Bienke & Ors v Minister for Primary Industries and Energy

[1996] HCATrans 293

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S23 of 1996

B e t w e e n -

BRIAN CLARENCE BIENKE

First Applicant

IRENE ANNE BIENKE

Second Applicant

BRIAN TREVOR BIENKE

Third Applicant

and

THE MINISTER FOR PRIMARY INDUSTRIES AND ENERGY

First Respondent

AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY

Second Respondent

COMMONWEALTH OF AUSTRALIA

Application for special leave to appeal

BRENNAN CJ

DAWSON J
TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 30 SEPTEMBER 1996, AT 11.18 AM

Copyright in the High Court of Australia

______________________

MR A.W. STREET:   May it please the Court, I appear with my learned friend, MR J.D. FITZGERALD, for the applicants.  (instructed by Miller Harris)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR G.M. ELLIOTT, for the respondents.  (instructed by the Australian Government Solicitor)

BRENNAN CJ:   Thank you.  Yes, Mr Street?

MR STREET:   If the Court pleases.  Your Honours, the Northern Prawn Fishery Management Plan was determined by the‑ ‑ ‑

BRENNAN CJ:   Tell us what your special leave points are first, would you, because your notes for argument do not seem to follow the usual form.

MR STREET:   Your Honour, I apologise in that regard.  The questions were identified in the statement in support, your Honour, and they appear on page 160 of the appeal book, and the facts were set out just before that, and the reasons in support follow.  There were four questions there, your Honour.  They are the questions I seek to address, and the first one is the acquisition of property. 

BRENNAN CJ:   Yes.

MR STREET:   If your Honours please. Your Honour, the Northern Prawn Fishery Management Plan determined by the Minister pursuant to section 7B(1) of the Fisheries Act 1952 from the outset contained a simple and clear objective by that law-maker, namely, to withdraw the boats from the fishery.  This appears in the application book at page 10, line 27, if I can briefly refer your Honours to that passage.  Your Honours will see there from paragraph 7.2(c) that one of the objectives was:

the facilitation of the withdrawal of units and boats from the fishery.

Your Honours, the amendments attacked by the applicants in the present case fulfil to the hilt that objective by achieving withdrawal of the applicants’ vessel, the “Deb-Rene-Adele” from the fishery on and after the 1 April 1993.  By this device of cancelling Class A units the law, as a matter of substance, deprived the applicants of the Commonwealth fishing boat licence for the “Deb-Rene-Adele” to fish in the Northern Prawn Fishery.  That licence had been granted for a period from the 12 January 1993 until 31 December 1993. 

Your Honours, it is our submission that the boat licence was a valuable property.  It was assignable.  It gave the applicants the right to work the “Deb-Rene-Adele” in the Northern Prawn Fishery and, we would respectfully submit,  that the right to reap or profit a prendre is a recognised Commonwealth concept and in that regard the right given by the licence would, in our respectful submission, fall within the concept of being capable of being a proprietary right within the concept discussed in Peverill.

BRENNAN CJ:   We are running a few ideas together there, are we not?  First of all, there is the loss of the units, the diminution of the units, the corresponding diminution of the units held by your clients, followed by the absence of any renewal of your licence, followed by the fact that it is a profit a prendre, therefore it is a proprietary right, therefore there is a 51(xxxi) problem.  There are a few steps there, are there not, Mr Street?

MR STREET:   Your Honour, there is the issue of the licence on 12 January 1993.  There are the amendments which take effect on 1 April 1993.  The licence was intended to be for a period until the end of December 1993.  The effect of the amendments was, in essence, to prevent the vessel “Deb-Rene-Adele” from being able to operate in the Northern Prawn Fishery.

BRENNAN CJ:   Why was it of the essence to do that?

MR STREET:   Well, your Honour, the way in which it was achieved was the cancellation of those class A units.

BRENNAN CJ:   Was the licence subject to the retention of those units?

MR STREET:   Your Honour, it was expressed in that way.

BRENNAN CJ:   Well, then, what was taken?

DAWSON J:   What are you complaining about?  The loss of the licence or the loss of the units?

