Latitude Fisheries P/L v The Honourable Simon Findlay Crean, Minister for Primary Industry & Energy of the Commonwealth of Australia

[1993] FCA 174

Re: LATITUDE FISHERIES PTY LTD; JOHN ALBERT BOSCHETTI and JULIA ELLEN
BOSCHETTI
And: THE HONOURABLE SIMON FINDLAY CREAN, MINISTER FOR PRIMARY INDUSTRY AND
ENERGY OF THE COMMONWEALTH OF AUSTRALIA and THE COMMONWEALTH OF AUSTRALIA
No. WA G109 of 1992
FED No. 174
Number of pages - 14
Fisheries
(1993) 41 FCR 536

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Black C.J.(1), Burchett(1) and Lee(1) JJ.

CATCHWORDS

Fischeries - construction of Plan of Management - whether measures to achieve objectives of plan exhaustively stated in the plan - whether it was open to the Minister to prohibit by notice in the Gazette the use of fishing nets exceeding particular sizes - construction of s. 7B of the Fisheries Act 1952 - meaning of requirement in s. 7B(8) that the Minister should exercise his powers "in accordance with the Plan of Management, and not otherwise".

Words and Phrases - "in accordance with".

Fisheries Act 1952, Cth, ss. 7B and 8

Northern Prawn Fishery Management Plan, para. 7

Plan of Management Number NPF1, para. 7

HEARING

SYDNEY, 22 October 1992

#DATE 31:3:1993

Counsel for the Appellants: Mr C.L. Zelestis QC with Mr G.I. Macnish

Solicitors for the Appellants: Messrs Cocks Macnish

Counsel for the Respondents: Mr R.R.S. Tracey QC with Mr P. Macliver

Solicitor for the Respondents: Australian Government Solicitor

ORDER

The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

BLACK C.J., BURCHETT AND LEE JJ. The principal question raised by this appeal is whether the Minister for Primary Industry and Energy of the Commonwealth, by his determination under s. 7B of the Fisheries Act 1952 ("the Act") of a Plan of Management for the Northern Prawn Fishery (which embraces the Gulf of Carpentaria and the Joseph Bonaparte Gulf), disabled himself from exercising the powers conferred on him by s. 8(1) and (2) of the Act to issue Notices prohibiting specified kinds of trawling nets and providing exemptions from prohibition for nets of those kinds of suitable dimensions. That question must be answered having regard to the terms of the Act, of certain Plans proclaimed under it, and of certain Fisheries Notices published in the Commonwealth Gazette. It should be pointed out that the Act, although substantially repealed by the Fisheries Legislation (Consequential Provisions) Act 1991 and replaced by the Fisheries Management Act 1991 and the Fisheries Administration Act 1991, will by virtue of s. 7 of the first of those Acts continue in effect for present purposes to 3 February 1994.

1. Fundamental to the issues under debate is s. 7B of the Act, which provides:
   

"7B. (1) The Minister may, by instrument in writing, determine a plan of management for a fishery in proclaimed waters.

(2) A plan of management for a fishery shall set out -

(a) the objective of the plan of management; and

(b) measures by which the objective is to be attained.

(3) Without limiting the generality of sub-section

(2), the Minister may, in a plan of management for a fishery -

(a) determine the manner in which the fishing capacity of the fishery is to be measured; and

(b) determine the fishing capacity, measured in that manner, permitted for the fishery.

(4) Without limiting the generality of sub-section

(2), a plan of management for a fishery may make provision for and in relation to -

(a) the granting of licences under sub-sections 9(2) and (3) in relation to the fishery;

(b) the conditions to which licences granted under sub-sections 9(2) and (3) in relation to the fishery are to be subject; and

(c) the duration, transfer, renewal and variation of licences granted under sub-sections 9(2) and

(3) in relation to the fishery.

