FULLARTON and MINISTER FOR FISHERIES - [2012] WASAT 81

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: FISHING AND RELATED INDUSTRIES COMPENSATION (MARINE RESERVES) ACT 1997 (WA)

CITATION: FULLARTON and MINISTER FOR FISHERIES [2012] WASAT 81

MEMBER: JUSTICE J A CHANEY (PRESIDENT)

HEARD: 15 DECEMBER 2011

DELIVERED : 30 APRIL 2012

FILE NO/S: DR 306 of 2010
DR 311 of 2010

BETWEEN: PETER FULLARTON
ANTHONY FRANK JAMES BUTCHER
Applicants
AND
MINISTER FOR FISHERIES
Respondent

Catchwords:

Fisheries - Compensation - Events that cause an entitlement to compensation - Reservation for marine park - Classification of areas within marine park - Inconsistency between management plan and legislative provisions

Legislation:

Acts Amendment (Marine Reserves) Act 1997 (WA)
Conservation and Land Management Act 1984 (WA), s 13, s 13(1), s 13(6), s 13A, s 13B, s 13B(2), s 13B(6), s 13C, s 13D, s 13D(1), s 13D(2), s 13E, s 13F, s 14, Pt V, Div 1, s 62, s 62(1a)(b), s 62(1b)
Fish Resources Management Act 1994 (WA), s 43, s 136A, s 143
Fishing and Related Industries Compensation (Marine Reserves) Act 1997 (WA), s 3, s 4, s 4(b), s 4(c), s 4(d), s 5, s 5(2), s 5(2)(e), s 7

Result:

Preliminary questions answered

Category: B

Representation:

Counsel:

Applicants: Self represented
Respondent: Ms C Ide

Solicitors:

Applicants: N/A
Respondent: State Solicitor's Office

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicants are the holders of authorisations under the Fish Resources Management Act 1994 (WA). They brought proceedings in the Tribunal for compensation under the Fishing and Related Industries Compensation (Marine Reserves) Act1997 (WA). Preliminary issues were identified as to whether or not the applicants qualified for compensation under the relevant statutory provisions. The preliminary issues were, in essence, whether:
(a)The reservation of waters as a marine park or marine management area under s 13 of the Conservation and Land Management Act 1984 (WA) and the coming into effect of a management plan made under Pt V of the Conservation and Land Management Act can cause an entitlement to compensation under the Fishing and Related Industries Compensation (Marine Reserves) Act 1997;
(b)The classification of areas as 'general use' areas within particular marine parks and marine management areas under s 62(1a)(b) of the Conservation and Land Management Act 1984 can cause an entitlement to compensation under the Fishing and Related Industries Compensation (Marine Reserves) Act 1997; and
(c)An instrument made under s 43 of the Fish Resources Management Act 1994 which prohibits, within the general use area, certain types of commercial fishing of the type that the holder of the authorisation carries out can cause an entitlement to compensation under the Fishing and Related Industries Compensation (Marine Reserves) Act 1997.
The Tribunal examined the relevant legislative provisions and the proper construction of s4(b) of the Fishing and Related Industries Compensation (Marine Reserves) Act 1997. It concluded that an entitlement to compensation could arise where there was a reservation as a marine park and a management plan prevented fishing under an authorisation in an area classified as a general use area. It concluded that no entitlement to compensation arose where the reservation was of a marine management area, and that making of an order under s43 of the Fish Resources Management Act 1994 did not, of itself, cause an entitlement to compensation to arise.

Introduction

Mr Anthony Butcher is, and was at all material times, a holder of a Marine Aquarium Managed Fisheries Licence (MarineAquariumMFL) granted under the Fish Resources Management Act 1994 (WA). He has held that licence since September 1996.
Mr Peter Fullarton held a Marine Aquarium MFL from 30 July 1986 until 18 November 2011 at which date he transferred it to another person.
On 18 August 2010 and 20 August 2010, Mr Butcher and Mr Fullarton respectively, made a claim for compensation under the Fishing and Related Industries Compensation (Marine Reserves) Act 1997 (WA) (FRIC Act). The claim for compensation related to, amongst other things, restrictions on fishing imposed in a number of marine reserves.
On 20 September 2010, the Minister for Fisheries, the respondent in these proceedings, advised both applicants that he did not consider that either was entitled to compensation under the FRIC Act. Proceedings were subsequently commenced by each applicant in the Tribunal seeking a review of that decision. Those proceedings led to a reconsideration of the position by the Minister, and on 1 June 2011, the Minister advised both Mr Fullarton and Mr Butcher that he considered that they were entitled to compensation under the FRIC Act in respect to certain classifications of waters within certain reserves. The Minister did not, however, accept that there was an entitlement to compensation in relation to various instruments made in relation to three areas of offshore waters, being:
a)Jurien Bay Marine Park;
b)Montebello Islands Marine Park;
c)Barrow Island Marine Management Area
In view of that determination, the parties referred several questions to the Tribunal for determination as a preliminary issue. Those questions essentially concern whether certain instruments trigger a right to compensation under the FRIC Act.
The issues as expressed by the parties were as follows:
Questions common to the Montebello Area and the Jurien Area
A. Can an entitlement to compensation arise under the FRIC Act where a person holds an authorisation and:
(1)Waters are reserved as a marine park under s.13 of the Conservation and Land Management Act 1994 (WA) ('the CALM Act'); and
(2)A management plan made under Part V of the CALM Act identifies an area of waters in the marine park which was intended to be classified (zoned) as 'general use' under s.62(la)(b) of the CALM Act, and also in which commercial fishing of the type done by the holder of the authorisation is not permitted?
B.Can an entitlement to compensation arise under the FRIC Act where a person holds an authorisation and:
(1)Waters are reserved as a marine park under s.13 of the CALM Act;
(2)A management plan made under Part V of the CALM Act identifies an area of waters in the marine park which was intended to be classified (zoned) as 'general use' under s.62(la)(b) of the CALM Act, and also in which commercial fishing of the type done by the holder of the authorisation is not permitted; and
(3)The area of waters identified in the management plan is classified as a 'general use area' by a notice made under s.62 of the CALM Act?
Further question specific to the Montebello Area
C.Can an entitlement to compensation arise under the FRIC Act where a person holds an authorisation and:

(1) Waters are reserved as a marine park under s.13 of the CALM Act;
(2)A management plan made under Part V of the CALM Act identifies an area of waters in the marine park which was intended to be classified (zoned) as 'general use' under s.62(la)(b) of the CALM Act, and also in which commercial fishing of the type done by the holder of the authorisation is not permitted;
(3)The area of waters identified in the management plan is classified as a 'general use area' by a notice made under s.62 of the CALM Act; and
(4)An instrument made under s.43 of the FRM Act prohibits, within the general use area, certain types of commercial fishing of the type that the holder of the authorisation carries out?

Questions specific to the Barrow Area
D.Can an entitlement to compensation arise under the FRIC Act where a person holds an authorisation and:
(1)Waters are reserved as a marine management area under s.13 of the CALM Act;
(2)A management plan made under Part V of the CALM Act states that commercial fishing of the type done by the holder of the authorisation is not permitted anywhere in the marine management area; and
(3)The management plan also states specifically that commercial fishing of the type done by the holder of the authorisation is not permitted anywhere in an area intended to be classified (zoned) under s.62(lb) of the CALM Act as a Conservation Area?

E.Can an entitlement to compensation arise under the FRIC Act where a person holds an authorisation and:
(1)Waters are reserved as a marine management area under s.13 of the CALM Act;
(2)A management plan made under Part V of the CALM Act states that commercial fishing of the type done by the holder of the authorisation is not permitted anywhere in the marine management area;
(3)The management plan also states specifically that commercial fishing of the type done by the holder of the authorisation is not permitted anywhere in an area intended to be classified (zoned) under s.62(lb) of the CALM Act as a Conservation Area; and
(4)A notice made by the Minister for Environment is published in the Government Gazette stating that a portion of the waters is classified as a Conservation Area?

F.Can an entitlement to compensation arise under the FRlC Act where a person holds an authorisation and:
(1)Waters are reserved as a marine management area under s.13 of the CALM Act;
(2)A management plan made under Part V of the CALM Act states that commercial fishing of the type done by the holder of the authorisation is not permitted anywhere in the marine management area;
(3)The management plan also states specifically that commercial fishing of the type done by the holder of the authorisation is not permitted anywhere in an area intended to be classified (zoned) under s.62(lb) of the CALM Act as a Conservation Area;
(4)A notice made by the Minister for Environment is published in the Government Gazette stating that a portion of the waters is classified as a Conservation Area; and
(5)An instrument made under s.43 of the FRM Act prohibits, within the marine management area, certain types of commercial fishing of the type that the holder of the authorisation carries out?

