Baker v Minister for Fisheries
[2003] NSWADT 141
•06/13/2003
Set aside by Appeal:
CITATION: Baker & Anor -v- Minister for Fisheries [2003] NSWADT 141 DIVISION: General Division PARTIES: APPLICANTS
Graham Baker
Amychild Pty Limited
RESPONDENT
Minister for FisheriesFILE NUMBER: 023305 HEARING DATES: 24/02/2003 SUBMISSIONS CLOSED: 02/24/2003 DATE OF DECISION:
06/13/2003BEFORE: Montgomery S - Judicial Member APPLICATION: Fisheries Management Act - fishing licence - transfer of endorsement on licence - Fishing licence - transfer of endorsement on licence MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Commercial Vessels Act 1979
Fisheries Management (General) Regulation 1995
Fisheries Management (General) Regulation 2002
Fisheries Management Act 1994
Navigation Act 1912CASES CITED: Durham Holdings Pty Ltd v State of NSW (1999) 47 NSWLR 340
Kelly v Kelly (1990) 92 ALR 74
Springhall v Kirner [1988] VR 159
Gordon Laidler & Associates Pty Ltd v Hocking (unreported)REPRESENTATION: APPLICANTS
M Smith, barrister
RESPONDENT
N Perram, barristerORDERS: The decision by the Minister for Fisheries to cancel the transferable charter fishing boat licence held by Billfish Tuna & Reef Charter Boat Agency in respect of the vessel ‘The Ultimate II’ is set aside.
Background
1 These proceedings relate to a decision by a delegate of the Minister for Fisheries (“the Minister”) to cancel a transferable charter fishing boat licence (“the licence”) issued in respect of the vessel ‘The Ultimate II’ and held in the name of Billfish Tuna & Reef Charter Boat Agency. Billfish Tuna & Reef Charter Boat Agency is a registered business name held by Amychild Pty Limited (“APL”). Mr. Baker is a director of APL.
2 The decision was made to cancel the licence on 1 September 2002. An internal review was sought and that review was finalised on 7 November 2002. The original decision was affirmed on review. The Applicants’ solicitors were notified of the outcome of that review by letter also dated 7 November 2002.
3 This application was commenced by Mr Baker, however it is common ground that the licence should have been issued in the name of APL and not in that company’s business name. Consequently, APL was joined as a party to these proceedings.
4 The decision to cancel the licence was purported to have been made under clause 226O(a) of the Fisheries Management (General) Regulation 1995 (“the 1995 Regulation”) after it was determined that APL no longer met the eligibility criteria for a transferable licence. It is not in dispute that at the time of the decision the applicable regulation was the Fisheries Management (General) Regulation 2002 (“the Regulation”). The reasons for decision provided following the internal review made reference to APL’s failure to satisfy various requirements under the Fisheries Management Act 1994 (“the Act”).
Applicable Legislation
5 Section 63 of the Administrative Decisions Tribunal Act 1997 provides for the approach to be taken by this Tribunal in determining an application for a review of a reviewable decision. It is common ground that the decision to cancel the licence is a reviewable decision. Section 63 provides:
6 Part 4A of the Act provides for the regulation of charter fishing. The provisions most relevant to these proceedings are as follows:
“63 Determination of review by Tribunal
(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”
7 Division 6 of Part 4 of the Act, as referred to in section 127F of the Act, provides:
“127A Meaning of charter fishing boat
For the purposes of this Part, a boat is a charter fishing boat if:
127B Certain charter fishing boats to be licensed
(a) the boat is used for recreational fishing activities under an arrangement made with or on behalf of the persons using the boat, and
(b) a payment or other consideration is required to be made or given by or on behalf of all or any of those persons for the right to fish from the boat, and
(c) the boat is used for recreational fishing activities in any waters (whether or not within the limits of the State).
(1) The regulations may declare that all or any specified class of charter fishing boats are required to be licensed under this Part.
(2) The master of a boat must not use the boat as a charter fishing boat if:
Maximum penalty: 100 penalty units.
(a) it is required by such a regulation to be licensed, and
(b) the boat is not licensed under this Part.
(3) The owner of a boat must not permit the boat to be used as a charter fishing boat if:
Maximum penalty: 100 penalty units.
(a) it is required by such a regulation to be licensed, and
(b) the boat is not licensed under this Part.
(4) The regulations may provide that a boat licensed under a law of the Commonwealth or of another State or a Territory as a charter fishing boat is taken to be licensed under this Part.
127C Provisions relating to licensing of charter fishing boats
(1) The owner of a boat (or a person authorised by the owner) may apply to the Minister for the issue of a licence for the boat under this Part.
(2) An application is to be in the form approved by the Minister and is to be accompanied by such fee (if any) as is prescribed by the regulations.
(3) The Minister is required to issue a charter fishing boat licence if an application for the licence is duly made, unless the Minister is authorised by the regulations to refuse the application. Without limiting this subsection, the Minister may refuse the application because of any applicable restriction on charter fishing boats under a management plan prescribed by the regulations for the charter fishing industry.
(4) A charter fishing boat licence:
(5) The regulations may prescribe different classes of charter fishing boat licences.
(a) is subject to such conditions as are prescribed by the regulations or specified in the licence, and
(b) remains in force for the period of 1 year or such other period as is specified in the licence, and
(c) may be renewed from time to time in accordance with the regulations, and
(d) may be cancelled or suspended by the Minister in the circumstances authorised by the regulations.
(6) The Minister may, at any time, by notice in writing to the holder of a charter fishing boat licence, revoke or vary the conditions of the licence or add new conditions. This subsection does not apply to conditions prescribed by the regulations.
(7) The holder of a charter fishing boat licence who contravenes any condition of the licence is guilty of an offence.
Maximum penalty: 100 penalty units.
(8) The regulations may make provision for or with respect to charter fishing boat licences (including for or with respect to permitting, prohibiting or restricting the use of a boat as both a charter fishing boat and a commercial fishing boat licensed under Division 2 of Part 4).
127F Appeal rights
Division 6 of Part 4 applies to a charter fishing boat licence as if the licence were a relevant authority for the purposes of that Division.
8 Part 10 of the Regulation provides for the management of charter fishing. These provisions are largely comparable to those in Part 9A of the 1995 Regulation under which the decision to cancel the licence was purported tho have been made. Division 2 of Part 10 provides for licensing of charter fishing boats for the purposes of section 127B of the Act. The relevant provisions are as follows:
“Division 6 - Reviews by Administrative Decisions Tribunal
125 Definition of relevant authority
In this Division, relevant authority means:
126 Applications to Administrative Decisions Tribunal for reviews of certain decisions
(a) a commercial fishing licence, or
(b) an endorsement on a commercial fishing licence, or
(c) a fishing boat licence, or
(d) the registration of a member of the crew of a boat, or
(e) a fish receiver’s registration.
