Ballantyne v The Minister for Fisheries

[2000] NSWADT 191

CITATION:	Ballantyne & anor -v- The Minister for Fisheries [2000] NSWADT 191
DIVISION:	General Division
PARTIES:	APPLICANTS Garry Ballantyne Michael Ballantyne RESPONDENT Minister for Fisheries
FILE NUMBER:	003013
HEARING DATES:	02/03/2000
SUBMISSIONS CLOSED:	03/15/2000
DATE OF DECISION:	12/29/2000
BEFORE:	Skinner PM - Judicial Member
APPLICATION:	Fisheries Management Act - fishing licence- endorsement on licence - Fishing licence - endorsement on licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Fisheries Management Act 1994
CASES CITED:
REPRESENTATION:	APPLICANTS M Hagen, solicitor RESPONDENT C Cory, solicitor
ORDERS:	1. The Tribunal has no jurisdiction to entertain the application; 2. The application is dismissed.

Application

1 This is an application by Mr Garry Ballantyne and Mr Michael Ballantyne for review of a decision by the respondent.

2 The decision was not described by the applicants in their Application for Review filed with the Tribunal on 20 January 2000, but they attached a copy of a letter to their solicitors from the respondent dated 10 December 1999. From that letter, and the material before the Tribunal it is clear that the applicants seek that this Tribunal review a decision by the respondent to not grant their application to take bait in NSW waters for use in their Commonwealth tuna fishing operations.

3 That application has been formally categorised by both parties as an application for a permit under s 37 of the Fisheries Management Act 1994 (‘FMA’) to take bait for their ‘own use’ – as part of their tuna fishing business and not for sale.

4 At a directions hearing before Deputy President Hennessy on 2 March 2000 the respondent through his counsel, Ms Cory, raised an objection to the Tribunal’s jurisdiction upon the basis of Ms Cory’s written submissions filed on 25 February 2000.

5 It was agreed, and directed at that hearing, that the applicants would reply with written submissions, and that the question raised as to jurisdiction would be decided as a preliminary point upon those submissions and the other material before the Tribunal – namely the Application for Review and the material filed by the respondent pursuant to s 58 of the Administrative Decisions Tribunal Act 1997 (‘ADT Act’) in answer to the notice served on his Department by the Tribunal under s 72 of that Act.

6 The solicitors for the applicants filed written submissions on 15 March 2000.

The issue

7 The respondent’s point in essence is that on the facts of this case the Tribunal is seised with jurisdiction only to review those decisions listed in s 126(1) of the FMA, and that the decision of which the applicants complain does not come within s 126(1).

8 This Tribunal does not have any inherent jurisdiction but only that conferred upon it by ‘enactments’ - see ss 36-38, and s 5, of the ADT Act, and the applicants do not dispute that on the facts of this case the only possible jurisdiction given to the Tribunal is under s 126(1) of the FMA.

9 That is plainly so upon an analysis of the terms of the FMA, and I so hold.

10 Sec 126(1) FMA is in the following terms:

126 Applications to Administrative Decisions Tribunal for reviews of certain decisions
(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:
(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.

11 ‘Relevant authority’ is a term of art, defined in s 125 of the FMA:

125 Definition of ``relevant authority''
In this Division, relevant authority means:
(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.

12 The terms ‘commercial fishing licence’ and ‘fishing boat licence’ are themselves also defined in s 4 of the FMA:

‘ commercial fishing licence means a commercial fishing licence issued under Division 1 of Part 4 and in force.
…
fishing boat licence means a licence for a boat issued under Division 2 of Part 4 and in force.’

13 It is clear on the facts of this case that paragraphs (c), (d) or (e) of s 125 FMA do not apply. The submissions of the applicants’ solicitors are accordingly directed to paragraphs (a) and (b) of s 125. Paragraph 4 of those written submissions state:

‘It is submitted that a s 37 Bait For Own Use Permit is a “relevant authority” within the meaning of s 125 FMA, namely a “commercial fishing licence” or an “endorsement on a commercial fishing licence”’.

14 The penultimate paragraph of the submissions state:

‘…it is submitted that the decision of the Minister for Fisheries to refuse to grant the applicants a Bait For Own Use Permit is a reviewable decision within the meaning of s 126 FMA’.

