declaration”, which would indefinitely prevent a proposed activity until it had been assessed by an expert panel. A final declaration could only be made if the Environment Minister had considered any submissions made, and agreed with the Fisheries Minister that there was “uncertainty” as to the proposed activity’s environmental impacts and that it was “appropriate” to prevent the proposed activity until it had been assessed by the panel.
On 20 September 2012, the Australian Fisheries Management Authority (AFMA) allowed and registered Seafish’s application for fishing rights.
However, that same day, pursuant to the amended EPBC Act, the then Environment Minister declared that commercial fishing in the SPF by vessels of a certain size, using the “mid-water trawl” method (the method used by the Abel Tasman) was a “declared commercial fishing activity” (First Declaration). This prevented the Abel Tasman from carrying out the proposed activities (which had now been approved by the AFMA).
The Environment Minister subsequently made further declarations extending the term of the First Declaration (which was only interim), and also preventing an alternative proposal by Seafish to use the Abel Tasman as a “floating freezer” for other vessels.
On 4 February 2013, Seafish commenced judicial review proceedings against the Environment Minister , challenging the Environment Minister’s decisions to make the declarations. In doing so, Seafish also challenged the related decisions of the Environment Minister and the Fisheries Minister to decide that there was “uncertainty” about environmental impacts, and that prohibition was appropriate.
The Federal Court of Australia, constituted by Justice Logan, dismissed Seafish’s application, with costs.
A preliminary issue, affecting the scope of review, was whether the declarations were “administrative” decisions (made by the executive branch of government) or legislative.
Seafish argued that the decisions were “in substance” administrative, because they were specifically intended to target Seafish, even if they did not specifically identify Seafish or the Abel Tasman by name or description.
However, the Court did not accept this, observing that the declarations were “general in application”, albeit confined to a very narrow subject matter. The Court also considered that the broad policy considerations involved in making a declaration (“uncertainty” of impacts and “appropriateness”), along with the absence of any merits review, indicated that the declarations were legislative rather than judicial.
As the Court had power to review the declarations even if they were legislative, albeit more restricted, the Court considered this preliminary issue to be something of a “distracting complication”.
Accordingly, Justice Logan proceeded to consider whether Seafish had made out any grounds for challenging the legislative decision to make the declarations.
The first ground sought to be raised by Seafish was an argument that because the EPBC Act only required the Environment Minister to consider submissions by specific affected persons (in this case, Seafish), the Environment Minister was, by implication, prevented from considering submissions from the broader public. However, the Court did not accept this argument, observing that the broad policy decision required of the Environment Minister invited the Minister to undertake a “broad factual inquiry”, including considering submissions by the general public.
Second, Seafish argued that the legal principles of procedural fairness required the Environment Minister to not make any of the subsequent declarations until he had given reasons for the First Declaration. The Court observed that there was no express requirement for reasons in the EPBC Act, and considered that a requirement for reasons would be at odds with the “initial reactive nature” of an interim declaration.
Third, Seafish argued that its submission, which alleged, among other matters, that the Environment Minister had acted on the basis of political pressure and that Seafish had sustained financial and reputational damage, had either not been taken into account by the Environment Minister, or had not been given “meaningful” consideration.
The Court stated that this submission “flies in the face” of the fact that the departmental briefs to the Environment Minister and Fisheries Minister included an analysis of submissions that was “replete with references” to Seafish’s submission.
As for the suggestion that the consideration had not been “meaningful”, the Court accepted that it was clear that the Ministers “took a close personal interest in” the matter, and were “concerned” by Seafish’s proposal.
However, the Court did not consider that this impugned the Ministers’ ability to consider Seafish’s submission, stating that, given the environmental uncertainty and political controversy, “the Ministers were entitled to make a political value judgment” that had the effect of prohibiting the defined commercial fishing activity.
The Court emphasised that “[n]on-acceptance of a submission is not to be equated with failing to consider it on the merits.”
Accordingly, having dismissed each ground of review raised by Seafish, Justice Logan dismissed Seafish’s application.
Justice Logan began his judgment with a, tongue-in-cheek, observation that maritime superstition holds that it is bad luck to change a ship’s name. His Honour remarked that, in view of the fact that the Abel Tasman had undergone many name changes throughout its life, those who read the judgment “might consider that there is substance in the maritime superstition.”
While, as a matter of law, his Honour determined the case against Seafish, Justice Logan made a number of remarks indicating a degree of sympathy for the general situation confronting Seafish, and an appreciation of the regulatory challenge for the then Government in the face of the political controversy that greeted the Abel Tasman’s arrival.
His Honour observed that, in relation to judicial review of legislative decision-making, the Court’s role is very limited. So long as legislation is made lawfully, Justice Logan stated that it is to Parliament and the “court of public opinion” that politicians must answer, rather than the Court.
Interestingly, his Honour observed that a further form of such “political control” may arise as a result of what his Honour termed “country risk assessments” by investors . In this regard, his Honour sounded a cautionary tone in stating that:
"Countries which are perceived, without reasonable cause, to change or to be at risk of changing their framework of economic and environmental regulation may either not attract further foreign investment or only do so if higher rates of return over shorter periods are present. Like considerations can govern the decisions of Australian based investors as to whether to further invest in this country or instead to place investments abroad.”
His Honour considered that it was appropriate to “highlight” the “limits of judicial review” in this way, because of what his Honour described as a “new despotism”. His Honour explained that, by this, he was referring to the ever-increasing tendencies of governments to regulate by way of public officials making “quasi-judicial” decisions (eg by enacting legislation allowing Ministers to authorise the detention of individuals without Court order), and legislation being made by way of delegated legislation, such as declarations and regulations, rather than Acts of Parliament.
Interestingly, though, in this case, the EPBC Act amendments were made by an Act of Parliament, and were subject to extensive political debate. Accordingly, these broad remarks are of less direct relevance to Seafish’s specific case.
Despite these remarks, his Honour also acknowledged the difficult situation confronting the then Government in the face of the Abel Tasman’s imminent arrival. His Honour observed that the “scale and intensity of the proposed activities were unprecedented”, and that the Government was entitled to form the view that the existing regulatory regime was inadequate.
Indeed, the Minister observed in his Second Reading Speech in support of the EPBC Act amendments that, in the face of significant community concern about such unprecedented activities, it was important that there be some mechanism allowing those concerns to be addressed.
This exposes a broader issue that can be seen to underpin this case. While governments are generally eager to attract investment in new and/or large scale industries, the political reality is that, within the broader community, debate about such proposals will often occur well after investment decisions have been made. This case demonstrates the inherent risk in democratic systems when a broader political discussion is left until after such commitments are made.