FARRELL and DEPARTMENT OF FISHERIES
[2005] WASAT 114
•20 JUNE 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: FISH RESOURCES MANAGEMENT ACT 1994
CITATION: FARRELL and DEPARTMENT OF FISHERIES [2005] WASAT 114
MEMBER: JUSTICE M L BARKER (PRESIDENT)
HEARD: 23 MARCH 2005
DELIVERED : 20 JUNE 2005
FILE NO/S: RD 6 of 2003
BETWEEN: JOHN RAYMOND FARRELL
Applicant
AND
DEPARTMENT OF FISHERIES
Respondent
Catchwords:
Fish Resources Management Act 1994 (WA) - Application for endorsement on fishing boat licence - Application refused - Review of decision by State Administrative Tribunal - Jurisdiction to review - No jurisdiction
Legislation:
Fish Resources Management Act 1994 (WA), s 4, s 43, s 142(1), s 146, s 147(1), s 149(1)
Fish Resources Management Regulations 1995 (WA), reg 117(1), reg 118(1), reg 121, reg 122
Interpretation Act 1984 (WA), s 50(1), s 50(2)
Result:
Application refused.
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr NC Monahan
Solicitors:
Applicant: Self-represented
Respondent: State Solicitors Office
Case(s) referred to in decision(s):
Geraldton Fisheries Co‑operative v Minister for Fisheries, unreported; SCt of WA (Anderson J), Library No 9187; 22 November 1991
Case(s) also cited:
Nil
JUSTICE M L BARKER (PRESIDENT):
REASONS FOR DECISION
Summary of Tribunal's decision
This decision concerns the jurisdiction of the State Administrative Tribunal (Tribunal) to review a decision of the Executive Director of the Department of Fisheries to refuse to add an endorsement to several fishing boat licences to allow the holder of those licences to take fish by means of a purse seine net in the Indian Ocean, Southern Ocean and the Timor Sea.
The Tribunal decided that whilst the Executive Director on behalf of the Minister may consider an application for an endorsement and make recommendations to the Minister, a recommendation or decision to refuse an endorsement cannot be reviewed by the Tribunal because it is not an application to "vary" a fishing boat licence under the Fish Resources Management Act 1994 (WA).
This decision raises important questions of administrative justice. Should the Executive Director's or Minister's decision on endorsement issues effectively be final; or should be holder of a fishing boat licence be able to seek review of a refusal? These are questions of policy for the Minister and the Parliament to answer.
Factual background
Mr Farrell ("applicant") holds several fishing boat licences ("FBLs") and also a commercial fishing licence.
On 18 December 2001 the applicant executed an "Application for the Variation of an Authorization or Entitlement" ("application") in relation to FBLs 2635, 2636, 2637, 3346 and 3430. The "variation" sought was a "Purse Seine Endorsement" ("endorsement").
The Executive Director of the Department of Fisheries wrote to the applicant on 4 June 2002, stating:
"I note that you are the holder of a South‑West Coast Salmon Managed Fishery (SWCSMF) licence. As you may be aware, the Department will be conducting consultation with members of the South West Beach Seine Fishery (SWBSF) and the SWCSMF with regard to the possible allocation of small pelagic fish species quota under an amended West Coast Purse Seine Managed Fishery Management Plan to those operators who have recorded catches off the southwest coast in conjunction with their SWBSF or SWCSMF authorisations.
…
Please note that, at this point in time, the Department is merely discussing these proposals with industry and the Minister for Fisheries will be making the final decision on the detail of the small pelagic fish species quota allocation in the West Coast Purse Seine Managed Fishery.
Representatives from the Department will be meeting with members of the SWBSF and SWCSMF on 11 June at 9 am at the Geographe Bay Resort in Busselton. It would in good interests for you to attend this meeting.
Noting the timing of consultation, with your written permission I will place your Application for the Variation of An Authorisation or Entitlement 'on hold'. I feel that it would be inappropriate to consider your application for a purse seine endorsement at this time, on the basis that access criteria and an allocation framework for the southwest are yet to be finalised.
If [you] wish the application to be considered now, I am of a mind to refuse it on the basis that the matter of access to the West Coast Purse Seine Managed Fishery is yet to be determined. Please advise if you wish the application to be finalised, or if you are happy to have it determined at the same time as general access to the West Coast Purse Seine Managed Fishery is settled."
