J & J Wallace (Permits) Pty Ltd and Great Barrier Reef Marine Park Authority
[2019] AATA 1280
•13 June 2019
J & J Wallace (Permits) Pty Ltd and Great Barrier Reef Marine Park Authority [2019] AATA 1280 (13 June 2019)
Division:GENERAL DIVISION
File Number: 2016/0935
Re:J & J Wallace (Permits) Pty Ltd
APPLICANT
Great Barrier Reef Marine Park Authority And
RESPONDENT
DECISION
Tribunal:Justice D G Thomas, President
Deputy President J SossoDate:13 June 2019
Place:Brisbane
The decision under review is set aside and the matter is remitted to the Respondent for reconsideration having regard to the findings of fact and law herein.
......................[SGD]...........................
Justice D G Thomas, President
CATCHWORDS
ENVIRONMENT AND ENERGY – Great Barrier Reef Marine Park – environmental management charge – chargeable permissions – permits – whether the Applicant’s passengers are transfer passengers or visitors – nature of a tourist activity – decision under review set aside – decision under review remitted to the Respondent for reconsideration
LEGISLATION
Acts Interpretation Act 1901 (Cth)
Criminal Code Act 1995 (Cth)
Great Barrier Reef Marine Park Act 1975 (Cth)
Great Barrier Reef (Declaration of Amalgamated Marine Park Area) Proclamation 2004 (Cth)
Great Barrier Reef Marine Park (Environmental Management Charge–Excise) Act 1993 (Cth)
Great Barrier Reef Marine Park (Environmental Management Charge–General) Act 1993 (Cth)
Great Barrier Reef Marine Park Regulations 1983 (Cth)
Great Barrier Reef Marine Park Regulations (Amendment) (Cth), Statutory Rules No. 206 of 1993
Great Barrier Reef Marine Park Regulations (Amendment) (Cth), Statutory Rules No. 326 of 1997
CASES
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355
Tamas v Victorian Civil & Administrative Tribunal [2003] VSCA 113
SECONDARY MATERIALS
Explanatory Statement, Great Barrier Reef Marine Park Regulations (Amendment) (Cth), Statutory Rules No. 206 of 1993
REASONS FOR DECISION
Justice D G Thomas, President
Deputy President J Sosso13 June 2019
INTRODUCTION
J & J Wallace (Permits) Pty Ltd (“the Applicant”) is the second largest of four tourist operators that transport people from Cairns to Green Island.[1] The Great Barrier Reef Maine Park Authority (“the Respondent”) is responsible for the management of the Great Barrier Reef Marine Park (“the Marine Park”).[2] The Applicant holds three permits issued by the Respondent under the Great Barrier Reef Marine Park Regulations 1983 (Cth)
(“the Regulations”).[3] These permits have permissions attached to them that allow for use and entry into the Marine Park and the Scientific Research Zone adjacent to Green Island.[4]
[1] Exhibit 4, Affidavit of Paula Jane Wallace, affirmed 1 March 2017, p. 2, para [2].
[2] Section 7(1B) Great Barrier Reef Marine Park Act 1975 (Cth) (“the Act”).
[3]Respondent’s amended revised Statement of Facts, Issues and Contentions, dated 14 March 2017, p. 2, para [6].
[4]Respondent’s amended revised Statement of Facts, Issues and Contentions, dated 14 March 2017, p. 2, para [7].
In these proceedings, the Applicant seeks review of a reconsidered decision made by a Delegate of the Respondent dated 25 January 2016 (“the reconsidered decision”), which found that, within the definitions contained in r 135(1) of the Regulations, passengers should be recorded as ‘visitors’ not ‘transfer passengers’ under the chargeable permission attached to permit G06/17952.1. Further, the Delegate found that, under r 137, none of the specified ‘Relevant Services’ were secondary services.[5]
[5]Exhibit 1, T Documents, T6, Decision on Reconsideration – Application for Secondary Service Determination, dated 25 January 2016, pp. 10 - 19.
In reaching that conclusion the Delegate made the following findings:
“51. Because passengers who are Visitors should be recorded as Visitors under the Chargeable Permission attached to permit G06/17952.1 before they should be recorded as Visitors under the Chargeable Permissions attached to Permit G06/19317.1 or G09/28756.1, none of the Relevant Services meet the definition of Secondary Service.”.[6]
[6]Exhibit 1, T Documents, T6, Decision on Reconsideration – Application for Secondary Service Determination, dated 25 January 2016, p. 19.
It follows that the first issue for the Tribunal is whether a person, who is transported from Cairns to the Green Island Jetty by the Applicant under permit G06/17952.1, is a ‘visitor’ or a ‘transfer passenger’ within r 135(1) of the Regulations.[7] We have determined that certain passengers who are transported to and from Green Island and who engage in the Relevant Services are ‘transfer passengers’.
[7]Respondent’s amended revised Statement of Facts, Issues and Contentions, dated 14 March 2017, p. 3, para [15]; Transcript of proceedings, 3 October 2017, p. 58, lines 10 -14, per Ms Brennan QC.
As we have determined that these passengers are ‘transfer passengers’, we agree with the approach set out by the Respondent that it is not necessary to determine the second issue relating to the making of a secondary services determination.[8]
[8] Respondent’s Closing Submissions, dated 18 October 2017, p. 1, paras [1] – [2].
For the reasons set out below, we have decided to set aside the reconsidered decision dated 25 January 2016 and remit the matter to the Respondent for reconsideration having regard to the findings of fact and law herein.
Subsequent to the hearing of this matter, the Tribunal was informed that the Wallace family had sold their shares in J & J Wallace (Permits) Pty Ltd and the other companies in the group which operates the “Big Cat” and “Reef Rocket” tours to Green Island.
To avoid any doubt, as suggested by the Respondent and not opposed by the Applicant, we have limited the scope of our review by limiting the questions of fact, the evidence and issues for our consideration to those facts, evidence and issues that existed as at the date of the hearing of the application and as was reflected in the parties’ closing submissions.
Decisions leading up to this review
The starting point in this matter is a letter dated 16 March 2015 from Mr Bruce Elliott, General Manager, Biodiversity Conservation and Sustainable Use for the Marine Park Authority to the Applicant.[9] Relevant parts of this letter are set out below:
[9]Exhibit 1, T Documents, T22, Letter from the Respondent to the Applicant, dated 16 March 2015, pp. 77 – 78.
“It is the agency’s view that not all passengers on board the Reef Rocket and Big Cat vessels can be accurately described as transfer passengers and subsequently are not exempt from paying the EMC…
To be considered a transfer passenger, those passengers on board the Reef Rocket and Big Cat vessels would have to immediately cease their relationship with J & J Wallace (Permits) Pty Ltd, upon their disembarkation at Green Island. It is the agency’s understanding that many of these passengers continue to spend their time at Green Island enjoying the services provided by J &J Wallace (Permits) Pty Ltd, and as such are engaging in a tourist program for which the EMC applies.
Section 3 of the Act defines a tourist program to be a reference to an activity (whether consisting of a single act or a series of acts) that:
(a)is in the course of carrying on business; and
(b)is or includes the provision of transport, accommodation or services for tourists or for persons who include tourists.
It is the agency’s view that the services provided by J & J Wallace (Permits) Pty Ltd, are consistent with the definition of a tourist program, and as such the EMC should be collected from visitors to the Marine Park in accordance with the provisions of Part 8 of the Regulations…”.
On 30 June 2015, Mr Nigel Hales of Miller Harris Lawyers wrote to Mr Elliott outlining the Applicant’s response.[10] Relevant extracts from this comprehensive response are set out below:
[10]Exhibit 1, T Documents, T19, Letter from the Applicant to the Respondent, dated 30 June 2015, pp. 70 – 73 .
2Firstly, our client wishes to record that there has been no material change to any of its activities or method of operation in relation to the Reef Rocket and Big Cat vessels since their commencement…
3Our client’s primary submission is that its customers fit within the definition of ‘transfer passenger’ in section 135 of the regulations, and therefore do not trigger a requirement to pay EMC. Whilst our client does provide its customers with glass bottom boat and semi submersible tours commencing immediately upon arrival at Green Island, those tours are provided under a separate permission held by our client, and not under the same permission pursuant to which the passengers are transported. Accordingly, the provision of the tours to those passengers (representing approximately 80% of our client’s customers) does not disqualify them from being transfer passengers for the purposes of regulation 135.
4We understand that the concern arising from the audit was that the provision of seating, toilets and meals from our client’s vessels whilst at Green Island meant that the customers to whom those services were provided were no longer transfer passengers for the purposes of regulation 135, due to the effect of paragraph (c)(ii)…
6The issue revolves around the question of when a person engages in a tourist activity. The phrase ‘tourist activity’ is not defined in the Act or the regulations, however some guidance can be obtained from the description of a tourist program in section 3A(3) of the Act which, so far is relevant, is as follows:
‘A tourist program is a reference to an activity (whether consisting of a single act or a series of acts) that:
(a)is in the course of carrying on business; and
(b)is or includes the provision of transport, accommodation or services for tourists or for persons who include tourists.’
7There are two significant things to note from this section. Firstly, it refers to the entire tourist program as ‘an activity’. Secondly, it makes clear that the activity which is the tourist program can consist of a single act or a series of act (sic). It follows, therefore, that the separation of different services such as the provision of food, toilet facilities etcetera to customers so that they are classed as separate ‘activities’ to that of the transfer of passengers is not a valid approach. They form part of the same series of acts representing a single activity which is the approved tourist program of passenger transport, for which our client holds a permit.
8In our submission this must necessarily be the case. If the provision of food, drinks, toilets etcetera was considered a separate activity then it would be virtually impossible for any transport operator to conduct services in a manner which allows customers to qualify as transfer passengers under regulation 135, because if a customer used the toilet or bought a refreshment during the course of travel, they would immediately be disqualified under paragraph (c)(i) of the definition. Furthermore, there would be enormous uncertainty and impracticality in determining when passengers could re-embark the vessel for the return trip without allegedly engaging in a new tourist activity. Such an artificial and technical interpretation of the legislation would be illogical and run contrary to the purpose of the relevant section of the regulations, which clearly was to exempt passengers being transported into and out of the marine park, with all of the associated and incidental services.”.
Mr Hales, submitted that while the Applicant’s primary position was that it was not required to pay the Environmental Management Charge (“the EMC”) the Respondent contended in the alternative that a determination was sought pursuant to r 137 of the Regulations that the incidental services provided in association with transportation, including:[11]
· provision of food;
· provision of a bar service;
· provision of toilets and change facilities;
· provision of interpretive information;
· provision of seating and rest areas
were secondary services forming part of the tourist program.
