Paspaley Pearling Company Pty Ltd & Anor and Delegate of the Chief Executive Officer of the Department of Primary Industries and Regional Development & Anor - [2023] WASAT 116

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PEARLING ACT 1990 (WA)
CITATION:   PASPALEY PEARLING COMPANY PTY LTD & ANOR and DELEGATE OF THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF PRIMARY INDUSTRIES AND REGIONAL DEVELOPMENT & ANOR [2023] WASAT 116
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
DR S WILLEY, SENIOR MEMBER

HEARD:   3 NOVEMBER 2023
DELIVERED          :   1 DECEMBER 2023
PUBLISHED           :   1 DECEMBER 2023
FILE NO/S:   DR 58 of 2022
BETWEEN:   PASPALEY PEARLING COMPANY PTY LTD
First Applicant

BLUE SEAS PEARLING PTY LTD
Second Applicant

AND

DELEGATE OF THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF PRIMARY INDUSTRIES AND REGIONAL DEVELOPMENT
First Respondent

CYGNET BAY CONSOLIDATED PTY LTD
Second Respondent

Catchwords:

Preliminary question as to jurisdiction - Power and duty to ensure Tribunal has jurisdiction - Power to form opinion as to jurisdiction takes character from primary power being exercised - Power being exercised in determining application for review of decision to grant pearl farm lease is administrative - Tribunal will not exercise judicial power

Legislation:

Australian Constitution (Cth), s 75, s 76, s 76(i), s 76(ii), s 77(ii), s 77(iii), s 109
Fisheries Management Act 1991 (Cth), s 10(2)(a)
Pearling Act 1990 (WA), s 23(1), s 23(1)(a), s 23(6), s 33(1)
State Administrative Tribunal Act 2004 (WA),s 27, s 27(2), s 29, s 86, s 90, s 91

Result:

The preliminary question as posed is to be answered in the negative and the Tribunal is not precluded from hearing the matter

Category: B

Representation:

Counsel:

First Applicant	:	R Young SC & C Taylor-Burch
Second Applicant	:	R Young SC & C Taylor-Burch
First Respondent	:	CS Bydder SC
Second Respondent	:	KR Lendich SC & LD Coci

Solicitors:

First Applicant	:	Corrs Chambers Westgarth
Second Applicant	:	Corrs Chambers Westgarth
First Respondent	:	N/A
Second Respondent	:	Cocks Macnish

Cases referred to in decision(s):

Attorney-General (Cth) v Alinta Limited (2008) 233 CLR 542
Barnsley v Darebin City Council [2021] VCAT 104
Burns v Corbett [2018] HCA 15; (2018) 265 CLR 304
Citta Hobart at [31] citing Fencott v Muller (1983) 152 CLR 570
Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276
Director of Public Works v Ho Po Sang [1961] AC 901
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2018] WASCA 32; (2018) 53 WAR 156
GS v MS [2019] WASC 255; (2019) 344 FLR 386
Hume v Palmer (1926) 38 CLR 441
Marshall & Anor v The Honourable Alannah Mactiernan MLA, Minister for Planning and Infrastructure [2002] WASCA 274; (2002) 124 LGERA 118
Meringnage v Interstate Enterprises Pty Ltd (2020) 60 VR 361; (2020) 386 ALR 588
Mustac v Medical Board of Western Australia [2007] WASCA 128
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83
Owners of Strata Plan 58161 and Hanssen Pty Ltd [No 2] [2023] WASAT 7; (2023) 108 SR (WA) 226
Perth Airport and Smarte Carte Australia [2023] WASAT 72
Precision Data Holdings Ltd v Wills (1991) 173 CLR 167
Rizeq v Western Australia (2017) 262 CLR 1
Robertson v City of Nunawading [1973] VR 819; (1973) 29 LGRA 44

