Brown, Graeme Maxwell v Polanowski, Bishac Leon and Brown, Graeme Maxwell

[1998] TASSC 59

59/1998

PARTIES:  BROWN, Graeme Maxwell
  v
  POLANOWSKI, Bishac Leon

BROWN, Graeme Maxwell
v

FIELD, Allan Scott

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 37/1997

LCA 38/1997

DELIVERED:  18 May 1998
HEARING DATE/S:  28 April 1998
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Statutes - By-laws and regulations - Validity - Ultra vires in general - General principles - Whether requirement that form be forwarded to Director made ultra vires a scheme for furnishing returns to Minister - Whether authorised by Fisheries Act 1959, s9(1)(va) or s9(1)(x).

Fisheries Act 1959 (Tas), s9(1)(x).
Sea Fisheries Regulations 1962 (Tas), reg17AA(3)(f), (4), (8).
Green v Davies 91/1997, referred to.
Aust Dig Statutes [131]

REPRESENTATION:

Counsel:
           Applicant:  F C Neasey
           Respondent:  D J Gunson
Solicitors:
           Applicant:  Director of Public Prosecutions
           Respondent:  Gunson Pickard & Hann

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  59/1998
Number of pages:  3

Serial No 59/1998
File No LCA 37/1997

LCA 38/1997

GRAEME MAXWELL BROWN v BISHAC LEON POLANOWSKI
GRAEME MAXWELL BROWN v ALLAN SCOTT FIELD

REASONS FOR JUDGMENT  COX CJ

18 May 1998

These two notices to review were heard together as they raised the same point.  The respondents were each charged with a breach of the Sea Fisheries Regulations 1962 ("the Regulations"), reg17AA(3)(f) in that they failed to enter on Part A of the original diver's docket in accordance with subreg(4) of that regulation the exact weight of any blacklip abalone taken by them.  The learned magistrate dismissed each complaint on the basis that the requirement to make such an entry was ultra vires.

The Regulations, by reg17AA, introduce a scheme for recording certain information about abalone which have been taken in documents called "diver's dockets".  Such a document is defined in reg2 as "a diver's docket on which the holder of a commercial abalone diver's licence enters information specified in regulation 17AA in respect of abalone taken by that licence holder".  Regulation 17AA(2) provides that the Director is to make record books containing diver's dockets available from offices of the Department.  The Director is defined by the Fisheries Act 1959 ("the Act") under which the Regulations are made as the Director of Sea Fisheries. Subregulation (3) requires the holder of a commercial abalone diver's licence to enter certain information about abalone taken by him including the date of taking the abalone, the location from which it was taken, when and where it was landed and, relevantly here, both an estimate of the total weight of blacklip and greenlip abalone taken and the exact weight thereof rounded down to the nearest whole kilogram. It is alleged that the two respondents failed to enter the exact weight of their respective catches in the place provided on the form. By subreg(4), a time within which the above information is to be recorded in the diver's docket is provided, while subreg(4A) requires in addition that the relevant entries be made before the catch is taken from the landing area or enters the processing premises if they are located within the landing area. Subregulation (7) prohibits the entry on a diver's docket of information known or believed to be false by the person making the entry. Subregulation (8)(a) requires that the holder of a commercial abalone diver's licence who enters information on a diver's docket, must forward the original diver's docket to the Director within a certain time. Subregulations (11) and (12) provide for penalties for breach.

The power to make this Regulation is claimed by the applicant to be given by the Act by virtue of s9(1)(va) or s9(1)(x), which provide:

"9 ¾ (1)        The Governor may make regulations ¾

...

(va)providing for returns or particulars to be furnished to the Minister by the holder of a licence issued under this Part with respect to ¾

(i)the fish taken in pursuance of the licence, or taken in operations conducted on or from the fishing-boat in respect of which it was issued;

(ii)the fish (whether taken in the State or elsewhere) landed in this State from the fishing-boat in respect of which the licence was issued; or

(iii)any operations conducted for the purpose of taking fish in pursuance of the licence or conducted on or from the fishing-boat in respect of which the licence was issued;

...

(x)providing for or prescribing any other matter or thing which in any manner relates to fishing or the fishing industry;"

When reg17AA(8) was first inserted, the obligation on the licence holder was to forward the docket to the Minister, but this has been altered and, by Statutory Rule 186 of 1993, the person to whom it is now to be forwarded is the Director. The learned magistrate took the view that as the Act only authorised Regulations providing for returns to be furnished to the Minister, reg17AA(8), which required that the form be forwarded to the Director, was ultra vires and, by implication that the remainder of the regulation establishing the scheme by which such returns were required to be made, was ultra vires.