[11]The Respondent’s determination and reconsideration
On 24 November 2015, Dr Mel Cowlishaw, a Delegate of the Respondent, determined that the following services were not secondary services:[12]
1hire of snorkelling gear, lycra suits and flotation vests on board the Big Cat vessel and the Reef Rocket vessel;
2provision of interpretative information, such as snorkelling demonstrations and information about tourist activities, on board the Big Cat vessel and the Reef Rocket vessel;
3provision of buffet lunch on board the Big Cat vessel;
4provision of a bar service on board the Big Cat vessel;
5provision of toilets and change facilities on board the Big Cat vessel;
6provision of seating and rest areas on board the Big Cat vessel; and
7use of the Big Cat vessel as a platform to board glass bottom and semi-submersible vessels.
[12]Exhibit 1, T Documents, T12, Letter accompanying the original decision from the Respondent to the Applicant, dated 24 November 2015, pp. 36 – 37.
Following a request for reconsideration, the matter was reviewed by Ms Kirstin Dobbs, a Delegate of the Respondent. As previously noted, Ms Dobbs affirmed the decision of
Dr Cowlishaw in a detailed decision dated 25 January 2016.[13] The Applicant applied to the Tribunal for review.[14]
FACTS
[13]Exhibit 1, T Documents, T6, Statement of Reasons – Decision on Reconsideration, dated 25 January 2016, pp. 10 – 19.
[14] Exhibit 1, T Documents, T1, Application for Review of Decision, dated 19 February 2016, pp. 1 – 2.
Introduction
The parties indicated at the hearing that the revised submissions from the parties accurately set out the facts that are no longer in dispute.[15]
[15]Transcript of proceedings, 3 October 2017, p. 10, lines 4 – 8, per Ms Brennan QC; p. 41, lines 23 – 29, per Ms Pierce.
The Applicant’s business
The Applicant has, since approximately 1990, operated a business called the “Big Cat Green Island Reef Cruises” which offers full-day and half-day cruise packages from Cairns to Green Island.[16] Passengers disembark at the Green Island Jetty, which although operated by a Queensland Government instrumentality, is within the Marine Park Zone.[17]
[16] Exhibit 4, Affidavit of Paula Jane Wallace, affirmed 1 March 2017, p. 2, para [3].
[17] Exhibit 3, Extract from navigational chart – Queensland, Russel Island to Low Isles.
The Respondent imposes on tourist operators a daily upper passenger discharge limit, the Applicant’s being 470 passengers.[18]
[18] Exhibit 1, T Documents, T25, Permit G06-17952.1, p. 97.
Visitors are transported to Green Island on one of two vessels: the “Big Cat” or the “Reef Rocket”. The “Big Cat” has a maximum passenger capacity of 400 passengers while the “Reef Rocket’s” maximum capacity is 123 passengers.[19]
[19] Exhibit 1, T Documents, T25, Permit G06-17952.1, p. 99.
All packages include a choice of either a glass bottom boat tour of Green Island or use of snorkelling equipment. There are options for customers to add a semi-submersible tour at Green Island and partake of a buffet lunch on board the “Big Cat” whilst moored at the Green Island Jetty.[20]
[20] Exhibit 4, Affidavit of Paula Jane Wallace, affirmed 1 March 2017, p. 2, paras [2] – [4].
The reconsidered decision outlines under the heading “Findings on Material Questions of Fact” details of the manner in which the Applicant conducts its tour business.[21] This outline is also reflected in the Applicant’s submissions.[22]
[21]Exhibit 1, T Documents, T6, Statement of Reasons – Decision on Reconsideration, dated 25 January 2016, pp.15-17.
[22]Amended Statement of Facts and Contentions of the Applicant, dated 1 February 2017, pp. 6 – 8, paras [22] – [38].
The Applicant offers four different packages to persons wishing to travel to Green Island:[23]
(a)full-day Big Cat (9am – 5pm);
(b)full-day Reef Rocket (11am – 5pm);
(c)half-day Reef Rocket (9am – 12:45pm); and
(d)half-day Reef Rocket (1pm – 5pm).
[23]Exhibit 5, Affidavit of Jane Lye, sworn 25 October 2016: Annexures JL-1 – JL-2, pp. 8, 10; Amended Statement of Facts and Contentions of the Applicant, dated 1 February 2017, pp. 6 – 7, paras [24] – [25].
Full-day tours include:
(a)four to five hours on Green Island;
(b)a choice between a glass bottom boat tour or snorkelling equipment;
(c)buffet lunch on board the Big Cat from 12pm; and
(d)use of Big Cat at any time throughout the day for toilets, change rooms, seating and rest areas.
Half-day tours include:
(a)two hours on Green Island; and
(b)a choice between a glass bottom boat tour or snokelling equipment.
Optional extras can be added, including:
(a)for half-day tours, a buffet lunch on board Big Cat from 12pm;
(b)additional glass bottom boat tour;
(c)additional snorkelling equipment; and
(d)semi-submersible tours.
The Applicant does not offer a package which does not include either a glass bottom boat tour or the use of snorkelling equipment – i.e. is solely for transporting persons.
Snorkelling gear, lycra suits, floatation vests and wetsuits are either collected by passengers when boarding the Applicant’s vessels in Cairns or immediately after the vessels get underway. In either case, the gear is distributed before either vessel passes east of False Cape before entering the Marine Park, and while in Queensland waters.[24]
[24] Applicant’s amended Statement of Facts and Contentions, p. 7, para [27].
Further, before the vessels enter the Marine Park and while in Queensland waters, a snorkelling video followed by an informational video are played for the passengers.[25]
[25] Applicant’s amended Statement of Facts and Contentions, p. 7, para [29].
Upon arrival at the Green Island Jetty a significant number of passengers take the next available glass bottom boat or semi-submersible boat tour. Boarding is by means of a purpose-built platform at the rear of the “Big Cat”.[26]
[26] Applicant’s amended Statement of Facts and Contentions, p. 7, para [30].
Any passengers who immediately visit Green Island can later take the glass bottom boat or semi-submersible boat tours making use of the platform at the rear of the “Big Cat”.[27]
[27] Applicant’s amended Statement of Facts and Contentions, p. 7, para [31].
The Applicant’s records indicate that 81% of customers take part in a glass-bottom boat tour and approximately 40% in a semi-submersible boat tour.[28] Ms Paula Jane Wallace deposed:
“That adds up to more than 100% because a number of our customers take both the boat tour and the semi-submersible tour. All of the customers taking part in these tours pay the reduced rate of EMC applicable to those tours. In my estimation, the number of the Applicant’s customers who do not undertake either a glass bottom boat tour or a semi-submersible tour, and therefore do not pay any EMC, would be very small, or perhaps nil.”.[29]
[28] Exhibit 4, Affidavit of Paula Jane Wallace, affirmed 1 March 2017, p. 3, para [9].
[29] Exhibit 4, Affidavit of Paula Jane Wallace, affirmed 1 March 2017, p. 4, para [9].
The Applicant holds three permits from the Respondent: permit G06/17952.1 (“Permit 1”), G06/19317.1 (“Permit 2”) and G09/28756.1 (“Permit 3”).
Permit 1 commenced on 3 July 2006 and is due to expire on 30 June 2021. The Permit contains two chargeable permissions, which authorise use and entry into the Marine Park and Scientific Research Zone, covering Green Island and adjacent waters, for the following purposes:
“CONDUCT OF A TOURIST PROGRAM – Activities being passenger transport, and
CONDUCT OF A VESSEL CHARTER PROGRAM – Activities being the provision of transport and services to persons other than tourists,
Using: Vessel 1 (maximum overall length 35 metres; maximum passenger capacity 200 passengers); and Vessel 2 (maximum overall vessel length 35 metres; maximum passenger capacity 400 passengers).”.[30]
[30] Exhibit 1, T Documents, T25, Permit G06-17952.1, p. 95.
Essentially, Permit 1 contains two chargeable permissions authorising use and entry into the Marine Park and Scientific Research Zone covering Green Island Reef and the waters adjacent to Green Island.[31] These transport permissions allow for the use of two vessels.
[31] Exhibit 1, T Documents, T25, Permit G06-17952.1, p. 95.
Permit 1 grants the permission under which customers are transported to and from Green Island.
Permit 2 commenced on 21 September 2006 and is due to expire on 30 September 2021. The purposes of use and entry authorised are as follows:
“CONDUCT OF A TOURIST PROGRAM – Activities being swimming, snorkelling, SCUBA diving, fish feeding and coral viewing, and
CONDUCT OF A VESSEL CHARTER PROGRAM – Activities being the provision of transport and services to persons other than tourists,
using: Vessel 1 (maximum overall vessel length 20 metres; maximum passenger capacity 50 passengers);
Vessel 2 (maximum overall vessel length 20 metres; maximum passenger capacity 50 passengers); and
Vessel 3 (maximum overall vessel length 20 metres; maximum passenger capacity 50 passengers).
OPERATION OF FOUR (4) MOORING FACILITIES – GM0403, GM0404, GM0405, GM0406
CONSTRUCTION AND OPERATION OF A MOORING FACILITY – GM0706.”.[32]
[32] Exhibit 1, T Documents, T24, Permit G06-19317.1, p. 87.
Permit 3 commenced on 30 January 2009 and is due to expire on 28 February 2024. The use and entry authorised by this permit is as follows:
“CONDUCT OF A TOURIST PROGRAM – Activities being swimming, snorkelling, helmet diving, guided coral-viewing vessel tours and fish feeding using: Vessel 1 (maximum overall length 12 metres; maximum passenger capacity 20 passengers); Vessel 2 (maximum overall vessel length 12 metres; maximum passenger capacity 31 passengers) and five (5) ancillary vessels (being two (2) tenders and three (3) ‘Sea Spi’ coral viewing vessels).
CONDUCT OF A TOURIST PROGRAM – Activities being shore-based snorkelling and SCUBA diving.
OPERATION OF FIVE (5) MOORING FACILITIES – GM0235, GM0236, GM0237, GM0238, GM0239
OPERATION OF A FACILITY – one (1) underwater handrail (maximum length 15metres)
OPERATION OF A MOORING FACILITY – GM0699; and associated ancillary mooring (being a temporary snorkel line) (GM0711).”.[33]
[33] Exhibit 1, T Documents, T23, Permit G09-28756.1, p. 79.
