Elphick and Anor and Executive Director, Department Of Fisheries Western Australia
[2005] WASAT 301
•18 NOVEMBER 2005
ELPHICK & ANOR and EXECUTIVE DIRECTOR, DEPARTMENT OF FISHERIES WESTERN AUSTRALIA [2005] WASAT 301
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 301 | |
| FISH RESOURCES MANAGEMENT ACT 1994 (WA) | |||
| Case No: | DR:330/2004 | 18 AUGUST 2005 | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) DR B DE VILLIERS (MEMBER) | 18/11/05 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed; proposed decision of the Executive Director, Department of Fisheries Western Australia, dated 29 September 2004 in respect of application of the applicants dated 18 August 2004 affirmed; and applicant's application under the Fish Resources Management Act 1994 (WA) refused. | ||
| B | |||
| PDF Version |
| Parties: | GREGORY BRIAN ELPHICK BRIAN THOMAS ELPHICK EXECUTIVE DIRECTOR, DEPARTMENT OF FISHERIES WESTERN AUSTRALIA |
Catchwords: | Fisheries Management of fish resources Review of proposed decision not to grant a permit to commercially fish for mackerel Proper interpretation of Management Plan entry criteria Whether extrinsic material can be taken into account when interpreting the Management Plan What information may be taken into account to determine what catch history of a licence satisfies the entry criteria Whether the Management Plan excludes historical fishery data relating to charter operations Whether the Executive Director has a discretion to issue a permit if an applicant fails to satisfy entry criteria Whether the Executive Director has a discretion to refuse a permit if entry criteria are satisfied |
Legislation: | Acts Interpretation Act 1901 (Cth), s 15AB Fish Resources Management Act 1994 (WA), s 4, s 54, s 56, s 57, s 58, s 59, s 60, s 61, s 62, s 66, s 66(1), s 66(2), s 66 (3), s 66(4), s 147, s 149(1) Fish Resources Management Regulations 1995 (WA), r 3, r 64, r 117(1) Fisheries Act 1905 (WA), s 18 Interpretation Act 1984 (WA), s 5, s 19, s 19(1), s 19(2), s 51(1), s 56, s 56(1) |
Case References: | Adams and Anor v Executive Director, Fisheries WA (2000) WASC 34 Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd (the engineers' case) (1920) 28 CLR 129 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Julius v Bishop of Oxford (1880) 5 App Cas 214 Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR at 420 Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc (2000) 171 ALR 523 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Biljabu v The State of Western Australia (1993) 11 WAR 372 Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 Re Dunsborough Districts Country Club Inc [1982] WAR 321 Re Eyre and the Corporation of Leicester [1892] 1 QB 136 Trengove v Repatriation Commission (1994) 50 FCR 453l |
Orders | The Tribunal orders:,(1) The application for review is dismissed.,(2) The proposed decision of the Executive Director, Fisheries dated 29 September 2004 in respect of the application of the applicants dated 18 August 2004 is affirmed.,(3) The Applicant's application under the Fish Resources Management Act 1994 (WA) is refused. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : FISH RESOURCES MANAGEMENT ACT 1994 (WA) CITATION : ELPHICK & ANOR and EXECUTIVE DIRECTOR, DEPARTMENT OF FISHERIES WESTERN AUSTRALIA [2005] WASAT 301 MEMBER : JUSTICE M L BARKER (PRESIDENT)
- DR B DE VILLIERS (MEMBER)
- BRIAN THOMAS ELPHICK
Applicants
AND
EXECUTIVE DIRECTOR, DEPARTMENT OF FISHERIES WESTERN AUSTRALIA
Respondent
Catchwords:
Fisheries - Management of fish resources - Review of proposed decision not to grant a permit to commercially fish for mackerel - Proper interpretation of Management Plan entry criteria - Whether extrinsic material can be taken into account when interpreting the Management Plan - What information may be taken into account to determine what catch history of a licence satisfies the entry criteria - Whether the Management Plan excludes historical fishery data relating
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to charter operations - Whether the Executive Director has a discretion to issue a permit if an applicant fails to satisfy entry criteria - Whether the Executive Director has a discretion to refuse a permit if entry criteria are satisfied
Legislation:
Acts Interpretation Act 1901 (Cth), s 15AB
Fish Resources Management Act 1994 (WA), s 4, s 54, s 56, s 57, s 58, s 59, s 60, s 61, s 62, s 66, s 66(1), s 66(2), s 66 (3), s 66(4), s 147, s 149(1)
Fish Resources Management Regulations 1995 (WA), r 3, r 64, r 117(1)
Fisheries Act 1905 (WA), s 18
Interpretation Act 1984 (WA), s 5, s 19, s 19(1), s 19(2), s 51(1), s 56, s 56(1)
Result:
Application forreview dismissed; proposed decision of the Executive Director, Department of Fisheries Western Australia, dated 29 September 2004 in respect of application of the applicants dated 18 August 2004 affirmed; and applicant's application under the Fish Resources Management Act 1994 (WA) refused.