MR STREET:   The loss of the licence, your Honours.  What we say is that, from the outset, identified as an object was the withdrawal of boats from the fishery, and the plan was used as a device to obtain, relevantly in this case, the applicants’ licence.  There were a large number of vessels in the fishery and the objective of the plan was to achieve the withdrawal of vessels from that fishery.  That was achieved, in our respectful submission, by cancellation of units.  If one had desired to remove all vessels from the fishery the whole of the class A units could have been cancelled and there would be no vessels left in the fishery, and, effectively, we would have said that would have been an acquisition of the fishing boat licences through the plan.  There is no difference, in our respectful submission, in the present case where what was done was the acquisition by the cancellation of a number of the units of, relevantly, my clients’ licence in respect of the vessel “Deb-Rene-Adele”.  So, your Honours, we respectfully submit that that licence is of its nature property within the constitutional guarantee and, in our respectful submission‑ ‑ ‑

DAWSON J:   When was the property divested?

MR STREET:   By the device on the 1 April which worked a prohibition given a requirement to hold the requisite number of units to operate in the fishery.  So that through the cancellation effected by paragraph 20B, together with clause 7, which prevents use of a vessel in the Northern Prawn Fishery, my client was then unable to use the vessel.

DAWSON J:   It really was the cancellation of the units which was the loss of the property.  The rest just followed automatically. 

MR STREET:   Well, no, your Honour.  In our respectful submission we complain about the loss of our fishing boat licence.

BRENNAN CJ:   Who acquired it?

MR STREET:   Well, your Honour, in our respectful submission, it was acquired by the Commonwealth.

BRENNAN CJ:  But it was not.

MR STREET:   Your Honours, can I just identify our reasoning as to why? In essence we say that the Northern Prawn Fishery is, in essence, property of the Commonwealth. The exclusive control and possession that the Commonwealth effectively has over the Northern Prawn Fishery would, in our respectful submission, be equivalent to property within the meaning of the Constitution. More than that, your Honours, the Northern Prawn Fishery would, for the purpose of international law, be regarded as property of the Commonwealth. Why should domestic law erect a device to remove the Northern Prawn Fishery from being property of the Commonwealth. Once it is recognised that that resource is part of the Commonwealth and, in our respectful submission, Commonwealth property within the meaning of the Constitution‑ ‑ ‑

DAWSON J:   You mean the fishery is Commonwealth property?

MR STREET:   Yes, your Honour.

DAWSON J:   It might exert sovereignty over it, but I do not know that it is property.

MR STREET:   Your Honours, in our respectful submission, once it be accepted that the Northern Prawn Fishery is, itself, property within the meaning of the Constitution, the removal of the right to reap provides that acquisition by the Commonwealth. The Commonwealth obtained the benefit of the removal of the profit a prendre, and your Honours, that is how we put our case. So that the benefit, and we say it is a real benefit or advantage to the Commonwealth, is that the Commonwealth’s property is relieved of the burden of a profit a prendre, the right to reap in that Northern Prawn Fishery.

BRENNAN CJ:   Is that right?  In fact, your client did continue to fish in that fishery.

MR STREET:   Not with a Commonwealth fishing boat licence, your Honour.

BRENNAN CJ:   With a fishing boat licence, not this one, another one.  Did it not transfer its units to another boat?

MR STREET:   No, your Honour.  There were two vessels.  There was the “Karamanda-Adele” and there was the “Deb-Rene-Adele”.  As a result of the plan that was effected achieving amendments which cancelled units, my clients had enough unit to continue to operate the vessel, the “Karamanda-Adele”.

BRENNAN CJ:   Yes.

MR STREET:   The “Deb-Rene-Adele”, though, your Honours, the licence for that was effectively lost by the cancellation of units.

BRENNAN CJ:   How much fish did you take?

MR STREET:   After 1 April in respect of the “Deb-Rene-Adele”, none.

BRENNAN CJ:   No, not that one.  Did you get twice as much with the other boat?

MR STREET:   No, your Honour.  In so far as the working of the “Karamanda-Adele” is concerned, my clients held a Commonwealth fishing boat licence for that vessel prior to the introduction of the plan and continued to hold that.

BRENNAN CJ:   That is not the question.  You are looking at the fishery itself as the piece of property, and you are saying that by this device the Commonwealth relived itself of a profit a prendre.  Is that right?