(1) A person who is dissatisfied with any of the following decisions under this Part may apply to the Administrative Decisions Tribunal for a review of the decision concerned:
(2) For the purposes of this section, an application for the issue or renewal of a relevant authority is taken to have been refused if the authority is not issued or renewed within 60 days after the application was duly made.”
(a) the refusal to issue a relevant authority to the person or to renew the person’s relevant authority,
(b) the imposition of conditions on the person’s relevant authority (otherwise than by regulation),
(c) the suspension or cancellation of the person’s relevant authority.
9 Division 3 of Part 9A of the 1995 Regulation provided for the review of decisions relating to the issue of a licence by a Review Panel established by the Minister. A person who was refused a licence could request a review of that decision pursuant to clause 226S of the 1995 Regulation. If a review request was duly made, clause 226U of the 1995 Regulation required that the Minister establish a panel to conduct the review . The Minister could reject a review request without establishing a panel to conduct the review if the matter had already been the subject of a review by a panel under that Division, or if the Minister was of the opinion that the review request was frivolous or vexatious. The review was governed by clauses 226V and 226W of the 1995 Regulation.
“298 What boats must be licensed?
For the purposes of section 127B of the Act, it is declared that a charter fishing boat is required to be licensed under Part 4A of the Act if it is used for any guided recreational charter fishing that involves:
“300 Classes of licence
(a) estuarine fishing, or
(b) near shore bottom fishing and sport fishing, or
(c) game fishing, or
(d) deep sea bottom fishing.”
There are two classes of licence, as follows:
301 Eligibility criteria—transferable licence
(a) transferable,
(b) non-transferable.
(1) A person is eligible for a transferable licence in respect of a boat owned or otherwise under the control of the person if the person satisfies the Minister that:
Note. 22 October 1997 is the date on which the Minister announced a ministerial warning against further investment in the New South Wales recreational charter fishing boat industry, because of moves to cap the number of operators in the industry at the level then present (see second reading speech for the Fisheries Management Amendment Bill 1997, which inserted Part 4A in the Act, Hansard of 22 October 1997, page 1208).
(a) the person is entitled to claim a history of operations in respect of a boat that:
(i) was actively used for guided recreational charter fishing activities in the marine and estuarine charter fishing sector before 22 October 1997, and
(ii) was actively used for those activities for at least 100 days during any period of 24 consecutive months between 22 October 1995 and 4 August 1999, and
(iii) was used in accordance with the requirements of the certificate of survey for the boat at all times during the period in which it was used for those activities, and
(b) the certificate of survey for the boat referred to in paragraph (a) was, at all times during the period in which it was used for those activities, consistent with the type of licence applied for by the person.
(2) If any one of the eligibility criteria is not satisfied, the person is not eligible for a transferable licence.
(3) A person can be eligible only for the same number of licences as boats in respect of which the person is entitled to claim a history of operations. That is, if the person is entitled to claim a history of operations in respect of one boat, the person can be eligible for a licence in respect of one boat only.”
“303 Entitlement to claim a history of operations
(1) For the purposes of this Part, a person is entitled to claim a history of operations in respect of a boat if:
(2) Only one person is entitled to claim a history of operations with respect to one boat.
(a) the boat was used by the person for guided recreational charter fishing activities in the marine and estuarine charter fishing sector during the periods relevant for the purposes of the eligibility criteria for a licence, and the person has not transferred his or her entitlement to that history of operations pursuant to a transfer made:
(i) before 7 July 2000, in accordance with the policies of NSW Fisheries with respect to such transfers, or
(ii) on or after 7 July 2000, in accordance with clause 305, or
(b) the person has acquired a history of operations of a kind referred to in paragraph (a) in respect of a boat from another person pursuant to a transfer made:
(i) before 7 July 2000, in accordance with the policies of NSW Fisheries with respect to such transfers, or
(ii) on or after 7 July 2000, in accordance with clause 305.
(3) If more than one person claims a history of operations of a kind referred to in subclause (1) (a) in respect of a boat, the person who is entitled to make that claim is the person who, in the opinion of the Minister, was principally responsible for the use of the boat for guided recreational charter fishing activities in the marine and estuarine sector during the periods relevant for the purpose of determining eligibility for a licence.
304 Limitation on eligibility
(1) Despite clauses 301 and 302, a person who:
(2) This clause does not apply in any case where the Minister is satisfied that there were good reasons why the licence was not applied for by 30 April 2001.
(a) was eligible, under Part 9A of the repealed regulation before its repeal, for a licence in respect of a history of operations, and
(b) did not apply for such a licence by 30 April 2001,
is not eligible to apply for a licence under this Part.
305 Transfer of entitlement to history of operations
(1) A person who holds a transferable licence may transfer the person’s entitlement to a history of operations in respect of a boat, being the history of operations relied on by the person to satisfy the eligibility criteria for the licence.
(2) Such a transfer may be made only with the approval of the Minister.
(3) An application for the Minister’s approval is to be in an approved form and accompanied by a fee of $268.
(4) If the Minister approves the transfer:
(5) A transfer of a history of operations need not be accompanied by a transfer of the boat concerned. However, a person who transfers a history of operations without transferring the boat ceases to be eligible for a licence in respect of the boat (because the person ceases to be entitled to claim the history of operations).
(a) the person who acquires the entitlement is entitled to claim the history of operations in respect of the boat, for the purposes of the eligibility criteria for a licence, and
(b) the person who transfers the entitlement ceases to be entitled to claim the history of operations in respect of the boat, for the purposes of the eligibility criteria for a licence.
306 Boat replacement
(1) A person who holds a transferable or a non-transferable licence in respect of a licensed charter fishing boat may replace the boat if:
(2) If the Minister approves the replacement, the person’s entitlement to a history of operations, in respect of the boat being replaced, is transferred to the replacement boat.
(a) the replacement is approved by the Minister, and
(b) the application for the Minister’s approval is accompanied by a fee of $268.
(3) Nothing in this clause permits a person who holds a non-transferable licence to transfer that licence to another person.
307 Refusal of licence
The Minister is authorised to refuse an application for a licence for a boat if:
309 Cancellation or suspension of licence
(a) the Minister is not satisfied that the applicant is eligible to be issued with the licence, or the class of licence applied for, in respect of the boat, or
(b) the applicant has been convicted of an offence under the Act, the regulations made under the Act, or an offence relating to commercial or recreational fishing under a law of the Commonwealth or of another State or a Territory or of New Zealand, or
(c) the applicant has been convicted of an offence relating to theft of fish, fishing gear or a boat or intentional damage to fishing gear or a boat, or
(d) the applicant has been convicted of an offence relating to an assault on a fisheries official, or
(e) the applicant has not paid any fee due and payable in connection with the licence.