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 24 February 2022, the first respondent determined to grant an application made by the second respondent[1] under s 23(1) of the Pearling Act 1990 (WA) (Pearling Act) to issue pearl oyster farm leases in respect of an area located south-west of Broome, at Cape Villaret B and Cape Villaret C (reviewable decision).[2]
[1] In the Applicants' Submissions on Jurisdiction dated 27 October 2023 (Applicants' Submissions), para 3, the applicants note that the application for pearl oyster farm leases was made by Cygnet Bay Pearl Consolidated Pty Ltd, while the gazetted decision records the lease being issued to Cygnet Bay Pearls Consolidated Pty Ltd and submits that neither of those entities actually exists. It is not necessary to determine the issue at this stage. We use the term 'second respondent' for convenience only and it does not reflect any consideration, let alone determination, of that issue.
[2] Western Australia, Government Gazette, WA, No 26, 4 March 2022, 464.
On 31 March 2022, the applicants sought review of the reviewable decision, pursuant to s 33(1) of the Pearling Act.[3]
[3] Hereafter, unless otherwise stated, all references to sections are references to sections of the Pearling Act 1990 (WA) (Pearling Act).
The parties agree that the pearl oyster farm leases in question are located in Commonwealth waters; i.e. beyond the coastal waters of the State, being further than the State's jurisdictional limit of three nautical miles from the territorial baseline.[4]
[4] First Respondent's Submissions dated 18 October 2023 (First Respondent's Submissions), para 2; Applicants' Submissions, para 8; Second Respondent's Outline of Written Submissions dated 27 October 2023 (Second Respondent's Submissions), para 3.
Until recently, there appears to have been an 'understanding' as to the status of such leases, such that although they were issued under the Pearling Act (State legislation), they were (or at least could be) located in Commonwealth waters. In the last few months that understanding appears to have been subject to some doubt.
So much is contained in a letter dated 2 August 2023, which was sent from the Department of Primary Industries and Regional Development to 'All Pearling Licensees' (Letter).
The Letter advised, amongst other things, that despite the previous 'understanding', there is 'a level of uncertainty with regards to the legal framework for managing tenure in Commonwealth waters'.[5] As a result, it advised, the Department would 'not be issuing new pearl oyster farm leases or new holding sites in Commonwealth waters' (Policy).[6]
[5] Affidavit of Thomas Edward Ledger Sworn 16 October 2023 (Ledger Affidavit), pages 10 – 11.
[6] Ledger Affidavit, page 10.
That prompted various communications between the parties by way of conferral (and of which the Tribunal was, therefore, unaware) as to what steps, if any, should be taken to address the Policy in these proceedings. This background occurred in the context of a listed final hearing, of five days duration, commencing on 30 October 2023.
Ultimately, the issue came on for a directions hearing on 16 October 2023. The Ledger Affidavit was filed that morning (by which we mean no criticism). Amongst other things, it attaches a copy of the Letter. That was the first time the Tribunal had seen, or were aware of, the Letter or indeed, of the 'uncertainty' identified in it. Again, we mean no criticism in that regard.
At the directions hearing, we raised with the parties the possibility that the 'uncertainty' identified in the Letter may raise a jurisdictional question.
In particular, we were concerned that the 'uncertainty' identified in the Letter appeared to be fundamental to our task of re-making the reviewable decision and to raise a constitutional question.
That is, we were concerned that, in 'standing in the shoes' of the first respondent and re-making the reviewable decision, we will need to determine whether, assuming that the Pearling Act purports to apply extra-territorially (as the facts suggest it does), it is inconsistent with relevant Federal legislation such that the latter would prevail pursuant to s 109 of the Constitution. We were concerned that in doing so we may have been purporting to exercise federal judicial power, contrary to the principle in Burns[7] and further discussed in CittaHobart.[8]
[7] Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476 (Citta Hobart).
[8] Burns v Corbett [2018] HCA 15; (2018) 265 CLR 304 (Burns).
Accordingly, we made orders that required the parties to file submissions:
… going to the question whether, in light of the first respondent's policy enunciated in its letter of 2 August 2023, the Tribunal is precluded from hearing the matter pursuant to the principles set out in Citta Hobart …
At a further directions hearing on 27 October 2023 we made orders listing, for a hearing on 3 November 2023, 'the primary jurisdictional question', being a reference back to the subject matter of the submissions identified in the above quote.
Having now considered both the written and oral submissions of the parties, we are satisfied that in performing our task of remaking the reviewable decision, we will not exercise federal judicial power. Our reasons for reaching that conclusion are as follows.

