Hatfield v Qld Commercial Fishermen's State Council
[2001] QCA 258
•4 July 2001
SUPREME COURT OF QUEENSLAND
CITATION: Hatfield v Qld Commercial Fishermen’s State Council [2001] QCA 258 PARTIES: STEPHEN GRAHAM HATFIELD
(applicant/appellant)
v
QUEENSLAND COMMERCIAL FISHERMEN'S STATE COUNCIL
(defendant/respondent)FILE NO: Appeal No 6346 of 2000 DC No 3081 of 1999
DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: District Court at Brisbane
DELIVERED ON: 4 July 2001 DELIVERED AT: Brisbane HEARING DATE: 24 April 2001 JUDGES: De Jersey CJ, Thomas JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDER: 1. That leave be given to substitute Queensland Seafood Industry Association Incorporated as respondent in place of Queensland Commercial Fishermen’s State Council;
2. That the appeal be allowed, judgment for the respondent be set aside and judgment be entered for the appellant;
3. That the respondent pay the appellant’s costs of the appeal and costs if any of the proceedings in the Magistrate’s Court and the appeal to the District Court, to be assessed on a standard basis.
CATCHWORDS: STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – CONSTRUCTION - LEGISLATIVE HISTORY – Where appellant is an employed fisherman and holder of a commercial fisher licence – whether appellant obliged to pay levy for issue and renewal of licence – whether a “producer” under the legislation – whether a member of a “producer representative body” under the legislation – legislative history – whether regulation is ultra vires – legislative purpose.
Fisheries Act 1957 (Qld)
Fisheries Act 1976 (Qld), s 21, s 92
Fisheries Act 1994 (Qld), s 233,
Fish Industry Organisation and Management Act 1982 (Qld), s 132, s 134, s 233, s 235
Fisheries Industry Organisation and Marketing Act and Other Acts Amendment Act 1989 (Qld), s 2, s 45
Primary Industries Legislation Amendment Act (No 2) 1997 (Qld), s 42
Primary Industry Bodies Reform Act 1999 (Qld), s 6, s 10 , s13, s 30C, s 39, s 41, s 84
Primary Producers' Organisation and Marketing Act 1926 (Qld), s 2, s 3, s 14, s 27A, s 28, s 30A, s 30C, s 30D, s 30F, s 58
Primary Producers’ Organisation and Marketing Act Amendment Act 1973 (No17 of 1973) (Qld),
Primary Producers’ Organisation and Marketing Act Amendment Act 1979 (Qld), s 7
Primary Producers’ Organisation and Marketing Act Amendment Act 1981 (Qld), s 3
Primary Producers’ Organisation and Marketing Act Amendment Act 1987 (No 57 of 1987) (Qld), s 30C, s 30D, s 30E
Reprints Act 1992 (Qld), s 25Commercial Fishermen's Local Branches, District Councils and State Council Regulations 1974 (Qld)
Fisheries Regulations 1995 (Qld), s 31, s 52, s 54, s 55, s 114
Queensland Commercial Fishermen's Organisation Regulations 1984 (Qld), s 4
Queensland Commercial Fishermen's Organisation Regulations 1989 (Qld), s 4, s 5, s 6Petranker v Brown (1984) 2 NSWLR 177, considered
Shanahan v Scott (1957) 96 CLR 245, consideredCOUNSEL: H L Alexander for the appellant P Flanagan for the respondent
SOLICITORS: The appellant appeared on his own behalf
Gore & Associates for the respondent
de JERSEY CJ: I agree with Mackenzie J that the appeal should be allowed and judgment entered for the appellant. I agree with the orders he proposes and with his reasons. I am grateful for his recitation of the relevant circumstances including the history of the legislation. I will endeavour to synthesize my own reasoning on the principal point in the case.
Section 30F(6) of the Primary Producers’ Organisation and Marketing Act 1926 operated to establish a commercial fishermen’s local branch comprising those fishermen who had the prescribed qualifications. The mere circumstance of having those qualifications ipso facto constituted the person a member of the branch: the clear language of s 30F(6) intractably produced that result.