The Minister may cancel or suspend a licence if:
(a) the holder of the licence ceases to be eligible for the licence, or
(b) the holder of the licence is convicted of an offence under the Act, the regulations made under the Act, or an offence relating to commercial or recreational fishing under a law of the Commonwealth or of another State or a Territory or of New Zealand, or
(c) the holder of the licence is convicted of an offence relating to theft of fish, fishing gear or a boat or intentional damage to fishing gear or a boat, or
(d) the holder of the licence is convicted of an offence relating to an assault on a fisheries official, or
(e) the Minister is satisfied that the holder of the licence has contravened a condition of the licence, or
(f) the holder of the licence fails to pay any fee due and payable in connection with the licence, or
(g) the boat is lost at sea or disposed of by the holder of the licence, or
(h) the Minister is satisfied that the ownership or shareholding of a non-transferable licence has changed.
10 The Regulation came into force on 1 September 2002. The provisions relating to review are essentially repeated in the Regulation. Until 30 June 2001 a person who was refused a licence because the Minister was not satisfied that the person was eligible for the licence could request a review of that decision under these provisions. APL was unable to access these provisions because no decision was taken to refuse APL’s licence application.
11 As will become apparent, various provisions of the Commercial Vessels Act 1979 (“the CVA”) are also relevant to these proceedings. Those provisions are outlined later in these reasons in the context of the Applicants’ arguments.
The "policy clarification" of 19 February 2001
12 At the time of the Minister’s decision to grant the licence, NSW Fisheries operated under a policy whereby history of activity and survey certificates from other States were recognised as a basis for the issue of NSW charter fishing boat licences. On 19 February 2001 the Director of Fisheries approved a policy direction that purported to clarify the position in relation to the use of history of activity and survey certificates from other States to satisfy eligibility for issue of a charter fishing boat licence in NSW. This policy clarification was subsequently used as the basis for the review of APL’s eligibility for the licence.
13 The policy clarification is in the form of a Director’s briefing from the Senior-Manager Licensing. The briefing was submitted for approval to the Director as the Minister’s delegate. The briefing sets out the policy previously adopted by the Minister and the basis for the clarification. There is value in setting out the content of that document because of its significance to these proceedings.
14 The briefing refers to discussions with NSW Waterways that revealed the requirement that boats in survey in another State must obtain a Temporary Permit issued by the Waterways Authority before the interstate survey is recognised in NSW. Those discussions were documented in a letter from the NSW Waterways Team Leader CSO dated 16 January 2001. That letter stated:
“DIRECTORS BRIEFING
Issue
The use of history of activity and survey certificates from other States to satisfy eligibility for issue of a charter fishing boat licence in NSW.
Background
Eligibility criteria for issue of a charter fishing boat licence requires that the boat was: actively used for guided recreational charter fishing activities in the charter fishing sector before 22 October 1997, and was actively used for those activities for at least 100 days (for a transferable licence) or 50 days (for non transferable) during any period of 24 consecutive months between 22 October 1995 and 4 August 1999. (refer clauses 226H and 226I)
The criteria do not specify that any such activity must be in NSW waters. However, the intention of the regulation is to identify those vessels with a history of activity in NSW. As NSW Fisheries has no jurisdiction over other State's waters, and the Fisheries Management (General) Regulation is NSW legislation, it is reasonable to assume that history used to satisfy eligibility for issue of a NSW charter fishing boat licence must be in NSW waters and that applications would be made on that basis.
The eligibility criteria also requires that the boat was used in accordance with the requirements of the certificate of survey for the boat at all times during the period in which it was used for those activities, and that the certificate of survey for the boat was, at all times during the period in which it was used for those activities, consistent with the type of licence applied for by the person.
The definition of certificate of survey is the certificate of survey issued by or in accordance with the requirements of the Waterways Authority or another relevant authority approved by the Director. Recent discussions with NSW Waterways have revealed that boats in survey in another State must obtain a Temporary Permit issued by the Waterways Authority before the interstate survey is recognised in NSW. This means that interstate boats cannot operate in NSW waters unless authorised by a Temporary Permit issued by the Waterways Authority.
Present Position
Records of charter boat activities received with applications did not necessarily or clearly specify the waters in which the boats operated. The majority of assessments were carried out before the Waterways Authority Temporary Permit requirement was known and interstate survey certificates have been accepted without the applicant producing a corresponding NSW Permit. An unknown number of charter fishing boat licences have been issued where boats appear to have satisfied the eligibility criteria, although the extent of fishing activity in NSW waters is not clear.
Recommendation
It is recommended that the Director confirm that history of activity in other States may not be used to satisfy eligibility for issue of a charter fishing boat licence in NSW.
It is further recommended that the Department conducts a review of charter fishing boat licences and identifies those applicants that may have relied on interstate history to gain a licence in NSW. This can be done by examining the certificate of survey. If the survey certificate was not issued by the Waterways Authority, the applicant should be requested to provide copies of temporary permits from the criteria period.
Any applicants who are identified as not eligible for issue of a licence will be requested to show cause why their licences should not be cancelled in accordance with clause 226O(a),
Note that while the above review should be conducted expeditiously, I expect that many of these interstate operators will be identified during the third party review process.”
The Minister's Case
“For your information, to operate and interstate commercial charter vessel in NSW, the vessel must hold a valid unexpired interstate certificate of survey and be issued with a temporary permit by the waterways authority which provides local operating condition and crewing requirement.
As of 19 December 2000, a temporary permit was replaced by a new certificate to be known as a certificate of recognition issued by the waterways authority, in a similar manner.”
15 It is not in dispute that APL’s business was and is "guided recreational charter fishing" and the fishing involved is "game fishing". Accordingly, clause 298 of the Regulation required APL to hold a licence issued under Part 4A of the Act. It is also common ground that a licence was sought and the licence was issued. The current licence was issued on 7 January 2002. These proceedings arose as a consequence of the decision by the Minister's delegate to cancel that licence.
16 As noted above, the Minister’s delegate undertook an internal review of the original decision to cancel the Applicants’ licence. In the reasons for affirming the original decision, the Minister’s delegate has provided a reasonable statement of the Minister’s position, as it existed at that time. I note that Mr Perram made further concessions on behalf of the Minister following the hearing. These concessions removed some issues from contention. The Minister’s delegate stated:
17 Pursuant to Clause 309(a) of the Regulation, the Minister may cancel or suspend a licence if the holder of the licence ceases to be eligible for the licence. Mr Perram, for the Minister, submitted that the question to be determined by the Tribunal in relation to clause 309(a) is whether there has been a ceasing of matters provided for in clause 301. He said that the question is not one of the proper construction of the word `ceases’. He argued that one could cease, for the purposes of clause 309(a), if any of the matters in clause 301(1) cease to be satisfied.