An examination of the permits discloses that Permit 1 focuses on transportation, whereas Permits 2 and 3 focus on tourist activities. It is open to the Respondent to grant a permission for a tourist program that is limited to passenger transit. That has been the case so far as the Applicant is concerned since 1998. That might, for example, be a way in which the Respondent can better regulate activities in the Marine Park, as required by the objects outlined in Great Barrier Reef Marine Park Act 1975 (Cth) (“the Act”).
In this case it seems that the structure of the permissions, including Permit 1 dealing just with transport, was put in place following extensive discussions between the parties which took place against the background of the transfer passenger definition. This was apparent from correspondence which was tendered in the proceedings.[34]
[34] Exhibit 4, Affidavit of Paula Wallace, affirmed 1 March 2017: Annexure PJW1, pp. 6 – 23.
By reference to the activities described in the permits, it is clear that Permit 1 grants the permission under which customers are transported and Permits 2 and 3 grant the permissions under which customers are able to participate in the semi-submersible tour or the glass bottom boat tour or use the snorkelling equipment.
The Tribunal notes that the key features of these permits, which the Respondent has set out in its amended revised Statement of Facts, Issues and Contentions, are common ground between the parties.[35]
[35]Transcript of proceedings, 3 October 2017, p. 14, lines 32 – 33, per Ms Brennan QC; Amended Revised Statement of Facts, Issues and Contentions of the Respondent, dated 14 March 2017, pp. 2 – 3, paras [7] – [10].
As previously noted, the Applicant has relied, since 1998, on permits providing for a transfer passenger exemption from payment of the STPC. Those passengers participating in semi-submersible or glass bottomed boat excursions, pay the prescribed fee for each excursion.[36] The evidence from the Applicant is that “nearly all, perhaps everyone” of the passengers transported to the Green Island Jetty partake in these activities.[37]
[36] r 152(1), Great Barrier Reef Marine Park Regulations 1983 (Cth) (“the Regulations”).
[37] Transcript of proceedings, 3 October 2017, p. 78, lines 44 – 45, per Ms Brennan QC.
The Tribunal notes that Permit 1 is the subject of these proceedings.[38]
[38] Transcript of proceedings, 3 October 2017, p. 14, lines 35 – 36, per Ms Brennan QC.
APPROACH TO STATUTORY CONSTRUCTION
The correct approach to statutory construction was explained by Hayne, Heydon, Crennan and Kiefel JJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] as follows:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”.
[Footnotes omitted]
Likewise, the Tribunal agrees that the following exposition by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 (“Project Blue Sky”) at [69] on contextually construing provisions to achieve overall consistency and harmony and provides guidance on the task in this matter:
“69 The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.”.
[Footnotes omitted]
McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky also stated:
“…a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.”.[39]
[Footnotes omitted]
[39] Project Blue Sky at [71].
Moreover, the function of a court or tribunal remains “to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have.”.[40]
[40] Project Blue Sky at [78], per McHugh, Gummow, Kirby and Hayne JJ.
It is certainly open to the Tribunal to consider extrinsic materials where there is ambiguity to ascertain the ‘mischief’ the relevant provisions were promulgated to remedy.[41]
[41]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey, Gummow JJ; s 15AB of the Acts Interpretation Act 1901 (Cth).
The Applicant tendered voluminous material, (including papers annexed to the Affidavit of Ms Wallace) to demonstrate the ‘mischief’ intended to be addressed in the drafting of the definition of ‘transfer passenger’ in the Regulations. Included in the annexed material was correspondence between officers of the Respondent and the Commonwealth Office of Legislative Drafting in 1993 relating to the transfer passenger definition in the Regulations.
The Tribunal has before it, perhaps uniquely, the exact instructions given by the Respondent and the reasons adduced for those instructions, together with the responses of the drafter.
The Tribunal has not found it necessary to rely on the evidence relating to the ‘mischief’ that the relevant provisions were designed to remedy. We are of the view that the wording of the relevant provisions in the Act and the Regulations are sufficiently clear to apply an orthodox statutory construction approach to resolve the issues in dispute, without recourse to extrinsic material.
RELEVANT LEGISLATIVE PROVISIONS
The Marine Park
The Marine Park and Authority were established by the Act.[42]
[42] ss 6(1), 30, the Great Barrier Reef Marine Park Act 1975 (“the Act”).
Section 2A(1) describes the main object of the Act as the provision of “long term protection and conservation of the environment, biodiversity and heritage values of the Great Barrier Reef Region”.
Section 2A(2) lists other objects including “ecologically sustainable use”[43] in so far as it is consistent with the main object. Specifically, s 2A(2)(a) lists a number of “ecologically sustainable” uses including:
“(iii) recreational, economic and cultural activities”.
[43] See s 3AA, the Act for the definition of “ecologically sustainable use”.
The term “ecologically sustainable use” is defined in s 3AA and the principles of ecologically sustainable use are set out in s 3AB. Paragraph (a) of the principles described in s 3AB provides:
“(a) decision-making processes should effectively integrate both long-term and short-term environmental, economic, social and equitable considerations;”
Section 7(1) of the Act prescribes a broad range of functions vested in the Authority designed to facilitate the main objects of the Act (i.e. s 2A(1)).
Under s 7(3), the Authority, in managing the Marine Park, must observe the following:
“(3) In managing the Marine Park and performing its other functions, the Authority must have regard to, and seek to act in a way that is consistent with:
(a) the objects of this Act in s 2A; and
(b) the principles of ecologically sustainable use; and
(c) the protection of the world heritage values of the Great Barrier Reef World Heritage Area.”.
In order to achieve its objects, the Act regulates, including by a system of permissions, use of the Marine Park in ways consistent with ecosystem-based management and the principles of ecologically sustainable use.[44]
[44] s 2A(3)(d), the Act.
The Marine Park lies within both Commonwealth and Queensland coastal waters. In addition, Queensland national parks include State Islands within the Marine Park. Green Island to the low water mark is such a State Island and is outside the Marine Park Zone.[45] As a result of these jurisdictional issues, the Commonwealth and Queensland Governments have adopted a collaborative approach to deal with a range of issues, including, for example, management of fisheries.
[45] Exhibit 3, Extract from navigational chart – Queensland, Russel Island to Low Isles.
The amalgamated boundaries of the Marine Park are contained in the Great Barrier Reef (Declaration of Amalgamated Marine Park Area) Proclamation 2004 (Cth). So far as is relevant to this matter, the boundaries encompass Green Island from the low water mark and the surrounding sea westward towards Cairns to the low water mark in the vicinity of False Cape, then north along the meridian 145o50.96’E to its intersection by parallel 16o49.11’S, then north westerly along the geodesic to the northernmost point of Taylor Point at the low water mark.[46]
[46]Amended Statement of Facts and Contentions of the Applicant, dated 1 February 2017, p. 3, para [10]; Great Barrier Reef (Declaration of Amalgamated Marine Park Area) Proclamation 2004 (Cth), sch 1, items 62 – 65.
Permissions
In the objects of the Act, reference is made to a “system of permissions”:
“(3) In order to achieve its objects, this Act:…
(d) regulates, including by a system of permissions, use of the Great Barrier Reef Marine Park in ways consistent with ecosystem-based management and the principles of ecologically sustainable use;…”.[47].
[47] s 2A(3)(d), the Act.
Part 2A of the Regulations gives effect to the system of permissions.[48]
[48] Respondent’s Closing Submissions, dated 18 October 2017, p. 5, para [18].
Part 2A provides for, as far as is relevant in this matter, the application process for applying for permissions, the grant or refusal of a permission and the transfer of permissions.[49]
[49] Part 2A, Division 2A.2, Division 2A.5 and Division 24.7, the Regulations.
Under r 3(1) the term “permission” means a permission to which Part 2A applies. Regulation 88(1) sets out permissions to which Part 2A applies, this includes:
“(1)…
(b) a permission referred to in sections 38BA and 38BB of the Act for the purpose of a zoning plan to engage in conduct in a zone (including the person’s use of, or entry to, the zone);…”.
Under ss 38BA – 38BB of the Act it is an offence for a person to engage in “conduct”[50] in the Marine Park Zone, which requires a permission, without a permission.
[50]The Criminal Code 1995 (Cth) defines “conduct” to mean “an act, an omission to perform an act or a state of affairs”: s 4.1(2), s 3, the Act.
Collection of the EMC/Chargeable Permissions
Section 39A prescribes that the object of Part VA of the Act is to make provision with respect to liability to, and collection of, a charge imposed by s 4 of the:
“(a) the Great Barrier Reef Marine Park (Environmental Management Charge--General) Act 1993; and
(b) the Great Barrier Reef Marine Park (Environmental Management Charge-- Excise) Act 1993.”.[51]
[51] s 39A, the Act; Note that s 3, the Act provides the definition of “charge”.
Section 4(1) in the aforementioned Acts are identical and provide that:
“(1) Charge payable in accordance with section 39B of the Great Barrier Reef Marine Park Act 1975 is imposed.”.[52]
[52]s 4 the Great Barrier Reef Marine Park (Environmental Management Charge–General) Act 1993 (Cth); s 4 the Great Barrier Reef Marine Park (Environment Management Charge–Excise) Act 1993 (Cth).
The Act allows for the making of regulations providing for, as is relevant to this matter, the imposition and collection of charges by the Authority from people using the Marine Park.[53]
[53] ss 66(1) – (2)(k)-(l), the Act.
The details of the EMC regime are set out in Part 8 of the Regulations and determine the amount of charge payable by a visitor.[54]
[54]Respondent’s Closing Submissions, dated 18 October 2017, p. 5, para [22]; Applicant’s Submissions after Hearing, dated 18 October 2017, p. 10, para [38].
As to Part 8, so far as relevant, r 136 sets out a list of activities for which there can be a chargeable permission. Relevantly for this matter, this includes:
“(a) the operation of a tourist program;…”.
Regulation 142(1) refers to the standard tourist program charge (“STPC”):
“(1)…if a tourist program provided under a chargeable permission is, or includes, a primary service, the standard tourist program charge for a charge year is payable by each visitor who takes part in the program during the charge year…”.
STPC is calculated by means of a formula prescribed in r 141.
The Regulations also prescribe a range of charges attached to specified recreational activities. For example, r 152 prescribes fees for each visitor partaking in a
semi-submersible or glass bottomed boat excursion provided under a chargeable permission. These activities are provided by the Applicant and the relevant fee is paid.