(5) Where, in a plan of management for a fishery, the Minister determines the fishing capacity permitted for the fishery, then, without limiting the generality of sub-section (2), the plan of management may make provision for and in relation to -

(a) the division of the fishing capacity permitted for the fishery into units (in this section referred to as 'units of fishing capacity');

(b) the allocation to persons of units of fishing capacity in the fishery;

(c) the assignment of units of fishing capacity to boats, and the holding, and cessation of holding, of units of fishing capacity in relation to boats;

(d) requiring units of fishing capacity to be held in relation to boats;

(e) the determination of the number of units of fishing capacity to be held in relation to boats;

(f) the holding of units of fishing capacity that are not assigned to a boat, including the number of such units of fishing capacity that may be held by a person and the period during which such units of fishing capacity may be held;

(g) the duration, variation, re-assignment, transfer, surrender, replacement, renewal of allocation, suspension and cancellation of units of fishing capacity;

(h) the recording of the allocation, assignment, holding, cessation of holding, variation, re-assignment, transfer, surrender, replacement, renewal of allocation, suspension and cancellation of units of fishing capacity and the manner in which such recording is to be evidenced, including the issue, recall and replacement of certificates and other documents evidencing such recording; and

(j) the reconsideration of decisions made under the plan of management.

. . .

(8) While a plan of management is in force for a fishery, the Minister and the Secretary shall perform their functions, and exercise their powers, under this Act in relation to the fishery in accordance with the plan of management, and not otherwise.

(8A) The Minister and the Secretary shall, in the performance of their functions and the exercise of their powers generally under this Act, have regard to the effects, either direct or indirect, that the performance of the functions and exercise of the powers may have in relation to any plan or plans of management. . . ."

Provision is made by s. 7C for the tabling of determinations under s. 7B and for their publication in the Gazette.

1. By s. 8 provision is also made for the regulation of fishing in the following terms:
   

"(1) The Minister may, by notice published in the Gazette-

(a) prohibit the taking, processing or carrying of fish, or fish included in a class of fish specified in the notice; . . .

(c) prohibit the taking of fish, or fish included in a class of fish specified in the notice, by a method, equipment or boat of a kind specified in the notice; . . .

(da) prohibit a person from having in the person's possession or in the person's charge in a boat equipment of a specified kind for taking fish; . . .

(f) prohibit a person from using, or having in his possession or in his charge in a boat, a quantity of equipment of a specified kind for taking fish that is a quantity in excess of a quantity specified in, or ascertainable as provided in, the notice; . . .

(2) A notice under subsection (1) may do all or any of the following:

(a) contain prohibitions under 2 or more paragraphs of that subsection;

. . .

(d) provide for exemptions from the prohibition or prohibitions contained in the notice. . . .

(4B) A prohibition contained in a notice under sub-section

(sic) (1) has effect -

(a) if an area of proclaimed waters is specified in a notice as being the area in respect of which the prohibition is to have effect - in that area; and

(b) in any other case - in any area of proclaimed waters. . . ."

1. There was notified by Commonwealth Gazette of 21 February 1986 a Plan of Management under s. 7B for certain proclaimed waters, including the Gulf of Carpentaria and the Joseph Bonaparte Gulf, known as the Northern Prawn Fishery Management Plan. It is not in dispute that the Plan covered all fishing for prawns in the area. Paragraph 7 of the Plan contains the following:
   

"7.1 For the purposes of sub-section 7B(2) of the Act, the objectives of this plan for the fishery are, consistently with the objectives specified in s. 5B of the Act -

(a) to conserve, and to reduce the fishing pressure on, the stocks of prawns in the area of the fishery; and

(b) to promote the economic efficiency of the fishery. 7.2 The measures for attaining the objectives specified in paragraph 7.1 shall include -

(a) exercising the powers in Part III of the Act and implementing the provisions of this plan so as to -

(i) protect the life cycle of prawns during the juvenile phases; and

(ii) control the number of boats authorised to operate in the fishery and the total fishing capacity of those boats;

(b) determining the manner of measuring the fishing capacity of the fishery;

(c) determining the fishing capacity, measured in the manner referred to in sub-paragraph (b), permitted for the fishery; and

(d) facilitating the withdrawal of units from the fishery by the measures specified in Part 8 or 9."