“The Minister made a decision under 226H and 226J of the Regulations upon considering the applicants' application and eligibility for a transferable recreational charter fishing boat licence and determined that the applicant was eligible for the licence as, at the time, it appeared that the eligibility criteria had been satisfied.
Following the policy clarification on not accepting interstate survey to qualify for a NSW Guided Recreational Charter Fishing Boat Licence, a review was conducted for all licences issued including the original decision to issue a transferable charter fishing boat licence to the applicant.
The Minister identified that on the available evidence provided by the applicant (at the time of the review) that "Ultimate II" had no Waterways authorisation to operate in NSW waters prior to 29 April 1999, having relied upon QLD Transport Certificates of Registration to satisfy clause 226H(1)(a)(iii) of the Regulation. In addition, the vessel had no charter fishing history prior to 22 October 1997 and had satisfied the 100 day criteria solely on the statutory declaration of the applicant. Evidence provided in respect of each of the applicant's licences (four in total) also suggests that only three vessels were operated at any one time and that 'Ultimate II' was a replacement vessel for 'Ultimate' (which had also been issued a transferable licence).
Upon further submissions, the applicant claimed that he purchased the vessel 'Black Label' (renamed 'Ultimate II') together with its own history of operations, thus potentially making him eligible for a further licence. However, the Minister was not satisfied that the applicant had verified these claims.
I have found that there was no documentary evidence ie, a waterways certificate to verify that the vessel 'Black Label' conducted charter fishing in NSW prior to 22 October 1997. The only material comes in the form of statutory declarations from the applicant and an employee of the applicant's company and their observations of the vessel. The Minister was not satisfied on the basis of this material alone that the applicant was entitled to claim a history of operations in respect of the "Ultimate II" pursuant to s.226H(1)(a)(i) of the Regulation.
I have found that there was no Waterways temporary permit or survey held by the vessel prior to 1 July 1998 as required by the eligibility criteria under clause 226H(1)(a)(iii) of the Regulation to support charter fishing operations prior to 22 October 1997.
I have found that there was also no documentary evidence to indicate that the history of the vessel transferred to the applicant upon sale on 26 November 1997. The sale agreement provided by the applicant makes no mention of purchase of business or of any charter fishing history. The Minister was not satisfied that the applicant was entitled to claim the history of operations of the vessel prior to purchase to satisfy the eligibility criteria under clause 226H(1 )(a)(i) of the Regulation.
I have found that the applicant did not hold a Waterways temporary permit or vessel permit from 8 January 1999 to 24 April 1999. The applicant had applied for initial survey on 24 June 1998 but the Commercial Vessels Act 1979 (s.19 and s.28), which covers temporary permits, does not deem application for initial survey to be taken to be certificates to count for charter fishing history. As such, the applicant may only claim 100 days of charter fishing in the period between I July 1998 (date applicant was issued with temporary permit T365) to 8 January 1999 (date temporary permit T365 expired) and in the period between 29 April 1999 (date applicant was issued with NSW survey) and 4 August 1999 (the close of the eligibility period).
The material relied upon to quantify the 100 day participation requirement came in the form of statutory declarations from the applicant, with the applicant claiming to have used the vessel for far in excess of 100 days in NSW waters during the 24 month consecutive period between 4 August 1997 and 4 August 1999. The 136 days of charter fishing the applicant claimed to have undertaken between the period 1 December 1997 and 30 June 1998 cannot be considered as these days were not undertaken during the periods the vessel had NSW survey. The Minister was not satisfied of the vessels participation under clause 226H of the Regulation from the above material.
The Minister has power under s.227 Fisheries Management Act 1994 to delegate functions to the Director and has the power to cancel charter fishing boat licences where a person ceases to be entitled to such a licence.
The Director as delegate of the Minister pursuant to s. 127 Fisheries Management Act 1994 had power to cancel a licence on an applicant ceasing to be eligible for a licence by failing to meet eligibility criteria.
Upon consideration of the applicants submissions and eligibility for a charter fishing boat licence, the Director made a decision under 226O(a) of the Regulation to cancel the licence having determined that the transferable charter fishing boat licence issued to the applicant no longer met the eligibility criteria under clause 226H (transferable licence).
The Director determined there were no additional grounds to justify amending the decision made under clause 226O(a) of the Regulation for cancellation of the transferable charter fishing boat licence.
18 Mr Perram argued that there are many situations that could cause a licensee to “cease to be eligible for the licence” so as to authorise the Minister to cancel a licence under clause 309(a). He referred to some examples found in clauses 305 and 306 and also submitted that clause 301(1) suggests that when someone ceases to have control of the vessel they would cease to be eligible to hold the licence.
19 He argued that it is apparent that clause 309 picks up matters that can be raised in relation to clause 301(1)(a). If it becomes apparent that a licensee was never eligible to hold a licence, because it never met the criteria needed to be eligible for the licence, the licence could be revoked under clause 309(a) of the Regulation.
20 Mr Perram conceded that the matters that are set out in subclauses 309(b) through to 309(h) provide for suspension or cancellation after the occurrence of an actual event that is set out on those provisions. However, he submitted that it does not follow that that character is to be imported into the provisions of subclause 309(a). That character is only justifiable if based upon the false premise that the clause 301 provisions are not picked up by clause 309.
21 Mr Perram also conceded that the legislative scheme provides for an appeal right to a review panel when a licence has been refused and that a cancellation under clause 309(a) removes that right. However, he argued that if the Minister were unable to cancel a licence as he has done in this case it would mean that people who were never eligible for a licence could never have their licences revoked under clause 309(a).
22 Mr Perram argued that in order to be eligible for the licence, APL must satisfy the requirements of clause 301 of the Regulation. In the light of evidence given at the hearing, Mr Perram conceded that the actual use of the vessel in the relevant period is no longer in issue. He agreed that the Tribunal ought to accept that the requirement that there be active use for guided recreational charter fishing activities before 22 October 1997 in respect of the Ultimate II has been satisfied. Accordingly, it should be concluded that the requirements of clause 301(1)(a)(i) of the Regulation have been met.
23 The Minister maintains, however, that the evidence does not support APL’s entitlement to claim a history of operations in respect of the "Ultimate II" pursuant to clause 301(1)(a) of the Regulation. Mr Perram submitted that there is no acceptable evidence that any such history of operations was transferred to APL and that, indeed, the only written contemporaneous evidence points in the opposite direction.