The applicant responded by letter dated 30 September 2002 indicating, in effect, that he did not wish his application to be put "on hold".
By letter dated 27 December 2002, the Executive Director advised the applicant:
"I refer to your application of 18 December 2001 to vary Fishing Boat Licence LFBB43 with an endorsement to allow the take of fish by purse seine. This application has been declined on the basis that you have not provided to my satisfaction sufficient evidence to support the application."
The letter also advised the applicant of his right to object to the proposed decision of the respondent.
The applicant executed a "Notice of Objection to a Proposed Decision" on 16 January 2003 and lodged it with the Department of Fisheries ("respondent").
A "Notice Establishing a Tribunal" was issued on 10 March 2003, and various preliminary conferences occurred in the former Fisheries Objections Tribunal.
The objection was transferred to the State Administrative Tribunal when it came into existence on 1 January 2005, in accordance with s 167(4)(b) of the State Administrative Tribunal Act 2004 (WA).
On 17 January 2005, and notwithstanding the respondent's earlier advice to the applicant that he had the right to object to the proposed decision, the respondent filed an outline of submissions in the Tribunal asserting that the Tribunal lacks jurisdiction to review the proposed decision of the Executive Director of the Department of Fisheries to refuse the applicant's application. This preliminary question came on for determination before the Tribunal on 23 March 2005.
Legislative framework
It is useful at this stage to set out in some detail the relevant legislative framework under the Fish Resources Management Act 1994 (WA) ("FRMA") and its associated subsidiary legislation.
Section 142(1) provides:
"The Executive Director may vary an authorization if –
(a)the holder of the authorization applies to the Executive Director for the variation;
(b)…
(c)it is necessary to give effect to the provisions of this Act."
Section 4 of the FRMA sets out the following relevant definitions:
"'authorization' means a licence or permit;
'commercial fishing' means fishing for a commercial purpose;
'commercial fishing licence' means a licence granted under the regulations authorizing a person to engage in commercial fishing;
'fishing boat' means a boat that is used for commercial fishing;
'fishing boat licence' means a licence granted under the regulations authorizing a person to use a boat for commercial fishing;
'licence' means –
(a) an aquaculture licence;
(b) commercial fishing licence;
(c) a fishing boat licence;
(d) a fish processor's licence;
(e) a managed fishery licence;
(f) a recreational fishing licence; or
(g) any other licence provided for in the regulations;'permit' means –
(a) an interim managed fishery permit; or
(b) a permit granted under section 80;'vary', in relation to an authorization, means to vary anything in the authorization and includes to substitute any boat, place or other thing in respect of which the authorisation is granted;"
Section 43 of the FRMA provides that:
"(1) The Minister may, by order published in the Gazette, prohibit persons or any specified class of persons from engaging in any fishing activity of a specified class.
…
(3) A person must not ‑
(a)contravene a provision of an order;
(b)have in the person's possession any fish taken in contravention of an order; or
(c)have in the person's possession any fishing gear intended to be used to engage in an activity that the person is prohibited from engaging in by an order."
Various orders have been published under s 43. Of relevance here is Notice 312, gazetted on 19 August 1988, which provides:
"PURSUANT to sections 9 and 11 of the Act I hereby prohibit all persons other than the class of persons described in the Schedule from taking or attempting to take fish by means of a purse seine net in all waters of the Indian Ocean, the Southern Ocean and the Timor Sea at all times.
Schedule
Licensed professional fisherman using a licensed fishing boat the licence for which is endorsed permitting it to be used to take fish by means of a purse seine net.
Dated 22 June 1988
JULIAN GRILL, Minister for Fisheries"
Commercial fishing is further regulated by Pt 11, Div 1of the Fish Resources Management Regulations 1995 (WA) ("FRMR"). Regulation 117(1) provides:
"A person having the day to day control of any boat used or intended to be used for or in conjunction with commercial fishing, must ensure that a current fishing boat licence is in force in respect of the boat.
Penalty: $10 000."
Regulation 118(1) provides:
"If a person applies to the Executive Director for the grant of a fishing boat licence authorising a person to use a boat for commercial fishing and the Executive Director is satisfied that –
(a)the person is a fit and proper person to hold the licence;
(b)it is in the better interests of the fishing industry to grant the licence;
(c)a Certificate of Survey has been issued in respect of that boat in accordance with the W.A. Marine (Surveys and Certificates of Survey) Regulations 1983; and
(d)the boat does not have the same name as any other licensed fishing boat,
the Executive Director may grant to the person a fishing boat licence."