Regulation of marine reserves

Section 13 of the Conservation Land Management Act 1984 (WA) (CALM Act) enables the Governor, by order, to reserve any part of Western Australian waters as a marine nature reserve, a marine park or, a marine management area. Section 13A sets out the purpose of a marine nature reserve, and provides that, subject to s 13D, aquaculture, commercial fishing, recreational fishing and pearling activity shall not be carried out in a marine nature reserve.
Section 13B of the CALM Act outlines the purpose of marine parks, that being the purpose of allowing only that level of recreational and commercial activity which is consistent with the proper conservation and restoration of various environmental, archaeological, historical or scientific attributes of the area.
Section 13B(2) of the CALM Act provides:
(2)As soon as practicable after the reservation of a marine park the Minister shall classify the park under section 62, or divide the park into areas and classify each area under section 62, as
(a)a general use area;
(b)a sanctuary area;
(c)a recreation area; or
(d)a special purpose area,
in accordance with a proposal for the classification publicly notified in accordance with section 14, modified as the Minister thinks fit to give effect to submissions made under section 14.
Rights to carry out commercial fishing in an area of a marine park is covered by s 13B(6) which provides:
(6)Subject to section 13D, commercial fishing shall not be carried out in any area of a marine park which is classified under section 62 as
(a)a sanctuary area;
(b)a recreation area; or
(c)a special purpose area which, or that part of such an area which, the Minister has declared in the classification notice to be an area where commercial fishing would be incompatible with a conservation purpose specified in the classification notice,
but commercial fishing may be carried out, in accordance with an authorisation issued under the Fish Resources Management Act 1994, in any other area of the marine park.
Section 62 of the CALM Act provides the power to the Minister to classify land or waters in a marine park for any of the four purposes referred to in s 13B(2).
It can be seen that commercial fishing pursuant to an authorisation issued under the Fish Resources Management Act 1994 (WA) (FRM Act) is permitted within a marine park in areas other than areas classified as a sanctuary area, recreation area or a special purpose area where commercial fishing would be incompatible with the conservation purpose of the area. It is an important aspect of the Minister's argument in this case that s 13B(6) has the effect of permitting commercial fishing within a general purpose area where that commercial fishing is duly authorised by an authorisation under the FRM Act.
Section 13C of the CALM Act deals with marine management areas. Preservation of a marine management area is for the purpose of managing and protecting the marine environments so that it may be used for conservation, recreational, scientific and commercial purposes s 13C(1). Section 13C(3) provides (relevantly for present purposes) that commercial fishing may be carried out in accordance with the FRM Act in a marine management area. By s 13C(4) of the CALM Act, any conflict or inconsistency between the management and protection purpose specified in s 13C(1) and an activity authorised by the FRM Act that relates to commercial fishing has to be resolved on the basis that the authority under the FRM Act prevails.
Section 13D(1) and (2) provide:
Preservation of certain licences and other instruments relating to fishing and pearling
(1)Sections 13A and 13B do not affect the validity of an authorisation under the Fish Resources Management Act 1994 or a licence or permit under the Pearling Act 1990 
(a)which was issued or renewed before the commencement of section 10 of the Acts Amendment (Marine Reserves) Act 1997; or
(b)which authorises activity in relation to an area affected, after the issue or renewal of the authorisation, by a reservation under section 13 or by a notice under section 62.
(2)Sections 13A and 13B do not prohibit activities authorised in an area by an authorisation, licence or permit to which subsection (1) applies.

Restrictions on fishing under the FRM Act

Section 43 of the FRM Act empowers the Minister for Fisheries, by order published in the Government Gazette, to prohibit persons or any specified class of persons from engaging in any fishing activity of a specified class. That section makes it an offence to contravene provisions of such an order.

Compensation under the FRIC Act

As already noted, the applicant's claim for compensation the subject of these proceedings, is a claim made pursuant to the FRIC Act. That Act, by s 4 and s 5, identifies events which can trigger an entitlement to compensation and identifies who might be entitled to compensation under the FRIC Act. Section 4 and s 5 provide as follows:
4.Events that can give rise to compensation
The following events can cause an entitlement to compensation under this Act to arise
(a)the coming into operation of section 10 of the Acts Amendment (Marine Reserves) Act 1997;
(b)the coming into operation of an order under section 13(1) of the CALM Act constituting or adding to a marine nature reserve or marine park;
(c)the coming into operation under Division 1 of Part V of the CALM Act of
(i)an amendment to a management plan; or
(ii)a substituted management plan,
so that the renewal of an authorisation would no longer be consistent with a management plan;
(d)the classification of an area of a marine park by notice under section 62 of the CALM Act as
(i)a sanctuary area;
(ii)a recreation area; or
(iii)a special purpose area which, or that part of a special purpose area which, the CALM Minister has declared in the notice to be an area where a commercial activity specified in the notice would be incompatible with a conservation purpose specified in the notice.
5.Compensation for loss suffered
(1)A person who holds an authorisation is entitled to fair compensation for any loss suffered by the person as a result of a relevant event.
(2)For the purposes of subsection (1) a person suffers loss if and only if the market value of the authorisation held by the person is reduced because
(a)the authorisation will not be able to be renewed;
(b)the authorisation relates to an area and will only be able to be renewed in respect of a part of that area;
(c)the authorisation relates to an area and will only be able to be renewed in respect of another area;
(d)the authorisation relates to an area and will not be able to be renewed in relation to that area without the recommendations of the CALM Minister being taken into account under section 94(3)(d) or 98A(2)(d) of the Fish Resources Management Act 1994 or section 27A(2)(d) or 27B(2)(d) of the Pearling Act 1990;
(e)an area will not be available for commercial fishing after the renewal of the authorisation; or
(f)in the case of a fishing boat licence or a fish processor’s licence, an area used for fishing under one or more associated or relevant commercial fishing licences, managed fishery licences or interim managed fishery permits (the related authorisations) will not be available for commercial fishing after the renewal of the related authorisations.
(3)For the purposes of subsection (1) the amount of any loss suffered by a person is limited to the amount of the reduction in market value referred to in subsection (2) and in determining
(a)whether any such reduction has occurred; and
(b)the amount of any such reduction,
account is to be taken of whether such a reduction has been offset or mitigated by an increase in the market value of the authorisation as a result of a voluntary or compulsory fisheries adjustment scheme established under the Fisheries Adjustment Schemes Act 1987 because of the relevant event.
(4)If the transfer of an authorisation is liable to be refused under section 140(2)(b) of the Fish Resources Management Act 1994, the market value of the authorisation is to be assessed, for the purposes of this section, as if the authorisation were fully transferable.
(5)Subsection (2)(e) does not apply to a person unless the person obtains a certificate from the CEO stating that, in the CEO’s opinion, the history of the authorisation shows that the area has been fished under the authorisation on a long term and consistent basis.
(6)Subsection (2)(f) does not apply to a person unless the person obtains a certificate from the CEO stating that, in the CEO’s opinion, the histories of the related authorisations show that the area has been fished under those authorisations on a long term and consistent basis.
(7)In the event of the CEO not issuing a certificate under subsection (5) or (6) within the prescribed time after being asked by a person to do so, the person may apply to the Minister to have the matter reviewed.
(8)If the Minister receives an application under subsection (7), the Minister is to direct the CEO to review the matter within the time specified in the direction.
(9)The CEO must, within the time specified in the direction
(a)review the matter; and
(b)either issue a certificate to the applicant under subsection (5) or (6) (whichever is applicable) or advise the applicant in writing of the reasons for not doing so.