24 APL’s entitlement to claim a history of operations is subject to clause 303 of the Regulation. Clause 303(b) requires that APL acquired a history of operations in respect of the "Ultimate II" from the previous owner and that the history was acquired before 7 July 2000, in accordance with the policies of NSW Fisheries with respect to such transfers.
25 Evidence before the Tribunal shows that APL purchased the vessel 'Black Label' on 26 November 1997 and subsequently changed the name of the vessel to Ultimate II.
26 With respect to the requirement that the history of operations be transferred to APL, Mr Perram referred to the agreement for sale of the vessel. Recital B to that agreement provides:
27 Mr Perram asked the Tribunal to note that there are four operative clauses in the agreement and that not one mentions a history of operations. The Schedule sets out in detail what was being sold and what was not. Notably the Schedule provides: “Name ‘Black Label’ does not go with vessel". There is no mention of a history of operations in the Schedule.
"The Vendors have agreed that they shall sell. The Purchasers have agreed they will buy the said vessel, gear and equipment as per the first schedule."
28 In any event, he argued, there is no acceptable evidence that the agreement of 26 November 1997 did anything but transfer the physical boat. Accordingly, there is no legal basis for the Applicant’s assertion that the history of operations was transferred.
29 Clause 303(1)(b)(i) requires that a history of operations be acquired "in accordance with the policies of NSW Fisheries with respect to such transfers". The evidence shows, and Mr Perram conceded, that no such policies existed. It was therefore not possible for APL to satisfy that requirement.
30 The further basis for cancellation on which the Minister relies is that APL has not satisfied the requirement in clause 301(1)(a)(iii). Clause 301(1)(a)(iii) requires that at all relevant times, the boat in respect of which a history of operations is claimed was used in accordance with the certificate of survey for the boat. Clause 301(1)(b) provides that "the certificate of survey for the boat referred to in paragraph (a), was at all times during the period in which it was used for those activities, consistent with the type of licence applied for by the person." "Certificate of survey" is defined in clause 295(1) to mean “the certificate of survey issued by or in accordance with the requirements of the Waterways Authority or another relevant authority approved by the Director".
31 Mr. Perram submitted that APL did not hold a survey meeting this definition until 30 March 2000. This means that even if it complied with clause 301(1)(a)(i) and (ii), it did not have a survey certificate at those times so it cannot have complied with clause 301(1)(a)(iii) or 301(b).
32 Mr Perram noted APL’s reliance on evidence relating to Queensland Certificates of Survey as providing a basis for satisfying these requirements. However, he observed that on 19 February 2001 the Director issued a policy direction making it clear that interstate survey certificates were not acceptable. He argued that from this date, whatever doubt existed beforehand, there was no doubt that a Queensland Survey was not a "certificate of survey" within the meaning of clause 295(1) of the Regulation.
33 Mr Perram argued that there cannot be said to have been compliance with a certificate of survey in the period prior to 22 October 1997 (clause 301(1)(a)(i)) or for any of the period of 22 October 1995 to 4 August 1999 (clause 301(1)(a)(ii)). Accordingly, APL has not complied with clause 301(1)(a)(iii).
34 It also follows, he submitted, that there cannot have been compliance with clause 301(1)(b) since there was no survey certificate during the relevant periods. Clause 301(2) requires compliance with each of the criteria set out in clause 301(1). Here there was no compliance with clauses 301(1)(a)(i), 301(1)(a)(iii) or 301(b). For that reason, APL was not an eligible applicant within the meaning of clause 301. Accordingly, the Minister was entitled to be satisfied that APL had ceased to be "eligible" for the licence and was therefore entitled to cancel it under clause 309(a). The decision under review should therefore be affirmed.
The Applicants’ Case
35 Mr. Smith, for the Applicants, argued that clause 309(a) of the Regulation does not allow cancellation of a licence that has been granted and renewed after acceptance of the historical eligibility for the purposes of the original licence application. In this case the decision to cancel the licence was a consequence of the Director’s reconsideration of earlier decisions following a change in policy. Mr. Smith based this submission on the argument that the scheme provided for by the Regulation leaves the decision-maker functus officio in relation to the original decision. A decision to issue a transferable licence is subject only to review by a Review Panel. The Regulation does not confer a power that allows a reconsideration of a decision due to a change in policy.
36 Mr. Smith submitted that the cancellation power in clause 309(a) only applies where a change in circumstances causes the current holder to "cease" to be eligible. In particular the power is conferred because a licensee may transfer its entitlement to a history of operations under clause 305 or replace its boat under clause 306. Mr Smith argued that this construction is shown or supported by:
“(i) The ordinary language: the regulation refers to a state of events occurring subsequent to the issue of a licence, and the intention is confirmed in the language of the other paragraphs of reg 309.
(ii) The proprietary, exclusive and transferable nature of the licence entitlement once granted: it would be extraordinary under this scheme that the current operator's licence was perpetually under review in relation to its original holder' s historical eligibility.
37 If the Minister had refused the licence on the grounds that are now being put forward, APL could have appealed. The Review Panel would have had the power under clause 315(2) to recommend that APL be issued with a licence, notwithstanding that it was not eligible under the historical criteria, but because it fitted within one of the circumstances provided for under subclauses 315(2)(b), (c) or (d).
(iii) s 127C(3) of the Act, which impose a mandatory duty to grant a licence on an application "unless the Minister is authorised by the regulations to refuse the application". Reg 307 then authorised the Minister to refuse an application if not satisfied that the applicant is eligible.
(iv) s 127C(4) of the Act, then assumes that that licence continues in force until cancelled;
(v) A power of cancellation based on original ineligibility is expressly given to the Minister in reg 317(1)(b), but only where there has been an application by a third party under reg 313 and a recommendation for this by the Review Panel. The Panel's discretion to recommend cancellation under reg 315(4) is plainly intended to encompass matters broader than the strict eligibility criteria.
(vi) The bar in reg 304 on applications for licences by persons claiming original eligibility who did not apply before 30 April 2001. This confirms that the regulations expected there to be finality in the original issue of licences.
(vii) Broader eligibility criteria and powers are available for an original grant on applications allowing appeal to the Review Panel prior to 30 June 2001 (see reg 315(2)). It would be inconsistent with this scheme for a licence holder to be perpetually subject to strict satisfaction of historical eligibility criteria.
(viii) In effect, the regulations created a scheme which intended that the original grant of licence was irrevocable.”
38 On that recommendation the Minister then had the authority to issue the licence under clause 317 notwithstanding that APL might not have been otherwise eligible for the licence. The scheme envisaged by the Regulation was one in which the future of the charter boat industry would be based on a set of licences. Those licences were to be issued based on a decision either not to refuse an application but to issue a licence, or following a Review Panel process, regardless of whether they were issued to people who were otherwise ineligible.