The Issue

As noted, the application for review was made pursuant to s 33(1) of the Pearling Act. We are satisfied that that section confers upon the Tribunal jurisdiction to deal with the application for review.[9]
[9] cf Owners of Strata Plan 58161 and Hanssen Pty Ltd [No 2] [2023] WASAT 7; (2023) 108 SR (WA) 226 (Hanssen) at [8].
However, our 'duty and concomitant authority' to ensure that at all times we have jurisdiction to hear and determine a proceeding commenced in or referred to the Tribunal[10] is not necessarily satisfied by that enquiry.
[10] Citta Hobart, at [17]; Hanssen, at [9].
That is because, as was determined in Burns, State Parliament lacks legislative capacity to confer on a State Tribunal, that is not a court of the State within the meaning of s 77(ii) and s 77(iii) of the Constitution, judicial power with respect to any matter of a description in s 75 or s 76 of the Constitution.[11]
[11] Citta Hobart, at [1].
Section 76 of the Constitution includes any 'matter' arising under the Constitution or involving its interpretation and any matter arising under any laws made by the Federal Parliament.[12] That is what is referred to in the following discussion as a 'matter in the relevant sense'.
[12] Constitution, s 76(i) and s 76(ii).
It is well established, and the parties were agreed, that the Tribunal is not a court.[13] Accordingly, we cannot exercise federal judicial power in the exercise of our task in determining the present proceedings.
[13] Mustac v Medical Board of Western Australia [2007] WASCA 128 at [48] (Martin CJ, Wheeler and Buss JJA agreeing); Hanssen at [11]. See, also, in relation to the Victorian Civil and Administrative Tribunal, which provided the model for the Tribunal: Meringnage v Interstate Enterprises Pty Ltd (2020) 60 VR 361; (2020) 386 ALR 588.
The application requires us to review the reviewable decision. Such a review 'is to be by way of a hearing de novo', the purpose of which is to produce the correct and preferable decision at the time of our decision.[14]
[14] State Administrative Tribunal Act 2004 (WA) (SAT Act), s 27(1) and s 27(2).
The effect of those provisions is that we must remake the reviewable decision, based on the facts as we find them and the law as it is at the time of our decision.
That task requires us to decide whether or not to issue the pearl oyster farm leases to the second respondent. Inherent in that decision is an antecedent question, which is whether or not we have the power to issue such a lease.
Given the location of the pearl oyster farm leases, we assume that the Pearling Act proceeds on the basis that it has extra-territorial operation beyond the coastal waters of the State. Assuming that is so, a further question then appears to arise as to the interaction between the Pearling Act and relevant federal legislation. The first respondent put it as follows:
… whether s 10(2)(a) of the Fisheries Management Act 1991 (Cth) (FMA) nevertheless prevents … s 23(1)(a) from applying to waters in the … area outside the coastal waters of Western Australia – pursuant to s 109 of the Constitution.[15]
[15] First Respondent's Submissions, para 11.
That question (which we will call the question) requires interpretation of both a law of the Federal Parliament (the FMA) and s 109 of the Constitution.[16]
[16] Hume v Palmer (1926) 38 CLR 441 at 445 – 446 (Knox CJ), 451 – 452 (Isaacs J); 452 – 454 (Higgins J), 461 (Starke J).
The issue before us at this stage is whether, having identified the question, we are able to proceed to determine the proceeding.