The reservations

The claims for compensation in each of these two matters relate to the reservation of the Jurien Bay Marine Park, the Montebello Islands Marine Park and the Barrow Island Marine Park and Marine Management Area. The circumstances giving rise to those reservations were the subject of an agreed statement of facts prepared by the parties for the purposes of these proceedings. It is convenient to set out the relevant agreed facts explaining the process undertaken in relation to each marine park which was as follows:
Jurien Bay Marine Park
24.The Jurien Bay Marine Park Order 2003 published in the Western Australian Government Gazette ("the Gazette") of 26 August 2003 reserved an area of waters as a marine park to be known as the Jurien Bay Marine Park. This marine park is situated on the west coast of WA approximately 200 km north of Perth.
25.On 1 July 2005 the Minister for Environment published in the Gazette a notice under s 60 of the CALM Act that the Jurien Bay Marine Park Management Plan had been approved. Pursuant to clause 8.1.2 of the management plan, the park was zoned sanctuary, special purpose, and general use. The uses permitted within each zone are set out at Table 2 of the management plan (page 57). Within the general use zone, commercial aquarium collecting is permitted but the collection of 'live' rock and sand and coral is not at all in the park. Commercial aquarium collecting is not permitted in the sanctuary zone, and in all but one of the special use zones.
26.The Jurien Bay Marine Park (Classified Waters) Notice 2005 was published in the Gazette on 21 October 2005. This Notice classified certain waters as sanctuary, special purpose and general use under s 62(1a) of the CALM Act.
27.On 23 December 2005, the Prohibition on Commercial Fishing (Jurien Bay Marine Park) Order 2005 was published in the Gazette. The order was made under s 43 of the FRMA. The order prohibited certain fishing in the waters classified as ‘Special purpose Puerulus Monitoring Area’ and ‘Sanctuary’ under the order. This Order did not prohibit commercial fishing in the general use area of the marine park.
Montebello Islands Marine Park
28.The Montebello Islands Marine Park Order 2004 published in the Gazette on 10 December 2004 reserved an area of waters as a marine park to be known as the Montebello Islands Marine Park. This marine park is situated approximately 1,600 km north of Perth and west of Dampier.
29.On 10 April 2007 the Minister for Environment published in the Gazette a notice under s 60 of the CALM Act that the Management Plan for the Montebello/Barrow Islands Marine Conservation Reserves had been approved. Pursuant to clause 7.1.2 of the management plan, all the waters of Montebello Islands that were not zoned as sanctuary, recreation or special purpose zone were to be zoned as general use. The uses permitted in each zone are set out at Table 2 of the management plan (page 21). The management plan provided that commercial aquarium collecting was permitted in the general use zone but commercial collection of coral, 'live' sand and 'live' rock was not.
30.The Montebello Islands Marine Park (Classified Waters) Notice 2007 was published in the Gazette on 29 June 2007. This Notice classified certain waters as sanctuary, recreation, special purpose and general use under s 62(1a) of the CALM Act.
31.On 27 June 2008 the Prohibition on Commercial Fishing (Barrow Island Marine Park and Montebello Islands Marine Park) Order 2008 was published in the Gazette. The order was made under s 43 of the FRMA. The order prohibited commercial fishing in the waters of Barrow Island Marine Park, as all of the waters of the marine park were classified as a sanctuary area. The order prohibited commercial fishing in the waters of the Montebello Islands marine park, subject to certain express exceptions for certain activities in the General Use Zones (namely fishing for marine aquarium fish under a Marine Aquarium MFL) and certain activities (irrelevant to this application for review) in certain Special Purpose zones.
32.One effect of the Prohibition on Commercial Fishing (Barrow Island Marine Park and Montebello Islands Marine Park) Order 2008 was that the commercial fishing of coral, live rock and live sand were prohibited from all the waters of the Montebello Islands Marine Park. This prohibition affected the Applicants.
33.On 29 November 2011, the Prohibition on Recreational Fishing (Barrow Island Marine Park and Montebello Islands Marine Park) Amendment Order 2011 was published in the Gazette. The order was made under s 43 of the FRMA. The amendment order amended the Prohibition on Commercial Fishing (Barrow Island Marine Park and Montebello Islands Marine Park) Order 2008 and relevantly provided that the general exclusion on commercial fishing in the Montebello Islands Marine Park was revoked and replaced with a prohibition on commercial fishing in Sanctuary or Recreation Zones. Accordingly, there is nothing to preclude commercial fishing in all areas of the Montebello Islands Marine Park (including the taking of marine aquarium fish, coral, live rock and live sand), save in the Sanctuary or Recreation Zones of the Montebello Islands Marine Park.
Barrow Island Marine Park and Marine Management Area
34.The Barrow Island Marine Reserves Order 2004 published in the Gazette of 10 December 2004 effected two reservations: firstly, an area of waters as a marine park with the name Barrow Island Marine park, and secondly an area of waters as a marine management area with the name Barrow Island Marine Management Area. Each of these reservations was made under s 13(1) and (4) of the CALM Act.
35.On 10 April 2007 the Minister for Environment published in the Gazette a notice under s 60 of the CALM Act that the Management Plan for the Montebello/Barrow Islands Marine Conservation Reserves had been approved. Pursuant to clause 7.1.3 of the management plan, all of the Barrow Island Marine Park was zoned as a sanctuary zone. No commercial aquarium collecting or commercial collection of coral, 'live' sand or 'live' rock' is permitted in the sanctuary zone (see Table 2 on page 21 of the management plan) in the Marine Park. The Barrow Island Marine Management Area was zoned as partly conservation area (covering 1% of the marine management area), with the balance of the area unzoned. No commercial collection of coral, 'live' sand or 'live' rock' is permitted in the conservation area or unzoned area of the Marine Management Area and commercial aquarium collecting was permitted in the unzoned areas but not in the conservation area of the Marine Management Area.
36.The Barrow Island Marine Park (Classified Waters) Notice 2007 was published in the Gazette on 29 June 2007. This Notice classified the entire marine park as a sanctuary area under s 62(1a) of the CALM Act. This classification had an impact on the Applicants' ability to fish in the Barrow Island Marine Park and that it is a compensable event under the FRIC Act.
37.The Barrow Island Marine Management Area (Classified Waters) Notice 2007 was published in the Gazette on 29 June 2007. The Notice classified an area of waters as a conservation area.
38.On 27 June 2008 the Prohibition on Commercial Fishing (Barrow Island Marine Park and Montebello Islands Marine Park) Order 2008 was published in the Gazette. The order was made under s 43 of the FRMA. The order relevantly prohibited commercial fishing within the Barrow Islands Marine Park.
39.On 27 June 2008 the Prohibition on Commercial Fishing (Barrow Island Marine Management Area) Order 2008 was published in the Gazette. The order was made under s 43 of the FRMA. The order prohibited commercial fishing in the Bandicoot Bay Conservation Area and prohibited fishing for live rock and live sand in the waters of the marine management area (but not coral live Anthozoa and Hydrozoa). This prohibition impacted upon the activities of the Applicants.
40.The prohibition on commercial fishing within the Barrow Islands Marine Park has not been revoked. The Prohibition on Commercial Fishing (Barrow Island Marine Park and Montebello Islands Marine Park) Amendment Order 2011 made on 29 November 2011 did not materially affect Barrow Islands Marine Park.
41.On 29 November 2011, the Prohibition on Commercial Fishing (Barrow Islands Marine Management Act) Revocation Order 2011 was published in the Gazette. The revocation order revoked the Prohibition on Commercial Fishing (Barrow Island Marine Management Area) Order 2008. Accordingly, there is now no prohibition on commercial fishing for live rock and live sand in the waters of the marine management area.

Questions A and B - Reservation as marine park, classifying an area as general use and the coming into effect of a management plan