To avoid double charging, r 143 prescribes circumstances where visitors do not have to pay the STPC. Regulation 143 provides as follows:
“(1) Charge is not payable under this Subdivision by a visitor who takes part in a tourist program on a day if:
(a) on the same day, the visitor has used a service for which the full amount of the standard tourist program charge is payable by the visitor; and
(b) the visitor, or the holder of the chargeable permission under which the service mentioned in paragraph (a) was provided, has evidence (in the form of a dated receipt or dated ticket) that the visitor has paid the charge.
(2) Charge is not payable under this Subdivision by a visitor who takes part in a tourist program provided under a chargeable permission on a day if the visitor only takes part in the program on the day by:
…
(d) participating in 1 or more excursions to which regulation 152…applies…”.
The EMC is one of a number of charges levied by the Respondent on persons seeking to enter the Marine Park for commercial and recreational purposes.
The term “chargeable permission” is defined in s 3(1) of the Act:
“chargeable permission means a permission granted under the regulations, where the permission is of a kind declared by the regulations to be a chargeable permission for the purposes of this Act.”.
[Emphasis in original]
Where a chargeable permission is granted under the Act, the Act creates a liability to pay a charge.[55] The charge imposed is that prescribed by s 39B of the Act and attaches to the grant or transfer of “chargeable permissions”:
“(1) If a chargeable permission is granted or transferred to a person, then whomever of the following persons is prescribed by the regulations is liable to pay a charge on the grant or transfer:
(a) the person who is the holder of the chargeable permission;
(b) a visitor who is provided a service by the holder of the chargeable permission under that permission.”.[56]
[55] Respondent’s Closing Submissions, dated 18 October 2017, p.5, para [20].
[56] s 39B(1), the Act.
If the tourist program that the operator is providing includes travel in the Marine Park, as the parties have agreed, the provider must hold a chargeable permission granting permission for transport in the Marine Park.[57]
[57]Applicant’s Submissions After Hearing, dated 18 October 2017, p.10, para [41]; Respondent’s Closing Submissions, p. 2, para [8].
Section 39DB provides that visitors are liable to pay the charge to the holder of a permission for a tourist program, who in turn remits the charge to the Respondent.[58]
[58]Applicant’s Submissions after Hearing, dated 18 October 2017, p. 10, para [39]; Respondent’s Closing Submissions, p. 5, para [20].
Under s 39FA, chargeable permission holders must collect the charge payable by visitors. Failure to collect the charge is an offence and imposes a penalty on the holder of a chargeable permission.[59]
[59] ss 39FA, 39G, the Act.
Operation of a tourist program
As set out above, the operation of a tourist program is an activity for which there can be a chargeable permission.[60]
[60] r 136(a), the Regulations.
The term “operation of a tourist program” is defined in r 135(1) as having the same meaning as it has in s 3A(3) of the Act. This section provides that a “tourist program” is a reference to an activity (whether consisting of a single act or a series of acts) that:
“(a) is in the course of carrying on business; and
(b) is or includes the provision of transport, accommodation or services for tourists or for persons who include tourists.”.
Regulation 135(1) provides that “tourist” has the same meaning as it has in
s 3A(9) of the Act which is:
“…a person who is in the Marine Park principally for the purpose of recreation (which may include fishing or collecting).”.
A visitor is considered to have taken part in a tourist program if the visitor participates (wholly or partly) in the excursions or activities provided in the Marine Park by the permission holder who provides the program.[61]
[61] r 140(2), the Regulations.
VISITOR AND TRANSFER PASSENGER DEFINITIONS
Regulation 135(1) contains two definitions that are critical to the disposition of this matter.
The first is the definition of “visitor”, which, in so far as relevant for current purposes, provides:
“…a person to whom a service is provided under a chargeable permission, but who is not:
(a) a transfer passenger;…”.
The definition of “visitor” excludes a “transfer passenger”. The importance of this is that the imposition of the charging regime is predicated on a visitor taking part in a tourist program provided under a chargeable permission.[62] If a person meets the definition of “transfer passenger” the person will be exempt from paying the charge.
[62] r 142, the Regulations.
The second critical definition is that of “transfer passenger”:
“transfer passenger means a person who:
(a) is transported into the Marine Park and disembarked at a place contiguous to, or at a wharf or jetty within or partly within, the Marine Park by a person who holds a permission for a tourist program; and
(b) is transported by the most direct reasonable route; and
(c) does not:
(i) during the course of travel in the Marine Park--engage in any tourist activity provided by the permission holder; and
(ii) at the disembarkation destination, for at least 2 hours after disembarkation--engage in any tourist activity provided by the permission holder under that permission.”.
The definition of “transfer passenger” was inserted by SR 206 of 1993 and limited disembarkation to a place contiguous to the Marine Park. This was amended by SR 326 of 1997 into its current formulation. The SR 206 of 1993 formulation would, on its face, have excluded disembarkation at the Green Island Jetty which is inside the Marine Park and not contiguous to it.
The definition of “transfer passenger” in r 135(1) contains three criteria.
First Criteria
“transported into the Marine Park and disembarked at a place contiguous to, or at a wharf or jetty within or partly within, the Marine Park”
The first criteria is contained in paragraph (a), namely that a person is transported into the Marine Park and disembarked at a place contiguous to, or at the wharf or jetty within or partly within, the Marine Park by a person holding a permission for a tourist program.
The Applicant submits that it does not seem to be in issue that the Applicant, pursuant to two permissions attached to Permit 1, transports persons into the Marine Park, and the persons disembark at the Green Island Jetty, which is within the Marine Park.[63]
[63]Amended Statement of Facts and Contentions of the Applicant, dated 1 February 2017, p. 9, para [52.1].
There seems to be no issue taken with this view.
“holds a permission for a tourist program”
It is necessary to consider whether the words “holds a permission for a tourist program” in paragraph (a) refer to the particular permission under which the Applicant transports its passengers into the Marine Park and disembarks them at the Green Island Jetty or whether it refers to any of its chargeable permissions.[64]
[64] Applicant’s Submissions after Hearing, dated 18 October 2017 pp. 9 – 10, para [35].
Both parties make reference to the operation of articles as they are understood in the context of English grammar, that being indefinite and definite articles.[65] The use of the word “a” in the words “a permission for a tourist program” is the use of an indefinite article.
[65]Applicant’s Submissions after Hearing, dated 18 October 2017, p. 13, para [55]; Transcript of Proceedings, 3 October 2017, pp. 68 – 69, lines 20 – 40, per Ms Brennan QC.
The Respondent submits that the indefinite article, “a” qualifies the words “permission for a tourist program” and could be substituted by the pronoun “any”. In support of the submission the Respondent made reference to Callaway JA’s comments on the operation of articles in Tamas v Victorian Civil & Administrative Tribunal.[66]
[66][2003] VSCA 113 at [7] – [9]; Respondent’s Closing Submissions, dated 18 October 2017, p. 11, para [47].
Further, the Respondent submits that paragraph (a) does not make explicit reference to the permission authorising passenger transport.[67] That is, the reference in paragraph (a) to “transported into the Marine Park” and to “a permission for a tourist program”, are not linked by a permission permitting transport.
[67] Respondent’s Closing Submissions, dated 18 October 2017, p. 12, para [48].
The Respondent submits that the only qualifying feature of the person that transports the passenger is that they must hold a permission for a tourist program.[68] On the Respondent’s submission, this could be any of the Applicant’s three permits.[69]
[68] Respondent’s Closing Submissions, dated 18 October 2017, p. 12, para [50].
[69]Amended Revised Statement of Facts, Issues and Contentions of the Respondent, dated 14 March 2017, p. 7, para [39]; Transcript of Proceedings, 3 October 2017, p. 86, lines 18 – 24, per Ms Pierce.
The Applicant submits that the “tourist program” referred to in paragraph (a) is passenger transport, specifically the permission which allows the Applicant to transport people into the Marine Park (Permit 1).[70]
[70]Applicant’s Submissions in Reply, dated 25 October 2017, p. 4, para [17]; Applicant’s Submissions after Hearing, dated 18 October 2017, p. 11, para [45].
The Applicant referred to the requirement for a tourist program operator who provides a tourist program which includes travel in the Marine Park, to hold a chargeable permission for transport of passengers in the Marine Park.[71] The Applicant submitted the “natural reading” of paragraph (a) is that it is a reference to the permission under which the person transports that passenger.[72]
[71]Applicant’s Submissions after Hearing, dated 18 October 2017, p.10, para [41].
[72] Transcript of Proceedings, 3 October 2017, p. 70, lines 26 – 28, per Ms Brennan QC.
The Applicant submits that the Respondent’s construction of the words in paragraph (a) fails to have regard to the purpose of the exemption contained in the definition of transfer passenger and the way the exemption works with the Act.[73]
[73] Applicant’s Submissions after Hearing, dated 18 October 2017, pp. 11 – 12, para [47].
The Applicant submits that the Respondent’s construction of paragraph (a) potentially undermines the operation of the Act and Regulations and can lead to adverse results.[74]
[74] Applicant’s Submissions after Hearing, dated 18 October 2017, p. 12, para [50].
We agree with the position as put by the Applicant.
It is necessary to consider the words used and the context in which they are used.
The context in which the words are used is in a paragraph in the Regulations which focuses on whether a person is liable to a charge with respect to a tourist program provided under a chargeable permission which, as is clear from the words used, involves the transport of passengers, including tourists. The focus is on the transport of passengers. The paragraph contains a definition, the application of which removes the person from the ambit of the charging regime imposed by r 142. The particular tourist program in question relates to transport, and the charge would otherwise arise due to the relevant chargeable permission under which the program is provided. In the absence of the exemption provided by r 142, a tourist who participates in the tourist program (which includes travel in the Marine Park) is liable to pay the EMC. It is with respect to that tourist program (involving transport) that the categorisation as a transfer passenger operates to provide the exemption.
In this context it seems clear that the permission to which reference is made in the paragraph (a) must be the chargeable permission under which the tourist program is provided and which would (were it not for the definition) lead to the person being obliged to pay the charge. In this case that is the transport permission (Permit 1).
In the context it cannot, as the Respondent submits, be a reference to one of the other permissions held by the Applicant, namely Permits 2 and 3, which have no relevance to the imposition of the charge to which the definition relates and no relevance to the subject matter of the paragraph. On the face of the Regulation, the exemption does not operate with respect to participation in activities allowed under the other chargeable permissions.
In the context of the way in which paragraph (a) operates in r 142, it seems the intended reference in paragraph (a) is to a particular permission rather than any one of a number of possible permissions. The reference in sub-paragraph (c)(ii) to “that permission” seems to contemplate and require that the permission in paragraph (a) is a specific permission. Otherwise it would make it impossible to apply sub-paragraph (c)(ii).