MR STREET:   Yes, your Honour.

BRENNAN CJ:   Well, then, the profit  a prendre was to take a certain quantity of fish.  Is that right?

MR STREET:   Not a certain quantity, your Honour.  It was to fish in the Northern Prawn Fishery and in that regard, to the extent that the fishery is subject to contingencies and uncertainties, all fishermen who were then licensed no doubt would suffer the continuation of those uncertainties.  It was not an identified number of prawns that everyone would certainly catch, so I do not seek to put that, your Honour.

BRENNAN CJ:   There are two things, are there not?  You can take your pick as to which way you put them, but if you are saying that the fishery is the property and the relief of the liability of that property to suffer depredation by those who have licences is the relevant factor, are you able to show that there was any diminution in the quantity of fish taken?

MR STREET:   In relation to showing any diminution or increase in the number of fish taken, I cannot, your Honour.  What I can show though, is this that what one has, in essence, in our respectful submission, is a resource that was subject to a right that my clients held and a valuable right and a right that we say was property, and the resource is one which we say was Commonwealth property and that resource was relieved of the burden of that right.

BRENNAN CJ:   Mr Street, take a more common profit a prendre, a right to take gravel from a pit, and somebody has two trucks to take gravel from the pit and the licence is subject to those trucks being roadworthy as certified by the owner’s mechanic and the mechanic fails to certify that one of them is roadworthy, but the same quantity is taken from the pit.  Has the owner acquired anything there?

MR STREET:   Your Honour, in relation to the gravel pit owner, if, as a consequence of the right that had been created one was no longer able to attend on that gravel pit, so be it.  We would say it would be taking away a right, but, your Honour, what we had was a right to work from the 12 January 1993 until the end of December 1993, and come 1 April 1993, we lost that right to work in the Northern Prawn Fishery, and, in our respectful submission, the way to look at it would be, and what we invite the Court to do, is to look at it in the nature of what it achieved and, by being a right in the nature of a profit a prendre and by being property which we would say was Commonwealth property, its removal benefited the Commonwealth, and we would say that that was, no matter how slight or insubstantial, a benefit within the meaning of the application of the constitutional guarantee. 

Your Honours, can I turn just to identify the substance of our attack on the courts below in that regard.  What we further say is that the test that was applied by the Full Court and the judge at first instance was wrong.  We respectfully submit that what the court has done is looked at the application of a test appropriate for characterisation, determining whether or not something is within a law-making power, not the appropriate test for one of the few constitutional guarantees, and, in our respectful submission, section 51(xxxi), as an individual guarantee, is to be applied by a test of individual impact, and it is clear from what the Full Court did that it looked at a test appropriate by way of characterisation. 

In our respectful submission, in looking at whether or not there has been an acquisition of property otherwise than on just terms, one should be looking at the individual impact.  In that regard, your Honours, we respectfully submit that is the test that was applied in relation to section 117 and we would respectfully submit that is the same test that should be applied for this individual guarantee.  If one was looking at the question of whether or not there had been a law that was made under a particular power, then one may well turn to characterisation.  But we would respectfully submit that to use characterisation to limit the application of the constitutional guarantee is not appropriate.

BRENNAN CJ:   Are you saying that the Northern Prawn Fishery Plan was valid then, as an exercise of statutory power?

MR STREET:   Your Honours, we plainly say it was not valid to the extent that is infringed the constitutional guarantee in relation to Mr Brian Clarence Bienke, and its effect on Brian Clarence Bienke worked, in the present case, the acquisition of his property, being the Commonwealth fishing boat licence, without any compensation. 

BRENNAN CJ:   Is it right to say that the fishing boat licence was at all times contingent upon the holding of the requisite number of units under a valid plan?

MR STREET:   That is correct, your Honour, but can I put this: that in that regard the plan cannot be used as a device to take away statutory property and we would respectfully submit that one cannot create a class of property isolated from the constitutional guarantee.  So to describe it as statutory property or statutorily defeasible property, in our respectful submission, is to create a class which is purportedly immune from constitutional guarantee and not one that looks at whether in the present case there was, as a matter of impact, the acquisition of property. 