Section 4 of the FRIC Act identifies events which 'can' cause an entitlement to compensation under the Act. The entitlement to compensation arises, on the happening of one of the events listed in s 4, where a person suffers a loss of the type described in s 5 of the FRIC Act. That is made clear by s 7 of the FRIC Act which enables an 'affected person' to apply for compensation, and s 3 which defines an 'affected person' as a person 'who suffers loss as referred to section 5'.
There is no dispute in this case that reservation of the relevant marine parks has occurred (see agreed facts 24, 28 and 34).
The respondent notes that s 5(2) of the FRIC Act provides that the holder of an authorisation suffers loss only if the market value of the authorisation is reduced as a result of the occurrence of any of the consequences listed in s 5(2)(a) to (f). He argues that the reservation in each of the three cases did not impact on the applicants' authorisation in any of the senses listed in s 5(2).
The compensable consequences which affect the market value of an authorisation are focussed on the effect on this authorisation when it falls for renewal.
Section 136A of the FRM Act deals with the grant or renewal of authorisations over areas in marine reserves. That section provides:
136A. Marine reserves, grant and renewal of authorisations for areas in
(1)An authorisation must not be issued or renewed if it would authorise a person to engage in commercial fishing in -
(a)an area of a marine nature reserve; or
(b)an area of a marine park from which commercial fishing is excluded under section 13B of the Conservation and Land Management Act 1984.
…
(3)This section does not affect the validity of -
(a)a licence issued or renewed before the commencement of section 56 of the Acts Amendment (Marine Reserves) Act 1997 ¹; or
(b)a licence issued or renewed in relation to an area which is affected, after the issue or renewal of the licence, by a reservation under section 13 of the Conservation and Land Management Act 1984, or by a notice under section 62 of that Act.
(4)If an authorisation relates to a particular area (the authorised area) and a part of the authorised area becomes -
(a)an area of a marine nature reserve; or
(b)an area of a marine park from which commercial fishing is excluded under section 13B of the Conservation and Land Management Act 1984,
nothing in this section prevents the authorisation from being renewed in respect of the remainder of the authorised area.
It follows that, until there is a classification of areas pursuant to s 13B(2) of the CALM Act, and possibly until a management plan has been approved, the impact on a commercial fishing authorisation under the FRM Act resulting from the reservation of a marine park cannot be ascertained. The instruments which provided for the reservation of the relevant marine parks in this case did not simultaneously classify the areas within the marine parks for the purposes of s 13B(2). It thus cannot be said, at the point of reservation, whether a commercial fishing authorisation is capable of renewal, either in respect of an area of the marine park or at all, or whether s 136A of the FRM Act might preclude or otherwise impact on its renewal.
The applicants argue that the coming into operation of an order under s 13(1) of the CALM Act is merely a step in a continuing process. They note that, by virtue of s 14 of the CALM Act, notification of a proposal to make an order under s 13(1) must be widely published in the manner set out in s 14(2). They note that s 14(2)(c) requires the Minister to cause an indicative management plan for the proposed reserve, park or management area to be prepared and issued. Section 14(7) provides that, where an indicative management plan was issued under subsection (2c), the Minister may approve the plan with or without modifications to give effect to submissions made following publication of the proposed plan. Accordingly, the applicants argue that the entire process under s 14 of the CALM Act of public consultation, indicative management plans, and approval of management plans (with the associated permitted use tables detailing the prohibitions on fishing in general purpose zones of the marine parks and management areas), are all part of the 'relevant event' for purposes of s 4(b) of the FRIC Act. They argue that when a management plan comes into effect and can (as it appears to in this case) lead to an order under s 43 of the FRM Act to prohibit commercial fishing in accordance with the use tables in an approved management plan. All of this, the applicants argue, flows from the coming into operation of the order under s 13(1) of the CALM Act.
In substance, the applicants' argument is that the expression 'coming into operation' in s 4(b) of the FRIC Act should be construed broadly so as to encompass not just the coming into effect of the order declaring the area a marine park, but also the taking of steps which give content to the type of protection afforded within a marine park, and in particular, the obligatory classification of areas and the preparation and adoption of a management plan pursuant to Pt V, Div 1 of the CALM Act.
Analysis of s 4 of the FRIC Act gives force to the proposition that s 4(b) should be construed broadly. The classification of areas within a marine park, and the adoption of a management plan, are obligatory requirements which follow from the making of an order reserving an area as a marine park. Until those steps are taken, the effect on the operation of an authorisation for commercial fishing within the marine park remains uncertain. It is difficult, in those circumstances, to see how any of the qualifications for loss described in s 5(2) of the FRIC Act could be said to exist simply by reason of gazettal of the order.