Each such person thereby also, without more, became a member of the subsuming body, the Queensland Commercial Fishermen’s Organisation (s 30F(2)), a “producer representative body” within s 30C charged, among other things, with giving all “producers an opportunity to voice an opinion and participate in the making of decisions in all matters affecting their industry” (s 30C(3)(a)(i)).
The term “producer”, ordinarily inapposite to a fisherman, was however considered statutorily apt, because “fisher” was from 1989 added to the catalogue of “primary producers” in s 2. The term “producer” appears to be used in the Act as referring to “primary producer”. The Act is concerned with primary production, the term “producer” is not the subject of separate definition (s 2), and although defined in s 2, the term “primary producer” is not subsequently used, whereas “producer” is. It should reasonably be concluded “producer” means “primary producer”. Importantly for the present, the definition of “primary producer” excludes “employees on wages or piecework rates”, which was the situation of the appellant.
By prescribing qualifications for members of a commercial fishermen’s local branch, the regulation contemplated by s 30F(9)(d) affected to delimit the membership of the Queensland Commercial Fishermen’s Organisation (s 30F(2)(b)). Those members must be “producers” (s 30C(2)) of fish, which imports the definition of “primary producer” in s 2 with its presently relevant exclusion. Such a regulation must therefore respect that statutory exclusion.
It follows in my view that the regulation was ultra vires s 30F(9)(d) insofar as the regulation overlooked the exclusion from the definition of “primary producer” in s 2 of “persons engaged in primary production as employees on wages or piecework rates”: the regulation amounted to a departure from “the plan which the legislature (had) adopted to attain its ends” (Shanahan v Scott (1957) 96 CLR 245, 250).
Section 5(1) of the Queensland Commercial Fishermen’s Organisation Regulations 1989 should accordingly be read down so as not to apply to persons falling within that exception. Since the regulations could not on that basis apply to the appellant, judgment should have been entered in his favour.
This result would accord with the apparent objective of assuring to all “producers” in this industry an opportunity to participate in the making of decisions. It would not catch persons like the appellant who were employed fishermen, and could not – as I would infer was contemplated – reasonably be expected to contribute financially to a collaborative, higher level industry based decision making process.
The decisions in the matter to this point have overlooked the circumstance that a branch is part of an organisation of “producers”, meaning “primary producers”, thereby attracting the exclusion which relieved the appellant of the asserted financial obligation of which he complains.
THOMAS J: I have the advantage of having read the draft reasons of the Chief Justice and of Mackenzie J. I agree with those reasons and there is nothing I can usefully add. I also agree with the orders proposed by Mackenzie J.
MACKENZIE J: The applicant had judgment given against him in the Magistrates Court for unpaid levies claimed under the Primary Producers' Organisation and Marketing (Commercial Fishers General Levy) Notice 1995. He appealed unsuccessfully to the District Court. Leave to appeal to the Court of Appeal, confined to non-constitutional matters, was given by the Court of Appeal on 4 September 2000.
The appeal concerns a small sum of money exacted under a statutory provision which has no future practical application (see s 84(3)(e) of the Primary Industry Bodies Reform Act 1999). Yet it raises extremely complex issues of statutory interpretation, contributed to by the history of the legislation under which it was exacted. Before considering them, it is convenient to note that because of the operation of the 1999 Act a "replacement corporation", Queensland Seafood Industry Association Incorporated, has taken over the assets and liabilities of the Queensland Commercial Fishermen's Organisation and its subsidiary bodies of which the respondent was one (s 10(2),s 13, s 39 and s 41 of the 1999 Act). Leave was therefore sought and not opposed to amend the proceedings by substituting the replacement corporation's name as respondent. Leave to do so should be granted.
It is not in dispute that the appellant had let his master fisherman's licence lapse at the end of October 1995 but had obtained a commercial fisher license under the Fisheries Act 1994 on 18 December, 1995 and renewed it in November 1996. The judgment sum was correct for the periods in respect of which he was found liable to pay the levies if he was obliged to pay them. The issue of liability to pay them is the focal point of the dispute. A review of the history of relevant legislation is desirable to put the respective arguments in focus.
The status of the fishing industry in relation to legislation regulating primary industries has been somewhat ambivalent and anomalous over the years. There have been representative bodies for members of the industry for many years. At the lowest level are commercial fishermen's local branches comprised of master fishermen, until that term ceased to be used. Consequences of changes to relevant legislation, including the alteration of the licensing structure are involved in this appeal.