Category: B
Representation:
Counsel:
Applicants : Ms R Fisher
Respondent : Ms J Hebiton
Solicitors:
Applicants : Cocks Macnish
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Adams and Anor v Executive Director, Fisheries WA (2000) WASC 34
Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd (the engineers' case) (1920) 28 CLR 129
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Julius v Bishop of Oxford (1880) 5 App Cas 214
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Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR at 420
Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc (2000) 171 ALR 523
Case(s) also cited:
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Biljabu v The State of Western Australia (1993) 11 WAR 372
Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106
Re Dunsborough Districts Country Club Inc [1982] WAR 321
Re Eyre and the Corporation of Leicester [1892] 1 QB 136
Trengove v Repatriation Commission (1994) 50 FCR 453l
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Summary of the Tribunal's Decision
1 The applicants, Gregory Elphick and Brian Elphick, sought review of a proposed decision of the Executive Director, Department of Fisheries Western Australia to refuse to grant a permit to commercially fish for mackerel on Fishing Boat Licence 2049. The application for review was made under s 149(1) of the Fisheries Resources Management Act 1994 (WA).
2 The decision by the Executive Director under s 66(1) of the Act was based on the purported failure of the applicants to satisfy the entry criteria set out in cl 13(3)(b) of the Mackerel Fishery (Interim) Management Plan 2004 (Management Plan). The entry criteria are calculated on the basis of the statutory fishing returns of a Fishing Boat Licence between 1 November 1990 and 31 October 1997.
3 Clause 13(3)(b) required the applicants to demonstrate that the assessable history of their Licence records (1) a catch of 500 kg or more of mackerel (whole weight) in each of four different criteria years during the assessable period; or (2) a catch of 3500 kg or more of mackerel (whole weight) for the entire assessable period.
4 The Executive Director refused the application on grounds that mackerel caught during charter operations did not form part of the assessable history for purposes of a permit under cl 13(3)(b).
5 In the reasons for decision, the Executive Director explained that the Management Plan "manages the commercial mackerel fishery and as there are specific management arrangements in place for the charter industry, charter catch is not applicable to the assessment of this application.".
6 The applicants argued that:
(1) clause 13(3)(b) of the Management Plan does not exclude charter operations from the accessible history;
(2) although the Executive Director "may" issue a permit, he "must" issue a permit once the entry criteria are satisfied.
7 The Tribunal affirmed the decision by the Executive Director not to issue the permit on grounds that the entry criteria had not been satisfied. The Tribunal found that that the entry criteria must be interpreted in the context of the Management Plan and the Act and that mackerel caught
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- during charter operations could not be taken into account for the purposes of satisfying the entry criteria.
8 The Tribunal also found that, even if the entry criteria were satisfied, the Executive Director had a discretion not to grant a permit and that a permit should not be granted when the assessable catch history relied on charter catch.
9 The Tribunal also rejected arguments put by the applicants relating to the conversion rate and quantity of fish the subject of the returns.
The decision under review
10 On 10 August 2004, the applicants (the Elphicks) lodged an application with the Department of Fisheries seeking the grant of an Area 3 Mackerel Fishery (Interim) Managed Fishery Permit (the permit).
11 When the Elphicks lodged their application they were the holders of Fishing Boat Licence (FBL) 2049.
12 By notice dated 29 September 2004 issued pursuant to s 147 of Fish Resources Management Act 1994 (WA) (FRM Act), the Executive Director of the Department of Fisheries notified the Elphicks that he proposed to refuse to grant the permit on the ground that they failed to meet the catch criteria specified in clause 13(3) of the Mackerel Fishery (Interim) Management Plan 2004 (the Management Plan).
13 By letters dated 9 August 2004 and 19 October 2004, the latter received by the Department of Fisheries on 18 October 2004, Cocks Macnish Barristers and Solicitors on behalf of the Elphicks lodged a Notice of Objection to the proposed decisions signed by the Elphicks with an annexure that particularised the applicants' grounds for objection.