Regulation 121 provides that it is a penalty to engage in commercial fishing without a commercial fishing licence. Regulation 122 allows the Executive Director to grant a commercial fishing licence to authorise a person to engage in commercial fishing.
Right to review by the Tribunal
Section 149(1) of the FRMA allows an affected person to apply to the Tribunal for a review of a decision referred to in s 147(1) or s 148(1).
"Affected person" is defined in s 146 to mean:
"(a)in relation to a decision referred to in section 147(1)(a), the person who applied for the authorization;
(b)in relation to a decision referred to in section 147(1)(e), the holder of the authorization and the proposed transferee;
(c)in relation to a decision referred to in section 147(1)(b), (c) or (d), the holder of the authorization;
(d)…
(e)…"
For present purposes, s 148(1) is not relevant.
Section 147(1) states:
"Before giving effect to a decision to –
(a) refuse to grant an authorization;
(b) give a notice varying any conditions of, or adding new conditions to, an authorization;
(c) cancel, suspend or refuse to renew, an authorization under section 143;
(d) refuse to vary an authorization after a person has applied for the variation;
(e) refuse to transfer an authorization, or part of an entitlement under an authorization, after a person has applied for the transfer,
the Executive Director must –
(a) give to each affected person notice in writing, or in such other manner as is prescribed, of the decision; and
(b) allow sufficient time for the person to make an application under this Division for a review of the decision and the application to be determined."
Respondent's submissions
The respondent provided a comprehensive outline of submissions concerning the issue of the jurisdiction of the Tribunal to deal with the applicant's objection, which I will set out in some detail.
The respondent contends that the Tribunal has no jurisdiction to entertain the applicant's objection if the Executive Director lacked jurisdiction to enter upon a consideration of the merits of the application. In addition, it says that, following the decision in Geraldton Fisheries Co‑operative v Minister for Fisheries, unreported; SCt of WA (Anderson J), Library No 9187; 22 November 1991, any decision of the Executive Director or the Tribunal that purports to dispose of the applicant's application for a purse seine endorsement is a nullity.
In Geraldton Fisheries (supra) the managing director of Anchorage Investment Pty Ltd wrote to the Director of Fisheries to "make application to have [its] Rock Lobster Processing Licence transferred, and relocated at premises to be constructed at Greenhead". The Director purported to reject the application. Anchorage Investments then purported to invoke the appeal provisions of the Fisheries Act 1905 (WA) (which has now been superseded by the FRMA), which provided for an appeal to the Minister for Fisheries. The Minister purported to allow the appeal. The plaintiffs contended that the Director was not empowered to deal with the application in the first place, making any decision he made a nullity, or, alternatively, that the appeal to the Minister miscarried such that the decision of the Minister to allow the appeal was also a nullity, making any licence granted pursuant to that appeal invalid.
The general scheme of the old Fisheries Act 1905 was such that it required permission for both the activity of fish processing and also for the construction of a fish-processing establishment. The respective applications needed to be made under separate provisions of the Act.
Anderson J held, at page 27, that the letter in question was not an "application to establish a processing establishment at Green Head" in either form or substance. To the extent that it could be regarded as a formal application at all, it could only be, at most, an "application to remove an existing licence". It seemed to his Honour, at pages 27 ‑ 28, to be the case that:
"[T]he Director's power to grant a permit to construct or establish a processing establishment is conditioned on the presentation to him and the consideration by him of an application for such a permit. Formosa v Secretary, Department of Social Security (1988) 81 ALR 687 at 694. Before he could even entertain the grant of such a permit, he must consider an application for such a permit …
If the Director is regarded as having disposed of an application to establish a new processing plant at Green Head, then the Director had no power to do it, because he did not, in fact, have such an application before him. As there was no application before him for a permit to 'construct or otherwise establish a processing establishment' … any decision or order made by him in purported exercise of a power … to dispose of such an application was a nullity. If the prerequisites for the exercise of a power do not exist, the purported exercise of that power is a nullity. East Riding County Council v Park Estate (Bridlington) Ltd [1957] AC 223."
Anderson J said, at page 29, that it followed that if the decision of the Director was a nullity, there was nothing for the Minister to modify or set aside. Therefore, "validity cannot be given by way of an appeal to a proceeding that [is] a nullity": Geraldton Fisheries (supra) at page 29.