When the Primary Producers' Organisation and Marketing Act, 1926 (PPOM) was amended by PPOM Amendment Act 1973, use of the concept of deeming in the new s 27A suggests that the Queensland Commercial Fishermen's State Council (QCFSC) was not considered to be a true commodity board. However, it was to be subject to PPOM for limited purposes, including issuing precepts in respect of fish as if it were a commodity; (s28(4) as it then was). A fisherman was not a "primary producer" as that term was defined.
Commercial fishermen's local branches were to be constituted in prescribed areas and to consist of fishermen qualified as prescribed (s30A). The regulation making power (s 30A(7)) included power to prescribe qualifications in respect of members of them.
By the Fisheries Act 1976 (s 92), s 30A PPOM was repealed but provisions to like effect relating to QCFSC and commercial fishermen's local branches were enacted in the Fisheries Act (s 21). The regulation making power gave authority to prescribe whom were qualified to be members of a commercial fishermen's local branch. Residual provisions by which QCFSC was deemed a commodity board under PPOM were repealed by s 7 PPOM Amendment Act 1979, only to be reinstated by s 3 PPOM Amendment Act 1981.
Then, the Fishing Industry Organization and Management Act 1982 (FIOM) repealed s 21 of the Fisheries Act 1976 and the regulation making power (cl 26 of the Schedule). QCFSC, renamed Queensland Commercial Fishermen's Organisation, (QCFO) was preserved, continued in existence and constituted under the 1982 Act. As in its predecessors, having a master fisherman's licence was prescribed as the criterion for a person being a member of a commercial fisherman's local branch. (QCFO Regulations 1984, s 4) Under this regime, PPOM was of no relevance.
Then, a closer assimilation of bodies representing fishermen into PPOM began. By the PPOM Amendment Act 1987 the "Queensland Commercial Fishermen's Organisation constituted under s 132" of the 1982 Act was included in the definition of "producers' representative body". It was deemed to be a "State Council" within the meaning of s 30D (s 30D(3)). A commercial fishermen's local branch was deemed to be a subsidiary body of it (s 30E(3)(d)). In respect of the QCFO "fish" was deemed to be a commodity under the PPOM, but only for the purpose of s 30C, which provided for a producer representative body to represent the interests of growers or producers of the commodity, and for s 30E which was concerned with subsidiary bodies.
Then, by means of the Fisheries Industry Organisation and Marketing Act and Other Acts Amendment Act 1989 the provisions relating to QCFO were, in effect, transferred to PPOM. The Fisheries Regulations 1984 were, so far as not inconsistent with PPOM to remain in force and to be deemed to be made under it (s 45).
Since the interpretation of PPOM as it stood at the time when the relevant regulations were made is the focus of the principal argument, it is desirable to refer to the structure of Pt V of the 1989 Act which amended the PPOM to show the relationship of the provisions. By the 1989 amendment, fish was declared a commodity under and for the purposes of the Act under s 2. The definition of "primary producer" in s 3 was amended by adding a category of "fisherman". This description was later altered to 'fisher', presumably under s 25 of the Reprints Act 1992. The definition, so far as relevant, became:
"'Primary producer' means every person, not being a person engaged in primary production as an employee on wages or piece work rates, engaged in the occupation of-
…
(h) fisher."
A new s 30F was inserted which preserved, continued in existence and constituted, under PPOM, QCFO as an unincorporated body consisting of representatives and persons qualified to be members of a commercial fishermen's local branch. The definition of 'producer representative body' omitted reference to the constitution of QCMO being under FIOM.
QCFSC was given corporate status, (s 30F(3)). It was to consist of representatives of commercial fishermen's local branches (s 30F(5)). As previously noted, the 1984 Regulations (made under FIOM) were to remain in force until repealed or altered, except to the extent that they were inconsistent with PPOM. Commercial fishermen's local branches were constituted in respect of prescribed areas, consisting of "those fishermen who have the qualifications prescribed" (s 30F(6)). Once again, the regulation making power permitted making regulations with respect to qualifications in respect of members of commercial fishermen's local branches. (s 30F (9)(d)).