The decision-making context
14 Section 66 of the FRM Act deals with the grant of managed fishery licences and interim managed fishery permits. By s 66(1):
"If a person applies to the Executive Director for the grant of an authorisation and -
(c) the Executive Director is satisfied that the criteria specified in the relevant management plan for the grant of the authorisation have been satisfied; and
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- (d) if a procedure is specified in the plan for determining which persons are to be granted the authorisations the person is selected in accordance with that procedure,
the Executive Director may grant to the person an authorisation."
15 Sections 66(2) and (3) go on to provide that an authorisation may authorise fishing generally or fishing activity of a specified class and that the entitlement a person has under an authorisation may be limited by reference to a number of criteria including the quantity of fish that may be taken from an area of land or waters and aperiod of time.
16 Section 66(4) expressly provides that the extent of an entitlement under an authorisation may be expressed in terms of units of entitlement defined in the management plan.
17 The making of management plans is provided for in particular by Div 2 of Pt 6 of the FRM Act. Ultimately by s 54 the Minister for Fisheries may, by instrument in writing published in the Gazette, determine a management plan for a fishery. Considerable regulation or management of fisheries is possible through the making of a management plan, as sections 56 - 62 of the FRM Act disclose.
18 In this case cl 13(3) of the Management Plan sets out the following criteria that must be satisfied before the Executive Director may grant a person a permit to fish in Area 3 of the Fishery:
"(3) The criteria to be satisfied before the Executive Director may grant a person a permit to fish in Area 3 of the Fishery are that –
(a) on 31 July 2004 the person was the holder of a fishing boat licence and in respect of the boat specified on that licence during the period commencing 1 November 1990 and ending 31 October 1997, statutory fishing returns for that period were received by the Department on or before 31 December 1998;
(b) the returns referred to in paragraph (a) recorded –
(i) a catch of 500 kilograms or more of mackerel (whole weight) in each of four different criteria
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- years during the period specified in (a) from the waters described as Area 3; or
- (ii) a catch of 3500 kilograms or more of mackerel (whole weight) for the whole of the period specified in (a) from the waters described as Area 3; and
- a) the person applies for a permit on or before 31 August 2004."
The issues
19 The Executive Director decided that the entry criteria set out in cl 13(3) had not been satisfied by the Elphicks, whereas the Elphicks believed they had satisfied the entry criteria, having regard to the fishing history of FBL 2049 which included catches of mackerel while the fishing boat was used on charter.
20 In their statements of issues, facts and contentions filed in these proceedings, the parties set out the issues considered central to the review of the Executive Director’s proposed decision. They boil down to these three issues:
(1) Whether the Management Plan on its proper construction excludes charter catch from being considered in relation to the criteria to be satisfied before the Executive Director may grant a person a permit to fish in the mackerel fishery;
(2) Whether, if the applicants are able to satisfy the entry criteria, taking into account the charter catch, it was open to the Executive Director and is now open to the Tribunal on review to refuse the application for the permit because the catch is primarily charter catch; and
(3) If the charter catch is excluded effectively from consideration, whether:
(a) the Executive Director should have applied a conversion factor of 1.43 in lieu of a conversion factor of 1.176 in converting landed weight of headed and gutted mackerel to live weight; and
(b) statutory returns lodged in respect of the Licence accurately reflect the quantity of mackerel caught by
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- methods other than charter and if not, whether the Executive Director should have had regard to this in making the proposed decision.
Issue 1 - Whether the Management Plan on its proper construction excludes charter catch from being considered in relation to the entry criteria?
21 The Executive Director argues that cl 13(3) of the Management Plan on its proper construction excludes charter catch from inclusion in the total catch calculation because the Management Plan has no application to recreational fishing, of which a charter operation forms a part; and because a charter operator is not operating a vessel as a licensed fishing boat when mackerel is caught during charter fishing.
22 By contrast, the Elphicks contend that there is nothing in the precise wording of the cl 13(3) entry criteria to suggest that mackerel, however caught, cannot be taken into account for the purpose of satisfying the entry criteria.
23 Counsel for the Elphicks contends that on the ordinary or literal reading of cl 13(3) the entry criteria will be satisfied if the applicants show that:
(1) on 31 July 2004 they were the holders of a fishing boat licence;
(2) statutory fishing returns in respect of that licence were received by the Department of Fisheries between 1 November 1990 and 30 October 1997 (the assessable period);
(3) the returns were received by the Department prior to 31 December 1998;
(4) the returns recorded (whole weight) mackerel catch from Area 3 during the assessable period of either:
(a) 500kg in each of four different years; or
(b) 3500kg for the entire period; and
(5) they applied for a permit on or before 31 August 2004.