The parties' Submissions

First Respondent's Submissions

The first respondent's written submissions were threefold.
First, it was said that while the question is 'capable of involving a matter listed in s 76(i) and s 76(ii) of the Constitution',[17] no claim or defence said to fall within federal jurisdiction had been raised by any party.[18]
[17] First Respondent's Submissions, para 12.
[18] First Respondent's Submissions, paras 9 – 12.
By that submission, the first respondent sought to contrast the circumstances in Citta Hobart, where the issue in question was raised in the 'formal defence' filed with the Tribunal.[19]
[19] Citta Hobart at [4].
The point being made was that, unless and until such a claim or defence is raised, there is no need for us to address the issue.
Secondly, the first respondent submitted that if, notwithstanding the first submission, the question has been raised or must otherwise be addressed, then it is 'not incapable on its face of legal argument'.[20] By that submission, the first respondent accepted that the question satisfies the 'threshold of arguability' determined by the High Court in Citta Hobart.[21]
[20] First Respondent's Submissions, para 13.
[21] Citta Hobart at [34] – [46].
Thirdly, the first respondent submitted that the current proceeding does not involve a 'matter' in the relevant sense nor does it involve the exercise of judicial power.[22]
[22] First Respondent's Submissions, paras 17 – 23.
The two limbs of that submission (i.e. what constitutes a 'matter' in the relevant sense, and whether we are involved in the exercise of judicial power) are closely linked because, as Quinlan CJ held in GS:
While the constitutional meaning of 'matter' and 'judicial power' are not synonymous, they nevertheless overlap. A 'matter' within the meaning of s 75 and s 76 of the Constitution involves, amongst other things, the existence of a controversy for the quelling of which judicial power is invoked.[23]
[23] GS v MS [2019] WASC 255; (2019) 344 FLR 386 (GS) at [34].
As the first respondent submitted, a 'matter' in the relevant sense is one which concerns a 'justiciable controversy about a legal right or legal duty having an existence that is not dependent on the commencement of a proceeding in the forum in which that controversy might come to be adjudicated.'[24]
[24] Citta Hobart at [31] citing Fencott v Muller (1983) 152 CLR 570 at 603. See, also, GS at [35].
By contrast, the first respondent submitted, the current proceeding requires us to review the reviewable decision. In doing so, it submitted, we are 'concerned with [an application to create] new rights rather than a determination of existing rights'.[25]

Applicants' Submissions

[25] First Respondent's Submissions, para 18.

The applicants' submissions only very briefly addressed the question whether the parties had raised a claim or defence said to fall within federal jurisdiction.[26] They also did not address in any detail the question whether the controversy before us concerns a 'matter' in the relevant sense.
[26] Applicants' Submissions, para 25.
Rather, the applicants focused their submissions on the proposition that our review of the reviewable decision will/does not involve an exercise of judicial power.[27]
[27] Applicants' Submissions, paras 25 – 31.
That submission turns on two propositions. The first is, consistent with the position taken by the first respondent, that the review of the reviewable decision requires the exercise of administrative, and not judicial power, because it involves the determination of future rights and obligations (that is, whether the leases ought to be granted). It was submitted that we are not, by way of contrast, 'determining a dispute between the [parties] as to existing rights and obligations.'[28]
[28] Applicants' Submissions, para 27.
The second proposition is that, even if we are required to decide the question so as to determine whether we have the power to issue leases beyond the three nautical mile territorial baseline,[29] the power being so exercised will still be administrative, rather than judicial.
[29] Consistent with its previous submission, the applicants repeated that we were not, at least not yet, being called upon to do so.
That, it was submitted, is because in doing so we would be doing no more than forming a non-binding opinion about the limits of our own jurisdiction for the purposes of determining our own course of action.[30] In that regard the applicants submitted that the 'nature of the final act' (which in this case is the administrative act of determining whether or not to issue the pearl oyster farm leases) 'determines the nature of the previous inquiry', (being the determination of the jurisdictional question).[31]

Second respondent's submissions

[30] Applicants' Submissions, para 30.

[31] Applicants' Submissions, para 31.