Moreover, in paragraph (c), sub-paragraph (c)(ii), is said to apply to tourist activities provided by the permission holder under “that permission” whereas sub-paragraph (c)(i) seems to apply to any tourist activity provided by the permission holder under any permission. This follows because sub-paragraph (c)(i) is not limited by reference to any permission and simply refers to “tourist activity provided by the permission holder”. If the permission in paragraph (a) were, as asserted by the Respondent (i.e. that it refers to any permission held by the permission holder), then there would be no effective difference between the operation of sub-paragraphs (c)(i) and (c)(ii). If that were intended there would be no need for the two parts of paragraph (c), and no doubt the Regulation would reflect this in its wording. The presence of the two parts of paragraph (c) supports the view that the Tribunal takes as to the permission to which paragraph (a) refers.
The Tribunal concludes that the reference in paragraph (a) to “holds a permission for a tourist program” refers to the transport permission.
Second Criteria
“transported by the most direct reasonable route”
The second criteria is contained in paragraph (b), namely that the passengers are transported by the most direct reasonable route.
The parties to this proceeding did not advance an argument, nor was any evidence presented to the Tribunal in contention of this point.[75]
[75]Amended Statement of Facts and Contentions of the Applicant, dated 1 February 2017, p. 9, para [53].
The Tribunal finds that this criteria is met.
Third Criteria
Introduction
The third criteria has two limbs:
(a)sub-paragraph (c)(i) – during the course of travel in the Marine Park a person does not engage in any tourist activity provided by the permission holder; and
(b)sub-paragraph (c)(ii) – at the disembarkation destination, for at least two hours after disembarkation, a person does not engage in any tourist activity provided by the permission holder under that permission.[76]
“course of travel in the Marine Park” and “at the disembarkation destination, for at least 2 hours after disembarkation”
[76] r 135(1)(c)(i)-(ii), the Regulations.
Sub-paragraph (c)(i) is focused on “during the course of travel in the Marine Park” whereas sub-paragraph (c)(ii) focuses on the “disembarkation location, for at least 2 hours after disembarkation”.
The Applicant’s submission is that paragraph (c) of the definition of transfer passenger refers to two distinct periods of time:[77]
(i)during the course of travel; and
(ii)at the disembarkation destination, for at least two hours after disembarkation.
[77] Transcript of Proceedings, 3 October 2017, p. 59, lines 26 – 28, per Ms Brennan QC.
The Applicant submitted that the words “during the course of travel in the Marine Park” means the period of time while the person is being transported into the Marine Park and up to the point of disembarkation,[78] and that the correctness of this view was supported by the fact that (c)(ii) is a “very specific provision” that addresses the period at and for at least two hours after, disembarkation.[79]
[78] Transcript of Proceedings, 3 October 2017, p. 59, lines 13 – 15, per Ms Brennan QC.
[79] Transcript of Proceedings, 3 October 2017, p. 59, lines 20 – 30, per Ms Brennan QC.
The Respondent submitted that the difference between the subparagraphs lies in their different places of operation, in that sub-paragraph (c)(i) is concerned with things done during travel in the Marine Park, whereas sub-paragraph (c)(ii) focuses on things done at the disembarkation location.[80] The Respondent contends that “at the disembarkation destination” can include a location in the Marine Park or a location which can include a State-owned Island, which is not part of the Marine Park.[81]
[80] Respondent’s Closing Submissions, dated 18 October 2017, p. 12, para [52].
[81] Respondent’s Closing Submissions, dated 18 October 2017, p. 12, para [52].
The Respondent asserts that its interpretation of the words “during the course of travel” in sub-paragraph (c)(i) does not render (c)(ii) otiose, as (c)(ii) deals with the two hour time limit at the disembarkation destination.[82]
[82] Respondent’s Closing Submissions, dated 18 October 2017, p. 11, para [45].
The Applicant submits that the Respondent’s construction of the words was not correct and would be an overreach in the regulatory scheme established under the Act and Regulations, as the Act and Regulations do not regulate activities on Green Island.[83]
[83] Applicant’s Submissions in Reply, dated 25 October 2017, p. 4, para [19].
The Tribunal agrees with the approach taken by the Applicant.
As a matter of construction, the Tribunal is of the view that the words used in the two
sub-paragraphs make it clear that sub-paragraph (c)(i) is focused on the part of the journey from Cairns to Green Island Jetty, when the vessel has entered the Marine Park and until the vessel moors at the Green Island Jetty, whereas sub-paragraph (c)(ii) deals with activities occurring within two hours after the time of disembarkation on arrival at Green Island.
Sub-paragraph (c)(ii) is a specific provision dealing with the time period in the two hour period after the time of disembarkation.
It is clear from the words used in sub-paragraphs (c)(i) and (c)(ii) that two distinct time periods and two distinct locations are specified.
An aspect of the Respondent’s submissions seems to be predicated on the assumption that the Act purports to regulate activities outside the boundaries of the Marine Park. Insofar as a passenger engages in activities on Green Island, those activities fall outside the purview of the regulatory regime prescribed in the Regulations. The activities contemplated by sub-paragraphs (c)(i) and (c)(ii) take place in the Marine Park, the first during transit and the second upon mooring and within two hours after disembarkation.
“tourist activity”
The term “tourist activity” is used in both sub-paragraphs (c)(i) and (ii), and there is no dispute that the term has the same meaning in both limbs of that part of the definition of “transfer passenger”.[84]
[84]Amended Revised Statement of Facts, Issues and Contentions of the Respondent, dated 14 March 2017, p. 6, para [32]; Amended Statement of Facts and Contentions of the Applicant, dated 1 February 2017, p. 11, para [60]; Transcript of Proceedings, 3 October 2017, p. 60, lines 40 – 45, per Ms Brennan QC.
The term “tourist activity” is not defined in the Act or the Regulations. The parties agree that the term should be defined by reference to the definition of “tourist” under
s 3A(9) of the Act. The parties also agree that the term should be construed to exclude travel.[85]
[85]Amended Statement of Facts and Contentions of the Applicant, dated 1 February 2017, paras [61]-[62]; Amended Revised Statement of Facts, Issues and Contentions of the Respondent, dated 14 March 2017, p. 6, para [30]; Applicant’s Submissions after Hearing, dated 18 October 2017, p. 13, paras [59] – [60].
The meaning of the use of the word “activity” in “tourist activity” is in dispute between the parties.
The Applicant contends that there is a distinction between the use of the word ‘service’ and the use of the word ‘activity’. Ms Brennan QC submits that the word “service” is used widely in the Regulations, specifically in the definition of primary and secondary services in r 135(1). Likewise, the word “activity” is used regularly in the Act, particularly in s 3A in relation to the interpretation of a zoning plan, and in the context of the grant of chargeable permissions as defined in s 3(1) of the Act and r 136 of the Regulations.[86]
[86] Applicant’s Submissions after Hearing, dated 18 October 2017, p. 14, paras [62] – [64].
The Applicant in its submissions took the Tribunal to s 3A(3), which states:
“(3) In a zoning plan, a reference to the operation, to the conduct, or to the establishment, of a tourist program is a reference to an activity (whether consisting of a single act or a series of acts) that:
(a)is in the course of carrying on business; and
(b)is or includes the provision of transport, accommodation or services for tourists or for persons who include tourists.”.
[Emphasis added]
The Applicant further submits that the word “activity” is used in several significant places in the Act and Regulations.[87]
[87]Applicant’s Submissions after Hearing, dated 18 October 2017, p. 14, paras [62] – [63]; see ss 3(1), 3A(3), the Act and r 136, the Regulations.
The Applicant submits that there is no “correspondence”[88] between the singular word “activity” in s 3A(3) and the plural word “services” in s 3A(3)(b).[89] The Applicant suggests the operator necessarily provides services in order to facilitate the tourists’ engagement in a tourist activity:
“There are two things relevantly to note from that definition. ‘A tourist program is a reference to an activity’, it is not a reference to a service. The reference to an activity made available to tourists in the course of the operator’s business. The entire program is comprised of such an activity or activities. Conversely, it’s the activity or activities that comprise the tourist program.
The relevant activity, whether it’s consisting of a single act or a series of acts, is or includes the provision of services, because it is through the provision of services that an operator enables the tourist to participate in an activity that constitutes the whole or part of a tourist program; but the tourist program being a reference to an activity is not the provision of services per se… the operation of a tourist program or provision of services must constitute an activity that is then properly characterised as the operation of a tourist program.”.[90]
[88] Transcript of Proceedings, 3 October 2017, p. 67, lines 30 – 33, per Ms Brennan QC.
[89] See also Applicant’s Submissions after Hearing, dated 18 October 2017, p. 14, para [64].
[90] Transcript of Proceedings, 3 October 2017, p. 66, lines 9 – 23, per Ms Brennan QC.
The Applicant’s submits that the purpose for the use of the word “activity” as opposed to “service” in paragraph (c) is so the term “tourist activity” is not equated with the term tourist service.[91] At the hearing, the Respondent summarised the Applicant’s position accordingly:
“… if you do something or partake of what it has labelled a relevant service that forms part of a tourist program, then you are not and could not be participating in a tourist activity.”.[92]
[91] Applicant’s Submissions after Hearing, dated 18 October 2017, p. 14, para [64].
[92] Transcript of Proceedings, 4 October 2017, p. 104, lines 6 – 8, per Ms Pierce.
The Respondent submits that the Applicant’s contended construction of the term “tourist activity”, specifically the distinction between activity and services, “lacks textual support”.[93]
[93] Respondent’s Closing Submissions, dated 18 October 2017, p. 8, para [33].
The Respondent submits that the Applicant’s submission “fails adequately to acknowledge” that the definition of the words “operation of a tourist program” in
s 3A(3) includes the provision of services[94]:“That submission fails adequately to acknowledge the definition of the concept of ‘operation of a tourist program’ in s 3A(3) of the Act expressly to include the provision of services. By that definition the Act acknowledges that the provision of services may constitute an activity that is properly characterised as a tourist program.”.[95]
[Footnotes omitted]
[94] Respondent’s Submissions in Reply, 1 November 2017, p. 4, para [18].
[95] Respondent’s Submissions in Reply, 1 November 2017, p. 4, para [18].
It is the Respondent’s submission that the Act establishes a correspondence between a tourist program and services, in that the words “operation of a tourist program” are defined by reference to services.[96] In support of the submission, the Respondent submits that other sections of the Act do not differentiate between services and activities.[97]
[96] Respondent’s Closing Submissions, dated 18 October 2017, p. 8, para [33].