24 It is agreed that the Elphicks were the holders of a fishing boat licence, namely FBL 2049; the statutory fishing returns in respect of FBL
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- 2049 were received by the Department in the assessable period; these returns were received by the Department prior to 31 December 1998; the returns lodged in the assessable period between 1 November 1990 and 31 October 1997 (utilising a conversion factor of 1.176 specified in the Management Plan of the whole weight to gutted live weight) was 10 330.94kg. (If the conversion of 1.43 contended for by the Elphicks was used the weight would be 12 213.44kg).
25 On a very literal reading therefore of the entry criteria set out in cl 13(3) of the Management Plan, the Elphicks could satisfy the criteria.
26 However, the factual position is also accepted to be that, if one excludes the charter catch, and applying a conversion rate of 1.176 as provided for in the Management Plan, the total catch for the period between November 1990 and October 1997 was 3256kg, a weight less than the required weight of 3500kg.
27 The question then is whether, even though in a literal sense the Elphicks are able to satisfy the entry criteria by taking into account the charter catch, the entry criteria in cl 13(3) which refers to "returns" that record a "catch" of mackerel of a certain weight, means returns that include catches of mackerel other than recreational charter catches.
28 Much has been written about the proper way to interpret legislation. The leading Australian text on this topic, Pearce DC & Geddes RS, Statutory Interpretation in Australia, 5th ed Butterworths, Sydney, 2001 provides extremely helpful guidance as to the approaches, principles or rules that should be considered in the course of interpreting a statute.
29 It is usually said that the fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be interpreted according to the intent of the parliament that made it; and that intention is to be found by an examination of the language used in the statute as a whole, giving the meaning of the language used in its ordinary and natural sense: Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd (the engineers' case) (1920) 28 CLR 129 per Higgins J at 161 - 2; Pearce & Geddes [2.3].
30 However other approaches are adopted to interpret legislation including the so-called purposive approach whereby the purpose of the Act or the particular provision in question is identified and the words in question are interpreted consistently with that purpose. However, as Pearce & Geddes point out at [2.5] it was generally accepted that the purposive approach applied only when an attempt to apply the literal
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- approach produced an ambiguity or inconsistency. However, as Spigelman CJ observed in Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc (2000) 171 ALR 523 at 550:
"The use of the word 'ambiguity' in the context of statutory interpretation is not restricted to lexical or verbal ambiguity and syntactic or grammatical ambiguity. It extends to circumstances in which the intention of the legislature is for whatever reason, doubtful. (References not included).”
32 Thus, it has been possible under the common law or general law approach to statutory interpretation to have regard to extrinsic material in interpreting legislation. As Pearce & Geddes point out at [3.6] there are many examples of cases in which, without legislative sanction, courts admitted Law Reform Commission reports and other governmental reports primarily for the purpose of discovering the mischief or defect for which the law did not provide in order to properly interpret the law.
33 With the enactment of statutory provisions governing the use of these materials in the interpretation of legislation, such as s 19 of the Interpretation Act 1984 (WA), the focus has shifted to the operation of these provisions. However as Pearce & Geddes point out the common law principles governing the use of such materials still have a role, notwithstanding the enactment of such provisions. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ stated that:
"It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure (footnote omitted). Moreover the common approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern
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- the statute was intended to remedy (footnote omitted). Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed in Isherwood v Butler Pollnow Pty Ltd (footnote omitted), if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning in alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent (footnote omitted)."
34 In these circumstances s 19 of the Interpretation Act 1984 (WA) is relevant as it makes clear the circumstances in which there is no doubt the court (or in this case the Tribunal) can have regard to extrinsic material. Section 19(1) provides that subject to subsection (3), in the interpretation of a provision of a written law, if any material not forming part of the written law is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material -
“(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; or
(b) to determine the meaning of the provision when-
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or is unreasonable.”
35 Legal authority makes it clear that s 19(1) can only be used in interpreting a statute where its conditions are satisfied. Thus, as Pearce & Geddes at [3.11] state, if the provision under consideration is clear on its face, extrinsic materials may only be used under s 19(1)(a) to confirm the literal meaning. In Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR at 420, the High Court in a joint judgment explained that s 15AB of the Acts Interpretation Act 1901 (Cth), which in material respects is the same as s 19(1) of the
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- Interpretation Act 1984, "does not permit recourse to that [second reading] speech for the purpose of departing from the ordinary meaning of the text unless either the meaning of the provision to be construed is ambiguous or obscure or in its ordinary meaning leads to a result that is manifestly absurd or is unreasonable".