The Plan provided for the allocation to each fishing boat, permitted to fish in the area, of units of fishing capacity determined in accordance with formulae which took account of boat dimensions and engine power. Under the Plan, notices were issued on 21 February 1986 prohibiting the use of any boats in the fishery to which the applicable units had not been assigned. The prohibition is rather more complex than that, but it is unnecessary to go into further detail.

1. The Northern Prawn Fishery Management Plan was revoked on 30 May 1990 and replaced by a plan, notified in the Gazette on that day, designated Plan of Management Number NPF1. Before we set out some of the detail of that plan, we should note that by Gazette dated 24 February 1988, that is after the adoption of the Northern Prawn Fishery Management Plan, there had been notified by a Fisheries Notice, under the heading "MAXIMUM HEADROPE LENGTHS IN NORTHERN PRAWN FISHERY", a prohibition pursuant to s. 8(1)(c) of the Act of the taking of prawns with boats described so as to cover exhaustively the northern prawn fishery, to which was added an exemption of the taking of prawns with the use of an otter trawl net the headrope length of which did not exceed specified headrope lengths for specified classes of boats.

2. Plan of Management Number NPF1 differed in some respects from the previous Plan of Management. Paragraph 7.1 of the new plan provided:
   

"7.1 For the purposes of sub-section 7B(2) of the Act, the objectives of this Plan are -

(a) to conserve the stocks of prawns in the area of the fishery;

(b) to reduce the fishing pressure on the stocks of prawns in the area of the fishery; and

(c) to promote the economic efficiency of the fishery."

Paragraph 7.2 of the new plan did not contain a provision, as in the previous plan, for the exercising of the powers in Part III of the Act so as (inter alia) to control the total fishing capacity of the boats authorized to operate in the fishery. It simply read as follows:

"7.2 The measures for attaining the objectives specified in para. 7.1 shall include -

(a) the determination of the fishing capacity of the fishery;

(b) the determination of the number of units of fishing capacity for the fishery available to a unit holder for allocation and assignment, which shall be renewable and transferable; and

(c) the facilitation of the withdrawal of units and boats from the fishery."

The new plan, as it has subsequently been amended from time to time, has provided for the reduction of the total units to be allocated in respect of the fishery.

1. The final step which it is necessary to recite was the revocation by notice in the Gazette of 27 March 1991 of the Fisheries Notice published on 24 February 1988, and the substitution for it of a new notice, entitled "PROHIBITION ON EQUIPMENT FOR TAKING PRAWNS", prohibiting pursuant to s. 8(1)(c) of the Act, in the areas of the managed fishery, the taking of prawns with the use of various types of nets including an otter trawl as specified in the notice, and prohibiting pursuant to s. 8(1)(f) of the Act the use at any one time from a boat, in the same area, of a quantity of equipment for taking prawns exceeding nets of specified descriptions, but exempting from the prohibitions, pursuant to s. 8(2)(d) of the Act, the taking of prawns with the use of a boat using an otter trawl net the headrope length of which does not exceed specified lengths for specified kinds of boats. The court was informed at the hearing of the appeal that the notification in the Gazette of 27 March 1991 affected only the formal manner by which the Minister sought to achieve his objective, not the net sizes specified for particular kinds of boats.