The respondent contends that, following the decision in Geraldton Fisheries, an appellate body such as the Tribunal should not enter upon a consideration of the merits of a purported decision if it is satisfied that the decision‑maker lacked jurisdiction to entertain the application. Further, it says that if the Tribunal is satisfied that a jurisdictional defect of the kind that existed in Geraldton Fisheries (supra) is present, the only proper course is for it to dismiss the applicant's appeal as incompetent.
The respondent then says that, as a result of Geraldton Fisheries, in any case where jurisdiction may be in doubt there is just one question to pose, namely:
"Was the 'application' of a kind which the Executive Director had jurisdiction under the legislation to entertain?"
Section 142 of the FRMA (set out above) outlines the circumstances in which the Executive Director may vary an authorisation. In essence, the respondent submits that the decision of the Executive Director not to add an endorsement to the applicant's FBLs falls outside the purview of s 142.
The applicant is the holder of several FBLs and also a commercial fishing licence. The respondent accepts, therefore, that the applicant holds authorisations within the meaning of the FRMA and that he purported to apply to the Executive Director for his authorisation (or authorisations) to be varied.
However, the respondent says that it does not follow that anything which the holder of an FBL seeks to have done in relation to it will always be an application for "variation" of the FBL for the purposes of s 142(1)(a) of the FRMA.
The respondent submits that, given the definition of "vary" in the FRMA, had the applicant simply applied for different boats to be substituted for those which were the subject of the FBLs, then there would be no question that the applicant had sought a "variation" of his FBLs within the meaning of s 142(1)(a) of the FRMA. It says this would have been the case because the act of substituting a boat falls into the inclusive part of the definition of "vary" and also requires the Executive Director to vary something "in" the authorisation, being the designation of the boat which may be used for commercial fishing. The respondent therefore contends that the inclusive part of the definition of "vary" is intended to illustrate, rather than extend the meaning of the words, "anything in the authorization".
The respondent then poses the question: Why does the substitution of a boat involve the variation of something "in" the authorisation? The respondent answers this question in this way. A "fishing boat licence" authorises a person to use a designated boat for "commercial fishing". Therefore, one of the things which will be in an FBL (that is, set out in the text of the instrument recording the grant of a licence) is a designation of the boat or boats which are authorised to be used for commercial fishing. The substitution of one boat for another in an FBL involves a "variation" of the FBL because an intrinsic aspect of that kind of licence is being changed.
The respondent says this example (and another it gave involving rock lobster licences) indicates that the starting point in determining whether a thing sought by an application would be a "variation" must be the scope of the authorisation in question as defined by the legislation. Having determined what the statutory incidents of a particular authorisation are, it is then possible to determine whether an application in fact seeks to "vary" any of those statutory incidents. Put more generally, it is necessary to determine the statutory nature of the particular kind of authorisation and then ask whether there is anything in that statutory nature which is sought to be varied.
The respondent submits that, considered from this point of view, the mere fact that the applicant seeks to add to the writing appearing on an instrument evidencing an authorisation is not conclusive, or necessarily even relevant, to a determination of whether he seeks a "variation" of the authorisation.
The applicant is currently prohibited from using his licensed fishing boats for the purposes of fishing by means of a purse seine net, as he does not currently meet the description in the Schedule to Notice 312. However, the respondent says that the restriction on the applicant's activities is not a restriction imposed as a result of the process by which the FBLs were granted and has nothing, intrinsically, to do with the licensing process in general and nothing to do with the FBLs in particular. It is a restriction that has effect notwithstanding the FBLs.
Further, the respondent submits it is logically impossible to find anything "in" the applicant's existing FBLs which would be varied by the addition of the endorsements sought by the applicant. The addition of an endorsement to an FBL has no effect on the authorisation the applicant has as a result of those licences. The statutory incidents (that is, what a person is allowed to do as a result of an authorisation) would be identical both before and after the addition of an endorsement. This is in contrast to a case of boat substitution, referred to earlier, as in that case the statutory incidents are changed because a different boat becomes the one from which commercial fishing is authorised by the authorisation in question.