The second respondent's submissions included that the existence of a 'matter' does not turn on whether or not a party has raised the issue.[32]
[32] Second Respondent's Submissions, paras 14 and 55(a).
However, its primary submission was that the question raises constitutional issues and is therefore a 'matter' in the relevant sense, the resolution of which involves the exercise of judicial power.[33]
[33] Second Respondent's Submissions, para 50.
That submission was made despite acknowledging that, absent the question (i.e. if the question had not arisen), our resolution of the current proceedings will involve the exercise of administrative, and not judicial, power. That is, the second respondent acknowledged that the application for review of the reviewable decision does not, 'on its face' involve a 'matter' in the relevant sense, nor the exercise of judicial power.[34]
[34] Second Respondent's Submissions, paras 3 and 22.
However, it submitted that the question goes to the heart of the resolution of the application. That is, it submitted that we cannot determine whether or not to issue the pearl oyster farm leases without determining whether we have power to do so (the power question) and that in order to determine the power question, we must determine whether we have jurisdiction by determining the question.[35]
[35] Second Respondent's Submissions, paras 3 – 10 and paras 46 – 50.
Accordingly, the second respondent submitted, 'it is not possible to sever the issues of power and jurisdiction from the determination of the application. Nor is it possible to separate the issue of power from the issue of jurisdiction. The two issues are interrelated'.[36]
[36] Second Respondent's Submissions, para 49.
Therefore, it was said, the question must be resolved, which would involve the 'impermissible' use of judicial power and, therefore, we 'must dismiss the application for want of jurisdiction and power'.[37]
[37] Second Respondent's Submissions, para 52.

Resolution

We agree with the second respondent that the fact that a party has not raised (and might not raise) a claim or defence that includes within it a constitutional issue does not preclude us from addressing that issue.
That conclusion is consistent with the principle stated in the reasons of the majority in Citta Hobart that we have a duty and associated power to ensure that we remain within jurisdiction. To be required to wait until such an issue is raised by a party through a claim or defence would be to allow the parties to, in effect, confer jurisdiction by consent by agreeing to refrain from raising it.
We also agree with the second respondent that the determination of the present proceedings will necessarily require us to be satisfied whether or not, as at the date of our decision, we have the power to issue pearl oyster farm leases and that to do so appears, at least at this stage, likely to require us to answer the question.