36 In order that a reference to extrinsic materials may have the potential to change an interpretation of the legislation which would otherwise have been arrived at, then apart from the common law purposive approach, it is necessary to conclude that one of the conditions in s 19(1)(b)(i) or (ii) of the Interpretation Act 1984 has been met. That means, as Pearce & Geddes say at [3.12], the court must conclude that after taking account of any materials not forming part of the Act, that the provision in question is "ambiguous" or "obscure" or that, taking account of its context and underlying purpose or object, the ordinary meaning "leads to a result that is manifestly absurd or is unreasonable".
37 However, as Pearce & Geddes also say at [3.12], it should be remembered that provisions such as s 19 complement and do not replace the common law principles applicable to the admissibility of extrinsic materials and that, in some respects, those common law principles have a wider application than the statutory provisions.
38 As we have noted earlier, on a very literal reading of cl 13(3), a mackerel catch in any return lodged in respect of a fishing boat licence apparently may be taken into account in considering whether the entry criteria under the Management Plan have been met. However, it is of interest to note that the definition of a fishing boat licence in the Management Plan is the same as that given in reg 3 of the regulations. Reg 3 states that a “fishing boat licence” means a licence referred to in reg 117. Regulation 117 is the first regulation under “Division 1 - Commercial Fishing” and reg 117(1) states that “[a] person having the day to day control of any boat used or intended to be used for or in connection with commercial fishing, must ensure that a current fishing boat licence is in force in respect of the boat…”
39 The expression "statutory fishing returns" - defined in the Management Plan to mean (a) a written return made under and in accordance with s 18 of the Fisheries Act 1905 or (b) a return made under or in accordance with reg 64 of the Regulations - do not appear to limit the nature of the statutory fishing returns in question to those showing mackerel caught under a commercial fishing operation as opposed to charter catch.
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40 However, when one has regard to the fact that the Management Plan has been made under FRM Act 1994 by the Minister under s 54, on its face to control commercial fishing for mackerel in the fishery described in Sch 1 to the Management Plan, it may be considered unusual that entry to such a commercial fishery can be obtained through reliance on an earlier mackerel catch associated with a fishing boat licence not used in the course of commercial fishing, but in the course of recreational charter operations. That the Management Plan is concerned with commercial, not recreational, fishing is suggested by the tenor of the FRM Act which provides for the extensive management of the fishery for commercial purposes. Additionally, the Management Plan states under cl 8(2) that the plan does not apply to a person fishing for mackerel for a recreational purpose in accordance with the Act. The expression “recreational purpose” is not defined but “recreational fishing” is defined by s 4 of the FRM Act to mean “fishing for a purpose other than a commercial purpose” and “Commercial purpose” is defined by s 4 of the FRM Act to mean “the purpose of sale or any other purpose that is directed to gain or reward”.
41 The objects of the FRM Act are various but are designed to enable the allocation of fish resources between users of those resources as well as to foster the development of commercial and recreational fishing and aquaculture including the establishment of management of aquaculture facilities for community or commercial purposes.
42 The whole tenor of the Management Plan is about the regulation of commercial mackerel fishing. Part 8, dealing with records, makes it clear in cl 22(1)(c) that the holder of a permit must at any time when any direction is given to a person, that the person is or is not authorised to fish on the permit holder's behalf, make a record in a form approved by the Executive Director of a number of things, including the number of the "commercial fishing licence" held by the person to whom the direction was given. The fishery is itself divided by Sch 2 of the Management Plan into three areas. The fees payable for permits set out in Sch 5 to the Management Plan are not insignificant or at least not of an amount that one would ordinarily associate with recreational fishing, ranging from $545 in Area 3 to $1105 in Area 1.
43 In these circumstances the setting of criteria for the grant of a permit in the fishery, which is what cl 13 of the Management Plan does, is in the context of recognising that some persons who currently fish for mackerel may gain entry to the new fishery and others may miss out. In these circumstances it may be thought that a reference to the weight of mackerel
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- shown in the statutory fishing returns referred to in cl 13 entry criteria, might be a reference to mackerel shown in the returns of a fishing boat involved in commercial fishing, not recreational charter fishing.
44 In this overall regulatory context of the Management Plan there is a degree of ambiguity or obscurity about the expression "statutory fishing returns” and other relevant expressions used in cl 13(3).
45 Further and in any event, the ordinary or literal meaning of the words employed in cl 13(3) could possibly lead to the result that a person might satisfy the entry criteria to the commercial fishery by relying on a history of recreational catch. Such a result, if not "manifestly absurd", may possibly be considered "unreasonable", as it would have the effect of permitting recreational fishers to compete with long-standing commercial fishers for the commercial catch rights contemplated by the Management Plan.