Accordingly, the respondent submits that, while the endorsement sought by the applicant would have the effect of allowing him to meet the statutory description in the Schedule to Notice 312, that is irrelevant to whether something in the authorisation itself would be varied as a result of a successful application. The respondent contends that it is simply not possible to identify anything "in" an FBL which is varied as a result of the addition of an endorsement. The respondent submits the reason is that it is to be understood that the Schedule to Notice 312 contemplates a "non‑statutory endorsement". Such an endorsement is merely a way of denoting those persons who are outside the scope of the Notice 312 prohibition.
However, the respondent also accepts that there is no statutory procedure set out in the FRMA itself for a person to obtain the endorsement on an FBL to permit the taking of fish by means of purse seine net that will then have the effect of relaxing the prohibition in Notice 312. It says that, while such an endorsement may be sought administratively it is not part of the licensing scheme, and that therefore it is not an endorsement made pursuant to any statutory aspect of the licensing scheme. It states that although the writing (being the endorsement) would need to be put on the particular licence to take a fisherman outside the scheme of the prohibition created by Notice 312, the fishing boat licence scheme itself under the FRMA doesn't contemplate that the endorsement process occurs as part of the licensing process.
In this sense, the respondent contends that the choice of the FBL as the instrument on which an endorsement will be placed is, in a real sense, arbitrary and a matter of administrative convenience. Such an endorsement has no connection with and in no way alters the existing intrinsic statutory incidents of the particular FBL on which it may from time to time be endorsed.
The respondent submits that the only way in which an endorsement can be regarded as effecting a "variation" to an FBL is by ignoring the intrinsic nature of that authorisation. It says this is not permissible having regard to the evident purpose of s 142(1)(a) of the FRMA, which is only to allow variations of the statutory incidents of the respective authorisations.
Thus, says the respondent, unless the endorsement sought by the applicant is a variation properly so called within the meaning of s 142(1)(a) of the FRMA, the Executive Director has no jurisdiction to entertain it as an application under that provision. The endorsement sought would not be within the scope of the concept of a variation upon the proper construction of s 142(1)(a) of the FRMA.
Consistently with Geraldton Fisheries (supra), the respondent contends that the applicant's application is legally incompetent and remains so in this Tribunal. The respondent says the Tribunal should dismiss the application.
The consequence of the respondent's argument being correct is that someone (either the Minister or the Executive Director) has the power to place an endorsement on an FBL under the FRMA, but if an application for the addition of an endorsement is refused, there is no right on the part of the applicant to seek review of that decision in this Tribunal. The respondent says that this situation is analogous to that which arises under s 7 of the FRMA, where any person who applies for an exemption under that section is barred from the review scheme under Part XIV of the FRMA, because s 7 is a general prohibition, like that in Notice 312, from which certain persons may be exempted.
During the hearing, following a discussion on the possibility of regarding the applicant's application as one in effect made under s 43 (the provision under which prohibition notices can be made), due to the need to imply under that section a procedure for the attainment of an endorsement exempting a person from the notice prohibition, rather than s 142, the respondent submitted that this Tribunal would still not have jurisdiction to review the Executive Director's decision.
The respondent says that the starting point in any such analysis must be s 149(1) of the FRMA, which is limited by s 147(1) and s 148(1). The respondent submits that the decision the applicant is seeking under the implied procedure in the notice does not fit within any of the categories set out in s 147(1) (s 148(1) is not presently relevant). It says that, therefore, there is no decision of the Executive Director that can be the subject of challenge in this Tribunal.
In particular, the respondent contends that s 147(1)(d) does not apply because there has been no refusal to "vary" as defined, and s 147(1)(a) does not apply because, in practical terms, the applicant has not made an application for a fishing boat licence which has been refused.
Applicant's submissions
The applicant summarised his submissions in a letter addressed to the Tribunal dated 9 March 2005. In that letter he made three statements:
"1. This is not a managed fishery
2. This is not an interim managed fishery
3.This is a development zone."
The applicant noted that other persons were given an endorsement or authorisation in the development zone. He states that he has sought an endorsement in the relevant fishery for over 30 years. He goes on to contend that prohibition notices were not acted upon.
Further, the applicant submits that:
"The catch as such is illegal catch if the prohibition notice was enforced.
If ignorance of the law is no defence at law it therefore follows that if a law is not enforced at law or does not work or be seen to work it is unenforceable at law.
I am not ignorant! I am aware that each and every day I go fishing I do so illegally in some way or other. For to comply with the Fisheries Act 1994/95 means that I would have to stay home and give commercial fishing away.
I am at present a party to the allocation of quota … South West Coast Purse Seine quota allocation.