I do not think it could be argued that if subreg(8) had not been changed by the substitution of the Director for the Minister the requirement of the regulation to enter the exact weight of the abalone taken would be within power. Regulation 17AA provides a machinery whereby appropriate forms can be made available to those who are obliged to fill them in, the information required is identified, the manner of completion is specified and times and other ancillary requisites are laid down. In order to be effective, Regulations providing for returns or particulars to be furnished to the Minister with respect to such matters as the fish taken in pursuance of the relevant licence under the head of power contained in s9(1)(va), would require some machinery provisions and the filling in of a return showing the weight of fish taken at or before a given time would, in my view, clearly be covered by that head of power. However, it is submitted that the amendment to the regulation requiring the forwarding of the docket to the Director, rather than to the Minister, has converted the scheme into one which is not authorised by s9(1)(va).

It is true that the Director is a different identity from the Minister. The Act, s8AA provides:

"8AA ¾ The Governor may appoint a person employed under the Tasmanian State Service Act 1984 to be Director of Sea Fisheries and that person shall hold that office in conjunction with a position or an office under the Tasmanian State Service Act 1984."

Section 8, however, provides:

"8 ¾ (1)     The Minister has, subject to this Act, responsibility for the development of the fishing industry, and, except in relation to matters dealt with in Part III, the management, control, protection, and regulation of the fishing industry."

By virtue of the Administrative Arrangements Act 1990, s4, provision is made for Ministers to be assigned the administration of departments and enactments and for the specification of the department responsible to a Minister in relation to the administration by that Minister of an enactment. The Minister for the purposes of the Fisheries Act 1959 is the person assigned the administration of the Act and of the department responsible to him for its administration by him. A regulation requiring that a form containing statistical information with respect to fish taken in pursuance of a commercial abalone licence be forwarded to a named officer of the department responsible to the Minister, in my view, sits comfortably within the source of power for Regulations providing for returns or particulars of that nature to be furnished to the Minister by the holder of the licence.

If, however, s9(1)(va) is insufficient for that purpose, the alternate source of power, s9(1)(x), is sufficient, in my view. In Green v Davies 91/1997, Zeeman J summarised the scheme provided for by reg17AA and expressed the view that the prescribing of the scheme of diver's dockets was authorised by the last-mentioned paragraph.  He was concerned with the validity of reg17AA(7) prohibiting the entry of information on a docket knowing or believing that the information was false or misleading.  At 7 of his Reasons he said:

"In my view, s9(1)(x) authorises the prescribing of the scheme of divers' dockets. Such a scheme clearly relates to fishing in an appropriate sense. As it authorises that system, then a provision such as reg17AA(7), which prohibits the doing by any person of an act which would adversely affect the integrity of the scheme, is valid. It is ancillary to the scheme and is authorised by that provision of the Act which permits the scheme to be set up. I hold that reg17AA(7) is intra vires the Act."

"Fishing" is defined in the Act, s3, as taking fish, while "fishing industry" is defined thereby in these terms:

"'fishing industry' includes the following activities:-

(a)marine farming;

(b)the taking or landing of fish;

(c)the carrying out of any operation for the processing of fish or marine plants;

(d)the obtaining or manufacturing of fish products or marine plant products;

(e)the transport, storage, or sale of fish, fish products, marine plants, or marine plant products;"

It is not, however, confined to these activities.  If the forwarding to the Director of statistical information of the kind required by the Regulations cannot be said to relate to the taking of fish as such, they having, by the time the form is to be filled in, been taken, it can, I think, be said to relate to the activities expressly mentioned as being included within the term "fishing industry" and is ancillary to the development of that industry, the responsibility for which is entrusted to the Minister by s8. 

Regulations providing for the filling in of forms containing statistical information of the kind nominated in reg17AA(3) and the forwarding of same to an officer of the department responsible to the Minister who administers the Act are intra vires by virtue of s9(1)(x).

The appeals must be allowed and the orders of dismissal quashed.  In each case, the matter should be remitted to the magistrate by whom it was dealt with, with a direction that reg17AA(3)(f) and (4) are not ultra vires.