46 In these circumstances the Tribunal considers it important to consider extrinsic materials pursuant to s 19(1) of the Interpretation Act 1984 in order to ascertain the true meaning of the words used in cl 13(3) of the Management Plan.
47 While s 19(1) may be explicitly relied upon for this purpose, we are of the view that the "modern approach to statutory interpretation" referred to by the High Court in CIC Insurance Ltd v Bankstown Football Club Ltdalso requires the context to be considered in the first instance when interpreting cl 13(3), for the same reasons.
48 We should also add that so far as the application of s 19 of the Interpretation Act 1984 is concerned, the Management Plan is a "written law". A "written law" is defined by s 5 of the Act to mean all Acts for the time being in force and all subsidiary legislation for the time being in force. The expression "subsidiary legislation" is further defined by s 5 to mean, among other things, any "instrument" made under any written law and having legislative effect. There is no doubt that the Management Plan is an instrument made under written law, namely, the FRM Act, having legislative effect. The FRM Act required it to be taken into account.
49 The question then, for the purposes of considering the meaning of cl 13(3) of Management Plan is, what is the "context of the written law and the purpose or object underlying the written law" namely, the Management Plan, for the purposes of s 19(1)(b)(i) and (ii).
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50 Section 19(2) provides that, without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection includes a number of matters set out, including government reports laid before Parliament, second reading speeches in the Parliament and Parliamentary proceedings. It must be noted that the particular material referred to in s 19(2) is referred to "without limiting the generality" of s 19(1). It is open to the Tribunal to have regard to other extrinsic material that bears upon the "context" in the Management Plan in which cl 13(3) appears, and the "purpose or object underlying" the Management Plan.
51 In that regard, the Tribunal received documentary evidence and an account of the background to the making of the Management Plan from Ms Kennedy, Senior Commercial Fisheries Management Officer of the Department. Ms Kennedy explained that prior to the introduction of the Management Plan there was no proper system of control of commercial or recreational exploitation of the mackerel resource. Accordingly, to improve management of mackerel fish stock, Fisheries adopted a two pronged approach directed at establishing separate regulatory systems for the recreational sector (inclusive of charter operators) and the commercial sector.
52 Ms Kennedy said that Fisheries utilised two set of criteria to limit the number of entries, namely, firstly an applicant's historic experience of, and involvement in the specific sector as recorded in weight of fish caught, and secondly, the conversion factor to convert headed and gutted weight to live weight.
53 Ms Kennedy said the policy of Fisheries to manage charter catches as a subset of recreational fishing flows from the Future Management of the Aquatic Charter Industry in Western Australia Report (MACI Report) that was prepared by the Tour Operators Fishing Working Group for presentation to the Minister for Primary Industry: Fisheries in September 1998. The central proposition of the MACI Report was that charter operations shouldbe managed as a sub-set of recreational fishing rather than to be considered as a sub-set of commercial fishing.
54 As far as the commercial regulatory scheme for mackerel is concerned, a draft of the Management Plan was released for public comment in October 2000. In 2001 Fisheries instigated the preparation of a report on the access and future management directions for the proposed interim managed mackerel fishery. The Executive Director appointed the Mackerel Independent Advisory Panel (MIAP). The Terms of Reference
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- of the MIAP required it to make recommendations to the Executive Director on "access to and management of the commercial mackerel fishery." (our emphasis) (Fisheries Management Paper No 164, p11). The charter fishery of mackerel was expressly stated to fall outside the scope of the MIAP terms of reference.
55 In his response of November 2002 to the MIAP recommendations, the Minister for Fisheries endorsed the proposed entry criteria set out in it and noted that the purpose of the arrangements is "not to allocate the mackerel resource between the sectors but within the commercial sector." While the Minister also recognised in his response that the "mackerel fishery is important to both the recreational and commercial fishing sectors", he emphasised that the Management Plan was intended to address the commercial sector.
56 In this context, and having regard to this purpose or object of the Management Plan, the reference in cl 13(3) to a statutory fishing return disclosing a catch of mackerel of a certain weight, is plainly intended to mean a catch of mackerel that appears in a return from a fishing boat that undertook commercial fishing and not recreational charter fishing.
57 Further, having regard to the context in which cl 13(3) appears in the Management Plan and the purposes or object underlying the Management Plan, it would be unreasonable, in the Tribunal's view, to conclude that the provision should have the literal or ordinary meaning contended for by the Elphicks.
