Azevedo, O. v Secretary to the Department of Primary Industries & Energy

[1992] FCA 106

Re: OTTO AZEVEDO
And: SECRETARY TO THE DEPARTMENT OF PRIMARY INDUSTRIES AND ENERGY
No. D G1 of 1991
FED No. 106
Administrative Law - Fish and Fisheries - Statutory Interpretation
(1992) 106 ALR 683
(1992) 15 AAR 213
(1992) 35 FCR 284
(1992) 26 ALD 567

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Administrative Law - Administrative Appeals Tribunal - appeal - functions - review of reconsideration of primary decision - change in law between primary decision and reconsideration - whether accrued rights - operation of Acts Interpretation Act 1904 - fisheries - grant of prawn fishing licence - plan of management - statutory instrument - effect of amendment - proper construction.

Fish and Fisheries - fishing boat licence - endorsement to fish for prawns in Joseph Bonaparte Gulf - Plan of Management - legal effect - instrument under Act - application of Acts Interpretation Act - effect of amendment - accrued rights arising from applications - whether intended to override accrued rights.

Statutory Interpretation - instrument made under Act - application of Acts Interpretation Act - whether repeal - extended definition of repeal - accrued rights - whether protected - whether contrary intention - "substantial financial commitment".

Words and Phrases - "accrued right", "contrary intention", "substantial financial commitment".

Fisheries Act 1952 (Cwth) s.4, s.7, s.8, s.9, sub-s.16A(4)

Administrative Appeals Tribunal Act 1975 s.43

Acts Interpretation Act 1901 ss.46, 48, 48A, 48B, `49 and 50

Acts Interpretation Amendment Act 1984

Mathieson v. Burton (1971) 124 CLR 1

Re Brown (1989) 18 ALD 543

Re Costello (1979) 2 ALD 934

Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Commonwealth v. Ford (1986) 9 ALD 433

Jebb v. Repatriation Commission (1988) 80 ALR 329

Freeman v. Secretary, Department of Social Security (1988) 87 ALR 506

Re Lew and Department of Primary Industries and Energy (1988) 19 ALD 197

Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634

Director of Public Works v. Ho Po Sang (1961) AC 901

New South Wales Aboriginal Land Council v. Minister Administering the

Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685

HEARING

PERTH

#DATE 6:3:1992

Counsel for the Applicant: Mr D. Trigg

Solicitors for the Applicant: Philip and Mitaros

Counsel for the Respondent: Ms. R. Layton

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The appeal is dismissed.

The applicant is to pay the respondent's costs of the appeal.
NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The depletion of prawn stocks in waters off the north coast of Australia has led to the creation of statutory Plans of Management to limit the number of boats permitted to fish for prawns in those waters. In 1986 a Plan of Management was made for the Joseph Bonaparte Gulf with provision for the grant of licences to persons who were already in the prawning industry in that area or who could demonstrate that they had made irrevocable contractual or financial commitments to operating there. Mr Otto Azevedo applied for a licence on the basis that he had made a commitment to purchase a boat to be equipped for prawn trawling in the Gulf. His application was refused and an appeal to the Administrative Appeals Tribunal dismissed. He now appeals to this Court from that dismissal.

The History of the Proceedings

1. On 23 January 1986 Otto Azevedo applied under the Fisheries Act 1952 (Cwth) ("the Act") for an endorsement on a boat licence authorising him to fish for prawns in the Joseph Bonaparte Gulf. The boat in respect of which the endorsement was sought was the M.V. Dugong. By a letter dated 26 November 1987 signed by Mr D. Wesney, an Assistant Director of the Australian Fisheries Service in the Department of Primary Industry, and a delegate of the Secretary of that Department, he was informed that his application had been refused. On 17 December 1987, an application for review of the decision was lodged in the Canberra Registry of the Administrative Appeals Tribunal. However, on 18 February 1988, an officer of the Department wrote on behalf of the Secretary to the Deputy Registrar of the Tribunal advising that by virtue of s.16A of the Act the delegate's first instance decision was not reviewable by the Tribunal. A decision by way of reconsideration of that primary decision could be reviewed. He informed the Tribunal that arrangements were being made for Mr Azevedo to be given the opportunity to present his case to a Departmental Review Panel in Darwin.

2. The panel considered Mr Azevedo's application on 24 February 1988 and concluded on 17 March 1988 that there was no justification for changing the primary decision. It recommended accordingly. On 27 April 1988, the Director of the Australian Fisheries Service, Mr Gorrie, who was a delegate of the Secretary, acted upon that recommendation, confirmed the original decision and wrote advising Mr Azevedo. On 23 May 1988 the solicitors then acting for Mr Azevedo wrote to the Registrar of the Administrative Appeals Tribunal advising of the outcome of the internal review and stating that they were "instructed to make an application for review of that decision". They indicated that they would make a further formal application for review if that were requested, but said that their client would rely upon "the particulars set out in the application dated 17th day of December 1987 with the necessary amendments in relation to the name of the person who made the decision and his office". They added that "obviously the date of the decision would also need amendment". The matter then proceeded on the application filed in December 1987 but on the common basis that the decision to be reviewed was that made on 27 April 1988.

3. The application was heard by the Tribunal on 10 and 11 April 1989, partly concurrently with another matter, D88/5, which was an application by Mr Besin Naga for review of a similar decision. The hearing was adjourned pending some further inquiries and written submissions by the parties. The applicant's solicitors tendered written submissions early in 1990. The respondent's written submissions were received shortly prior to the Tribunal's decision which was given on 20 June 1990. The Tribunal affirmed the decision under review. A Notice of Appeal against that decision was lodged in the Court on 2 January 1991 setting out grounds which were amended by consent at the commencement of the hearing in Darwin on 22 July 1991. Neither counsel for the applicant nor the solicitors instructing him, had been involved in the hearing before the Tribunal. That hearing had proceeded upon an application which on its face sought review of the decision of 26 November 1987. There was no formal amendment and the reasons of the Tribunal, read together with the original application may have given the impression that it was that decision which was being considered. Counsel's argument and the first ground of appeal rested partly upon the mistaken assumption that the decision under review by the Tribunal was that made by Mr Wesney on 27 November 1987. In light of the correspondence, which he had not seen and which was produced at the hearing of this appeal by counsel for the respondent, it is clear that the Tribunal and the parties before it proceeded upon the basis that the decision under review was that made by Mr Gorrie on 27 April 1988. And it is upon that basis that the Court will deal with this appeal.
   The Statutory Framework

