Loy v Minister for Fisheries

[2002] NSWADT 167

CITATION:	Loy -v- Minister for Fisheries [2002] NSWADT 167
DIVISION:	General Division
PARTIES:	APPLICANT Graeme Donald Loy RESPONDENT Minister for Fisheries
FILE NUMBER:	023109
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	08/14/2002
DATE OF DECISION:	09/13/2002
BEFORE:	Higgins S - Judicial Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Environmental Planning and Assessment Act 1979 Fisheries Management Act 1994 Fisheries Management and Environment Assessment Legislation Amendment Act 2000 Interpretation Act 1987
CASES CITED:	Minister for Fisheries v Sneesby [2001] NSWADTAP 33 Professional Fishers Association Incorporated v Minister for Fisheries [2002] NSWLEC 15
REPRESENTATION:	APPLICANT In person RESPONDENT C Cory, solicitor
ORDERS:	1. The Tribunal has no jurisdiction to hear the application.; 2. The application is dismissed.

Introduction

1 On 22 May 2002, Mr Loy filed an application for review of a decision by the Minister for Fisheries (“the Minister”) that as of 1 May 2002 specified areas defined as recreational fishing havens would be closed to licensed commercial fisheries under the Fisheries Management Act 1994 (the FM Act).

2 Mr Loy’s application gives rise to a preliminary issue, which is whether the Tribunal has jurisdiction to review this particular decision, and a related decision by the Minister.

3 At a directions hearing the parties agreed that the matter was to be determined on the papers filed by the respective parties. Those papers were directed to be having been filed on or before 30 July 2002. This date was subsequently extended to 14 August 2002.

Background

4 Mr Loy is the holder of a commercial fishing licence under s104 of the FM Act 1994.

5 Mr Loy’s commercial fishing licence also has attached to it an endorsement issued by the Minister. This endorsement authorises him to take fish for sale in specified restricted fisheries pursuant to s112(1) of the FM Act. One of the endorsements is an estuary general restricted fishery for Region 1. The Tribunal has been informed that Region 1 relates to the Richmond River estuary, which includes Shaws Bay where Mr Loy has previously fished.

6 On or about 3 April 2002, Mr Loy received a letter from Steve Dunn, the Director of NSW Fisheries. This letter related to the voluntary buy-out process and closures to commercial fishing in specified estuary waters. This letter stated that new commercial fishing closures were to take effect from 1 May 2002. In particular, the letter stated:

“On 1 May 2002, the areas announced as recreational fishing havens will become closed to commercial fishing. This involves 29 locations along the NSW coast. A detailed list of areas is attached for your reference.

It will be an offence to operate in those areas after 1 May without a specific permit. Permits will only be issued under the circumstances outlined below.”

7 The Richmond River was included in the list of 29 locations that were to become closed to commercial fishing as of 1 May 2002. The letter also goes on to state that:
“Temporary permits to fish in the area where the fisher has a catch history may be issued to the fishers (if any) who are invited to participate in a further voluntary buy-out process. Such permits would only be valid for a maximum of three months or until a payment is made, whichever comes first.”
8 On of about 22 April 2002, Mr Loy received a Notice signed by George Dodds, Director, Fisheries Services. The Notice was addressed to “All Estuary – General and Botany Bay Estuary Prawn Trawl Fishers”. The letter states that all licensed commercial fishers were reminded to cease commercial fishing activity in each of the designated recreational fishing havens by midnight, 30 April 2002. The Notice goes on to state the following:
“On 1 May 2002, the areas defined as recreational fishing havens will be closed with the application of s8 of the Fisheries Management Act 1994 . The designated recreational fishing havens are in twenty-nine (29) locations along the NSW coast. A comprehensive list of the areas affected is attached for your information”.
9 The list attached to this Notice was the same as that which was attached to the letter Mr Loy received on or about 3 April 2002.

10 In his submissions Mr Loy states that the Minister has refused to issue him a permit under s37 of the FM Act, following the announcement of the closure of the Richmond River Estuary.

RELEVANT LEGISLATION

Administrative Decisions Tribunal Act

11 S. 38(1) of the Administrative Decisions Tribunal Act 1997 (the ADT Act) provides that:

“The Tribunal has jurisdictions under an enactment to review a decision (or a class of decision) if the enactment provides that application may be made to it for a review of any such decision (or class of decision) made by an administrator:
(a) in the exercise of functions conferred or imposed by or under the enactment, or

(b) in the exercise of any other function of the administrator identified by the enactment.”