58 In summary, the Tribunal is satisfied under either s 19(1)(b)(i) or (ii), the literal or ordinary meaning of cl 13(3) of the Management Plan contended for by the Elphicks should not be accepted and that, properly interpreted, the entry criteria in cl 13(3) are such that an applicant must satisfy the Executive Director that the relevant catch relied upon does not include a recreational, charter catch of mackerel.
59 Having construed cl 13(3) in this way, on the facts of this case (subject to other arguments raised by the Elphicks that are dealt with later) it appears that the Elphicks are unable to satisfy the entry criteria set out in cl 13(3) and so the Executive Director is unable to exercise any discretion to grant the permit applied for by the Ephicks.
60 The Executive Director's discretion to grant a permit pursuant to cl 13(3) only arises if he is satisfied that all the entry criteria are satisfied. In this regard we accept the similar conclusion of McKechnie J in Adams and Anor v Executive Director, Fisheries WA (2000) WASC 34
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- (21 February 2000) at par 54 that "on the proper construction of the FRMA s 66(1)(a) and the Plan, the discretionary power to grant an authorisation is not triggered until the Executive Director is satisfied as a matter of fact unless the [several] conditions ...in clause … of the Plan have been fulfilled".
Issue 2 - Whether, if the applicants were able to satisfy the entry criteria, taking into account the charter catch, it would be open to the Executive Director and now to the Tribunal on review, to refuse the application for the permit because the catch is primarily charter catch.
61 This issue does not strictly arise given our finding on Issue 1. However, in the event that we are wrong about the proper interpretation of cl 13(3) we should also deal with this issue.
62 Section 66(1) of FRM Act sets out the power of the Executive Director to grant to a person an authorisation. The terms of this power also governed the power of this Tribunal on review.
63 Even though s 66(1)(a) directs the Executive Director's attention and the Tribunal's attention to the satisfaction of entry criteria in the first instance, there is nothing in s 66 that obliges the Executive Director or the Tribunal to grant an authorisation in every case where the criteria specified in the Management Plan are satisfied. The final words in s 66(1) are that if (a) and (b) are met, "the Executive Director may grant to the person an authorisation". The use of the expression "may grant" indicates a discretion to grant. It follows that the Executive Director, and the Tribunal on review, has the power to refuse to grant an authorisation even though the matters in (a) and (b) of s 66(1) have been met.
64 Even though there are some cases such as Julius v Bishop of Oxford(1880) 5 App Cas 214 at 222-3 (and a number of other authorities cited by Counsel for the Elphicks in supplementary written submissions to the Tribunal) which suggest that in some circumstances an apparent discretion to act may be rendered obligatory, there is nothing in this particular statutory context to suggest that what appears to be a discretionary power in the hands of the Executive Director, and the Tribunal on review, is not in fact so.
65 Rather, this is a case where the grant of the power to issue an authorisation should be governed by s 51(1) of the Interpretation Act 1984 which provides that:
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- "(1) Where a written law confers power on a person to issue, grant, give or renew any licence, registration, lease, right, authority, approval, permit, or exemption, the person so empowered shall have a discretion either to issue, grant, give or renew or refuse to issue, grant, give or renew such licence, registration, lease, right, authority, approval, permit, or exemption."
66 Moreover, s 56 of the Interpretation Act 1984 explicitly provides that the word "may" imports a discretion, whereas the word "shall" is imperative. Section 56 states:
"(1) Where in a written law the word "may" is used in conferring a power, such word shall be interpreted to imply that the power so conferred may be exercised or not, at discretion.
(2) Where in a written law the word "shall" is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed."
67 There is nothing, in our view, in the context of the FRM Act in which the word "may" appears in s 66(1) to suggest that the terms of s 56(1) of the Interpretation Act 1984 should not be applied.
68 In those circumstances, the fact that the Executive Director "may" grant an authorisation if the matters referred to in (a) and (b) are met, means that the power so conferred may be exercised or not, at discretion.
69 In a case, such as the present, where the Management Plan was prepared after lengthy consultations as required by the FRM Act and taking into account the report of the Mackerel Independent Advisory Panel (MIAP), a decision to grant or refuse the permit should not be made in a policy vacuum but should have regard to relevant "policy" information.
70 It may also be relevant in the circumstances of some cases to regard background circumstances of the applicant. In this case, the Elphicks' asked the Tribunal to note that they purchased FBL 2049 in the belief that the history attached to that licence could be taken into account when their application for a permit in the fishery was considered, notwithstanding that much of it was charter catch.
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71 At the time the Elphicks purchased the FBL 2049, the Management Plan was in a draft stage. They say that no mention was ever made during the draft period that charter catches would be excluded from the assessable history and had they been aware of such a proposed policy they would have acquired another fishing boat licence in preference to the one they in fact purchased.