39 That form of scheme became necessary because it involved the closure of an entitlement with a limited number of licences emerging following that closure. These licences are a species of property right. That is, the transferable right of access to an industry.
40 Mr. Smith referred to various authorities for the principle that clause 309(a) of the Regulation should be construed narrowly because of the proprietary nature of the rights which could be destroyed by the exercise of the power. In particular he referred to decisions in Durham Holdings Pty Ltd v State of NSW (1999) 47 NSWLR 340 at 353-4, and on appeal: (2001) 205 CLR 399 at 414. As to the proprietary nature of such licences he referred to Kelly v Kelly (1990) 92 ALR 74 at 78, Springhall v Kirner [1988] VR 159 at 165, and Gordon Laidler & Associates Pty Ltd v Hocking (unreported) Young J, 6 March 1995.
41 Mr. Smith argued that it would be entirely contrary to the scheme envisaged by the Regulation if the Minister could forever afterwards revisit the original licensee's historical eligibility. He asserted that it makes a lot of sense that this scheme intended the licence to be irrevocable and that clause 309 should be read according to its ordinary language. If there is ambiguity, that ambiguity is to be interpreted in favour of APL’s proprietary right.
42 With respect to the Minister’s assertion that APL did not acquire the boat's history of operations when APL purchased the boat, Mr. Smith asserted that a transfer of all rights in relation to the use of the vessel was implicit in the Agreement. He argued that this is particularly apparent because there was only one express exclusion from the agreement for sale of the boat. That is, the name of the vessel.
43 Mr. Smith argued that it is ridiculous to suggest that the agreement for sale of the boat should have addressed the issue of the transfer of the history of operations. This is because the issue of transferring a history of operations for a boat would not have been within the contemplation of anyone in the industry at the time of the agreement. Consequently, the Regulation has to be applied with a bit of common sense in the context of the circumstances that existed at the time. The purchase of the boat occurred at a time when one would not expect the topic of history of operations to be addressed expressly in the written agreement.
44 On Mr Baker's evidence, there was a transfer of an asset for use in the fishing industry in circumstances where the previous owner was leaving the industry, but wanted to keep the boat name. Mr. Smith’s submission is that it would be reasonable administratively to regard the purchase as having picked up all the attributes, tangible and intangible, which went with the boat.
45 Mr. Smith presented detailed submissions in relation to the Minister’s assertion that APL had not complied with the clauses 301(1)(a) or 301(b) because there were no certificates of survey during the relevant periods. He argued that the Regulation envisaged that deemed surveys would be accepted to satisfy this requirement. This was envisaged at least in cases such as this where there is no suggestion that an out of State operator is trying to get a benefit that this scheme did not intend. The requirement that the vessel be used in accordance with the requirements of the certificate of survey should be considered as meaning “in accordance with the requirements of survey for the vessel of which a certificate is evidentiary but not conclusive”.
46 Mr. Smith’s argument is based on provisions within the CVA. He said that the crux of the requirement of survey is that it has to be performed annually by an official surveyor. He argued that the evidence before the Tribunal makes it clear that the date of issue of a certificate that confirms a boat being in survey is not indicative of the period or the currency of the survey that that certificate confirms.
47 He argued that the Regulation must be examined in the light of reality. One aspect of the light of reality is that someone will not present his or her boat for survey by the official inspector too early. If the boat is presented for inspection too far ahead of the expiry date of the current survey, the one-year periods will start shrinking. It is in the nature of this regulatory scenario that boats are submitted for survey before the expiry. There will be an administrative delay before a certificate is issued. The evidence in this case has shown how that happens. There are gaps between the conduct of survey and issue of a certificate.
48 Mr. Smith referred to an extract from Halsbury’s Laws of Australia to explain the process of survey in marine law. Paragraph [425-3015] has the heading Certificates of Survey and it states:
49 It cites sections 18, 19(3) and 28 of the CVA and in reference to the survey and observes:
“In all jurisdictions other than Queensland certain vessels may not be operated in areas covered by the legislation without a current certificate of survey. A certificate issued by another jurisdiction in respect of a vessel may be accepted as satisfying the requirement for a current certificate of survey in that jurisdiction.”
50 Sections 18 of the CVA provides:
“A certificate of survey may be based on a survey of the vessel by an accredited surveyor or a person belonging to another designated category of persons”.
51 Mr Smith submitted that the regulatory force of the CVA is found in Part 2, headed “Permits for vessels and motors ”, which has the requirement for vessels to have permits. Permit means a permit for a vessel or motor issued under Part 2. In Part 2 there is the form of the permit. Section 4A(2) provides for the application of that Act as follows:
“18 Minister to issue, or refuse to issue, a permit
(1) When investigation of an application for a permit has been completed and all fees, charges and expenses with respect to the application have been paid, the Minister shall consider the application and the results of the investigation and shall:
(1A) The Minister may issue a permit upon such terms, and subject to such conditions and restrictions, as the Minister thinks fit and specifies in the permit.
(a) issue such permit or permits for the vessel or motor to which the application relates as the Minister considers appropriate, or
(b) refuse to issue any permit for the vessel or motor.
(1B) Without affecting the generality of subsection (1), the Minister may refuse to issue a permit for a vessel or motor if it is not designed, constructed or equipped in conformity with the provisions of the Uniform Shipping Laws Code within the meaning of section 427 of the Navigation Act 1912 of the Commonwealth, as amended.
(2) Where, in response to an application, the Minister refuses to issue any permit applied for, the Minister shall give to the applicant notice in writing of the Minister’s decision and of the reasons therefore.”
52 Part 3A of the CVA concerns safety manning of vessels; Part 3B concerns the complement of crew and the qualifications of crew; and Part 7 contains numbers of passenger provisions and provides for offences by passengers in section 44. Section 44 does not include any offence for not having a permit.
“4A Application of Act
(1) …
(2) This Act (Parts 3A, 3B and 7 excepted) does not apply to or in relation to a vessel the owner of which is deemed by section 19 (3) to have been issued with a temporary permit and which is used in accordance with the authority conferred by the temporary permit.”
53 The rest of the CVA does not apply in relation to a vessel, the owner of which is deemed by section 19(3) to have been issued with a temporary permit and which is used in accordance with the authority conferred by the temporary permit. Section 19 of the CVA provides:
54 Section 5 of the CVA provides:
“19 Temporary permits
(1) (Repealed)
(2 The Minister may issue a temporary permit for such period and on such conditions as the Minister thinks fit.