[97]Respondent’s Closing Submissions, dated 18 October 2017, pp. 8 – 9, para [33]; see also ss 39B(1), 39FA, the Act and rr 135(1) and 140, the Regulations.
On the Applicant’s submission this distinction is important as there may be particular cases where the provision of a service constitutes the provision of a tourist activity. The Applicant submits that the provision of the Relevant Services are incidental or ancillary to the provision of passenger transport or travel and are “services that facilitate the tourist’s participation in a tourist activity”.[98]
[98] Applicant’s Submissions after Hearing, p. 15, para [67].
The Applicant rejects the notion that every service, especially incidental and ancillary services that otherwise do not require a permission, constitute a tourist activity merely because they are services provided to tourists in preparation for, or in facilitation of, their engagement in a particular tourist activity.[99]
[99]Applicant’s Submissions after Hearing, p. 14, para [65].
The Applicant contends that in order to determine whether a service is a tourist activity, it is necessary to consider each service individually. On the Applicant’s construction, services offered by the Applicant are not automatically characterised as tourist activities; it is necessary to consider whether the service is: (a) characterised as recreational; and (b) incidental to another service offered, for example, transport.[100]
[100]Amended Statement of Facts and Contentions of the Applicant, dated 1 February 2017, p. 10, para [57].
The Applicant submitted that where it is not known if and when an incidental service to a permitted activity will constitute a tourist activity in its own right, a tour operator would have no certainty that they were conducting their operations in compliance with the Act and Regulations.[101]
[101] Applicant’s Submissions in Reply, dated 25 October 2017, p. 3, para [14].
The Respondent contended that the correct approach to determining whether a passenger “engage[s] in a tourist activity”[102], is to determine whether the passenger engages in any tourist activity, regardless of what the activity is, during the course of travel in the Marine Park.[103] The Respondent’s submission is that if a passenger avails themselves of a service, they are engaging in a tourist activity.[104]
[102] Sub-paragraph (c)(i) of the definition of “transfer passenger” in r 135(1), the Regulations.
[103]Amended Revised Statement of Facts, Issues and Contentions of the Respondent, dated 14 March 2017, p. 7, para [39].
[104] Transcript of Proceedings, 4 October 2017, p. 140, lines 38 – 42, per Ms Pierce.
The Respondent asserts that tourist activities include the Relevant Services. The Respondent submitted that the Act and Regulations do not exclude from the meaning of “tourist program”, activities that have an incidental character, or have a preparatory character.[105]
[105]Transcript of Proceedings, 4 October 2017, p. 109, lines 13 – 19, per Ms Pierce; Respondent’s Closing Submissions, p. 10, para [37].
The Respondent submitted it is open to the Tribunal to find that a transfer passenger could conceivably and plausibly enjoy amenities incidental to transit without engaging in activities and services constituting a tourist program.[106] The Respondent’s submission is predicated on there being a ‘clear’ distinction in the Regulations between passengers who partake in activities authorised by Permits 2 and 3 and passengers “who merely transit to and from the Island”.[107]
[106] Respondent’s Closing Submissions, dated 18 October 2017, p. 10, para [40].
[107] Respondent’s Closing Submissions, dated 18 October 2017, p. 10, paras [38] – [39].
The rationale for this distinction, it was submitted, was that the same amenities could be characterised as incidental to the conduct of a tourist program on the one hand, and on the other hand, incidental to mere transit.[108]
[108] Respondent’s Closing Submissions, dated 18 October 2017, p. 10, para [39].
It was submitted by the Respondent that this interpretation would not render the system of permissions under the Regulations unworkable. Such an approach would ensure that the definition of “transfer passenger” and “visitor” could continue to operate mutually exclusively.[109]
[109] Respondent’s Closing Submissions, dated 18 October 2017, p. 10, paras [40], [42].
The Respondent expressed concern that by implicitly authorising any tour operator who transports customers to the Marine Park, to carry on what it considered to be an ancillary or preparatory activity or service, to avail itself of the transfer passenger exemption could lead to “confusion in the administration of the Regulations”.[110]
[110] Respondent’s Submissions in Reply, dated 1 November 2017, p. 4, para [17].
A “tourist activity” as described in paragraph (c) will be an activity, other than the passenger transport or travel, engaged in by a tourist and which is recreational in nature.
Failure to collect and remit charges carries with it severe consequences. The intention is to ensure that the circumstances leading to the imposition of the charge are clear and not ambiguous.
In determining whether an activity is a tourist activity, it is necessary to consider the nature and characteristics of the particular individual activity.
In the context of the purpose of this Regulation (to exempt a particular type of tourist who is participating in a tourist program from the liability to an EMC) it is not correct to conclude that an activity is recreational in nature merely because an activity is undertaken by people (tourists) who are making a recreational visit to the Marine Park itself. Such an activity might, equally, be undertaken by a person (e.g. a hospitality worker or a person intending to spend time on Green Island) who was transiting to Green Island. There would be no certainty as to which activities were tourist activities. This demonstrates the difficulty in attempting to categorise an activity by reference to the nature of the person undertaking the activity.
The Explanatory Statement to the Amendment Bill stated that the introduction of the transfer passenger definition clarified which passengers were not to be counted for the purpose of determining the liability to payment of EMC.[111] An exemption is provided to passengers, including tourists, who fall within the definition. It is necessary to apply the operation of the words of the definition.
[111]Explanatory Statement, Statutory Rules No. 206 of 1993, Great Barrier Reef Marine Park Regulations (Amendment).
A person cannot undertake any activity in the Marine Park unless the activity is offered under a permission which allows the activity – in the context of the conduct of a tourist program. It follows that every activity will be offered under a tourist program (authorised under a permission) and so, applying the approach asserted by the Respondent, in effect every activity will be a tourist activity. This leaves little or no room for operation of the definition which determines whether a tourist is a transfer passenger.
The Respondent suggested it was open to the Tribunal to find that certain amenities, for example, the provision of water or coffee or toilets, when offered under a permit authorising the conduct of a tourist program, are tourist activities within the meaning of the Regulations. The submission continued that it would also be open to the Tribunal to find that: “the same amenities, where they are available to passengers who merely transit to and from the island, would not constitute tourist activities…”.[112]
[112] Respondent’s Closing Submissions, dated 18 October 2017, p. 10, para [38].
Whether the passenger is a “visitor” or a “transfer passenger” depends on the application of the definition. There is no reference in the definition to persons who ‘merely transit to and from the island’. These are not words used in the Regulation.
The submission is circular in effect because it must assume that certain people are transfer passengers and so activities done by them are not tourist activities. It does not apply the test required.
These approaches would fail to consider the nature of the activity.
The correct approach is to consider the nature of the individual activity itself.
A tourist activity must be in the nature of a recreational activity undertaken by a tourist. Whether a particular activity is a tourist activity is a question of fact determined by reference to the specific characteristics of the activity. The Tribunal agrees with the Applicant that it is necessary to consider each activity individually.
As the parties have agreed, in the context of the definition, activities which are part of transport or travel are not included. Incidental and ancillary services that are part of transport or travel and do not otherwise require, or fall under, a separate permission are in this category. Thus services that are intrinsically part of modern transport arrangements are not included in the scope of “tourist activities” for this purpose.
The Respondent expressed concern that this approach would “implicitly authorise” a tour operator who transports customers to the Marine Park, to carry on what it considered to be an ancillary or preparatory activity or service, to avail itself of the transfer passenger exemption and that this could lead to “confusion in the administration of the Regulations”.[113]
[113] Respondent’s Submissions in Reply, dated 1 November 2017, p. 4, para [17].
The approach that the Tribunal adopts does not have this effect. It does not, of itself, involve “implicitly authorising” the permission holder to carry on activities so as to attract the transfer passenger exemption. It is a matter for the Regulator to put legislation and regulations in place and indeed to grant the permissions (including chargeable permissions) in terms decided by the Regulator. The permission holder can conduct its operations in whatever way it chooses provided it is in compliance with the Act and Regulations. The approach of considering the nature of the activity on a case by case basis ensures objectivity, transparency and certainty in the process which is of course subject to administrative decision-making and ultimately merits review.
In those circumstances it would clearly not be a matter for the permission holder to decide what activities were ancillary or preparatory.
Paragraph (c) the nature of the tourist activity
“under that permission”
Paragraph (c) refers to any tourist activity which takes place, either during the course of travel in the Marine Park or at the disembarkation destination within two hours after disembarkation.[114]
[114] Sub-paragraph (c)(ii) of the definition of “transfer passenger” in r 135(1), the Regulations.
Sub-paragraph (c)(i) refers to “any tourist activity provided by the permission holder”. As there is no limitation expressed by reference to the permission, it seems clear that this refers to an activity undertaken under any permission held by the Applicant.[115]
[115]Respondent’s Closing Submissions, dated 18 October 2017, p. 12, para [48]; Amended Revised Statement of Facts, Issues and Contentions of the Respondent, dated 14 March 2017, p. 7, para [39]; Transcript of Proceedings, 3 October 2017, p. 86, lines 20 – 23, per Ms Pierce.
The position is different under sub-paragraph (c)(ii) which refers to “tourist activity provided by the permission holder under that permission”.
It is necessary to consider the meaning of the words “under that permission” in
sub-paragraph (c)(ii). To what permission does the word “that” refer? Is it a reference to the permission referred to in paragraph (a)?
Both parties refer to the operation of articles as they are understood in the context of English grammar.[116]
[116]Applicant’s Submissions after Hearing, dated 18 October 2017, p.13, para [55]; Respondent’s Closing Submissions, p. 12, paras [49] – [50]; Transcript of Proceedings, 3 October 2017, pp. 68 – 69, lines 17 – 40, per Ms Brennan QC.
The Applicant submits that if the permission referred to in paragraph (a) is the permission to conduct the tourist program of passenger transport, then the words “under that permission” in (c)(ii) refer to that same permission.[117]
[117] Applicant’s Submissions after Hearing, dated 18 October 2017, p. 13, para [55].
The Respondent also submits that the pronoun “that” in sub-paragraph (c)(ii) in the words “under that permission” is referring back to “a permission for a tourist program” in paragraph (a).[118] As has been stated earlier in these reasons, the Respondent has a different view regarding the words used in paragraph (a) and asserts that the language of paragraph (a) could capture any one of the Applicant’s three permits.
[118] Respondent’s Closing Submissions, dated 18 October 2017, p. 12, para [49].