2. The appellant's primary case, at the hearing at first instance, was that the Minister's purported exercises of power under s. 8, represented by the notices published in the Gazette on 24 February 1988 and 27 March 1991, were ineffective. This result was said to follow by force of s. 7B, and particularly subs. 8. It was said that the Minister was required to exercise his powers "in accordance with the Plan of Management, and not otherwise". Each plan of management, the appellants claimed, eschewed the course of regulating the fishery by limiting the quantity of prawns that could be taken, either by weight or by reference to the equipment which could be used, and instead limited the number and size of boats by the allocation of units of fishing capacity. Accordingly, so the argument ran, the adoption of an entirely different measure of control, by limiting the headrope length of the otter trawl nets which could be used, was inconsistent with each plan and repugnant to it. (The headrope length of an otter trawl net may be defined as "the distance along the headrope between the outermost points at which the meshes of the net are attached (to the headrope), measured when the rope is stretched taut and the rope and net are wet" - see Fisheries Notices No. NPF9, Gazette of 27 March 1991 and No. NPF16, Gazette of 27 March 1992. A limitation of this dimension of the net affects its capacity to catch prawns.) French J. rejected the appellants' argument, and also a further argument that the notices, if valid, worked a repeal of the plans, in whole or in part. This appeal followed.

3. In our opinion, it is important not to overlook that s. 7B(2) requires a Plan of Management for a fishery to set out "the objective of the Plan of Management" (emphasis added), but does not make the same precise demand in respect of the measures to attain that objective. In respect of them, the statute provides that the Plan "shall set out ... measures by which the objective is to be attained". The plan need not contain all the measures. What is essential is that it shall set out some measures. The Act itself contains objectives (stated in s. 5B) of proper conservation to avoid the danger of over-exploitation, and achievement of optimum utilization of the living resources of the Australian fishing zone, the attainment of which must almost inevitably require some flexibility in the application of measures to natural populations, including migratory species, subject to possibly unpredictable fluctuations. If a plan is to promote objectives such as these, it is easy to understand why the Parliament may not have wished to insist that all the measures by which the Minister might need to achieve its objectives must be stated in it. At any rate, the contrast between the definite article at the beginning of para. (a) of s. 7B(2) and the omission of any article before the word "measures" in para. (b) is too marked to be without meaning. In our opinion, the Act does not require all the measures, by which the objective of a plan of management for a fishery in proclaimed waters is to be attained, to be set out in the plan.

4. The draftsman of each of the plans in question was of the same mind. For, in each case, para. 7.2 commences with the words "The measures for attaining the objectives specified in para. 7.1 shall include ...". This language makes it quite clear that other measures may be taken which are not specified. In the case of the earlier plan, the measures which are specified have at their head the powers in Part III of the Act. Those powers include the powers exercised under s. 8 when the notices were published in the Gazette. Indeed, specific reference is made in para. 7.1(a) to the exercise of those powers "so as to ... control ... the total fishing capacity of (the) boats".

5. When, therefore, the Minister caused the notice to be published which appeared in the Gazette on 24 February 1988, it seems to us he was taking a step which was left open to him, first, by the deliberate choice of the legislature not to make a restrictive provision in s. 7B(2)(b), secondly, which was left open to him by the use of the word "include" in para. 7.1 of the plan, and thirdly, which was expressly contemplated by the provision in para. 7.1(a) for the use of powers, including the powers provided by s. 8, for the purpose of controlling the total fishing capacity of the boats authorized to operate in the fishery. There is consequently no substance in the contention that the notice in the Gazette of 24 February 1988 was contrary to the requirement of s. 7B(8) that the Minister should exercise his powers in relation to the fishery "in accordance with the Plan of Management, and not otherwise". It was entirely in accordance with this Plan of Management, and consistent with the Act which gave life to the plan, that the Minister should, under s. 8, prohibit otter trawl nets of certain dimensions, the use of which he considered inconsistent with the objectives specified in the plan.