Section 4 makes no reference to an entitlement to compensation arising as a result of the initial adoption of a management plan. Section 4(c) provides for an entitlement to compensation to arise where a management plan is amended, or substituted for an existing management plan, with the result that the authorisation would no longer be consistent with the management plan. In this case, the management plan for each of the Marine Parks specifically prohibits the collection of live rock and sand and coral within the general use zone of the Park. It follows that the applicants' authorisation would be inconsistent with the management plan. It seems absurd that an entitlement to compensation should arise where an amendment to a management plan adversely affects an authorisation, but the original making of the management plan which adversely affects the value of an authorisation does not give rise to an entitlement to compensation. That absurdity is avoided if the making of the management plan is considered part of the coming into operation of the order under s 13(1) of the CALM Act for the purposes of s 4(b) of the FRIC Act.
Some support for that construction can be found in the second reading speech by the Hon EJ Charlton in relation to the FRIC Act when he said:
If a proposed management plan has the potential to give rise to claims for compensation, the Minister will also be seeking similar commitments on the availability of funds for compensation that may be necessary as a result of commencement of a management plan.
(Hansard, 10 June 1997, page 3561)
On that construction of s 4(b), s 4(c) would still have work to do because later amendment or substitution of the management plan is a discreet additional step which can be taken well after the obligatory requirement for the adoption of a management plan is undertaken following the gazettal of a marine park area. The more difficult question is whether s 4(d) of the FRIC Act would be rendered otiose if s 4(b) is construed so as to include the obligatory steps which must be taken after gazettal of a marine park area. Section 62 of the CALM Act provides not only for the classification of areas within reserves, but also provides that the Minister 'may in like manner amend or cancel a notice previously so published' - see for example s 62(1b). It is, therefore, possible that classification of an area by way of amendment might convert an area from a general use area to a sanctuary area with the consequence that s 13B of the CALM Act would prohibit commercial fishing thereby preventing renewal of an authorisation in respect of the area. It follows that the broad construction of s 4(b) would not, in all circumstances, render s 4(d) unnecessary or otiose.
I am mindful that there can be no doubt that the reservation of a marine park becomes effective upon publication of the order in the gazette. That is clear from the provisions of s 13 of the CALM Act. That section requires the Minister to lay a copy of the order before each House of Parliament within six sitting days following publication of the order. Section 13(6) of the CALM Act provides that where such a resolution is passed, 'the order thereupon ceases to have effect'. Clearly, up until that point, the order does have effect. Were s 4(b) of the FRIC Act to specify that an entitlement to compensation under the Act arises upon 'the coming into effect of an order', my view of the section would be different. The choice of the expression 'coming into operation' seems to me to lend itself to the broader construction of the section for which the applicants contend.
In the alternative, the respondent argues that, if the coming into effect of a management plan can, of itself, satisfy a requirement of s 4 of the FRIC Act, it does not result in a consequence of the type described in s 5. He argues that the operation of s 13B(6) (in relation to marine parks) and s 13C (in relation to marine management areas) of the CALM Act results in the conclusion that it is not the coming into operation of a management plan which precludes commercial fishing pursuant to an authorisation, but rather the classification and the consequences expressed in s 13B(6) or s 13C(3) - (6) of the CALM Act.
The applicants note that, in both the Jurien Bay Marine Park management plan, and the management plan for the Montebello Islands / Barrows Islands Marine Conservation Reserves, the use tables specify that, in the general use zone, the collection of live rock, sand and coral is not permitted. The collection of those materials falls within the applicants' authorisations under the FRM Act. The applicants contend, therefore, that the management plan imposes a prohibition on fishing which results in a reduction in the market value of their authorisations.
The respondent acknowledges that, on the face of the management plans, the applicants' rights under their authorisations are affected. He submits, however, that s 13B(6) of the CALM Act, which provides that commercial fishing may be carried out in accordance with an authorisation under the FRM Act in general use zones, prevails over the provisions of the management plan, so that the applicants are not in fact precluded from collecting those materials.

