Hodgson v Minister for Primary Industries, Water and Environment
[2000] TASSC 114
•18 August 2000
[2000] TASSC 114
CITATION:Hodgson & Anor v Minister for Primary Industries, Water and Environment [2000] TASSC 114
PARTIES: HODGSON, Alan
TRETHOWAN, Kevin
v
MINISTER FOR PRIMARY INDUSTRIES, WATER AND ENVIRONMENT
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 119/1999
DELIVERED ON: 18 August 2000
DELIVERED AT: Hobart
HEARING DATES: 24 May 2000
JUDGMENT OF: Slicer J
CATCHWORDS:
Statutes - Statutory powers and duties - Exercise - Delegation of power conferred by statute - Component of decision made by another remains decision of Minister - Decision susceptible to review.
Aust Dig Statutes [93]
Administrative law - Appeals from administrative authorities - Statutory appeals from administrative authorities to courts - In general.
Living Marine Resources Management Act 1995 (Tas), ss78, 280, 281, 283.
Fisheries (Scalefish) Rules1998, Pt 6A.
Fisheries (General and Fees) Regulations 1996, regs16, 17.
Taylor v Public Service Board (New South Wales) (1976 - 1977) 137 CLR 208; R v Secretary of State for the Environment, Transport and the Regions and another, ex parte Spath Holme Ltd [2000] 1 All ER 884, considered.
Attorney-General for Ceylon v A D Silva [1953] AC 461; Padfield and Others v Minister of Agriculture, Fisheries and Food and Others [1968] AC 997; Kent County Council v Secretary of State for the Environment [1976] LGR 452; Anisminic v Foreign Compensation Commission and Another [1969] 2 AC 147, referred to.
Aust Dig Administrative Law [109 - 110]
REPRESENTATION:
Counsel:
Appellant: D J Porter QC
Respondent: F C Neasey
Solicitors:
Appellant: Chris Boland Barristers and Solicitors
Respondent: Office of the Director of Public Prosecutions
Judgment Number: [2000] TASSC 114
Number of Paragraphs: 25
Serial No 114/2000
File No LCA 119/1999
ALAN HODGSON and KEVIN TRETHOWAN v
MINISTER FOR PRIMARY INDUSTRIES, WATER AND ENVIRONMENT
REASONS FOR JUDGMENT SLICER J
18 August 2000
In August 1998 the appellants applied for the grant of two licences classified as "Scalefish Fishing licence (Scalefish A)" and "Scalefish Fishing licence (Banded Morwong)". For reasons irrelevant to this appeal, the original application was either not proceeded with or dismissed and a further application was made on 19 March 1999. The management plan which governed the conduct of the Fishery (Tasmanian Government Gazette No 19883, 17 June 1998, Fisheries (Scalefish) Rules 1998, rr96, 97) provided for criteria based on a "catch history" (subject to exceptional circumstances) to be applied in any grant of licence. The appellants failed the necessary criteria and advanced reasons why they failed to meet the qualification and why they should nevertheless be favourably considered.
The Minister delegated his powers of licence to the Secretary of the Department of Primary Industries Water and Environment, a course permitted by the Living Marine Resources Management Act 1995 ("the Act"), s78(3), and on 13 April the Minister, through his delegate, refused both applications. The appellants sought review of the decision in accordance with the provision of the Act, s281. On 25 June, the Minister confirmed the delegate's decision but granted instead a licence Scalefish B. The appellants appealed to the Resource Management and Planning Appeal Tribunal ("the Tribunal") pursuant to the Act, s283. The Minister provided further material to the Tribunal on 2 August, which, on 3 September, ruled that it did not have jurisdiction to review one of the matters which formed the basis of rejection of the application. The issue is whether there can be review of the Secretary's determination as to whether or not there were exceptional circumstances which warranted the grant of licence or whether such consideration was specifically confined to the Secretary. Both the Minister (on review) and the Tribunal concluded that r123 provided for the exercise of discretion by the Secretary and confined its exercise to that public officer. It was the opinion held by that officer which was the precondition to any grant of licence and the existence of this opinion formed part of the material upon which the Minister could make his own review. The Minister stated his position in a letter of 2 August:
"I would also reiterate that I do not accept that I was entitled to review the determinations made by the Secretary under rules 97(2) and 123 of the Fisheries (Scalefish) Rules 1998, in relation to the qualification by you for a fishing licence (scalefish A) and a fishing licence (banded morwong). A decision by the Secretary under either of those provisions is not a prescribed decision for the purposes of s281(3) of the Living Marine Resources Management Act1995.