6. Both the plan and the notices contemplated by para. 7.2 of the plan being in place, the Minister came to consider the determination of the new plan (which followed the same general scheme). In the new plan, sub-paras. (a) and (b) of para. 7.2 were omitted. This may have been due to a realization of the scope left by the use of the word "include" at the commencement of para. 7.2; or it may have been because the necessary steps contemplated by sub-paras. (a) and (b) had already been taken. In any case, the omission of sub-para. (a) without more could not possibly work a withdrawal of the Fishery Notice then in existence, or affect its operation. There is nothing in the Act to make a plan have such a consequence.

1. The final step was the new Fisheries Notice of 27 March 1992. But the changes effected by this notice were purely technical in the legal, not in the technological, sense. The manner of prescription of the limitations of net dimensions, not any limitation itself, was changed. The effect of those limitations upon Plan of Management Number NPF1 underwent no change at all.

2. Having examined the succession of determinations under s. 7B(1) and of notices under s. 8 of the Act, we can now return to give further consideration to the central question in the case, which is simply whether the Minister, by giving either of the notices, has acted in contravention of s. 7B(8), which requires him to exercise his powers under the Act in relation to the fishery "in accordance with the plan of management, and not otherwise". In our opinion, it is clear that there has been no contravention of this subsection. The first plan contemplated the gazettal of Fisheries Notices, and the second plan was brought into existence at a time when a Fisheries Notice, which it did not purport to affect, was already in place. The current Fisheries Notice has not in substance imposed any new restriction, and if it had, the context and terms of the plan plainly contemplate the imposition of some restrictions by Fisheries Notices.

3. Counsel for the appellants contended that the plan had adopted the method of restricting fishing for prawns only by the allocation of units dependent upon hull dimensions and engine power. He asserted it would be inconsistent with that to impose fishing restrictions based on different criteria, such as the actual size of catches or the type of equipment, including nets, which could be used. He conceded, however, in argument that the plan cannot in itself be an exact measure of control over the catches taken. This is plainly correct. Weather conditions during the fishing season must have a great impact on the practical ability of fishermen to utilize the boat capacity available to them by virtue of the units allocated under the plan. The type of gear used, crewing, the length of time that each boat, as equipped, crewed and supplied, can remain at sea fishing, and numerous other factors must affect the catch. The plan imposes one very broad measure of control, and does not purport to make it the sole and exclusive measure.

4. There was debate about the meaning of the expression "in accordance with", which it was suggested is the equivalent of "consistent with". We have no doubt that the expression connotes a substantial measure of consistency, but, beyond making that observation, we do not think it is particularly helpful to substitute for the statutory expression some other expression of closely similar meaning. The statute simply requires that the Minister shall perform his functions and exercise the relevant power "in accordance with the plan of management, and not otherwise". He is not forbidden to perform his functions or exercise his powers. The very limitation placed upon him assumes that he will be performing those functions and exercising those powers; the plan does not abrogate them. What is forbidden is the taking of steps in conflict with the plan, but provided steps taken are in accord with the plan, there is nothing in subs. 8 to say that they may not be taken outside the plan, and so as to supplement it rather than merely to implement it. It seems to us that the flaw in the appellants' argument is to narrow the meaning of accordance so as to exclude the supplementation of the plan and restrict all action to action within its terms. That is too restricted a view.

5. The appellants' other argument can be disposed of quite briefly. It was contended that if the Fisheries Notices were valid, they produced such a radical change in the situation for which the plan provided as to work an implied repeal of the plan by the later exercise of statutory power. The consequence was said to be that the allocation, and renewal of allocation, of units under the plan had not complied with the requirements of the Fisheries Levy Act 1984, so that the levy imposed by reference to the units was not lawfully imposed. It is sufficient to say, in answer to this submission, that the conclusions already reached must make it untenable. If, as we hold, the Fisheries Notices supplemented the plan, while being in harmony with it, the levy remained exigible (pursuant to s. 5, as interpreted in the light of s. 3(2), of the Fisheries Levy Act) by reference to the units for which the plan provided.

6. In our opinion the appeal should be dismissed with costs.