15 As to s 126(1) of the FMA it is clear that the applicants rely on paragraph (a) of that subsection. There clearly was in this case a refusal to issue the bait permit. Therefore the issue before the Tribunal is whether a bait permit under s 38 of the FMA as applied for by the applicants is a ‘relevant authority’ within the definitions in s 125(a) and (b) of the FMA, as the applicants submit.

The submissions of the respondent

16 The submissions filed for the respondent attach material relevant to the policy behind his decision to refuse the application for a bait permit. However, except for the purposes of understanding the submissions of the applicants as to how terminology is used in that material as well as in the FMA, see below, that material is irrelevant to the jurisdictional issue the subject of the present decision.

17 Counsel for the respondent notes in her submissions at [13] that the applicants own a NSW licensed fishing boat and hold a NSW commercial fishing licence. She however notes:

‘The applicants are not questioning any decision relating to their commercial fishing licence, an endorsement on their commercial fishing licence or any condition attaching to their commercial fishing licence or fishing boat licence. An example permit is attached … and is quite different to a commercial licence issued for the purpose of “commercial” operations.’

18 The ultimate submission of the respondent, going directly to the issue that I must decide, is:

‘The enactment does not expressly provide that a decision with respect to a s 37 permit is reviewable. Such a permit is not a “relevant authority” because it is not a “commercial fishing licence” issued under Division 1 of Part 4 (s.102-106) …’.

The submissions of the applicants

19 The solicitors for the applicants demonstrate in their submissions, by reference to several examples in the FMA and in the licensing policy extracts attached to the respondent’s written submissions, that the terminology of the FMA is not rigorous in the use of the words ‘licence’ or ‘permit’. These words are often used generically, rather than as terms of art.

20 I accept that. The terminology of ‘permit’ used to describe the right for which the applicants apply is not determinative of the issue before me.

21 Nonetheless, although the word ‘licence’ may be used in a generic sense elsewhere in the legislative and administrative scheme, the phrase ‘commercial fishing licence’ is specifically defined in s 4 of the FMA, as above, and I can not see that the permit applied for could possibly be held to come within the meaning of ‘commercial fishing licence’ in s 4, and hence ‘commercial fishing licence’ in s 125 and hence ‘relevant authority’ in s 126. The permit sought is issued under s 37 of the FMA, which is contained in Division 5 of Part 2, not Division 1 of Part 4.

22 Neither can I see that the bait permit could be said to be an ‘endorsement upon a commercial fishing licence’ in the sense that that phrase is used in the legislative and administrative scheme and in particular s 125 of the FMA.

23 The word ‘endorsement’ is nowhere specifically defined in the FMA, but it is used in s 112 of the Act and also in Part 8 of the Fisheries Management(General) Regulation 1995 (‘FMR’) in connection with entitlement to participate in restricted fisheries. In my opinion it is used in a sense that is more than just a reference to the form in which commercial fishing entitlements may be expressed in writing, but in a sense that acknowledges and uses that meaning of the verb ‘to endorse’ which is ‘to approve; give support to’ (see the Macquarie Dictionary).

24 Although on the material before me it is not the practice of NSW Fisheries to do so, a permit under s 37 of the FMA could be physically noted, or endorsed in that sense, upon a document which operates as a written embodiment of a commercial fishing licence.

25 However in my opinion the FMA, the FMR and the policy documents before me use the terms ‘commercial fishing licence’ and ‘endorsement on a commercial fishing licence’ to refer to rights to take fish for sale from waters to which the FMA applies (see s 102(1) of the FMA).

26 The legislature has seen fit by ss 126 and 125 of the FMA to enact a merits review procedure for decisions affecting such rights, but, in my opinion, only those rights.

27 In my opinion the FMA does not in s 126 or elswhere provide for the Tribunal to review decisions under s 37 of the Act, and accordingly the Tribunal has no jurisdiction pursuant to s 38 of the ADT Act in respect of the decision of which the applicants complain.

Orders

28 I formally order that:

(1) The Tribunal has no jurisdiction to entertain the application.
(2) The application is dismissed.

29 I make no award of costs pursuant to s 88 of the ADT Act.