(3) Where a prescribed law provides for a vessel or motor to be subjected to inspection and investigation in the nature of a survey within the meaning of Part 3 and, pursuant to that law, the use of a vessel or motor has been authorised, the owner of that vessel or motor shall be deemed to have been issued with a temporary permit, expiring when that authority to use the vessel or motor expires, to use the vessel or motor:
(a) in accordance with that authority while the condition of the vessel or motor complies with any prescribed law that would apply to that vessel or motor when used in accordance with that authority, and
(b) subject to such conditions as may be imposed by the Minister by notice in writing served on the owner of the vessel or motor.”
55 Mr Smith submitted that section 19 and 19(3) provides for a deemed temporary permit and it is this provision that the Fisheries Department has ignored. The advice from the Waterways Authority, dated 16 January 2001, also ignored section 19(3). That advice was the basis for the Director’s policy clarification issued on 19 February 2001.
“prescribed law means a law of:
(a) the Commonwealth,
(b) another State or a Territory of the Commonwealth,
(c) a country that, within the meaning of the Navigation Act 1912 of the Commonwealth, as amended, is a Commonwealth country, or
(d) any other country prescribed for the purposes of this definition.”
56 It follows, in Mr Smith’s submission, that where a law of Queensland:
57 Pursuant to section 19(3)(a) of the CVA the deemed temporary permit requires the use to be “In accordance with that authority”. Mr Smith submitted that the reference to “that authority” is a reference to the interstate survey. Section 19(3)(a) of the CVA also provides that the condition of the vessel must comply with any prescribed law. Mr Smith submitted that this requirement is satisfied by compliance with Queensland law applicable to that vessel when used in accordance with the authority. He said that the chief applicable law is the Queensland requirement that the vessel be kept in survey. He argued that therefore, if a person has a Queensland survey that covers its use outside Queensland, they could use it and not be in breach of the Act for not having an actual New South Wales permit. That is because they would be deemed to have a temporary permit. The evidence before the Tribunal indicates that the Queensland surveys did covers the vessel’s use outside Queensland.
“provides for a vessel or motor to be subject to inspection, investigation or the nature of survey within the meaning of part (3) and, pursuant to that law, the use of a vessel or motor has been authorised, the owner of that vessel or motor shall be deemed to have been issued with a temporary permit, expiring when that authority to use the vessel or motor expires, to use the vessel or motor.”
58 Section 19(5) of the CVA provides:
59 Mr Smith argued that in this case the authority is under section 19(3). Neither of the section 19(5) circumstances came into play here. Section 20 of the CVA allows for conversion of temporary permits, whether deemed or actual, by bringing them under New South Wales’ survey. In fact, that was the process that APL set in train for the Ultimate II.
“(5) The owner and the master of a vessel are each guilty of an offence against this Act and the owner of a motor is guilty of an offence against this Act:
(a) if the vessel or motor is the subject of a temporary permit issued under subsection (2), or deemed to have been issued under subsection (3), and is used otherwise than in accordance with the authority conferred by the temporary permit, or
(b) if the vessel or motor is the subject of a temporary permit issued under subsection (2) that has been suspended and the temporary permit is not, forthwith after the suspension, returned to the Minister.”
60 Section 19(3) turns on a vessel being subject to inspection under Queensland law and the issue of a permit requires satisfaction of survey requirements. Section 27, in Part 3 of the CVA, provides:
61 Section 28, also in Part 3 of the CVA , provides:
“Part 3 Surveys and checks
27 Definition
In this Part (section 28(2)(a) excepted) a reference to a survey of a vessel is a reference to such inspection, examination, testing and operation of the vessel, and any machinery, component or equipment in or on the vessel, as the surveyor to whom the vessel is submitted in accordance with its survey schedule or a requirement under section 29 considers necessary to establish whether the efficiency and sufficiency of the vessel or part of the vessel, or of the component, machinery or equipment in or on the vessel as specified by the survey schedule or requirement, is satisfactory to the Minister.”
62 Section 29 gives the regulator power to require survey outside the annual renewal period:
“28 Survey of vessels and check of motors
(1) The owner of a vessel the subject of a permit shall cause the vessel to be submitted for survey by a surveyor in accordance with the survey schedule for the vessel.
(2) The owner of a motor the subject of a permit shall cause the motor to be submitted for checking by a surveyor not more than 1 year after the motor was last checked and found satisfactory in the course of:
whichever was the latest.”
(a) the survey of a vessel under the Navigation Act 1912,
(b) an investigation under section 16,
(c) a check pursuant to a requirement under section 29, or
(d) a check pursuant to this subsection,
63 On Mr Smith’s submission, this scheme provides for the survey, which is the examination by an officer. Section 28 requires the owner of a vessel to cause the vessel to be submitted for survey by a surveyor in accordance with the survey schedule for the vessel. That is where the annual submission for survey comes in as a requirement of law. Queensland law makes the same provision. There is provision for fees to be paid for that survey under section 19(3). In effect, the fees are paid for the survey, not for a certificate. There is no requirement that an owner of a vessel have document called a certificate of survey.
“29 Defects and deficiencies
(1) Where a vessel is submitted for survey as provided by its survey schedule or pursuant to a requirement under this section, or a motor is submitted for checking under section 28 or pursuant to such a requirement, the Minister or a surveyor may require the owner of the vessel or motor, as the case may be:
(2) Where any part of a vessel or motor the subject of a permit sustains structural damage, the owner of the vessel or motor is guilty of an offence against this Act unless the owner forthwith notifies the Minister in writing of the damage suffered.
(a) to make good a specified defect or deficiency in the vessel disclosed by the survey or in the motor disclosed by the check, and
(b) to submit the vessel for survey or the motor for checking when the defect or deficiency is made good.
(3) Where the Minister receives a notification under subsection (2) with respect to a vessel or motor the Minister may require the owner of the vessel to submit it to a surveyor for survey or, as the case may be, the owner of the motor to submit it to a surveyor for checking.
(4) Where the Minister is of the opinion that the condition of a vessel or motor the subject of a permit may not be satisfactory, it may require the owner of the vessel to submit it to a surveyor for survey or, as the case may be, the owner of the motor to submit it to a surveyor for checking.”
64 The initial decision-maker accepted interstate survey evidence. The Director’s policy clarification of 19 February 2001 cut away from that and it also started insisting on an actual permit under section 19(2) or section 20 of the CVA. This ignored the deemed temporary permit issued by the Waterways Authority. Mr Smith argued that while this approach might have been administratively convenient, it is not a proper answer to a proper decision being made on the historical criteria.