I was entitled to review the Secretary's decision (as my delegate) under s78 of the Act, to refuse to grant these licences. That was a prescribed decision for the purposes of s281(2) of the Act. In that respect, I was not satisfied that you met the criteria for the issue of the licences under the Fisheries (Scalefish) Rules 1998 - inter alia because the Secretary was not satisfied under rules 97(2) or 123 - and so confirmed the decision under s78 to refuse to grant the licences. As to this, I refer you to ss 78(1)(d) and 78(2) of the Act."
The Tribunal accepted that the Secretary, in exercising power under r97(2), which permits certification in cases where less than a specified quantity of scalefish has previously been caught, was acting as a designated person. It stated at pars 18 - 21:
"18… in some circumstances, that is where the applicant does not have a qualifying catch history, or some other requirement of the Rules is not satisfied, then the Secretary exercises a function under Rules 97 or 123, which is a component part of the process which concludes in the grant of or refusal to grant a licence. It is however clear that in exercising the power under Rules 97(2) or 123, the Secretary is acting as a designated person and not in any way exercising any of the powers granted by Section 78 of the Act. The decision making power under Section 78 is a quite separate power to the power granted to the Secretary under Rules 97(2) and 123.
19That latter conclusion becomes even more clear when it is noted that the Secretary's powers under Rules 97(2) and 123 are not powers of making a decision, but rather powers to carry out a function, namely to be satisfied or otherwise of certain matters. It is in each case then for either the Minister or the delegate of the Minister under Section 78(3), to make the decision whether to grant or not grant a licence under Sections 78(1) and 78(2).
20It therefore follows that Regulations 16 and 17 referring respectively to notifiable decisions and appealable determinations, in referring only to decisions made under Section 78 and not to the Secretary reaching a state of satisfaction under Rules 97(2) or 123, are not identifying the Secretary's function under Rules 97(2) or 123, as a function or act which is either reviewable under Sections 281 or 282, or appealable under Section 283, of the Act.
21As it is only a determination under Section 282 which may be appealed to the Appeal Tribunal under Section 283 of the Act, and as it is only a prescribed decision under Section 281 which may be reviewed under Section 282, and as a prescribed decision under Section 281 does not include the Secretary reaching a state of satisfaction or otherwise under Rules 97(2) and 123, then the Appeal Tribunal is not entitled to entertain an appeal against the Secretary's actions under those Rules."
Basis of appeal
The grounds of appeal contend:
"1The Tribunal erred in law in holding in its decision of 3 September 1999, that upon an appeal from a refusal to grant the appellants fishing licences (Scalefish A) and (Banded Morwong) pursuant to the Living Marine Resources Management Act 1995, s78, the Tribunal cannot review any relevant decision of the Secretary of the Department for Primary Industry, Water and Environment pursuant to the Fisheries (Scalefish) Rules 1998, Rule 97(2) or Rule 123.
2The Tribunal erred in law in holding in its decision of 3 September 1999, that upon an appeal from a refusal to grant the appellants fishing licences (Scalefish A) and (Banded Morwong) the Tribunal could not 'take into account any of the criteria referred to in Rule 97(2) of the Fisheries (Scalefish) Rules 1998, in order to satisfy itself of the matters which the Secretary of the Department for Primary Industry, Water and Environment must satisfy himself under those Rules".
Legislative scheme
The Act, s78, allows the Minister to grant an application for a fisheries licence if he has satisfied that:
"78 ¾ (1) …
(a) the applicant has complied with this Act; and
(b)the applicant, within 5 years before the date of the application, has not been convicted of any offence under this Act, any other Act or a corresponding law which the Minister considers relevant to the holding of a licence; and
(c) the applicant is not disqualified from holding the licence; and
(d) granting the application is not likely to contravene a management plan; and
(e)there are no environmental or resource constraints in granting the application; and
(f) the applicant is a fit and proper person to hold the licence; and
(g)the applicant has paid the appropriate, levies, fees and charges."
whilst subs (3) permits him or her to:
"… delegate to any person the power to grant or refuse an application for particular types or classes of licences."
The Secretary was an authorised delegate.
The relevant portions of the management plan are comprised in the Fisheries (Scalefish) Rules, Pt 6A. A person is eligible for a grant of licence if he or she has an existing catch history (r96) which is determined by a calculation based on the weight of specified fish caught during any two years during varying dates between 1 June 1990 and 31 May 1994.