The 1984 Regulations were repealed by the Queensland Commercial Fishermen's Organisation Regulations 1989 made under PPOM. The latter continued in existence any commercial fishermen's local branch as defined in the 1984 Regulations (s 4(d)). It was provided in s 5(1) that a person who was the holder of a current master fisherman's licence under the FIOM "shall be a member of the commercial fishermen's local branch" in the area of which the person lived (subject to an immaterial exception). It also provided in s 6 that the holder of a current Queensland Commercial Fishing Vessel Licence endorsed with a fishery entitlement or a Torres Strait Master Fishermen's Licence holder "may apply for membership of a commercial fishermen's local branch to the Management Committee” (s 6(1)). Section 6(2) provided for consideration of the application by the Management Committee, which was not to refuse it unreasonably. Section 6(3) provided that upon payment of the general levy described in s 30F of the Act a person whose application had been accepted became a member of the commercial fishermen's local branch.
FIOM was repealed by the Fisheries Act 1994 which substantially came into force on 27 January 1995. However, existing licences (s 233) and Regulations (s 235) were continued in force subject to repeal or amendment and necessary modifications and adaptation to make them consistent with the new Act (s 235(1)) and to a sunset provision (s 235 (4) to (6)).
These preserved Regulations were repealed by s 114 of the Fisheries Regulation 1995, made on 30 November 1995, and gazetted on 1 December 1995. The levy relevant to this case was made by the QCFSC under s 30F on 28 November 1995 and gazetted on 1 December 1995. Under s 3(1) of the levy it would, if payable, have become due on issue of the commercial fisher's licence (ie on 18 December, 1995).
Under Pt 7 of the 1995 Regulations provision is made for licences. These regulations made no provision for master fishermen's licences and there was no primary category of commercial fisher's licence. However, the Licences Authority could issue categories of licence, one of which enabled fisher's licences to be issued as either commercial fisher's licences or assistant fisher's licences (s 31(2)(c)). Section 52 of the Regulations provided:
"52. A commercial fisher may do the following-
(a) use or possess commercial fishing apparatus;
(b) take fish for trade or commerce, but only while using a commercial fishing boat;
(c) possess fish lawfully taken for trade or commerce while using a commercial fishing boat;
(d) sell fish lawfully taken for trade or commerce while using a commercial fishing boat to a buyer or someone else who may buy the fish under an authority."
Provision was made in ss 54 and 55 for primary commercial and tender commercial fishing boat licences, the licence holder being subject to a condition that, if someone else was allowed to use the boat commercially, the boat must be in the control of a commercial fisher, or assistant commercial fisher under direction. There must also be a fishery symbol for the fishery on the licence for the primary boat. This would seem to mean that provided the holder of a commercial fisher's license had access to a commercial fishing boat with the appropriate symbol, other than as a person on wages or piecework rates, he or she could fish commercially without falling within the exclusion in the definition of "primary producer". However, in the present case, there was a concession that the appellant was unemployed or working for wages or piecework rates at the material time.
The final legislation referred to in argument was s 42 of the Primary Industries Legislation Amendment Act (No 2) 1997, a "transitional provision for the Fisheries Act 1994" in the form of a new section 58 of the Primary Producers Organisation and Marketing Act 1926. This relevantly provided as follows:
"58.(1) To remove any doubt, from the commencement of the expired section 233 of the Fisheries Act 1994, a reference in the Queensland Commercial Fishermen's Organisation Regulation 1989 to-
(a)A Master Fisherman's Licence, or a Master Fisherman's Licence issued under the former Act, is taken to be a reference to-
…
(ii) a commercial fisher licence issued under the Fisheries Act 1994;
...
'(2) In subsection (1)-
"former Act" means the Fishing Industry Organisation and Marketing Act 1982.'"
The effect of this provision is that, from 27 January 1995, if a commercial fisher's licence had been issued under the Fisheries Act 1994, it was to be equated to a master fisherman's licence for the purpose of the 1989 regulations.
The present case involves:
· the effects of the assimilation of the fishing industry bodies into PPOM;
· the removal of the category of master fisherman's licence from the fisheries legislation; and
· the evidence that the appellant held a commercial fisher licence but at relevant times was either unemployed or working for wages or on piecework rates.