4. Section 7 of the Fisheries Act 1952 authorises the Governor-General to declare any marine or tidal waters to be proclaimed waters for the purposes of the Act. By sub-ss.8(1) and 8(4) the Minister may by notice in the Gazette prohibit the taking of a specified class of fish in an area of proclaimed waters specified as the area in respect of which the prohibition is to have effect. Section 9 empowers the Minister and the Secretary to grant licences authorising the use of boats for fishing in proclaimed waters or in specified managed fisheries. In particular, para.9(2)(b) provides:
   

"9(2) Subject to sub-section (8AA), the Minister or the Secretary may grant to a person a licence in respect of a boat authorizing the use of the boat by that person, or a person acting on that person's behalf, for -

(a) taking fish in proclaimed waters or a specified area of the proclaimed waters; or

(b) a specified managed fishery,

and for processing and carrying fish that have been taken as a result of that use of the boat."

Endorsement of existing boat licences to authorise fishing in a proclaimed area is authorised by sub-s.9(4):

"9(4) Subject to sub-section (8AB) the Minister or the Secretary may endorse a licence granted by virtue of paragraph (2)(a) or

(3)(a) in respect of a boat so as to extend the licence to authorise the use of the boat, at any time or during a period specified in the endorsement, for activities by way of fishing that are prohibited by a prohibition contained in a notice in force under sub-section 8(1) being a notice identified in the endorsement."

Sub-sections 9(8AA) and (8AB) are not material for present purposes. The term "managed fishery" is defined in s.4:

"4. In this Act, unless the contrary intention appears - "managed fishery" means a class of activities by way of fishing, being a class of such activities that is identified in a plan of management as a fishery to which the plan of management applies;"

The statutory framework for the formation of management plans is set out in s.7B of the Act, which provides in sub-s.(1) that the Minister may, by instrument in writing, determine a plan of management for a fishery in proclaimed waters. A plan of management is required by sub-s.7B(2) to set out its objective and measures by which the objective is to be attained. Under sub-s.7B(3) the Minister may, in the plan determine the manner in which the capacity of the fishery is to be measured and determine the capacity measured in that manner.

1. Directly relevant for present purposes is sub-s.7B(4) relating to the grant of licences which provides:
   

"7B(4) Without limiting the generality of sub-section (2), a plan of management for a fishery may make provision for and in relation to -

(a) the granting of licences under sub-sections 9(2) and (3) in relation to the fishery;

(b) the conditions to which licences granted under sub-sections 9(2) and (3) in relation to the fishery are to be subject; and

(c) the duration, transfer, renewal and variation of licences granted under sub-sections 9(2) and (3) in relation to the fishery."

In the case of a plan of management for which the Minister determines the fishing capacity permitted for the fishery under sub-s.7B(3), the plan may make provision for the division of that capacity into units, the allocation of units to persons, the assignment of units to boats, a requirement that units be held in relation to boats, and the determination of the number of units to be held in relation to boats. By para.7B(5)(j) a plan of management which includes a determination of the permitted fishing capacity may make provision for "the reconsideration of decisions made under the plan of management". The word "decision" in that context has, by virtue of sub-s.7B(9) the same meaning as in the Administrative Appeals Tribunal Act 1975.

1. The exercise by the Minister and the Secretary of their statutory powers under the Act is regulated by the terms of the applicable plan of management:
   

"7B(8) While a plan of management is in force for a fishery, the Minister and the Secretary shall perform their functions, and exercise their powers, under this Act in relation to the fishery in accordance with the plan of management, and not otherwise.

(8A) The Minister and the Secretary shall, in the performance of their functions and the exercise of their powers generally under this Act, have regard to the effects, either direct or indirect, that the performance of the functions and exercise of the powers may have in relation to any plan or plans of management."

Sub-section 7B(10) authorises identification of a fishery in a plan of management by reference, inter alia, to "a species of fish". The term "fishery" as used in s.7B is defined by sub-s.7B(9) to mean:

"... a class of activities by way of fishing, being a class of such activities that is identified in a plan of management as a fishery to which the plan of management applies."

The determination of a plan of management is required to be published in the Gazette and attracts the application of s.48 (other than para.(1)(a)), 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 as if it were a regulation. A determination is deemed, by virtue of sub-s.7C(6), to be an enactment for the purposes of the Administrative Appeals Tribunal Act 1975.

1. Reconsideration and review of decisions under the Act is dealt with in s.16A. Decisions are classified as "relevant decisions" and "reviewable decisions" for the purposes of that section. A "relevant decision" is a decision of a delegate of the Minister or a delegate of the secretary under specified sections, including s.9 (other than sub-ss.(3A), (9) and (10)) and s.16A(2). A reviewable decision is a decision of the Minister or secretary under specified sections, including s.9 (other than sub-ss.(3A), (8B) and (10)) and sub-s.16A(2). The class also includes decisions made under sub-s.16A(4). It does not include decisions of delegates of the Minister or Secretary made under the specified sections. These fall within the definition of "relevant decision".

2. A person affected by a relevant decision may within 21 days after it comes to his notice, by notice in writing, require the Minister or the Secretary to reconsider the decision (s.16A(2)). The request is to set out the reasons for making it (s.16A(3)). Within 45 days after the receipt of the request the Minister or Secretary is required by s.16A(4) to "reconsider the relevant decision" and is empowered to make a decision:
   

(a) in substitution for the relevant decision whether on the same terms as the relevant decision or not; or

(b) revoking the relevant decision.

Sub-section 16A(5) provides for notice of the result of the reconsideration to be served on the person who made the request. That notice is to "set out findings on material questions of fact, refer to the evidence or other material on which those findings were based and give the reasons for his decision". An application may be made to the Administrative Appeals Tribunal for a review of a reviewable decision (16A(6)).