So much seems to follow from a brief review of the sections contained in the question, as enunciated by the first respondent.
Specifically, s 10(2)(a) of the FMA appears on its face to provide for the operation of that Act to the exclusion of State legislation in relation to 'fish or fishing' in the Australian Fishing Zone (AFZ).
The AFZ is defined to include, in effect, waters adjacent to Australia to a limit of 200 nautical miles[38] but not including the coastal waters of a State. On that basis, the relevant leases appear to be located in the AFZ. Stated in those terms, there is a clear question whether or not s 10(2)(a) of the FMA prevents s 23(1)(a) of the Pearling Act from applying in the AFZ.[39]
[38] Australia's exclusive economic zone.
[39] First Respondent's Submissions, para 13.
That very brief review also, in our view, supports the first respondent's submission that the question is capable (not incapable) of involving a matter listed in s 76(i) and s 76(ii) of the Constitution.
However, we also agree with the first respondent and the applicants that that is insufficient to bring the matter within the scope of the prohibition enunciated in Burns and Citta Hobart.
That is because, in our view, any resolution of the question in these proceedings will occur for the purposes of forming an opinion about the limits of our own jurisdiction.
As noted above, in Citta Hobart the majority reasons held that we have a duty and associated authority to ensure that proceedings before us are and remain within our jurisdiction to hear and decide.[40]
[40] Citta Hobart at [17].
Those reasons also held that a decision in that regard is the exercise of power the nature of which takes its character from the nature of the primary power being exercised. That is, if the power we exercise in reviewing the reviewable decision is administrative, then so is the power we exercise in deciding whether or not we have the power to review the reviewable decision. [41]
[41] Citta Hobart at [21] – [27.]
Accordingly, the critical question is the character of the power we will exercise when we review the reviewable decision.
As noted above, all of the parties submitted that, absent the question, the resolution of the application for the review of the reviewable decision will involve the exercise of administrative, rather than judicial, power. For the reasons that follow, we agree.
As has been noted in numerous previous decisions, there are no bright lines distinguishing judicial power from administrative power.[42]
[42] See, for example, GS at [66] – [72] and the authorities there cited.
Accordingly, a determination as to whether a particular power or function is to be characterised as judicial or administrative requires an evaluative judgment having regard to a range of factors including the nature and repository of the power as well as any relevant historical considerations.[43]
[43] GS at [75]; Perth Airport and Smarte Carte Australia [2023] WASAT 72 (Smarte Carte) at [27]. It does not seem to us that there is anything in the way of historical considerations that are relevant to the proper characterisation of the power being exercised.
In our view, it is not particularly helpful to the determination of this issue in this case to focus on the Tribunal as the repository of the power.
That is because, on the one hand, the Court of Appeal has held that the Tribunal is not a court, which tends to suggest that the powers being exercised are administrative.[44] On the other hand, the SAT Act provides for the exercise of remedies which would ordinarily be considered judicial in nature - the power to grant injunctive relief[45] and make declarations being two examples.[46]
[44] See para [19], and the associated footnote, above. Also, Attorney-General (Cth) v Alinta Limited (2008) 233 CLR 542 at [37] (Kirby J).
[45] SAT Act, s 90.
[46] SAT Act, s 91.
Further, while the Tribunal lacks the ability to enforce its own nonmonetary orders,[47] that is not to say that the Tribunal's orders do not bind the parties, which is an essential element of judicial power.[48]
[47] SAT Act, s 86.
[48] Citta Hobart at [14].
In GS, Quinlan CJ held that the Tribunal's lack of power to enforce its own orders was an 'equivocal' consideration in determining the nature of the power being exercised. We respectfully agree. Indeed, in our view the nature of the Tribunal as the repository of the relevant power is equivocal as to the character of the power being exercised.
In our view the most relevant factor, and indeed the decisive factor, going to the character of the power being exercised turns in this case on the nature of that power.
In our view, there are two indicia which suggest strongly that the nature of the power being exercised is not judicial but is, rather, administrative.
The first indicia concerns the ability to determine the application for review by reference to policy.
In remaking the first respondent's decision to issue pearl oyster farm leases to the second respondent we may have regard to, and have discretion whether to apply or not, relevant policy.[49] One such policy may well be the Policy.
[49] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420 – 421; Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 644 – 646; Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276 at [26].
In Precision Data,[50] the Full Court of the High Court held:
… if the ultimate decision may be determined not merely by the application of legal principles to ascertained fact but by considerations of policy also, then the determination does not proceed from an exercise of judicial power.[51]
[50] Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 (Precision Data).
[51] Precision Data at 189.
The second characteristic relevant to this issue concerns the rights in question.