The appellants did not have a sufficient catch period. In their submission to the Minister they advanced reasons, which included damage and its consequences to the vessel variously referred to in the documentation placed before the Court as "Abel" or "Able" ("Abel") following an incident in July 1992, as to why they had been prevented from meeting the criteria. They sought the aid of r97(2) which provides:
"(2)A lesser amount of scalefish than that specified in subrule (1) may qualify as a catch history for a licence if the Secretary is satisfied that -
(a)exceptional circumstances prevented that specified amount of scalefish from being caught; and
(b) the lesser amount is very close to the specified amount; and
(c)the person applying for the licence demonstrates a continuing commitment to the scalefish fishery."
If the Secretary is satisfied as to one or more of those preconditions, then the applicant is deemed to possess a prescribed "catch history". A further general discretionary power is afforded by r123 which provides:
"123 ¾ A person who does not meet all the requirements of these rules may qualify for a licence if the Secretary is satisfied that -
(a)exceptional circumstances prevented the person from meeting those requirements; and
(b) the person demonstrates a continuing commitment to the scalefish fishery."
The exercise of discretion in favour of an applicant in accordance with rr97 and 123 becomes relevant to any decision made pursuant to the Act, ss78 and 98. A decision by a delegate is reviewable by the Minister (s281) but not otherwise. A decision of the Minister is reviewable by the Tribunal (s283). The complication in this case is that the Secretary, who exercised discretion in accordance with r97, was the same person as the delegate making a decision required by s78(3).
Challenge to a decision of a delegate is governed by the Act, ss280 and 281, which limit review to a "prescribed decision". The Fisheries (General and Fees) Regulations 1996 define "prescribed decisions" by reference to schedules. Regulations 16 and 17 provide:
"16The decisions specified in Part 1 of Schedule 2 are prescribed as decisions in respect of which a notice is to be served under section 280 of the Act.
17The determinations specified in Part 2 of Schedule 2 are prescribed as determinations after a review in respect of which a person may appeal to the Appeal Tribunal under section 283 of the Act."
Part I of Sch 2 includes the "grant of or refusal to grant licence" made in accordance with the Act, s78, whilst Pt 2 refers to "substituting, confirming or revoking decision relating to grant of or refusal to grant licence" in accordance with the same section. Thus, it is said that any component of a decision by the Secretary provided by r97 is not susceptible to review by the Tribunal. The question becomes whether the Minister must be satisfied that the Secretary was or was not satisfied as to the existence of exceptional circumstances, or whether the Minister must be satisfied that the exercise of a discretion by the Secretary was reasonable. The respondent contends that only in the latter case is the Tribunal afforded jurisdiction by the provisions of the Act, s283.
A decision of the Secretary made in accordance with r97 is susceptible to judicial review by means of prerogative writ. The scheme of the legislation is designed to achieve an efficient decision making process, afford procedural fairness and provide for relatively simple procedures for review. At the same time, it seeks to protect some administrative decisions from unnecessary appellate procedures.
In this case the decision was made by the Minister through his delegate. He was required to consider whether or not the applicant satisfied statutory criteria.
In one respect, namely whether the applicant possessed a sufficient "catch history", the Minister was required to determine whether law (statutory or regulatory) provided an alternative basis for qualification. The regulations permitted a finding of a deemed 'catch history' through a discretionary finding of the Secretary based on defined criteria which included whether "the person applying for the licence demonstrates a continuing commitment to the scale fishery". The criteria to be considered by the Secretary contain some elements similar to those required for consideration by the Minister, since the Act, s78(1)(f), refers to whether an applicant is considered to be "a fit and proper person to hold the licence". Those criteria require a subjective assessment to be made of matters which include evaluation suitability and reasons for failing to possess a sufficient catch history. The decision of the Secretary, if favourable to an applicant, can be adopted by the Minister, who might nevertheless refuse the grant of licence because he or she reached a different conclusion in relation to suitability or character. A decision by the Secretary adverse to an applicant might be susceptible to judicial review, but the question is whether it can be the subject of statutory appeal.
The commencing point is whether the Minister is permitted to review a decision adverse to an applicant made by the Secretary. He or she is permitted to adopt a positive finding but nevertheless reject an application by a separate evaluation of criteria stated by the Act, s78. In the event that there has been an incorrect calculation based on the formula for the establishment of a sufficient "catch history", the Minister could readily refer the matter back to the Secretary for reconsideration. If the Minister believed that the decision of the Secretary was compromised by conflict of interest, it is less certain that there exists remedy. An erroneous assessment by the Secretary as to the extent of his authority would neither bind the Minister nor prevent judicial review (Attorney-General for Ceylon v A D Silva [1953] AC 461). The question becomes whether the Minister must accept the satisfaction of the Secretary or is entitled to examine the reasonableness of that conclusion.