1. There is a general power of delegation under s.6A of the Act. It is sufficient to say that the power is wide enough in its terms to allow for delegation by the Minister or Secretary of their power to reconsider a delegate's decision under s.16A(4). That a delegate may make a "reviewable decision" by way of reconsideration of a delegate's first instance "relevant decision" is contemplated expressly by s.16A(8):
   

"Where the Minister or the Secretary or a delegate of the Minister or the Secretary makes a reviewable decision and gives to a person whose interests are affected by the decision notice in writing of the making of the decision, that notice shall include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates by or on behalf of a person whose interests are affected by the decision."

And by s.6 the Minister may give binding directions to a delegate:

"6. The Secretary or his delegate or a delegate of the Minister is, in the exercise of his powers and the performance of his functions under this Act, subject to the directions of the Minister."

1. Sections 48 to 49A of the Acts Interpretation Act 1901 relate to the laying before the House and disallowance of regulations made under Acts. They apply (save for sub-s.48(1)(a)) to plans of management made under the Fisheries Act by virtue of sub-s.7C(6) of that Act. So too does s.50 of the Acts Interpretation Act which provides, inter alia, that the repeal of any regulations made under any Act shall not, unless the contrary intention appears in the Act or regulations effecting the repeal, affect any right or privilege accrued under any regulations so repealed.

2. In addition, para.46(a) of the Acts Interpretation Act provides:
   

"46. Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then:

(a) unless the contrary intention appears, expressions used in any instrument so made, granted or issued shall have the same meanings as in the Act conferring the power, and this Act shall apply to any instrument so made, granted or issued as if it were an Act and as if each such rule, regulation or by-law were a section of an Act; "

Paragraph 46(b) is not relevant for present purposes. Paragraph 8(c) of the Acts Interpretation Act provides:

"8. Where an Act repeals the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:

.

.

.

(c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed;"

In considering the operation of s.8 upon amendments to the Plan of Management under consideration in this case, it should be noted that prior to the enactment of s.8A the word "repeal" used in s.8 was not thought to extend to amendments to statutes effected by the mere insertion of words - Mathieson v. Burton (1971) 124 CLR 1 at 5 (Barwick C.J., McTiernan J. agreeing), 7 (Menzies J.), 20 (Gibbs J.), contra at 12 per Windeyer J. where his Honour expressed the view that the addition of words giving a lesser not a greater denotation to a paragraph of an act repealed the earlier, wider denotation pro tanto. In many cases, of course, as Gibbs J. pointed out at 22, the result will be the same whether one regards a provision as effecting a repeal and applies the provisions of the appropriate Interpretation Act or as amendment which is governed by the general principles of the common law that are designed to avoid giving a retrospective effect to a statutory enactment. In any event an extended meaning for the word "repeal", consistent with the views expressed by Windeyer J., was introduced in 1984 by the Acts Interpretation Amendment Act 1984 which enacted s.8A:

"8A. A reference in section 7 or 8 to the repeal of an Act or of a part of an Act includes a reference to:

(a) a repeal effected by implication;

(b) the abrogation or limitation of the effect of the Act or part; and

(c) the exclusion of the application of the Act or part to any person, subject-matter or circumstance." The Northern Prawn Fisheries Plan of Management - Background

1. On 2 February 1977 the Minister for Primary Industry published a notice under s.8 of the Fisheries Act 1952 prohibiting fishing for prawns in waters off the Northern Coast of Queensland and the Northern Territory. The western boundary was marked by the meridian 129 degrees/54 minutes east longitude passing through Cape Ford and the eastern boundary by the meridian 132 degrees/9 minutes east longitude passing through Slade Point on the western side of Cape York. The waters covered by the proclamation included the Gulf of Carpentaria. There was provision for fishing boat licences to be endorsed for the purposes of taking prawns in the area under s.9(4) of the Act. Criteria for such endorsement had been announced in a ministerial press release published on 4 November 1976 foreshadowing the limited entry proclamation. The criteria contemplated the licensing of trawlers which had operated in the area before 21 July 1976 and any trawler which was a replacement for one previously engaged in the fishery and lost or destroyed after 1 July 1974.

1. In October 1982 the Australian Fisheries Council ("AFC") resolved that a review of the Northern Prawn Fishery be undertaken "as a matter of urgency to consider the early introduction of measures to restrain the existing and potential capacity in the fishery". There followed a process of review and negotiation between industry and government which led to a recommendation by the AFC's Standing Committee Fisheries that the area covered by the 1977 proclamation (referred to as a Declared Management Zone or DMZ) be extended westward to Cape Londonderry. Cape Londonderry is on the western extremity of the Joseph Bonaparte Gulf and the recommended extension would include the Gulf and waters to its north in the Timor Sea. The recommendation was endorsed by the Council on 23 September 1983. A further extension westward to Koolan Island was proposed at a meeting on 28 July 1984.

2. The Northern Prawn Fishery Management Committee (NORMAC) of the AFC then considered entry criteria to the proposed extended DMZ. Particular note was taken at a meeting held in September 1984 of the need to take account of "approximately 16 'West of Cape Ford' fishermen who were able to demonstrate a commitment to prawn fishing between Cape Ford and Cape Londonderry". At the time the applicant, Mr Azevedo, was apparently recognised by NORMAC as one of those fishermen. On 29 November 1984, the Chairman of NORMAC wrote to the Minister for Primary Industry enclosing recommended criteria of eligibility for an endorsement for prawn fishing in Joseph Bonaparte Gulf. The criteria were recommended by industry and government representatives on the committee and were in the following terms:
   

"(i) A fisherman who holds an NPF DMZ endorsed boat licence or an NPF DMZ inactive endorsement will automatically qualify for a JPG endorsed licence.

(ii) The current licensee of a boat equipped for prawn trawling (but not endorsed for the NPF DMZ) who can demonstrate that he fished commercially for prawns in the designated area between 1/1/81 and 30/4/84.

(iii) A person who does not hold an NPF DMZ endorsed boat licence or inactive endorsement who can prove that he has entered into a significant, irreversible financial commitment to build a replacement boat, equipped for prawn trawling and who was the licensee of a boat, other than an NPF DMZ endorsed boat, that fished commercially for prawns in the designated area between 1/1/81 and 30/4/84."