In Rizeq,[52] the plurality[53] held that the 'unique and essential function that judicial power performs' is the 'quelling [of] controversies about legal rights and legal obligations through ascertainment of facts, application of law and exercise, where appropriate, of judicial discretion'.[54]
[52] Rizeq v Western Australia (2017) 262 CLR 1 (Rizeq).
[53] Bell, Gageler, Keane, Nettle and Gordon JJ.
[54] Rizeq at [52].
As was said by Quinlan CJ in GS:
judicial power is generally concerned with the ascertainment and enforcement of existing rights and obligations; it involves the determination of what the relevant person's rights or obligations are, not what they should be. The closer one moves to the core of this conception of judicial power, the more readily may it be concluded that a particular power is, essentially, judicial in nature.[55]
[55] GS at [62]. Emphasis in original.
The present proceeding is not concerned with the determination of any existing rights held by the second respondent. That is to say, neither the reviewable decision, nor our decision on review, is or will be concerned with the 'determination and ascertainment of existing rights'. Rather, the proceeding is concerned with the question whether or not the second respondent should be granted new rights.
That is, the reviewable decision created new rights in the second respondent where there had previously been no such rights. Because our role is to review the reviewable decision by way of hearing de novo, our decision will involve the exercise of the same discretionary power as the first respondent, without the need to identify error in its previous exercise.[56]
[56] Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2018] WASCA 32; (2018) 53 WAR 156 at [61].
Certainly, the second respondent has no right to the issue of a pearl oyster farm lease; s 23(6) of the Pearling Act makes that explicit. Old and eminent authority suggests that that provision merely makes explicit what would have been the case in any event.[57]
[57] Director of Public Works v Ho Po Sang [1961] AC 901 at 920. See, also, Robertson v City of Nunawading[1973] VR 819; (1973) 29 LGRA 44 and Marshall & Anor v The Honourable Alannah Mactiernan MLA, Minister for Planning and Infrastructure[2002] WASCA 274; (2002) 124 LGERA 118 at [54]. cf Presiding Member of The Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASC 145.
More directly relevant, and more recent, is the decision in Barnsley.[58] In that case Quigley J, sitting as President of the Victorian Civil and Administrative Tribunal (VCAT), was concerned with a Burns challenge to the VCAT's power to review a decision to grant a 'planning permit'. In finding that the VCAT had power to determine the application for review, notwithstanding that some of the parties resided in NSW, her Honour held:
The grant of a planning permit pursuant to the provisions of the [Planning & Environment] Act [1986 (Vic)] is not an adjudication on an existing right, liability or duty. It is the exercise of administrative power. The review of the responsible authority's decision by the Tribunal pursuant to the provisions of the P&E Act and the VCAT Act is a review of the initial administrative decision in which the Tribunal stands in the shoes of the original decision-maker. The decision of the Tribunal in the grant of a permit creates a new right. It does not determine existing rights. The power exercised by the Tribunal fits squarely within such a definition of an exercise of administrative power.[59]
[58] Barnsley v Darebin City Council [2021] VCAT 104 (Barnsley).
[59] Barnsley at [43].
There are three further matters (which overlap with each other and the subject of the previous paragraphs) which support the conclusion that the power that will be exercised when we resolve the present proceeding is not judicial but, rather, administrative.
First, whilst the current proceedings are contested, they are not, essentially, about resolving a dispute between the parties.[60] Rather, in remaking the reviewable decision, we must be concerned with whether or not the issue of pearl oyster farm leases is the correct and preferable decision in light of the mandatory, permissible and prohibited considerations pursuant to the relevant statutory framework. So much follows from Part 3 of the Pearling Act and sections 27 and 29 of the SAT Act.
[60]cf GS at [83]; Smarte Carte at [19].
Secondly, while the applicant is properly described as a party to the proceedings, the proceedings are not inter partes in the ordinary sense of that expression.[61]
[61] cf GS at [83].
Thirdly, none of the parties to the present proceedings bear a legal onus of proof; the applicant does not bear an onus to show that a different decision to that of the first respondent should be reached, and neither does the second respondent bear an onus to show that the decision should be affirmed.[62]
[62] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83 at [122] – [124] and [128].
For these reasons, we are satisfied, and we find, that the principal power being exercised by us in the determination of the application for review (i.e. the determination as to whether or not to issue a pearl oyster farm lease to the second respondent and, if so, on what conditions) is not judicial, but is administrative, in nature.
Finally, as previously foreshadowed, we agree with the first respondent[63] and the applicants,[64] that the power being exercised to ensure that we remain within the limits of our jurisdiction is also administrative, in that it takes its (administrative) character from that of the primary power being exercised.
[63] First Respondent's Submissions, paras 22 – 23.
[64] Applicants' Submissions, para 31.
As the majority in Citta Hobart explained:
The power which a court or a non-court tribunal necessarily has to ensure that it remains within the limits of its jurisdiction is not of a nature that is inherently judicial. The reason is that the exercise of the power is incapable of quelling a controversy between parties about existing legal rights. Nor is it inherently non‑judicial. Rather, the power takes its nature from the nature of the power to which it is incidental: "[t]he nature of the final act determines the nature of the previous inquiry".