Copies of the submissions from all parties are enclosed. I draw your attention to the submission by the Fremantle Association … This area is a development zone an endorsement in the SDA – has little value.
The submission by Cammfish Pty Ltd That the southern zone licence is a developmental licence only.
Reference can be made to Minister Grill['s] press release.
I have provided input to the department to have this area managed for over 30 years. To date we have had no management."
At the hearing, the applicant said that s 142(1)(c) is relevant, which provides (as set out earlier) that the Executive Director may vary an authorisation if it is necessary to give effect to the provisions of the FRMA.
The applicant also said that under the terms of an interim managed fishery it is possible to use a purse seine net to take fish, but that the zone in question here is a development fishing area that doesn't come under an interim management plan.
In addition, the applicant stated that he understood that due to a letter sent to him by the respondent, he qualified for a purse seine endorsement as he had a relevant catch history and had used a purse seine net to catch fish for 20 years.
The applicant referred to Fisheries Management Paper No. 6, "The King George Sound Purse Seine Fishery Working Group", Report by the Chairman Mr RS Brown to the then Minister for Fisheries, the Hon JF Grill. The applicant referred to a portion of the report under the heading "2. Summary of Recommendations" at par 2(c) which states:
"That all other areas along the Western Australian coast be defined by Notice as a development fishing area with access restricted to vessels having an appropriate licence endorsement to undertake purse seine fishing operations in that area (Figure 1)."
The applicant says that this shows that the relevant fishery is a development zone and has never been a managed fishery.
The applicant made no direct submissions relating to the jurisdiction of either the Executive Director to determine his application or of this Tribunal to determine his appeal.
Analysis
Mr Farrell's application
Before turning to the more substantial questions of law, it is important to clarify exactly what the applicant was seeking in his application.
The applicant in his application requested an endorsement, ostensibly using that word because that is the language used in Notice 312 itself. However, despite being couched in terms of a request for an endorsement, the applicant was effectively seeking the addition of a "permissive condition" to his FBLs in order to allow him to use a purse seine net, thus being a part of the group falling outside the scope of the prohibition in Notice 312. That this is the case is documented in a letter from counsel for the respondent to the former Fisheries Objection Tribunal, dated 8 November 2004.
In my opinion, it is irrelevant that the applicant made his application for the addition of a permission condition to his FBLs on a document entitled "Application for the Variation of an Authorization or Entitlement". No doubt this was simply the most convenient way for the applicant to make his application and for the respondent to receive it, given that the FRMA itself does not set out a scheme for the attainment of such an endorsement and that at the time the application was made it was clearly the belief of both the applicant and the Executive Director that this was the appropriate form for the applicant to use.
This understanding of the word endorsement (that is, as meaning a permissive condition that can be placed on a licence) accords with the definition of that term in the Australian Concise Oxford Dictionary, being "… something with which a document etc. is endorsed …".
It is also not inconsistent with the terms of Notice 312 itself. Notice 312 in fact refers to "a licensed fishing boat the licence for which is endorsed permitting it to be used to take fish by means of a purse seine net" (emphasis added). This unquestionably encompasses the placement of a permissive condition on an FBL.
I am therefore satisfied that in this case the word endorsement has been used to refer to and mean a permissive condition that may or may not be added to an FBL following an application by the fisherman in question.
Executive Director's jurisdiction to consider the application
I am prepared to accept the respondent's submission that following Geraldton Fisheries (supra) the appropriate question to ask in a case such as this, where jurisdiction is in issue, is:
Was the application of a kind which the Executive Director had jurisdiction under the legislation to entertain?
One of the respondent's main submissions is that there is no statutory procedure contemplated by the FRMA itself for a person to obtain the endorsement of a licence to permit the taking of fish by means of purse seine net and that, although the writing (being the endorsement) would need to be put on the particular licence to take a fisherman outside the scheme of the prohibition, the fishing boat licence scheme itself under the FRMA doesn't contemplate such an occurrence.
I accept this submission.
Notwithstanding this, there would be no problem answering the above question positively, in the usual course of administering the licensing system, had the applicant applied for a new FBL and on that application also requested the addition of a permissive condition allowing him to catch fish by using a purse seine net.
The question, though, is whether the Executive Director is bound as a matter of law to deal with the endorsement issue as part of the licencing decision.