1. In December 1985, the Australian Fisheries Service of the Department of Primary Industry published an announcement of the introduction of limited entry into the Joseph Bonaparte Gulf Prawn Fishery. The announcement indicated that as from April 7, 1986 the prawn fishery in Joseph Bonaparte Gulf would become a limited entry fishery. Only operators whose boats met one of a number of specified entry criteria would be licensed to operate in the fishery after that date. The notice set out the entry criteria and required that applications for endorsements should be lodged by 31 January 1986.
   The Northern Prawn Fisheries Plan of Management

2. The Northern Prawn Fishery Management Plan ("the Plan") was determined by the Minister for Primary Industry on 13 February 1986 and came into operation on 1 March 1986. It applies to all fishing in what is called the "managed fishery". The area of the managed fishery is defined by para.4.1 and Schedule 2 of the Plan and refers to two sub-areas. Sub-area 1 is the former Northern Prawn Fishery DMZ between Cape Ford and Slade Point. Sub-area 2 extends west of Cape Ford to Cape Londonderry and encompasses the Joseph Bonaparte Gulf. The "managed fishery" within sub-areas 1 and 2 is defined in para.6 as:
   

(a) the stock of prawns in the area of the managed fishery;

(b) activities by way of fishing undertaken in the area of the managed fishery by any method with the intention of taking prawns.

The objectives of the Plan are said in para.7.1 to be:

(a) To conserve, and to reduce the fishing pressure on the stocks of prawns in the area of the fishery.

(b) To promote the economic efficiency of the fishery.

The measures for obtaining the objectives include exercising the powers in Pt.III (ss.7 - 10A) and implementing the provisions of the Plan so as to control the number of fishing boats authorised to operate in the fishery and the total fishing capacity of those boats (para.7.2(a)(ii)).

1. As a mechanism for apportioning the capacity of the fishery among boats permitted to operate in it, the Plan creates three classes of units and a register in which their assignment to particular boats and details of their holders are set out. Para.8.1 provides for a total number of A class units that shall not exceed 122,000. According to para.9:
   

"9. It shall be a requirement made pursuant to a notice under sub-section 8(1) of the Act that the use of a boat in the fishery is prohibited unless the applicable number of class A units is assigned to that boat-

(a) in relation to sub-area 1 - with immediate effect;

(b) in relation to sub-area 2 - with effect from 1 March 1987."

1. The applicable number of Class A units means in relation to a boat the number determined in accordance with para.3.1 of Schedule 1 to the Plan. That schedule sets out formulae for calculating the applicable number of Class A units in relation to a boat by reference to its water under-deck volume and engine power. The basis upon which the applicable number of Class A units may be assigned to a boat is set out in para.10 of the Plan. In the relevant parts that paragraph provides as follows:
   

"10.1 A person in whose name boat units are recorded in any register of boat units in the northern prawn fishery kept by the Department and in force on the day on which this plan comes into force may apply before 1 May 1986 to the Secretary to have those units registered as Class A units available for allocation to that person under this plan.

10.2 A person who -

(a) on the day on which notification of this plan is published in the Gazette is the holder of or is entitled to be granted, a boat licence in respect of a boat equipped as a prawn trawler which the person has used for taking prawns in proclaimed waters in, or coastal waters adjacent to, sub-area 2 at any time between 1 January 1981 and 30 June 1985, other than a boat identified in any register of boat units in the northern prawn fishery kept by the Department and in force on the day on which this plan comes into force; or

(b) furnishes evidence to the Department that the person has, during the period beginning on 1 January 1981 and ending on 30 June 1985, entered into an irrevocable contract or a substantial financial commitment to build a boat or to purchase a boat (other than a boat identified in the register of boat units in the northern prawn fishery kept by the Department and in force on the day on which this plan comes into force) with the intention of using that boat in the fishery in sub-area 2;

may apply to the Secretary to have -

(c) the applicable number of Class A units in relation to that boat registered in the name of that person as available for allocation under this plan; and

(d) any suspense units determined in relation to that boat registered in the name of that person. 10.3 Subject to paragraph 10.6 and 10.8, the Secretary shall cause an application under paragraph 10.1 to be granted and the units to be registered as Class A units available for allocation to the person under this plan or as suspense units. 10.4 Subject to paragraph 10.7, if the Secretary is satisfied that an application under paragraph under 10.2 satisfies a criterion in that paragraph, the Secretary shall cause that application to be granted and the units to be registered as Class A units available for allocation to the person under this plan or as suspense units.

. . .

27.7 An application pursuant to paragraph 10.2 made on or after 1 March 1987 shall be refused."

1. Paragraph 17 of the Plan states that it shall be a requirement made pursuant to a notice under sub-s.8(1) of the Act that the use of a boat in the Joseph Bonaparte Gulf area after 1 March 1987 is prohibited unless, among other alternatives, a Class C unit is assigned to that boat with effect from 1 March 1987. Criteria for eligibility for a Class C unit are set out in para.18.1. They are in the same terms as those set out in para.10.2 in relation to Class A units.

2. Reconsideration of certain classes of decision made under the Plan is dealt with in para.41:
   

"41.1 A person who is dissatisfied with a decision under paragraph 10.3, 14.2, 18.2, 25.2, 26.5 or 37.6 or sub-paragraph 43.1(b) may apply to have that decision reconsidered.

41.2 An application under paragraph 41.1 shall be dealt with as if it were an application in relation to a relevant decision within the meaning of section 16A of the Act."

1. By notice published in the Gazette on 8 January 1988 variations to the Plan were effected including the alteration of para.10.2(b) to read:
   

"A person who-

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.

.

(b) furnishes evidence to the Department that the person has during the period beginning on 1 January 1981 and ending on 30 June 1985 entered into an irrevocable contract or a substantial financial commitment to build or purchase a boat equipped for prawn trawling (other than a boat identified in any register of boat units in the northern prawn fishery kept by the Department and in force on the day on which this plan comes into force) with the intention of using that boat in the fishery in sub-area 2."

The variation was effected under a determination made by the Minister on 17 December 1987. It did not affect para.18.2 of the Plan.