65 In Mr Smith’s submission, on the evidence that is now before the Tribunal, there is no doubt that for the year until January 1999 the Ultimate II was operating under a certificate of survey issued by Queensland and accepted by the Waterways Authority. That was a sufficient basis for it in fact issuing a temporary permit. In that case, not only was there a deemed permit but the evidence suggests that when the New South Wales surveyor issued the temporary permit numbered T365, he issued a temporary permit under New South Wales legislation.
66 Mr Smith submitted that the evidence shows that the Queensland survey was properly passed. A survey certificate was consequently issued and backdated to Mr Booth's certificate. During that year Mr Baker applied for an original New South Wales survey. He paid the fees, the inspections were performed and completed in November and a permit subsequently issued the following year. Implicitly it must have been based upon an acceptance of the survey.
67 The New South Wales original survey occurred in November 1998. The Queensland survey was in place from 10 January 1998 through to January 1999. During that period Mr Baker tried to bring it under New South Wales survey. It finally passed New South Wales survey on 24 November 1998. NSW Waterways issued a permit based on the passing of that survey and that permit was sent to Mr Baker in April 1999.
68 Mr Smith urged the Tribunal to conclude that the evidence shows that APL purchased the vessel under an agreement whereby it acquired all rights in the vessel, including its history. Between 22 October 1995 and 4 August 1999 the vessel was in survey under the relevant QLD authority and therefore deemed to be covered by a temporary permit under section 19(3) of the CVA. At the time APL purchased the vessel, the Waterways Authority issued a temporary permit, T365, which was subsequently renewed.
69 During 1998 APL made arrangements for the vessel to be brought under NSW survey. Survey was issued to the vessel on 24 November 1998 and it has remained in NSW survey ever since. Since APL acquired the vessel on 26 November 1997 it has continued to be used in NSW waters in charter operations consistent with its survey.
70 Mr Smith submitted that it would be a travesty of administration if the Regulation were now applied so as to purport to cancel its licence.
71 The third basis on which the Applicants submit that the decision should be set aside is by the exercise of discretion, if the Tribunal accepts that such discretion is available in relation to cancellation.
72 The original licence could have been issued based on extended eligibility, that is, the extended criteria that the Review Panel could have administered. There would be gross disconformity in the system if licences were taken away from a licensee who could have had its extended eligibility recognised by a Review Panel, but did not have to because the licence was issued. Mr Smith submitted that anyone approaching this power of cancellation would have to address whether APL would have met one of the extended eligibility criteria that could be administered by a Review Panel under clause 315 of the Regulation.
73 The question is therefore, would APL, on the evidence that it is now known, have persuaded a Review Panel to grant the licence under paragraphs (b), (c) or (d) in clause 315 of the Regulation.
74 Mr Smith submitted that APL would satisfy the provisions of clause 315(d) of the Regulation. Paragraph (d) is aimed at an applicant who has made a financial commitment by buying a boat before 7 July 2000 and has used the boat in accordance with the appropriate certificate of survey. If APL has failed to satisfy the eligibility criteria, then there are genuine reasons why it did. Mr Baker did everything he could to get the boat properly surveyed before the previous one has expired. If the Tribunal is persuaded that the boat was out of survey, it was beyond APL’s control. It is not its fault and it is fair and reasonable in the circumstances to grant it a licence.
Findings
75 For the reasons that will become apparent, it is not necessary that I determine whether clause 309(a) of the Regulation authorises the Minister to cancel a licence after revisiting the eligibility criteria for the grant of a licence. However, I note that I agree that a licence issued under this scheme is a species of property right. In my view there is much force in Mr. Smith’s argument that clause 309(a) of the Regulation should be construed narrowly because of the proprietary nature of the rights that could be destroyed by the exercise of the power. If there is ambiguity, that ambiguity is to be interpreted in favour of the proprietary right. In general, an enactment should not be construed in a manner that would lead to the loss of a person's valuable rights without payment of compensation.
76 If clause 309(a) of the Regulation does authorise the Minister to cancel a licence after revisiting the eligibility criteria for the grant of a licence, it is clear from the wording of clause 309(a) that the power would be discretionary. As I have decided this matter on other grounds, I need not consider how that discretion should be exercised.
77 Similarly, I do not need to address Mr Smith’s submission that it would be necessary to consider whether APL would have met one of the extended eligibility criteria that could be administered by a Review Panel under clause 315 of the Regulation. I note however, in my view the circumstances of this matter would not justify the exercise of a discretion in a way that resulted in the cancellation of the licence.
78 There was much discussion at the hearing in relation to the requirement that APL acquired the Ultimate II's history of operations. That a history of operations capable of being transferred existed is not in dispute. Nor is it in dispute that the Agreement for sale of the boat did not address the issue. This is not surprising because at the time of the agreement it is unlikely that anyone in the industry would have given consideration to the transfer of a boat's history of operations.
79 Nevertheless, I accept that at the time APL purchased the boat, then known as the vessel 'Black Label', the former owner was leaving the industry. In my view it is probable that the former owner intended to transfer all attributes of the vessel 'Black Label' except the name. I therefore find as a fact that in purchasing the vessel now known as 'Ultimate II', APL acquired the boat's history of operations. It follows in my view that APL has satisfied the criteria set out in clause 301(a)(i) insofar as it relates to the transfer of that history of operations.
80 I do not agree with the Ministers assertion that APL had not complied with clauses 301(1)(a) or 301(b) of the Regulation because there were no certificates of survey during the relevant periods. I agree with Mr Smith’s argument regarding the application of the CVA. I have set out the details of that argument and relevant provisions of the CVA above and I do not propose to repeat them here.
81 I find as a fact that the vessel was in survey under the relevant QLD authority between 22 October 1995 and 4 August 1999. Pursuant to section 19(3) of the CVA it was therefore deemed to be covered by a temporary permit. At the time APL purchased the vessel, the Waterways Authority issued a temporary permit, T365, which was subsequently renewed. The vessel was brought under NSW survey on 24 November 1998 and it has remained in NSW survey ever since. Since APL acquired the vessel on 26 November 1997 it has continued to be used in NSW waters in charter operations consistent with its survey.
82 It is my view that the deemed temporary permit pursuant to section 19(3) of the CVA and the subsequent actual permits are sufficient to meet the requirements of clause 301 of the Regulation. It follows that APL has satisfied the eligibility criteria and was therefore entitled to be issued with the licence. It also follows that the decision to cancel the licence was not justified. Accordingly, in my view, the correct and preferable decision is that the Minister’s decision should be set aside. The consequence of this decision is that the licence remains in force. I note for completeness that the licence should correctly identify the licensee as Amychild Pty Limited.
Orders
The decision by the Minister for Fisheries to cancel the transferable charter fishing boat licence held by Billfish Tuna & Reef Charter Boat Agency in respect of the vessel ‘The Ultimate II’ is set aside.
1
4
6