Section 50(2)(b) of the Interpretation Act 1984 (WA) provides that where a written law confers power to grant a licence, such power includes "power to impose reasonable conditions subject to which such licence … may be granted". It may be contended that this power permits the affixing of an endorsement such as the one here sought by the applicant. When read with FRMR reg 118(1), which allows the Executive Director to grant a person a fishing boat licence, it is perhaps arguable that the Executive Director has jurisdiction to determine whether the endorsement – as a permissive condition – should be imposed on the licence at the same time as deciding whether to actually grant the person a licence.
However, this is not the case here and, even if it were, the question would remain whether a refusal to make the endorsement could be reviewed in this Tribunal.
Section 50(1) of the Interpretation Act provides that:
"Where a written law confers upon a person power to do … any act or thing, all such powers shall also be deemed to be conferred on the person as are reasonably necessary to enable him to do … the act or thing."
Section 50(2) of the Interpretation Act does not in any way limit the generality of s 50(1).
FRMR reg 118(1), which confers on the Executive Director the power to grant a person a fishing boat licence, confers a power to do "any act or thing". By reading s 50(1) of the Interpretation Act with reg 118(1), it may be contended that the power to grant a fishing boat licence also includes the power to regulate the use of that licence by the imposition of conditions on that licence, whether they be permissive or restrictive.
However, on closer consideration, I tend to the view that the respondent is right in submitting that, as much as the process of endorsing an FBL for the purposes of Notice 312 appears, at first glance, to be part of the reg 118 licensing process, it is in truth a separate regulatory procedure which helps control fishing activities under the FRMA. The power to grant or refuse the endorsement appears to be in the hands of the Minister, who made Notice 312.
This is because, as the respondent contends, an application for an endorsement for the purpose of Notice 312, does not involve an application to "vary" an authorisation under s 142 FRMA. There is nothing "in" the FBL that would be varied. The addition of an endorsement does not alter in any way the statutory incidents of an FBL.
Put shortly, a person may obtain an FBL under the FRMA. But while a notice such as Notice 312 is in place, persons holding FBLs are not able to use certain types of fishing practices. If a person who holds an FBL wishes use a purse seine net, they must obtain an endorsement to that effect on the FBL. If an endorsement is made, the FBL is not varied in any manner. All that occurs is that the Minister lifts the proscription on purse seine net fishing.
In this case, it was the Executive Director who refused the application for an endorsement, not the Minister. The Executive Director is only able to grant or refuse an endorsement if the Minister has delegated that power by virtue of s 12 of the FRMA. It is understood or assumed that in this instance such a delegation has occurred. However, even if such a delegation had not occurred, the final result would be no different. Without the appropriate delegation the Executive Director would have lacked jurisdiction to refuse the applicant an endorsement, meaning this Tribunal would also have lacked jurisdiction to review his decision.
Conclusion
For the above reasons, I conclude that:
(1)the Executive Director as the Minister's delegate or person otherwise authorised by the Minister to consider the applicant's application, had jurisdiction to consider the applicant's application; but
(2)this Tribunal has no jurisdiction to review the decision or recommendation to the Minister of the Executive Director.
Question of administrative justice
A question arises as to whether the operation of the FRMA in a case such as the present denies administrative justice to persons engaged in the fishing industry.
By its submissions, the respondent suggests that it does not, because the situation is analogous to that under s 7 of the FRMA. Under s 7 the Minister or Executive Director may, by instrument in writing, exempt a specified person or any specified class of persons from the provisions of this Act, but the decision not to grant an exemption is not subject to review by this Tribunal.
I am not entirely convinced that the exemption analogy is the correct one to make. It is usual with exemption provisions for there to be no right of review. However, a decision to refuse to grant an endorsement, or more generally a decision to refuse to relax a prohibition contained in a notice such as Notice 312, may well be considered one which should be subject to review as provided for in Pt 14 of the FRMA, in order that an adequate standard of administrative justice is provided to the industry. Indeed, the Executive Director, as explained in [9] above, at earlier material times seems to have assumed fishermen had the right under the FRMA to seek review. As a result of this decision however, fishermen like Mr Farrell are left in the position of being presented with a decision that they are unable to question.
It remains for the Minister and Parliament to consider whether there should be a right to review in such cases.
Order
The applicant's application should be refused.
I certify that this and the preceding 87 paragraphs are the reasons for decision of the State Administrative Tribunal.
Justice ML Barker, President
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