1. It appears from the papers before the Tribunal that on or about 13 February 1986, the Minister published a notice under sub-s.8(1) of the Act prohibiting the taking of prawns in the Joseph Bonaparte Gulf area subject to the endorsement of licences under s.9(4) of the Act. The notice was not in the papers before the Tribunal, but on the same day the Minister made a direction under s.6 to licensing authorities to whom powers and functions under s.9 of the Act had been delegated:
   

"...to endorse, pursuant to sub-section 9(4) of that Act, a licence under sub-section 9(2) of that Act in respect of a boat of a kind specified in a paragraph of the Schedule so as to exempt the holder of the licence and persons acting on behalf of the holder of the licence from the prohibition in Fisheries Notice No. 159 in respect of that boat."

The Schedule set out classes of boat defined by reference to the criteria set out in para.10.2 of the Plan as it stood before the amendment.

Factual Background

1. On 23 January 1986 Mr Azevedo signed a document entitled "Application for Joseph Bonaparte Gulf Prawn Fishing Licences". The three entry criteria were specified on the front of the application. They were:
   

"A. A fisherman who holds a Northern Prawn Fishery Declared Management Zone endorsed boat licence or a Northern Prawn Fishery Declared Management Zone inactive endorsement will automatically qualify for a Joseph Bonaparte Gulf endorsed licence. (Fishermen qualifying under this criterion will automatically receive licence endorsement and SHOULD NOT complete this form.)

B. The current licensee of a boat equipped for prawn trawling (but not endorsed for the Northern Prawn Fishery Declared Management Zone) who can demonstrate that he fished commercially for prawns in the designated area with that boat between 1 January 1981 and 30 June 1985. C. A person who did not hold a Northern Prawn Fishery Declared Management Zone endorsed Commonwealth fishing boat licence or inactive endorsement who can prove he had entered into a significant irreversible financial commitment between 1 January 1981 and 30 June 1985 to build or purchase a boat equipped for prawn trawling in the designated area."

Although in terms an application for a Joseph Bonaparte Gulf licence, the application can be taken to be for the licence or endorsement of an existing licence. As a pre-condition of such grant or endorsement it can also be regarded as an application for the allocation of the applicable number of Class A units and for a Class C unit.

1. In section 1 of the form to be completed by all applicants, Mr Azevedo indicated that the boat in respect of which the endorsement was sought was M.V. Dugong. The section relating to entry criterion B was left blank. However, section 3 of the form "To be completed only by applicants purchasing or building a boat or who have contracted to have a boat built to fish for prawns in the designated area" was completed as to Part B thereof. Part B of s.3 of the form was headed "Particulars of any existing boat being purchased for the Joseph Bonaparte Gulf Prawn Fishery". In this section Mr Azevedo identified the owner of the boat as Mr Charles Noad and gave his address and telephone number. In a subsequent letter to the Australian Fisheries Services on 28 January 1986, he pointed out that he had purchased the vessel from Noad on 7 May 1985 and that he had also fished for prawns in the designated area in his vessel The Victory in 1981, 1982 and 1983. It was not necessary to lodge returns and he did not catch enough prawns to sell commercially.

2. The initial assessment by officers of the Australian Fisheries Services was that the vessel was not equipped for trawling and therefore the application was not recommended. On 20 May 1987, the Australian Fisheries Service wrote asking Mr Azevedo to establish the date of purchase of the vessel by way of some evidence such as a copy of the relevant cheque. In his reply, dated 16 June 1987, Mr Azevedo said he was confused by the requirement for further evidence. His "JBG" application, he said, was based on the use of his previous vessel, The Victory, which sank in March 1985. He said he had provided information to prove he fished for prawns with The Victory during the qualifying period. The original application had made no mention of this and the Australian Fisheries Service again sought evidence of the purchase of the Dugong. On 27 August 1987, Mr Azevedo provided a photograph of The Victory taken in 1984 and a photograph of a new 5 tonne winch which, he said, had cost him $2,500 and was to have been installed on The Victory. He also named a Mr Charles Cagnetti as someone who had bought prawns from him previously.

3. On 9 November 1987, an officer of the Northern Prawn Fishery and Adjustment Programs Section of the Australian Fisheries Service recommended to an Assistant Director of the Service, Mr D. Wesney, that Mr Azevedo be refused access to the JBG fishery. He referred to the failure to produce evidence of the date of purchase of the M.V. Dugong and queried why it had not been refitted for prawning after The Victory was lost. Mr T.F. Meany, the Manager of the Section agreed with this assessment and made a similar recommendation to Mr Wesney on 16 November 1987. Mr Wesney endorsed the minute on 24 November with the handwritten words "Agreed that application be refused". The principal conclusion offered in Mr Meany's memo was that Mr Azevedo had never had any significant commitment to prawning. He was a barramundi fisherman. The memo went on:
   

"Even if his purchase of the winch and brine tank were taken into account that still amounts to less than $5,000. Mr Azevedo is seeking access to a fishery where the average value of boats is at least $250,000 and the licence, if granted, would be worth $170,000. The $5,000 investment would not be considered a significant financial commitment."

Mr Wesney advised Mr Azevedo by letter dated 26 November 1987 that his application for endorsement had been refused.

1. The review process followed as outlined earlier. The decision by Mr G. Gorrie on 27 April confirming the earlier decision has already been referred to. In his letter of 27 April 1988, Mr Gorrie noted that the previous boat, The Victory, had a small hand hauled prawning net but that it was lost in March 1985 which was outside the qualifying period under paras.10.2(a) of the Northern Prawn Fishery Management Plan.
   The Tribunal's Decision

2. The Tribunal recited the establishment of the Northern Prawn Fisheries DMZ in 1977, the 1983 review and the endorsement by the Australian Fisheries Council of its extension westward to Cape Londonderry. The endorsement of criteria for entry to the extended area by the Australian Fisheries Council was also referred to. The Tribunal then set out the determination of the plan and the statutory framework within which it occurred. Paragraphs 10.2(a) and (b), paras. 18.1(a) and (b) were mentioned and the criteria under 10.2 stated.