There is a conflict between the Act and the Regulations. The Act requires the Minister to be the responsible person for the making of the decision. The Regulations make a public officer responsible for a component which can, in the circumstances of this case, be determinative of that decision. The effect of the Regulations is to remove, from the Minister, portion of the decision making power. Parliament entrusted the decision making process to one of its ministers not to a public officer. It permitted appellate review of the decision of its minister and did not authorise that minister to abrogate any portion of that decision making process. Whilst the distinction between the concepts of jurisdictional error and "ultra vires" may have merged (Anisminic v Foreign Compensation Commission and Another [1969] 2 AC 147, and see Judicial Review of Administrative Action, Enright [1985], at 368, 447, 701) the abrogation of ministerial responsibility by regulation itself remains susceptible to judicial review. Resolution of the conflict between the Act and the Regulations can be made by either of two approaches. Either the Regulations which restrict the appellate process are beyond the power afforded by Parliament, or the adoption by the Minister of the determination of the Secretary made under rr97and 123 forms part of that decision which becomes susceptible to appeal by virtue of the Act, s283
Accepting that Parliament intended a decision of the Minister to grant or withhold a licence to be subject to review by way of appeal (the Act, s281) rather than by prerogative process, it can be said that a decision by a statutory officer, which is a component of that decision, is likewise subject to the appellate process rather than prerogative relief.
In the circumstances of this case, the decision of the Secretary does not disclose whether the determination that the appellants did not possess a sufficient "catch history" was made on the basis of "exceptional circumstances", "lesser amount close to the specified amount" or lack of "continuing commitment to the scale fish industry". The decision of the Minister, in adopting the determination of the Secretary, became a determination made in accordance with the Act, s78.
The Minister might choose by way of regulation to inhibit his or her own decision making process. He might set in place procedures whereby certain components necessary for decision are decided by one of his officers. But Parliament which has afforded a right of review in relation to a grant of licence can only inhibit that right by clear language. In Padfield and Others v Minister of Agriculture, Fisheries and Food and Others [1968] AC 997, the House of Lords considered whether a Minister was under a duty to refer a complaint to a committee even though on its face the Act had given an apparently unfettered discretion whether to do so or not. The House of Lords determined that a competent court could require referral. Lord Reid said, at 1030:
"Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole ..."
The principles of statutory interpretation relating to the exercise of discretionary powers were stated in detail by Stuart-Smith LJ in the appellate decision of R v Secretary of State for the Environment, Transport and the Regions and another, ex parte Spath Holme Ltd [2000] 1 All ER 884, at 893 - 894 in the following terms:
"29 Subordinate legislation is in a quite different category from primary legislation. It represents the will of the Executive and, whether it is subject to the negative or the affirmative procedure, it receives a much briefer (if any) examination by Parliament and cannot be amended. In either case it may be made only within limits expressed or implied in the enabling Act and the Court has jurisdiction to determine that this has not been done in which event it is void and of no effect: see F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 365C-366B; R v Her Majesty's Treasury ex parte Smedley [1985] QB 657 at 666G-667B; McKiernon v Secretary of State for Social Security [CA: 26th October Transcript No 1017 1989: unreported] transcript at 10B-D; R v Secretary of State for Social Security ex parte Joint Council for the Welfare of Immigrants [1997] 1 WLR 275 at 292C-D.
30 Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely - that is to say, it can validly be used only in the right and proper way which Parliament, when conferring it, is presumed to have intended. Although the Crown's lawyers have argued in numerous cases that unrestricted permissive language confers unfettered discretion, the truth is that, in a system based on the rule of law, unfettered governmental discretion is a contradiction in terms: see R v Tower Hamlets London Borough Council ex parte Chetnik Developments Ltd [1988] 1 AC 858 at 872B-D.