I do not accept that the assessment of any entitlement to compensation under the FRIC Act should proceed on the basis that the section of the land use table in the relevant management plans which prohibits live rock and sand collection is invalid and of no effect. It is entirely reasonable to assume that the question of renewal of the authorisation will proceed in accordance with the published instruments relating to the area concerned. Accordingly, the question of the applicants' entitlement to compensation should proceed on the assumption that the relevant management plans have effect in accordance with their terms. As already noted, compensation is only claimable by somebody who suffers loss in the sense described in s 5(2) of the FRIC Act.
Mr Butcher is a holder of a Marine Aquarium MFL No 2576. Mr Fullarton held a Marine Aquarium MFL No 2571 until he transferred it to another party on 18 November 2011. They had each held their Marine Aquarium MFLs since about 1996. The Marine Aquarium MFL authorised fishing for marine aquarium fish under the Marine Aquarium Fishery Management Plan 1995.
The use table applicable to the Jurien Bay Marine Park and each of the Montebello Islands Marine Park and Barrow Island Marine Management Area permits commercial aquarium collecting within the general use zone, although in each case the commercial collection of coral, live sand and live rock is not permitted. It follows that there is nothing in the management plan which would prevent the renewal of the Marine Aquarium MFLs, but, assuming the management plans to be effective, an aspect of activity undertaken under the Marine Aquarium MFLs, namely the collection of live rock and sand would no longer be permitted pursuant to those Marine Aquarium MFLs.
In those circumstances, only para (e) of s 5(2) of the FRIC Act could possibly apply. That paragraph deals with loss of market value because an area will not be available for commercial fishing after renewal of the authorisation. It is clear that, in the marine parks here under consideration that the general purpose areas will be available for commercial fishing generally under the Marine Aquarium MFLs after renewal of the authorisation, but will not be available for an aspect of commercial fishing which, prior to publication of the relevant management plans, was permitted in the area under those authorisations.
The proscription against renewal found in s 136A of the FRM Act would not apply in those circumstances. That is because the prohibition of taking live sand and rock in a general purpose zone is not an exclusion under s 13B of the CALM Act. Rather it is an exclusion found in the management plans. The basis on which the CEO may refuse to renew an authorisation are contained in s 143 of the FRM Act. Nothing in that section would prevent renewal of the applicants' authorisations. The renewal authorisations would, however, be inconsistent with the requirements of the relevant management plans, unless conditions on the authorisations were altered to reflect the requirements of the management plans.
In my view, s 5(2)(e) should be construed so as to provide for recovery of a relevant loss arising because commercial fishing of a type permissible under an authorisation ceases, on renewal of the authorisation, to become available, notwithstanding that other forms of commercial fishing remain possible in the area under the authorisation. That construction is consistent with the object and purpose of the FRIC Act, which is clearly designed to provide for payment of compensation to holders of authorisations which are affected by marine nature reserves and marine parks constituted under the CALM Act. If it can be established that restrictions flow from the creation of reserves or parks by preventing full utilisation of the authorisation and result in a reduction of the value of the authorisation, an entitlement to compensation is consistent with the object and purpose of the FRM Act.
It follows that the answer to questions A and B is yes.