The fundamental question is whether, when QCFO Regulations 1989 were made, the regulation making power extended only to fishermen excluded from the definition of "primary producer" in s 3 PPOM or, alternatively, who fitted the description of producers of fish.
The appellant's argument, stripped to its essentials, was that the appellant was not a "primary producer" within the definition in s 2 PPOM. It was argued that he fell within the exclusion and that a regulation which purported to include a person who was unemployed or worked as an employee for wages or on piecework rates was wholly ultra vires, or, ultra vires to the extent that it purported to apply to a person who fell outside a category to which the regulation extended.
The respondent argued that the definition of "primary producer" was irrelevant, since that term was not used in any relevant section of the Act. It was submitted that the regulation making power was not constrained by anything in the Act and should be given its full scope. It was submitted that the terms "grower" and "producer" were not used in s 30F and that they should not govern the power.
It was submitted that the new s 58 served two purposes. The first was that, with retrospective effect, it equated a commercial fisher's licence issued under the Fisheries Act 1994 to a master fishermen's licence referred to in QCFO Regulation 1989 or issued under FIOM. Secondly, it was said to demonstrate a legislative intent to adopt the regulations as they existed, with the result that any limitations that might otherwise arise from PPOM in relation to the permitted scope of the regulation making power were not applicable.
As outlined above the primary submission for the appellant was that the term "fishermen" in s 30F(6) PPOM took its content from the definition in s 2 which included fisherman as a "primary producer", and from s 30C(2) and (3) where growers and producers of a commodity are those upon whom the provisions focus.
Alternatively, it was submitted that the apparent legislative purpose should be promoted. The indications in the provisions referred to were that employees were not intended to play a role in relation to producer representative bodies.
A third argument was that s 30F(2), (6) or (9) did not contemplate or achieve "compulsory unionism". This argument may be disposed of promptly. Regulation 5 provided that the holder of a master fishermen's licence "shall be a member of a commercial fishermen's local branch". This expression is inconsistent with the regulation merely prescribing a rule of eligibility or specifying which branch a fisherman may join.
The regulation making power is expressed in a way which allows, in respect of members of a local branch, a regulation to be made with respect to qualification. The assistance sought to be drawn from a difference in expression in the QCFO Regulations 1984 referred to in para [14] is not decisive. Both FIOM (s 134) and PPOM (s 30A(6)) provide that a local branch consisting of those fishermen who have the prescribed qualification shall be constituted. The conclusion is also supported by the history of PPOM bodies; opting out has never been an available option.
When the bodies representing fishermen were not as closely assimilated to PPOM as they were as a result of FIOM Amendment Act 1989, the scope of the regulation making power did not raise the kind of issue now raised. QCFO, QCFSC and commercial fishermen's local branches are dealt with specifically in s 30F and elsewhere (eg s 2 "producer representative body"; s 14A(3A); s 30D(3); s 30E(3)(d)). The question raised is whether, as a result of the patchwork of legislation developed over a lengthy period, the regulation making power became circumscribed by the concentration in PPMO upon "primary producer", growers and producers.
Since the pattern of constituting commercial fishermen's local branches consisting of master fisherman's licensees is of long standing, it might be that such a result would aptly be described in the words of Samuels JA in Petranker v Brown (1984) 2 NSWLR 177 as one where "legal shrewdness and legislative obtuseness might join to produce such a result inadvertently". That it would be an inadvertent result can be gleaned from the terms of the Primary Industry Bodies Reform Act 1999 where QCFO is defined as a "producer body" (s 6) and, for the commodity "fish" (s 84 (2)), a person produces that commodity for the "transferring public body" if the person holds a commercial fisher's licence under the Fisheries Act 1994 (s 84 (3)(e)). Section 84(3)(e) is footnoted as follows:
"See PPO&M Act, sections 30F (Queensland Commercial Fishermen's Organisation and State Council) and 58(1)(a) (Transitional provision for Fisheries Act 1994) and Queensland Commercial Fishermen's Organisation Regulation 1989, section 5 (Membership by commercial fishermen)."