Having determined that the reference in paragraph (a) to “a permission for a tourist program” refers to Permit 1, it follows that the reference to “that permission” in
sub-paragraph (c)(ii) refers to Permit 1.
THE RELEVANT SERVICES
Introduction
The Respondent’s submission is that none of the Applicant’s customers who use the Relevant Services are transfer passengers within the definition in r 135(1).[119]
[119] Respondent’s Closing Submissions, dated 18 October 2017, pp. 18 – 19, para [79].
It is the Applicant’s submission that passengers who use the Relevant Services, defined later in these reasons, do so as part of the tourist program of passenger transport permitted under Permit 1 and, in respect of that program, the customers are “transfer passengers” and not “visitors”.[120]
[120] Applicant’s Submissions after Hearing, dated 18 October 2017, p. 2, para [6].
The following services were identified in the decision under review, and as a consequence are set out in the amended Statement of Facts and Contentions of the Applicant:[121]
(a)hire of snorkelling gear, lycra suits and flotation vests on board the Big Cat vessel and the Reef Rocket vessel;[122]
(b)provision of interpretative information, such as snorkelling demonstrations and information about tourist activities, on board the Big Cat vessel and the Reef Rocket vessel;[123]
(c)provision of buffet lunch on board the Big Cat vessel;[124]
(d)provision of a bar service on board the Big Cat vessel;[125]
(e)provision of toilets and change facilities on board the Big Cat vessel;[126]
(f)provision of seating and rest areas on board the Big Cat vessel;[127] and
(g)use of the Big Cat vessel as a platform to board glass bottom and
semi-submersible vessels.[128][121]Amended Statement of Facts and Contentions of the Applicant, dated 1 February 2017, pp. 1 – 2, para [1.9]; Exhibit 1, T Documents, T12, Letter accompanying the original decision from the Respondent to the Applicant, dated 24 November 2015, p. 36.
[122]In the Respondent’s Closing Submissions, the Respondent limits this to arrival at Green Island and for use on Green Island.
[123]In the Respondent’s Closing Submissions, the Respondent limits this to the transit period to Green Island.
[124] In the Respondent’s Closing Submissions, the Respondent limits this to after arrival at Green Island.
[125] In the Respondent’s Closing Submissions, the Respondent limits this to after arrival at Green Island.
[126]In the Respondent’s Closing Submissions, the Respondent limits this to the period when the Big Cat is in transit and throughout the visit to Green Island.
[127] In the Respondent’s Closing Submissions, the Respondent limits this to after arrival at Green Island.
[128]In the Respondent’s Closing Submissions, the Respondent sought to limit this to after arrival at Green Island.
Following the hearing of this matter the Respondent in its Closing Submissions set out varied services (“Relevant Services”) as follows:
(a)hire of snorkelling gear, lycra suits and flotation vests aboard the vessels upon arrival at Green Island for use on Green Island;
(b)provision of interpretative information e.g., videos and demonstrations about snorkelling and tourist activities (shown or offered on board the Applicant’s Big Cat and Reef Rocket vessels while in transit to Green Island);
(c)provision of a bar service on board Big Cat after arrival at Green Island;
(d)provision of buffet lunch on board Big Cat after arrival at Green Island;
(e)provision of toilets and change facilities on Big Cat in transit and throughout the visit to Green Island;
(f)provision of seating and rest arears on Big Cat after arrival at Green Island; and
(g)use of the Big Cat vessel as a platform from which to board the glass bottomed boat and semi-submersible vessels after arrival at Green Island.[129]
[129] Respondent’s Closing Submissions, dated 18 October 2017, p. 3, para [11].
We will consider each of those Relevant Services.
Hire of snorkelling gear, lycra suits and flotation vests on board the Big Cat vessel and the Reef Rocket vessel/ Hire of snorkelling gear, lycra suits and flotation vests aboard the vessels upon arrival at Green Island for use on Green Island
All packages for full and half-day reef cruises include a choice of either a glass bottom boat tour or the use of snorkelling equipment at the island if the passenger chooses to go snorkelling.[130]
[130] Exhibit 5, Affidavit of Jane Lye, dated 25 October 2016: Annexure JL-2, p. 10.
Permit 2 and Permit 3 authorise the Applicant to conduct a tourist program that includes snorkelling as an activity. Permit 1 does not give permission for that activity. These activities must have been provided under the permissions granted in Permits 2 or 3.
As outlined earlier snorkelling gear, lycra suits, floatation vests and wetsuits are either collected by passengers when boarding the Applicant’s vessels in Cairns or immediately after the vessels get underway. In either case, the gear is distributed before either vessel passes east of False Cape before entering the Marine Park, and while still in Queensland waters.
During cross-examination, Ms Wallace testified that some passengers do, in fact, change their minds after arriving at Green Island Jetty and decide to use snorkelling equipment.[131] So, in some cases, passengers who are transported pursuant to Permit 1 may return to the “Big Cat” (including within two hours of disembarkation) and obtain snorkelling gear, lycra suits and flotation vests.
[131] Transcript of proceedings, 3 October 2017, p. 31, lines 46 – 47, per Ms Wallace.
At the hearing, the Applicant submitted that the timing of provision of snorkelling equipment was no longer a disputed issue, but that sub-paragraph (c)(i) of the definition of transfer passenger in r 135(1) remained in dispute.[132]
[132] Transcript of proceedings, 3 October 2017, p. 22, lines 11 – 13, per Ms Brennan QC.
The Respondent submitted that the hire of the snorkelling gear is not a disputed service to the extent that it is permitted before the vessel enters the Marine Park. However, the Respondent contended that the hire of snorkelling gear that takes place once the vessel is docked in the Marine Park is still an issue in dispute.[133]
[133] Transcript of proceedings, 3 October 2017, p. 39, lines 30 – 32, per Ms Pierce.
The dispute between the parties, therefore, relates to the cases when a passenger has a change of mind and decides to use snorkelling gear, lycra suits and flotation vests in the two hours after the arrival at Green Island. Those who use the gear after the two hour period are, even on the Respondent’s case, not affected.
The Applicant submitted that “it was a rare case in which that would happen, it’s de minimis”.[134] The Applicant further submitted that even if a passenger did avail themselves of the service, it is not engaging in a tourist activity.[135]
[134] Transcript of Proceedings, 3 October 2017, p. 60, lines 9 – 10, per Ms Brennan QC.
[135] Transcript of Proceedings, 3 October 2017, p. 60, lines 32 – 35, per Ms Brennan QC.
The Respondent accepted that a transfer passenger could, under the transport permission, “conceivably and plausibly” incidentally take part in a tourist program, such as snorkelling:[136]
“Those findings are not inconsistent with the defined concept of transfer passenger: a transfer passenger could conceivably and plausibly enjoy amenities incidental to transit without participating in activities and services constituting a tourist program.”.
[136] Respondent’s Closing Submissions, dated 18 October 2017, p. 10, para [40].
The Respondent suggested that any of the Applicant’s passengers could change their mind and chose to use snorkelling equipment once moored at the Marine Park.[137]
[137] Respondent’s Closing Submissions, dated 18 October 2017, p. 11, para [44].
The Respondent suggested that tourists who purchase one of the packages offered by the Applicant would partake of amenities such as snorkel hire and use of a catamaran as a base incidentally to their participation in the tourist program conducted by the Applicant pursuant to its transport permission and its tours permissions (either individually or in combination).[138]
[138] Respondent’s Closing Submissions, dated 18 October 2017, p. 10, para [41].
Such an analysis does not deal with the entire nature of the analysis which must be undertaken in considering whether a tourist falls with the definition of transfer passenger.
Because of the focus on the particular permission in the definition (see paragraph (a)) it is necessary to identify the terms of each permission and the nature of the particular activity to determine under which permission an activity is undertaken.
It is clear that, relevantly, Permit 1 allows only a tourist activity consisting of transport. Either Permit 2 or Permit 3 will allow activities such as snorkelling including using lycra suits and flotation vests.
It follows that activities involving snorkelling gear, lycra suits and flotation vests is not provided under the transport permission (Permit 1) but rather under the other permissions (Permits 2 or 3).
The relevant part of the definition which relates to this time period (in the period of two hours after disembarkation) is sub-paragraph (c)(ii).
We have concluded that the tourist activity on which the definition focuses is the activity provided under the transport permission (Permit 1).
It follows that the hire of snorkelling gear, lycra suits and flotation vests (allowed under Permits 2 or 3) within two hours of disembarkation is not participation in a tourist activity within the use of that term in (c)(ii).
The use of snorkelling gear, lycra suits and flotation vests during this time does not affect the status of the passenger as a transfer passenger.
Provision of interpretative information, such as snorkelling demonstrations and information about tourist activities, on board the Big Cat vessel and the Reef Rocket vessel/ Provision of interpretative information e.g., videos and demonstrations about snorkelling and tourist activities (shown or offered on board the Applicant’s Big Cat and Reef Rocket vessels while in transit to Green Island)
As set out earlier in these reasons, a snorkelling video is played to all passengers once the vessels depart Cairns and is followed by an informational video about activities offered on Green Island.[139]
[139]Amended Statement of Facts and Contentions of the Applicant, dated 1 February 2017, p. 7, para [29].
The Applicant submitted that the timing of the showing of the snorkelling safety and interpretive video is no longer a disputed issue.[140] The Respondent agreed that the interpretive information and demonstrations were only offered while the vessels were in transit in State waters, and that the Respondent would not press this contention as it was no longer in issue.[141]
Provision of a bar service on board the Big Cat vessel/ Provision of a bar service on board Big Cat after arrival at Green Island
[140] Transcript of Proceedings, 3 October 2017, p. 8, lines 19 – 20, per Ms Brennan QC.
[141] Transcript of Proceedings, 3 October 2017, p. 39, lines 1 – 6, per Ms Pierce.
The bar service on board the “Big Cat” vessel is able to be used at any time throughout the day by passengers.[142]
[142]Amended Statement of Facts and Contentions of the Applicant, dated 1 February 2017, p. 8, para [34].
For the purposes of determining whether a passenger engages in a tourist activity by using the bar service, the Tribunal understands that the time period has been limited to the availability of the bar service in the period after arrival at Green Island.[143]
[143]Respondent’s Closing Submissions, dated 18 October 2017, p. 3 para [11]; Applicant’s Submissions after Hearing, dated 18 October 2017, p. 8, para [31].
The Applicant submits that the bar service is provided under Permit 1.