3. The Tribunal found that Mr Azevedo had applied for his licence endorsement on 23 January 1986, enclosed a copy of the agreement for the purchase of the vessel Dugong and had subsequently advised that although he had caught prawns with his previous boat The Victory in 1981, 1982 and 1983, he had not caught enough to sell them commercially. He was also said to have stated to a Fisheries Officer that the Dugong was not rigged for prawning. The Tribunal's reasoning then proceeded as follows:
   

1. To qualify for A class units under para.10.2(a) and thereby for a licence endorsement, the Dugong would have to have been equipped for prawn trawling on 21 February 1986 when the Plan was gazetted. To qualify under 10.2(b) it would have had to be so equipped when purchased in May 1985.

2. Mr Azevedo had conceded that even at the hearing date the boat was not equipped for prawn trawling.

3. A winch which had been acquired in 1984 was never placed on the boat. It would not have equipped the boat for trawling in any event.

4. It was admitted by Mr Azevedo that some prawning gear he had taken off The Victory would not be of any use.

5. The only other basis for qualifying for the allocation of the A class units that could be put on behalf of the applicant was that before 30 June 1985 he had entered into a substantial financial commitment to build the Dugong as a boat equipped for prawn trawling. But the proposal was untenable. On this last point the Tribunal said: Under subparagraph 10.2(b), what is intended, as I see it, is either the outright purchase of a boat equipped for prawn trawling, or a substantial financial commitment to a third party to build or purchase such a boat. It would not be enough for the applicant to have simply formulated a plan in his own mind for ultimate conversion of the boat." There could, in the Tribunal's view be no question of making the Victory the basis of the application. Mr Azevedo was not, after its sinking, the holder of a boat licence in respect of that boat.

The Tribunal concluded that having regard to principles set out in its decision (differently constituted) in Re Brown (1989) 18 ALD 543 and Mr Azevedo's failure to comply with the criteria for entry contained in the Plan it had no discretion in the matter and the decision under review was therefore affirmed.

The Grounds of Appeal

1. Under the amended notice of appeal the question of law which is raised is the proper interpretation of sub-paragraphs 10.2(a) and (b) of the Northern Prawn Fishery Management Plan. The grounds are shortly and baldly stated as follows:
   

"(i) The Tribunal erred in law in its application of sub-paragraph 10.2(b) of the Northern Prawn Fishery Management Plan.

(ii) The Tribunal erred in law in concluding that in order to fall within sub-paragraph 10.2(b) of the Northern Prawn Fishery Management Plan the applicant must have made a substantial financial commitment to a third party to build a boat equipped for trawling."

The Contentions

1. Counsel for Mr Azevedo proceeded initially upon the erroneous basis that the decision under review by the Tribunal was that taken on 26 November 1986 by Mr Wesney. But as the letter from Mr Azevedo's former solicitors to the Registrar of the Tribunal on 23 May 1988 indicated, they were seeking review of the decision taken by Mr Gorrie on 27 April 1988. In the event, Mr Azevedo's argument rested upon the propositions that:
   

1. The Plan of Management which should have been considered and applied by the Tribunal was the Plan as it stood prior to the January 1988 amendment.

2. The Tribunal erred in any event in its construction of the Plan. It wrongly concluded that para.10.2(b) required purchase of a boat already equipped for trawling or a financial commitment to a third party to build or purchase a boat already equipped for trawling.

1. Counsel for the Secretary, pointed out that the decision under review by the Tribunal was that of Mr Gorrie on 27 April 1988. The Tribunal standing in the shoes of the "reviewable" decision-maker was obliged to apply the criteria applicable at the time of the hearing. Reliance was placed upon the reasoning used by the Tribunal differently constituted in the cases of Re Costello (1979) 2 ALD 934 and Re Brown (supra). On the constructional point, counsel for the Secretary submitted that with or without the amendment it was necessary for the applicant to show either that he had purchased the Dugong with the intention of using it in the prawn fishery or that he had made a financial commitment to its use for that purpose. Counsel submitted that the evidence would not support either finding.
   The Tribunal's Function

2. The Tribunal is empowered in reviewing a decision to exercise "all the powers and discretions that are conferred by any relevant enactment on the person who made the decision" - s.43(1) Administrative Appeals Tribunal Act 1975. In so doing it does not discharge a merely supervisory role considering whether the decision under review was the correct or preferable one on the material before the primary decision-maker. It is required to determine whether the decision was the correct or preferable one on the material before the Tribunal - Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 (Bowen C.J. and Deane J.) and 607 (Smithers J.). It is not confined to a consideration only of events which occurred up to the time of the decision under review - Commonwealth v. Ford (1986) 9 ALD 433 at 437 (Wilcox J.). The proper approach for the Tribunal is to regard the administrative decision-making process as a continuum and to look upon its function as a part of that continuum so that within the limits of reconsideration of the decision under review, the Tribunal considers the applicant's entitlement from the date of application or other proper commencing date to the date of the Tribunal's decision - Jebb v. Repatriation Commission (1988) 80 ALR 329 at 333 (Davies J.). Where a question of entitlement to some benefit arises, the Tribunal can consider the entitlement as at the date of the decision under review and subsequently. The nature of the decision under review must, however, be kept in mind. Review of a decision to cancel a pension for example would be limited to whether on the material before the Tribunal, cancellation was the correct or preferable decision at the time it was made - Freeman v. Secretary, Department of Social Security (1988) 87 ALR 506 at 509 (Davies J.). In that case the decision under review was that of a delegate of the Secretary affirming the earlier decision of an officer. The function of the Tribunal was to reconsider the earlier decision and to determine whether the cancellation decision was the correct or preferable one to have been made at that time.

3. In this case, the question of the amendment to the Plan of Management apart, no issue arose about events between November 1987 or April 1988 and the date of hearing by the Tribunal. The Tribunal's function was to review the decision of Mr Gorrie and, if necessary, exercise all the powers and discretions conferred upon him by the Act. The relevant powers and discretions were those of the Minister or the Secretary under sub-s.16A(4) of the Fisheries Act 1952, that is to "reconsider the relevant decision" and if appropriate to make a decision:
   

"(a) In substitution for the relevant decision whether in the same terms as the relevant decision or not; or

(b) revoking the relevant decision."