12 Section 5 defines the terms “enactment” to mean an Act other than the ADT Act or a statutory rule.

13 Subsection 38(2) of the ADT Act provides that:

“Nothing in subsection (1) enables jurisdiction to review a decision to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by the Act (other than this Act).”
14 Accordingly, the Tribunal’s jurisdiction to review a “decision” is derived from the legislation under which the “decision” was made and which provides that an application can be made to the Tribunal to review that “decision”.

Fisheries Management Act

(a) Reviewable Decisions by the ADT

15 In this case, it is the FM Act where the jurisdiction of the Tribunal must be found. There is no general provision in the FM Act that gives the Tribunal jurisdiction to review each and every decision made under this Act. However, there are specific provisions in the FM Act (ss.126, 146, 160, 161 and 177), which expressly give the Tribunal jurisdiction to review certain decisions that are made under the FM Act.

16 S. 126 of the FM Act provides that:

“s. 126(1) a person who is dissatisfied with any of the following decisions under this Part may apply to the Administrative Decisions Tribunal for a review of the decision concerned:
(a) the refusal to issue a relevant authority to the person or to renew the person’s relevant authority,

(b) the imposition of conditions on the person’s relevant authority (otherwise than by regulation),

(c) the suspension or cancellation of the persons relevant authority.

(2) for the purposes of this section, an application for the issue or renewal of a relevant authority is taken to have been refused if the authority is not issued or renewed within 60 days after the application was duly made.”

(Underline Added)

17 S. 126 is contained in Part 4 of the FM Act , which is entitled “Licensing and Other Commercial Fisheries Management”. S125 of the FM Act defines the term “relevant authority” to mean a commercial fishing licence, an endorsement on a commercial fishing licence, a fishing boat licence, the registration of a member of the crew of a boat, or a fish receiver’s registration.

18 Part 4 of the FM Act also contains provisions relating to the licensing of commercial fishers (s104 of the FM Act), the placing of conditions on those licences (s. 104(4) of the FM Act), the declaring of certain fisheries to be a restricted fishery (s111 of the FM Act) and the attachment of an endorsement for taking fish from a restricted fishery on a commercial fishing licence (s112 of the FM Act).

19 Sections 146, 160, 161 and 177 all relate to decisions that are made in relation to Aquaculture Management, which is provided for in Part 6 of the FM Act. These provisions are of no relevance to this application.

(b) Fishing Closures

20 Section 8 of the FM Act gives the Minister power to prohibit absolutely or conditionally the taking of fish from any waters that come within the terms of the Act. That section provides as follows:

“(8)(i) The Minister may from time to time, by notification, prohibit, absolutely or conditionally, the taking of fish, or of a specified class of fish, from any waters or from specified waters.

any such prohibition is called a fishing closure.”

21 S14 of the FM Act creates an offence where a person takes or is in possession of fish in contravention of a fishing closure. This section and s8 are contained in Part 2 of the FM Act, which relates to “General Fisheries Management”.

22 S35 of the FM Act, which is also contained in Part 2 of the Act, creates an offence where a person has in his/her possession a fish which was illegally taken in contravention of a provision of the FM Act or a law of another State or Territory or of the Commonwealth relating to fisheries. S.37 of the FM Act creates a defence to a prosecution for an offence under s35 if the person charged satisfies the Court that he/she was the holder of a permit under that section and was authorised to take and possess the fish the subject of the charge (s.37(3) of the FM Act).

23 Section 37(1) of the FM Act authorises the Minister to issue a permit, which authorises a person to take and possess fish or marine vegetation of any kind or of a specified kind for any one of the specified purposes in that subsection. It is noted that s37(7) restricts the Minister’s power to issue permits under this section to those limitations which are set out in s220ZW of the FM Act. These limitations relate to the issue of a licence to harm threatened species, population or ecological community or damage habitat.

Submissions

24 In his submissions, Mr Loy identifies two issues as follows:

(a) whether the Tribunal has jurisdiction to review the Minister’s refusal to issue a s37 permit to Mr Loy; and

(b) whether the Tribunal has jurisdiction to review the Minister’s decision to close the Richmond River Estuary pursuant to s8 of the FM Act.