Since some reliance was placed on the change in the licensing scheme for fishermen in the Fisheries Act 1994 and the Fisheries Regulations 1995, in support of the proposition that the holder of a commercial fishermen's licence was not a producer of fish, it may be observed that it is no longer valid if it was previously, because of the 1999 Act. That argument ran that under the Fisheries Act 1994 and Fisheries Regulation 1995, a commercial fishing boat licence holder was the producer with respect to the commercial fishery to which the fishery symbol on the licence referred. The holder of a commercial fishermen's licence could not fish commercially without access to a licensed commercial fishing boat. Therefore, by holding a commercial fisherman's licence alone, that person was not a producer of fish. This proposition is presumably part of the underpinning of the passage in the appeal record at p 26 commencing at line 33.
When the Fisheries Act 1994 and the Fisheries Regulations 1995 came into force master fisherman's licences ceased to be issued. It was submitted on behalf of the respondent that s 58 PPMO (quoted above in [29]) mandates that a reference to a master fisherman's licence in the 1989 Regulations is to be taken to be a reference to the commercial fisher's licence issued under the Fisheries Act 1994 from the date of coming into force of the Fisheries Act. It was submitted that in respect of events occurring while the 1989 Regulations remained in force, a person holding a commercial fisher's licence under the Fisheries Act 1994 was subject to the regulations to the same extent as if the person were a holder of the master fisherman's licence.
Section 58 is a reasonably standard declaratory provision intended to have retrospective effect. Where an obligation arose while the 1989 Regulations were in force, and prior to the Fisheries Act 1994 coming into force, the holder of a master fisherman's licence would have been bound by those regulations, the holder of a commercial fisher's licence was equally bound after that time.
That construction appears to be correct, but the critical issue is the scope of the regulation making power with respect to members of a commercial fishermen's local branch. So far as relevant, s 30F(9) is as follows:
"(9) A regulation may be made with respect to all such matters and thing as are necessary or convenient for the administration of this section and without limiting the generality of that power with respect to-
(a)the constitution and functions of … commercial fishermen's local branches; and
(b)defining … areas in respect of commercial fishermen's local branches; and
(c)meetings and the conduct of business at meetings of … commercial fishermen's local branches; and
(d)…, qualifications, … in respect of members of … commercial fishermen's local branches."
Section 30F(6) states:
"(6) There shall be constituted in respect of every area within the State that is prescribed for the purposes of this subsection a commercial fishermen's local branch consisting of those fishermen who have the qualifications prescribed."
Since the "commodity" involved in the fishing industry (leaving aside aquaculture) is taken from the wild it is unlike other commodities. Of the concepts referred to in s 30C "grower" is inappropriate to describe that activity, but "producer" can be applied in an extended sense of the word. It is true that the term "producer" is not used as part of the phrase "primary producer" but in my view, the task of determining who is to be subject to the act must be taken to be coloured by the Act as a whole. The consequence of that is that persons who may, in a sense produce the commodity but only as wages or piecework employees are not intended to be included in the affairs relating to the industry contemplated by the Act.
It was argued with some force that it would be administratively inconvenient to have to determine whether or not a person in the fishing industry was employed on wages or piecework rates to ultimately decide whether the person was obliged to be a member of a commercial fishermen's local board. Since the case has been argued on the basis that the appellant was unemployed or employed on wages or piecework rates during relevant times, it is unnecessary to consider whether an implication should be made that, for example, what a person ordinarily did had to be determined.
The problem in this case lies in the legislative assumption that the fishing industry could be assimilated into PPOM while retaining its pre-existing structure without avoiding the difficulties revealed in this appeal.
Having regard to the scope of the regulation making power the conclusion must be, on the facts, that the levy did not extend to the appellant. So far as the appellant is concerned, the declaratory provision in s 58 is subject to the same limitation since it does not purport to correct the latent problem of limitation of the scope of the regulations with respect to him.
The orders are the following:
1.That leave be given to substitute Queensland Seafood Industry Association Incorporated as respondent in place of Queensland Commercial Fishermen's State Council;
2.That the appeal be allowed, judgment for the respondent be set aside and judgment be entered for the appellant;
3.That the respondent pay the appellant's costs of the appeal and costs if any of the proceedings in the Magistrate's Court and the appeal to the District Court, to be assessed on a standard basis.
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