In discharging that function Mr Gorrie could consider any relevant material. Like the Tribunal, he was not limited to the material before the original decision-maker, Mr Wesney. Indeed in this case, he made his decision after receiving the recommendation of an advisory committee. Had he come to a different view, the power conferred on him by s.16A(4) although a power to reconsider and revoke the primary decision and to substitute another for it, would not have authorised the grant of a backdated endorsement. There was no power to do that and there would be no point to such a power. It is arguable that in some circumstances the concept of reconsideration will import the notion of applying the plan as it was at the time of the original decision. But that must depend upon the effect of any particular amending determination affecting an existing plan of management. In my opinion, for reasons set out below, the 1988 amendment to the Plan was intended to operate in respect of all outstanding applications whenever made and to contract the accrued rights to which they gave rise. I should add that Mr Gorrie's decision seems to have been based upon his conclusion that Mr Azevedo had not, during the relevant qualifying period, formed the intention required by para.10.2(b) to use the M.V. Dugong for prawn trawling and that the boat itself was not equipped for that purpose. The requirement that the applicant had the relevant intention to use the boat in the prawning industry is a necessary condition of eligibility under para.10.2(b) of the Plan as it stood before and after the amendment. On this basis it would not have mattered which version of the Plan Mr Gorrie applied.

The Effect of the Amendment to the Plan of Management

1. The question whether the amended Plan was to be applied to the reconsideration of Mr Wesney's decision must be resolved in the light of the legislative scheme of the Act and the provisions of the Acts Interpretation Act. Sub-section 7B(8) of the Act requires the Minister and the Secretary, while a Plan of Management is in force for a fishery, to "perform their functions and exercise their powers under (the) Act in relation to the fishery in accordance with the plan of management, and not otherwise". Those functions and powers include the grant of licences under s.9(2), their endorsement under sub-s.9(4) and the reconsideration under sub-s.16(4) of decisions taken by their delegates under s.9.

2. In Re Lew and Department of Primary Industries and Energy (1988) 19 ALD 197, Hartigan J., sitting as President of the Tribunal, set aside a decision refusing the grant of a Joseph Bonaparte Gulf prawn fishing licence. The original application had been made on 21 January 1986 and the Tribunal hearing was on 25 February 1988. His Honour left open the question whether a plan of management determined under the Act is binding on the Tribunal. He favoured the view that the plan of management should be regarded as a policy to be approached in the way enunciated by Brennan J. in Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 644. But with respect to his Honour, it appears from the scheme of the Act and in particular the requirements of sub-s.7B(8) and 7B(8A), that the determination of a plan of management circumscribes the way in which the powers of the Minister and the Secretary are to be exercised. And if their powers and those of their delegates are thus circumscribed so too are the powers of the Tribunal. This accords with the conclusion of the Tribunal in Re Brown (supra) at 553. His Honour did not find it necessary in Re Lew to decide whether the original or amended version of the Plan applied because the result would have been the same in either case (at p 205).

3. In Re Brown, the Tribunal took the view that in reviewing a decision under the Fisheries Act 1952 involving the application of a plan of management which had changed between the date of decision and the date of the hearing, it was obliged to apply the plan as it stood at the date of the hearing. It did so in reliance upon a proposition derived from Re Costello (1979) 2 ALD 934, which was expressed at p 554 of the decision in Re Brown thus:
   

"...where the issue is whether a person has a present entitlement to the grant of a right or privilege, the law in force at the time when the Tribunal makes its decision must be applied. But, where the decision is whether he has an accrued right, the law to be applied is that in force when the right accrued."

In the context of the application for a fisheries licence which was before the Tribunal in Re Brown, the Tribunal was satisfied that the applicant had no accrued right other than that of having his application heard and determined.

1. The Fisheries Act, by s.7C(3), expressly applies to the determination of a plan of management the provisions of ss.48 (other than para.(1)(a)), 48A, 48B, 49 and 50 of the Acts Interpretation Act comprising Pt XII of that Act which specifically relates to regulations. The application of those provisions attracts the general rules set out in Pt. XII relating to the date from which regulations take effect, the laying of regulations before the Houses of Parliament, their disallowance and the prohibition against remaking regulations while they are required to be tabled, are subject to disallowance or have been disallowed. Section 50, relating to the effect of repeals of regulations, is also applied to determinations to protect, inter alia, accrued rights. There is no extended definition of the term "repeal" for the purposes of s.50. In its ordinary meaning it is questionable whether that term extends to an amendment of the kind effected to the original plan of management in this case - Mathieson v. Burton (supra). But the application of Pt.XII to the determination of a plan of management does not exhaust the operation of the Acts Interpretation Act in respect of such plan. The question remains whether a plan of management made under the Fisheries Act attracts the application of s.46 of the Acts Interpretation Act and thus of the general provisions of the Act including ss.8 and 8A. Section 7B of the Fisheries Act requires that the determination of a plan of management be by instrument in writing. The word "instrument" as used in s.46 of the Acts Interpretation Act is not defined except to the extent that it includes rules, regulations and by-laws. The ordinary English meaning in this context is "a formal legal document whereby a right is created or confirmed, or a fact recorded; a formal writing of any kind, as an agreement, deed, charter, or record, drawn up and executed in technical form" - Shorter Oxford English Dictionary. It may be debatable whether a plan of management could be said to have a direct legal effect in the way that regulations or by-laws do. Its principal legal consequence is that it circumscribes the exercise of the powers and functions of the Minister and Secretary not of its own force but by virtue of sub-s.7B(8) and 7B(8A) of the Fisheries Act. Nevertheless, in my opinion, the statutory requirement that a determination be made by instrument in writing and the ordinary meaning of the word "instrument" require that a plan of management under the Fisheries Act be considered as an instrument for the purposes of s.46 of the Acts Interpretation Act. In the result the provisions of ss. 8 and 8A of the latter Act apply to the plan of management and its amending plan in this case.