31 The Minister exceeds his jurisdiction where:- (1) He acts outside the powers which, upon the true construction of the enabling Act, are expressly or impliedly conferred as to the terms of the subordinate legislation. (2) He seeks to achieve a purpose which, upon the true construction of the enabling Act, is outside the express or implied object of the power. (3) He takes irrelevant considerations, or does not take relevant considerations, into account in the exercise of the power: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1949] 1 KB 223 at 228-231; Padfield v Minister of Agricultural Fisheries and Food [1968] AC 997 at 1030B-D, 1032H-1033A, 1046C-G, 1052E-F, 1054A, 1058B-G, 1061F; R v Tower Hamlets London Borough Council ex parte Chetnik Developments Ltd [1988] AC 858 at 872B-873G; R v Secretary of State for the Environment ex parte Hammersmith and Fulham London Borough Council [1991] 1 AC 521 at 597C-H; R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696 at 756F-G, 761F.
32 So far as statutory construction is concerned the Court adopts a purposive approach to statutory construction founded upon the mischief designed to be remedied and the object of the Act. Accordingly the surrounding circumstances admissible to ascertain such mischief and object are taken into account immediately, before starting to construe the words used, to make an informed determination whether these words are ambiguous in this context whatever their literal meaning. If so, then the Court proceeds to construe the words in order to give effect to the intention of the Legislature whether actual, so far as it is known, or if not, presumed according to the appropriate principles of construction: see Pepper (Inspector of Taxes) v Hart [1993] AC 593 at 633D-F, 635E, 639H; Director of Public Prosecutions v Schildkamp [1971] AC 1 at 23A-C; Maunsell v Olins [1975] AC 373 at 386E-F, 395B-D; Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 646C-G, 647D-648B, 650H; Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231 at 236A-G; Attorney-General v Associated Newspapers Ltd [1994] 2 AC 238 at 258H."
Parliament intended there to be a right of review available to a person with sufficient interest adversely affected by a decision of the Minister. The Minister's decision, in its entirety, is susceptible to the appellate process whether or not a component of that decision is made by another. In Kent County Council v Secretary of State for the Environment [1976] LGR 452, a Minister was held to have decided a planning appeal himself, although he had regard to the opinion of another Minister on an important issue in the appeal. A public officer or authority is permitted, by statutory rule or valid administrative direction, to delegate certain functions in the conduct of an inquiry or the making of a decision. But responsibility for the decision remains with that officer or authority. Its conclusion might involve the adoption of the finding of the delegate, but the decision remains that of the person or entity entrusted by Parliament with the decision making process. The nature of the process is as discussed by Barwick CJ in Taylor v Public Service Board (New South Wales) (1976 - 1977) 137 CLR 208, when, in dealing with a delegation of a disciplinary investigation, he said at 215:
"It follows, in my opinion, that the Board, having delegated the function of inquiry or investigation of a charge, is not thereafter limited to the choice of penalty based on a finding of its delegate by which it is bound. Its obligation itself to decide the case, imposed by the final words of the sub-section, imposes a duty upon the Board to consider for itself whether or not it will accept and adopt as its own its delegate's report and finding. It is empowered to do so: it is also empowered to reject that report and finding or, accepting certain parts of it, to found thereon a different conclusion to that at which its delegate had arrived. Doubtless the nature of the charge and the identity and experience of the delegate may have influence with the Board in deciding whether to accept the finding of the delegate or to require a report of the proceedings before the delegate and of the reasons for his findings. But, in any case, the Board must decide for itself whether it will make the delegate's finding its own, by mere adoption or after further information supplied to it by the delegate. In my opinion, this is the way in which the Board may decide the case consistently with the power of delegation given by the sub-section and the qualifying or limiting words in its final phrases." (See also Sean Investments Pty Ltd v MacKellar (1981 - 1982) 38 ALR 363.)
The appellants had a commercial interest in the obtaining of a licence, a component of which entitlement was a "catch history". They were entitled to seek review of whether they ought have the benefit of a discretionary determination of a deemed "catch history". In that sense, the decision of the Minister is one based on trust in individual judgment and discretion and remains personal to him or her (Padfield (supra)). The general proposition can be stated as where an authority affecting private rights empowers one of its officers or committees to exercise those powers independently without any supervisory control by the authority itself, the exercise of that power is likely to be held invalid. The authority might choose to bind itself but not those affected (Allingham and Another v Minister of Agriculture and Fisheries [1948] 1 All ER 780). In this case, the Regulations ought be construed so as to permit appeal.
The interpretation does not mean that the process adopted by Regulation is "ultra vires". Instead, it permits the conclusion that, absent prohibition by Parliament, the totality of a decision by the Minister is susceptible to appellate review. The Tribunal has jurisdiction to consider the basis of the decision made by the Secretary.
The appeal is upheld.
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