72 However, on the evidence before us, there is nothing to suggest that at any stage did any officer of the Department of Fisheries represent expressly or impliedly to the Elphicks that charter catch could be relied upon for the purpose of satisfying the entry criteria that would need to be met when the Management Plan was made.
73 Even if the Tribunal had been able to form the view that the Elphicks had complied with the cl 13(3) catch criteria as properly construed to gain entry to this interim fishery, we think that, on the evidence before the Tribunal, it would be inappropriate to allow entry where the applicants' were obliged to rely on mackerel caught during charter trips in doing so. We say this for the following reasons.
74 The Minister and Executive Director can, within the confines of their responsibilities, determine policies directed at fulfilling the objectives set out in the Act. The principle of regulated or limited entry whereby permits to utilise a natural resource are restricted, is an acceptable way to manage scarce resources such as fish stocks. The recommendations of the MIAP and the content of the Management Plan anticipated that the number of permits issued would be limited by the entry criteria. In developing the policy reflected in the Management Plan, Fisheries engaged in public consultation before the Minister enacted the Management Plan.
75 Taking into account the background to the making of the Management Plan we have already recounted, the Executive Director is authorised by the Management Plan to implement a policy to limit access to commercial mackerel fishing by using historic commercial returns as a benchmark. This policy is consistent with the way in which records of statutory returns of commercial catches were kept during the assessable period. It also reflects the policy underlying the making of the Management Plan to exclude the charter industry from the MIAP brief and the Management Plan.
76 In the particular circumstances of this Management Plan, the Tribunal considers that it was right for the Executive Director to take
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- these various policy considerations into account and to refuse a permit in this interim fishery where the catch relied on as satisfying the catch criteria included charter catch.
Issue 3 - (a) was Fisheries entitled to use the conversion factor 1.176; (b) did Fisheries take into account all relevant catch?
77 The parties concur that, on the basis of a conversion factor of 1.43, the assessable history (commercial catches only) of FBL 2049 would be sufficient to meet the entry criteria. However, when the conversion factor of 1.176 is used, the assessable history of FBL 2049 falls short of the entry criteria. On the conversion factor of 1.43 the assessable history records 4227.80kg, which exceeds the requirements of the entry criteria. However, when the conversion factor of 1.176 is used, the assessable history records 3 476.72kg, which fails to meet the entry criteria by at most 23.28kg.
78 The history of FBL 2049 provided to the Elphicks by Fisheries prior to them acquiring it, was based on a conversion factor of 1.43, because that was the conversion factor used in the past. However, in letter of the Executive Director dated 5 December 2002 it was stated that a conversion factor of 1.176 was to be used in considering applications for entry to the mackerel interim fishery, and that became the conversion factor used in the Management Plan when it was made.According to the Elphicks no reason was given for this change in the conversion factor. The Tribunal notes however that the conversion factor of 1.176 was recommended by the MIAP (p 35), and the Minister endorsed it in his response to MIAP dated November 2002.
79 There is no unfairness in the 1.176 conversion factor being used and it appears to have been applied consistently by Fisheries. It was clearly set out in the Management Plan as made.
80 The Elphicks also contend that a percentage of fish marked as "other" in the statutory returns dated March 1992 to June 1992 would have been mackerel, and that, although the exact percentage cannot be ascertained, the Tribunal should assume that it would have been sufficient for the Elphicks to make up for the possible shortfall of approximately 23 kg.
81 The Tribunal does not accept this contention as to do would really amount to speculation and guesswork on its part. The Tribunal is constrained in exercising its discretion only to take into account the recorded assessable history of FBL 2049 given in evidence.
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82 Consequently, the Tribunal finds that Fisheries acted within its powers by setting the conversion factor at 1.176 kg as a basis to determine compliance with the entry criteria. As it is set out in the Management Plan for all to see, the conversion factor operates objectively, consistently and uniformly to all potential applications.
83 Similarly, Fisheries have acted consistently by not speculating about "other" fish that may have been caught.
Conclusion
84 It follows that the Tribunal considers that the Executive Director was right to indicate he would not issue a permit to the applicants in the particular circumstances of their application.
Order
85 The Tribunal orders:
(1) The application for review is dismissed.
(2) The proposed decision of the Executive Director, Fisheries dated 29 September 2004 in respect of the application of the applicants dated 18 August 2004 is affirmed.
(3) The applicants' application under the Fish Resources Management Act 1994 (WA) is refused.
- I certify that this and the preceding [85] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT
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