2. The question whether Mr Azevedo had any accrued right under the Plan at the time he lodged his application requires consideration of the legal consequences attaching to that application. Paragraph 10.4 is of importance in that respect for, subject to para.10.7, if the Secretary is satisfied that an applicant under para.10.2 satisfies a criterion in that paragraph "the Secretary shall cause that application to be granted and the units to be registered as Class A units available for allocation to the persons under this plan or as suspense units". A similar duty is cast upon the Secretary in respect of Class C units by para.18.2. The duty to grant the application and allocate the units does not depend upon any discretion but upon satisfaction of the factual criteria. To apply the distinction made by the Privy Council in Director of Public Works v. Ho Po Sang (1961) AC 901 at 922, the investigation set in train by the application was in respect of a right and not to decide whether or not some right should be given. The relevant right in this case is the allocation of the applicable number of Class A units. The position of the applicant is analogous to that of the Aboriginal Land Council in New South Wales Aboriginal Land Council v. Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685. Under the Aboriginal Land Rights Act 1983 (NSW) an Aboriginal Land Council had a right to the transfer of "claimable crown lands" which were defined by reference to criteria of a factual but evaluative character. One such criterion was that the lands were "not needed nor likely to be needed for an essential public purpose". An amendment to the Act having been passed while a claim was pending the question arose whether the claimant had an accrued right protected by the Interpretation Act 1897 (NSW). Holding that it did have such an accrued right, Hope J.A., with whom Samuels and Clark JJ.A. agreed, reviewed the authorities and said at 696:
   

"These decisions satisfy me that a statutory right will be preserved notwithstanding the repeal or amendment of the statute even though the right can only be implemented by a non-discretionary decision of an official or a court, provided that the statutory machinery for obtaining that decision has been set in train before the repeal or amendment."

I respectfully adopt that statement of principle. Mr Azevedo had the right upon lodging his application to the allocation of the Class A and Class C units if he could satisfy the relevant criteria under paras. 10.2 and 18.1 of the Plan as it then stood. That right was an accrued right for the purposes of s.8 of the Acts Interpretation Act 1901. The question remains whether, having regard to the amendment to the Plan, it was preserved.

1. The amendment to the Plan of Management so far as it related to sub-para.10.2(b) operated by omitting the words "to build a boat or to purchase a boat" and substituting therefore the words "to build or purchase a boat equipped for prawn trawling". It narrowed the condition prescribed in para.10.2 as sufficient to support an application for the grant of class A units. In the sense contemplated by para.8A(c) of the Acts Interpretation Act 1901 it excluded the application of the Plan to persons who would have been covered under the criteria set out prior to the amendment. By virtue of para.8(c) of that Act the amendment would not operate to affect any right accrued under the Plan as it stood originally unless a contrary intention appeared.

2. There may be a variety of circumstances from which a contrary intention can be discerned in amending legislation which constitutes a repeal for the purposes of s.8A of the Act. It is sufficient for present purposes to say that where the amending statute or instrument can only operate by the displacement of accrued rights, then a contrary intention is disclosed. Under para.10.7 of the Plan, an application for Class A units pursuant to para.10.2 made on or after 1 March 1987 is to be refused. The determination effecting the amendment was made on 17 December 1987. It could therefore only have been intended to apply to applications made before 1 March 1987. It necessarily contemplated a narrowing of the criteria on which all outstanding applications would be dealt with albeit it was made after they had been lodged. Accepting that all applicants who had lodged their applications prior to 1 March 1987 and who could satisfy the criteria under para.10.2 had accrued rights to the allocation of Class A units, the amendment operated to narrow the scope of those rights. In my opinion, it is for this reason and not because of the absence of accrued rights as suggested in Re Brown and by the Tribunal in this case, that it was appropriate both for Mr Gorrie and the Tribunal to apply the Plan of Management as it stood after the amendment. For this reason, the Tribunal did not err in law in holding that it was obliged to apply the Plan as it stood after the 1988 amendment.
   The Financial Commitment

3. The Tribunal, in para.15 of its reasons, held that under sub-para.10.2(b) of the Plan, what is intended is "either the outright purchase of a boat equipped for prawn trawling, or a substantial financial commitment to a third party to build or purchase such a boat. It would not be enough for the applicant to have simply formulated a plan in his own mind for ultimate conversion of the boat."

4. In my opinion, the plain purpose of the criteria under para.10.2 is to require concrete evidence of the relevant commitment to prawning in the Joseph Bonaparte Gulf during the qualifying period. They are narrowly expressed to achieve that purpose. Sub-para.10.2(b) requires either an irrevocable contract or a substantial financial commitment to build or purchase a boat equipped for prawn trawling. The amendment to the Plan gazetted in January 1988 makes it clear that such a contract or financial commitment is insufficient if not made in respect of a boat "equipped for prawn trawling". The purchase of a boat with the intention of using it in the Joseph Bonaparte Gulf Fishery is insufficient if it was not a boat equipped for prawn trawling at the time of purchase. The point may be made that the amendment to the Plan in January 1988 did not affect para.18.1 and that it left the criteria for the grant of a Class C unit as wide as they had been for the grant of Class A units prior to the amendment. While it may be right to say that this was a curious omission, it does not permit a construction of para.10.2(b) which is wider than its language will bear.

5. The word "commitment" can be used in a sense which involves "the action of entrusting, giving in charge or commending" or in the sense of committing oneself or being committed to - Shorter Oxford English Dictionary. The evident intention of para.10.2(b) is to specify concrete criteria for entry to the Joseph Bonaparte Gulf fishery. It is not met by treating the requisite commitment as established by the mere formation of an intention to spend money on acquiring or equipping a boat. The term "substantial financial commitment" imports in this context the requirement of an actual outlay or some obligation which is either legally binding or would have significant commercial repercussions if dishonoured. It is difficult to imagine a circumstance where this would not involve a third party. In any event, whether that be so or not, the subject of the commitment must be a "boat equipped for prawn trawling". The Tribunal having found as a fact that the Dugong was not so equipped, it did not err in law in its application of the criterion under para.10.2(b).
   CONCLUSION

1. I am satisfied that in applying the criteria under the Northern Prawn Fishery Management Plan as amended in January 1988, the Tribunal did not err in law although in reaching that conclusion I consider that it did so upon the erroneous basis that an application under the original plan did not give rise to accrued rights. Further, I am satisfied that on the facts which it found the Tribunal did not use an incorrect test in applying the criteria defined in sub-para.10.2(b) of the Plan. For these reasons the appeal must be dismissed.