…
A tribunal that is not a court and that is invested with non-judicial power correspondingly has authority – in the exercise of non‑judicial power – to "make up its mind" or "'decide' in the sense of forming an opinion" about the limits of its own jurisdiction "for the purpose of determining its own action". The authority is not to "reach a conclusion having legal effect" but to form an opinion for the purpose of "moulding its conduct to accord with the law"^.[65]
[65] Citta Hobart at [22] – [24]. Underlining added. Internal authorities omitted.
In its written submissions, the applicants submitted that there is no 'prohibition on the Tribunal exercising administrative power, even if the matter it is deciding falls within s 75 and s 76 of the Commonwealth Constitution'.[66]
[66] Applicants' Submissions, para 28.
It went on to submit that that explains why different results have been reached by different courts/Tribunals in different contexts. So, it was submitted, that in GS[67] and Smarte Carte[68] it was held that this Tribunal was able to 'determine its jurisdiction having regard to constitutional issues in the exercise of the Tribunal's administrative power' while, in Citta Hobart and Burns, the relevant Tribunal was held incapable of being able to determine a matter in federal jurisdiction in the exercise of the Tribunal's judicial power.[69]
[67] GS at [37] – [38].
[68] Smarte Carte at [36] and [47].
[69] Applicants' Submissions, para 29.
At the hearing, Senior Counsel for the second respondent sought to distinguish those decisions from the present case by emphasising the fundamental nature of the constitutional issue at the heart of the present application.[70]
[70] ts 20 – 21, 3 November 2023.
That submission appeared to distinguish the circumstances in which GS and SmarteCarte arose by describing the constitutional issues in those cases as less than fundamental to the resolution of the proceeding.
That may have been so in GS, where the constitutional issue was that parties resided in different States.[71] But it does not appear to us to have been the case in SmarteCarte, where the constitutional issue was that the lease in question was located on Commonwealth land. In that case the Tribunal considered whether the State legislation was inconsistent with the Commonwealth Places (Application of Laws Act) 1970 (Cth).[72]
[71] Equally, the same point could be made as to Barnsley.
[72] Smarte Carte at [38] – [47].
In the present case, the constitutional issue (the question) concerns the interaction of State and Federal legislation and the possible application of s 109 of the Constitution. The determination of the question may, depending on the answer, require us to decide that we have no power to issue the pearl oyster farm leases.
That appears to us to be the same constitutional issue at the heart of CittaHobart, the resolution of which was found to constitute the exercise of federal judicial power.
The critical factor leading to the different outcomes in these cases was not, however, the nature of the constitutional issue but was, rather, the nature of the primary power; in SmarteCarte, the primary power was found to be administrative,[73] while in CittaHobart the primary power being exercised was held to be judicial, not administrative.[74]
[73] Smarte Carte at [35].
[74] CittaHobart at [12] – [16]. So too, it would appear, was the primary power in Burns at 345 (Gageler J).
That conclusion appears to us to follow from the very clear, unequivocal and absolute language used by the majority in CittaHobart which we have quoted above at para [83]. Those passages do not provide any scope for distinctions to be made in the terms proposed by the second respondent.
Accordingly, we are satisfied, and we find, that because the power we will exercise in determining whether or not to issue the second respondent with pearl oyster farm leases is administrative, we have authority, in the exercise of that power, to decide (in the sense of forming an opinion) about the limits of our jurisdiction for the purposes of determining our own action.[75]
[75] Citta Hobart at [24].
It is to be emphasised, as the majority did in CittaHobart, that the authority we will exercise in that regard 'is not to "reach a conclusion having legal effect" but to form an opinion for the purpose of "moulding [our] conduct to accord with the law."'[76]
[76] Citta Hobart at [24].
In our view, our finding that we will not, in deciding 'the question', be exercising judicial power is sufficient for us to determine this preliminary issue.
That is, having reached that conclusion, we find that it is not necessary for us to form an opinion as to whether or not the present proceeding is a 'matter' in the relevant sense.
The principle as stated by the High Court in Burns precludes the exercise of judicial power with respect to any matter of a description in s 75 or s 76 of the Constitution. If judicial power will not be exercised at all then it will not be exercised 'with respect to' a matter in the relevant sense.

Orders

We have found that we have jurisdiction to resolve the application for review. We will therefore make an order to that effect.
Orders have previously been made taking the proceeding through to a hearing in March 2024. Those orders were made with the agreement of the parties ahead of our decision on this jurisdictional question so as to avoid any unnecessary delay.
Accordingly, it does not appear to us that any other, consequential orders are required but should one or more of the parties disagree, an application can be made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
RM
Associate to Deputy President Judge Jackson
1 DECEMBER 2023