Question C

Question C adds an additional element to the events considered in relation to question B. The additional element is an instrument under s 43 of the FRM Act which prohibits certain types of commercial fishing of the type that the holder of the authorisation carries out. An order under s 43 of the FRM Act is an order made by the Minister for Fisheries, being the Minister responsible for administration of that Act. That is a different Minister from the Minister responsible for the CALM Act. Nothing in s 4 of the FRIC Act contemplates that the making of an order under s 43 of the FRM Act might cause an entitlement to compensation under the FRIC Act to arise. An order under s 43 of the FRM Act is not a necessary consequence of the coming into operation of an order under s 13(1) of the CALM Act.
It follows, that in my view, the making of an order under s 43 of the FRM Act does not separately create an entitlement to compensation if one has not already arisen by reason of the events referred to paragraphs (1), (2) and (3) of question C.

Question D, E and F - reservation as marine management area and the coming into effect of a management plan prohibiting commercial fishing of the relevant type

Section 4(b) of the FRIC Act refers to an order 'constituting or adding to a marine nature reserve or marine park'. It makes no reference to a 'marine management area'. On the face of the section, therefore, an order which constitutes a marine management area does not give rise to an entitlement to compensation under the FRIC Act.
The applicants argue that s 4(b) should be read so as to include any order under s 13(1) of the CALM Act, including an order reserving an area as a marine management area. They point out that prior to the amendments to s 13 introduced by the Acts Amendment (Marine Reserves) Act 1997 (WA), s 13 provided only for the reservation of waters as either a marine nature reserve or a marine park. The Acts Amendment (Marine Reserves) Act 1997 added marine management area as a form of reserve, and introduced sections 13A, 13B, 13C, 13D, 13E and 13F. In the second reading speech for the FRIC Act, the Minister of Fisheries described the FRIC Act as 'new legislation to complement the Acts Amendment (Marine Reserves) Bill'.
The applicants argue that the failure to include a reference to reservation as a marine management area in s 4(b) of the FRIC Act was an oversight, or alternatively that s 4(b) should be construed so as to include any order under s 13(1) of the CALM Act. They attach to their submissions correspondence in December 2007 and February 2008 in relation to a claim for compensation by Mr Fullarton in relation to the Ningaloo Marine Park where the then Minister for Fisheries stated that:
… the events associated with marine park management areas are not 'relevant events' under the [FRIC Act]. However, in recognition that the impacts of marine management areas can be the same as other marine conservation areas, government has committed to amending that Act to extend its compensation provisions to include marine management areas.
It is apparent that the then government proceeded to treat the claim for compensation as though reservation as a marine management area were a compensable event, notwithstanding its view that reservation as a marine management area was not covered by s 4 of the FRIC Act.
It may well have been a drafting error that marine management areas were not included as events which could cause an entitlement to compensation under the FRIC Act. I do no accept, however, that s 4(b) can be read so as to include an order other than an order 'constituting or adding to a marine nature reserve or marine park'. Section 4(b) confers a substantive right. It is not open to the Tribunal to depart from the express terms of the section, and their clear meaning, simply on the basis of a view that the object of the legislation would be better served by conferring an additional substantive entitlement.
It follows that the answer to questions D, E and F must be no.

Conclusion

The effect of the answers to the preliminary issues is that an entitlement to compensation may have arisen in the circumstances described in questions A and B. Whether there has, in fact, been a loss suffered by reason of a diminution in the market value of any authorisation is a matter to be separately determined. The proceedings should be adjourned to a further directions hearing to determine the manner in which the claim for compensation should be further dealt with.

Orders

1.The answers to the preliminary questions are as follows:
Question A - Yes
Question B - Yes
Question C - No, unless an entitlement to compensation has arisen independently of the making of the order under s 43 of the Fish Resources Management Act 1994 (WA)

Question D - No
Question E - No
Question F - No
2.The matter is adjourned for further directions at 10 am on 29 May 2012 in order to further program the claim for compensation.

I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT