Fossicking permits

In June 2019, bushwalkers in the Broadside National Forest discover a number of small deposits of gold on the edge of a creek bed running alongside an infrequently used walking track. When the media reports the find, Forestry Australia, the government authority responsible for the area, is inundated with requests for 'fossicking permits', which permit individuals to pan for gold in the creek.

With so many requests coming in, Forestry Australia is unable to keep up with the demand. The government is keen to capitalise on the tourism opportunity presented by this new 'gold rush', and decides to implement a new permit approval regime. To make the application process as efficient as possible, it is decided that applications should initially be considered by MineCon Pty Ltd, a private consulting company that assesses the viability of mines in the private sector.

The new legislation provides:

National Forests (Fossicking Permits) Act 2019(Cth)

3 Definitions

...

'Nominated Company'means MineCon Pty Ltd, a company listed on the Australian Stock Exchange.

'Fossicking Permit'means a permit granted pursuant to s 28 of this Act.

'Minister'means the Minister for National Forests.

...

27 Prohibition

A person must not engage in fossicking in National Forests unless in possession of a Fossicking Permit.

28 Grant of Fossicking Permits

(1) The Minister may grant a Fossicking Permit to an applicant who submits an application in the prescribed form.

(2) Before granting a Fossicking Permit, the Minister must consult with the Nominated Company.

(3) The Minister must not grant a Fossicking Permit without the prior written approval of the Nominated Company.

(4) The Minister may take into account such further matters as the Minister thinks fit in determining whether to grant a permit in accordance with this section.

Jed and Elly-May are gold panning enthusiasts from the United States. Having heard about the latest finds at the Broadside National Park, they decide to try their luck there during their next holiday break. They submit an application for a permit in the prescribed form.

As required by the Act, the Minister consults with MineCon Pty Ltd in relation to the application. MineCon has adopted a policy which prioritises local applicants over international applicants, and accordingly declines its consent. Again, in accordance with the Act, the Minister rejects Jed and Elly-May's application for a permit.

(a) Can Jed and Elly-May establish jurisdiction under the Constitution?

(b) Can Jed and Elly-May establish jurisdiction under the ADJR Act?