The Respondent submitted that services such as the bar service, form part of a tourist program because the services are enjoyed by customers in connection with a recreational visit to and recreational use of the Marine Park.[144]
[144]Respondent’s Closing Submissions, dated 18 October 2017, p. 9, paras [35] – [36]; Respondent’s Submissions in Reply, dated 1 November 2017, p. 5, para [20].
The Applicant submits that making use of the bar facility and buying a beverage is not engaging in a tourist activity. The Applicant’s position is that by using the bar service a passenger may be availing themselves of a service which facilitates their participation in a tourist activity, but they are not in engaging in any tourist activity.
There is no evidence as to how many passengers use the bar service within the period of two hours. Those passengers who do not use the bar service or who use the bar service outside of the period of two hours are not affected, even if the Respondent is correct.
The Tribunal finds that the use of a bar to purchase a beverage is not, in the circumstances of this case, an activity which is recreational in nature. Purchasing a beverage to quench a person’s thirst cannot reasonably be considered a recreational activity.
Moreover, the Tribunal concludes that services, such as the bar service, are incidental to the transport and persons availing themselves of such services are not engaging in a tourist activity.
Provision of buffet lunch on board the Big Cat vessel/ Provision of buffet lunch on board Big Cat after arrival at Green Island
The buffet lunch is included with the full-day package and, as an optional extra, can be added to the half-day tour packages and is served on board the “Big Cat” while it is moored at the Green Island Jetty.[145] There is an option to add a buffet lunch for passengers who have travelled on the “Big Cat” and the “Reef Rocket”.[146]
[145] Exhibit 5, Affidavit of Jane Lye, dated 25 October 2016: Annexure JL-1, p. 8.
[146] Transcript of proceedings, 3 October 2017, p. 22, lines 7 – 9, per Ms Brennan QC.
The Respondent submits, by reference to s 3A(3) of the Act, that the provision of services constitute a tourist activity where those services, such as the provision of lunch, form part of the operation of a tourist program.[147] On the Respondent’s submission the lunch forms part of a tourist program because the service is enjoyed by customers in connection with a recreational visit to and recreational use of the Marine Park.[148]
[147] Respondent’s Submissions in Reply, dated 1 November 2017, p. 5, para [20].
[148] Respondent’s Submissions in Reply, dated 1 November 2017, p. 5, para [20].
The Applicant submitted that the buffet lunch is an associated service provided under Permit 1.[149] The Applicant contends that a passenger is not engaging in a tourist activity by having the buffet lunch.[150]
[149] Transcript of Proceedings, 3 October 2017, p. 17, lines 26 – 27, per Ms Brennan QC.
[150]Transcript of Proceedings, 3 October 2017, pp. 59 – 60, lines 42 – 47, line 1 – 2, per Ms Brennan QC.
The Tribunal has determined that, in the definition of transfer passenger, a tourist activity is one which is undertaken by a tourist, is recreational in nature and does not include activities which are incidental to the transport of the passenger.
It is tolerably clear that the provision of a buffet lunch is not, in the circumstances of this case, a recreational activity. Tourism is a form of recreation, and central to that concept is the pursuit of pleasure. The Tribunal has decided it is not correct to conclude that an activity is recreational in nature merely because an activity is undertaken by people (tourists) who are making a recreational visit to the Marine Park itself. The service of food and drinks is not aimed specifically at persons engaging in recreation but is simply the provision of one of the basic necessities of life: namely, sustenance.
We find that the consumption of food is not, of itself, recreational in nature. Moreover, in these circumstances the provision of food was incidental to the transport of the passengers to and from Green Island.
It follows that the consumption of a lunch does not affect the status of the passenger as a transfer passenger.
Provision of toilets and change facilities on board the Big Cat vessel/ Provision of toilets and change facilities on Big Cat in transit and throughout the visit to Green Island
Passengers are able to use the toilets and change rooms on the “Big Cat” vessel.
The Respondent submitted that it is open to the Tribunal to find that activities, such as the use of toilets, could be characterised as a tourist activity.[151]
[151] Respondent’s Closing Submissions, dated 18 October 2017, p. 10, para [38].
The Applicant submitted that if a person uses the toilets, they are not engaging in any tourist activity. They may be availing themselves of a service which facilitates their participation in a tourist activity, but they are not in themselves engaging in any tourist activity.[152] Further Ms Brennan QC submitted:
“It would make a nonsense of this regulatory system to identify that while a passenger may be transported from Cairns to Green Island, and pay no EMC, should that passenger use the amenities of the boat at the point of disembarkation, then that passenger is required to pay a full STPC. How would such a system be administered? Would you require staff on the boat to stay on the boat and ask for each person who came in to use the toilet, to have their name recorded because they have now used a primary service provided by the tourist operator under the permission at the disembarkation destination?”.[153]
[152]Transcript of Proceedings, 3 October 2017, pp. 59 – 60, lines 42 – 47, lines 1 – 2, per Ms Brennan QC.
[153] Transcript of Proceedings, 3 October 2017, p. 77, lines 30 – 38.
The Tribunal agrees with the Applicant’s submission. The fact that a passenger utilises the toilet or change room services cannot on any sensible form of statutory construction be said to result in a finding that a passenger is engaging in tourist activities.
The use of a toilet is not recreational in nature. Moreover the use of a toilet is an aspect of transport.
To the extent that the use of change rooms facilitates the participation in activities such as snorkelling, or use of the glass bottom or semi-submersible vessels, the activity takes place under the permissions which relate to those activities – namely Permits 2 and 3.
Provision of seating and rest areas on board the Big Cat vessel/ Provision of seating and rest arears on Big Cat after arrival at Green Island
Passengers are able to use the seating and rest areas on “Big Cat” vessel at any time throughout the day.
The Respondent contended that passengers who sit and rest on board the “Big Cat” are engaging in a tourist activity.[154] Subsequently, the Respondent refined its submissions to limit it to the time after arrival at Green Island.[155]
[154] Transcript of Proceedings, 4 October 2017, p. 141, lines 12 – 20, per Ms Pierce.
[155] Respondent’s Closing Submissions, dated 18 October 2017, p. 3, para [11].
The Applicant contended that a passenger is not engaging in any tourist activity by simply sitting on a seat and looking out the window and appreciating the view.[156]
Ms Brennan said:
“Would you require every person who sat in the boat and took advantage of the air conditioned comfort of the boat before departing back to Cairns, to sign the book…[?] How long would they have to sit in the boat before departing the boat, for it to be said that they were availing themselves of a tourist activity while at the disembarkation destination? These are some of the problems that would arise if the respondent’s view of the relevant services is adopted.”.[157]
[156]Transcript of Proceedings, 3 October 2017, pp. 59 – 60, lines 42 – 47, lines 1 – 2, per Ms Brennan QC..
[157] Transcript of Proceedings, 3 October 2017, p. 77, lines 40 – 46, per Ms Brennan QC.
The Tribunal agrees with the Applicant.
The use of seats in a vessel prior to departure or whilst the vessel is in transit is part of the transport and thus permitted under Permit 1. To the extent that a person sits on the “Big Cat” within two hours of disembarkation while waiting to participate in other activities such as the use of the snorkel equipment, or the glass bottom boat tour or the semi-submersible vessel, the ‘activity’ takes place under the permissions which relate to those activities – namely Permits 2 and 3.
There is no evidence as to how many passengers (not waiting to participate in one of those other activities or waiting for the vessel to depart) simply sit on the “Big Cat”, within two hours after disembarkation, while it is berthed at the jetty at Green Island. It would be very surprising if the number is significant given the reason for the trip to Green Island would no doubt be to see Green Island. We agree with the Applicant that the application of the view advanced by the Respondent would create significant uncertainty around the application of the Act and Regulations.
Use of the Big Cat vessel as a platform to board glass bottom and semisubmersible vessels/ Use of the Big Cat vessel as a platform from which to board the glass bottomed boat and semi-submersible vessels after arrival at Green Island
As was stated previously in these reasons, all packages for full and half-day reef cruises include a choice between a tour on the glass bottom boat or snorkelling at the island.[158] Other options are available to customers including adding a semi-submersible tour on arrival to Green Island.[159]
[158] Exhibit 5, Affidavit of Jane Lye, dated 25 October 2016: Annexure JL-2, p. 10.
[159] Exhibit 4, Affidavit of Paula Jane Wallace, affirmed 1 March 2017, p. 2, paras [2] – [4].
Upon arrival at the Green Island Jetty a significant number of passengers board the next available glass bottom boat or semi-submersible boat tour. Boarding is by means of a purpose-built platform at the rear of the “Big Cat”.
Glass bottom boat and semi-submersible boat tours may take place within the two hour period after disembarkation.
The relevant part of the definition which relates to this time period is contained in
sub-paragraph (c)(ii).
We have concluded that the tourist activity on which the definition focuses is the activity provided under the transport permission (Permit 1).
Glass bottom boat and semi-submersible boat tours are provided under Permits 2 and 3 – not the transport permit.[160]
[160]Amended Statement of Facts and Contentions of the Applicant, dated 1 February 2017, p. 8, para [37].
It follows that the participation in glass bottom boat and semi-submersible boat tours at this time is not participation in a tourist activity within the use of that term in sub-paragraph (c)(ii).
The participation in glass bottom boat and semi-submersible boat tours during this time does not affect the status of the passenger as a transfer passenger.
SECONDARY SERVICES
Having determined that persons transported from Cairns to Green Island Jetty by the Applicant pursuant to Permit 1 are transfer passengers and not visitors, it is not necessary to deal with this issue.[161]
[161] Respondent’s Closing Submissions, dated 18 October 2017, p.1, para [1].
CONCLUSION
Section 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) permits the Tribunal to set aside a decision and either make its own decision or remit the matter for reconsideration by the primary decision maker.
For the reasons outlined, we have decided to set aside the reconsidered decision dated 25 January 2016.
DECISION
The decision under review is set aside and the matter is remitted to the Respondent for reconsideration having regard to the findings of fact and law herein.
I certify that the preceding 231 (two hundred and thirty -one) paragraphs are a true copy of the reasons for the decision herein of Justice D G Thomas, President, Deputy President J Sosso
..........................[SGD]............................
Associate
Dated: 13 June 2019
Date(s) of hearing: 3 - 4 October 2017 Date final submissions received: 1 November 2017 Counsel for the Applicant: Ms Brennan QC Solicitors for the Applicant: Miller Harris Lawyers Counsel for the Respondent: Ms Pierce Solicitors for the Respondent: Australian Government Solicitor
Exhibit 1, T Documents, T19, Letter from the Applicant to the Respondent, dated 30 June 2015,
p. 72, para [10].
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