So, your Honours, in our respectful submission, to use language which I accept has been used in Mutual Pools & Staff by your Honour the Chief Justice, where the words were inserted for the purposes of section 51(xxxi), which is exactly what the Full Court has done, and that appears in the application book at page 121 line 25 and 128 line 26, is in essence to read in a limitation that is not found in the constitutional guarantee.  If one goes briefly, your Honour, to those passages one can see precisely what I am referring to.  At page 121 in the application book what their Honours have said, at line 25:

NPF11 did not amount to an acquisition of property for the purposes of section 51(xxxi)-

Now, your Honours, in our respectful submission, that would be appropriate if one was engaged in a test of characterisation, but not a test of impact, and that error, in our respectful submission, runs through the decision of the Full Court and the court below and to use the concept “for the purposes of” it is to limit the efficacy of the constitutional guarantee.  Those words “for the purposes of” are not found in it, and, in our respectful submission, should not be read into it by way of limitation of operation.

TOOHEY J:   Is it your argument, Mr Street, that if the plan has built into it scope for adjustment, variation, including the possible reduction of units, that the original issue of units somehow creates property which cannot be detracted from except by infringing the provisions of the Constitution?

MR STREET:   No, your Honour.  We say one must look at obviously what the plan does and what the plan was seeking to achieve, but this plan made it very clear at the outset it was seeking to achieve the withdrawal of vessels from the fishery.  That is what was identified, in our respectful submission, on page 10 line 27.  Its object was the withdrawal of vessels.  It goes further than simply adjusting units.  What happened here is that to obtain the withdrawal of vessels fishing boat licences were effectively taken away.  That is the device.  The device was used to take away fishing boat vessel licences and my clients complained that that was done in circumstances where there were no just terms. 

Your Honours, can I just identify in relation to the question of just terms, it is our respectful submission that the equal impact amongst the fishermen is no answer in the present case because, again, it is the individual impact that is of relevance in relation to the constitutional guarantee.  Further, your Honours, to the extent that there is a provision, which in paragraph 20B.11, that purports to offer a method of compensation, we would say firstly that that provision which your Honours will find is annexed to the written submissions that we handed up, that provision of itself does not comply with the constitutional injunction to provide just terms.  It was contingent, and, in any event, it does not pick up anything beyond its operation of that paragraph and the way in which the device worked was not just through paragraph 20B.  It was through paragraph 20B together with the prohibition which your Honours will see at page 16 line 12 of the application book, that flows from clause 12;       in other words, my client cannot use his boat in the fishery unless he has the requisite number of units. 

So that through that device, in our respectful submission, there was for Brian Clarence Bienke an impact which was the acquisition of his property being the Commonwealth fishing boat licence.  Your Honours, that is an issue which is appropriate for the grant of special leave. 

There are three other matters that are identified.  I do not wish to say anything more than is in the written submissions relating to the administrative tort.  There is an issue which is raised in relation to the Fisheries Levy Act and that issue in relation to the Fisheries Levy Act involves the same challenge of the application of an erroneous test, but can I just indicate this: that Fisheries Levy Act issue was one where the levy which was imposed upon my clients purportedly under that Act, which was held by the courts below not to be a tax and which we accept as not a tax, was one which provided no quid pro quo where my client was unable to work the vessel in the fishery after the 1 April, and yet after 1 April further levies were imposed upon my client.  We say that as a matter of individual impact that again was the acquisition of property otherwise than on just terms. 

Your Honours, the final issue is an issue relating to the construction of a regulation.  That fourth question in respect of the construction of the regulation is one which we say on the face of it the words of the regulation would, on their ordinary and natural meaning, have given a construction which would not have permitted the imposition of the levy once the boat was unlicensed and further levies were imposed after the end of December 1993, and, in our respectful submission, as a matter of substantive injustice for the individual that fourth question is one which we further seek special leave on.  If the Court pleases.

BRENNAN CJ:   We need not trouble you, Mr Jackson.

The decision is not attended with sufficient doubt to justify a grant of special leave.  Accordingly, special leave will be refused.

MR JACKSON:   Costs, your Honours?

BRENNAN CJ:   You have nothing to say about that, Mr Street?

MR STREET:   No, your Honour.

BRENNAN CJ:   Special leave will be refused with costs.

AT 11.39 AM THE MATTER WAS CONCLUDED