25 Mr Loy argues that each of these decisions affect his commercial fishing licence and the endorsement attached thereto. For example, he submits that the fishing closure represents an imposition of a condition on his licence and the endorsement attached thereto. He further submits that the fishing closure represents a suspension or cancellation of his commercial fishing licence, which previously enabled him to fish in these waters. Accordingly, he submits that the decision of the Minister pursuant to s8 of the FM Act is a decision coming within s126(1)(b) and (c) of the FM Act and therefore reviewable by the Tribunal.

26 Mr Loy then goes on to state that a decision by the Minister not to issue a permit under s37 of the FM Act is also a decision pursuant to s126 of that Act as that decision effectively restores or fails to restore any rights that he held pursuant to his commercial fishing licence and the endorsements attached thereto, which were lost as a result of the Minister’s decision to close fishing in the Richmond River estuary.

27 Ms Corey, solicitor for the Respondent, submitted that s. 126 of the FM Act only applied to decisions that were made under Part 4 of that Act. A provision in similar terms was not to be found in Part 2 of the FM Act, thereby making decisions by the Minister pursuant to ss. 8 and 37 of the Act not reviewable by the Tribunal.

28 She also submitted that the Minister’s decision in respect of closures of the 29 estuaries pursuant to s8 of the Act did not impose a condition on Mr Loy’s commercial fishing licence or the endorsements attached thereto. It was her submission that these closures were of general application and were not a decision made by the Minister pursuant to s104 (4)(a) of the FM Act.

REASONS

29 No document has been filed by the parties, which evidence the decision of the Minister in respect of the fishing closures of the Richmond River estuary and other estuary waters. However, there is no dispute that the Minister did in fact make such a decision pursuant to s8(1) of the FM Act some time prior to 3 April 2002.

30 There is also no document filed in respect of the Minister’s decision to refuse Mr Loy’s application for a permit under s37 of the FM Act. Again, the parties appear to agree that such a decision has in fact been made and my reasons are given on the basis that this is correct, and that it was a decision pursuant to s. 37. If no decision has been made, then the principles as set out by the Appeal Panel in Minister for Fisheries v Sneesby [2001] NSWADTAP 33 would apply and the Tribunal would have no jurisdiction solely on the ground that no decision has been made.

31 It would appear that the parties agree that there is no express provision in the FM Act that provides for a decision of the Minister under ss. 8 and 37 of the FM Act to be reviewable by the Tribunal, as required under s. 38 of the ADT Act. It is also agreed that by virtue of ss. 126 and 125 of the FM Act, the Tribunal is expressly given jurisdiction to review a decision of the Minister to grant, suspend or cancel a commercial fishing licence, to grant suspend or cancel an endorsement for attachment to that fishing licence and to impose conditions on such licences and endorsements.

32 Accordingly, the question, as put by Mr Loy, is whether on the proper construction of the FM Act:

(a) where a person has been appropriately authorised to take fish for sale in particular waters and the Minister subsequently makes a decision under s.8 of the FM Act to close those particular waters, that this is a decision that imposes a condition on that person’s relevant authority (i.e. the person’s commercial fishing licence and the endorsement attached to that licence); and

(b) where the Minister decides to refuse to issue a permit under s. 37 of the FM Act this is a decision to refuse to issue a relevant authority to a person.

33 In my opinion such a construction cannot be placed on the FM Act. The mere fact that the Minister’s decision under ss. 8 and 37 of the FM Act has an affect on Mr Loy’s commercial fishing licence and the endorsements attached to it does not mean that they are decisions which relate to a “relevant authority” as defined in s. 125, and are reviewable by the Tribunal by virtue of s. 126 of the FM Act.

34 The question must however, be determined on a proper construction of the FM Act having regard to its objectives (s. 33 Interpretation Act 1987), the structure of the Act (s. 35(1) Interpretation Act 1987), the express words of the relevant provisions and where those sections fit into the structure of the Act.

35 The general objectives of the FM Act are set out in sub s. 3(1) of the Act. That sub-section provides that they are to “conserve, develop and share the fishing resources of the Sate for the present and future generations”. Sub-s. 3(2) goes on to particularise this objective as follows:

“(2) In particular, the objects of this Act include:
(a) to conserve fish stocks and key fish habitats, and

(b) to conserve threatened species, populations and ecological communities of fish and marine vegetation, and

(c) to promote ecologically sustainable development, including the conservation of biological diversity; and consistently with those objects:

(d) to promote viable commercial fishing and aquaculture industries, and

(e) to promote quality recreational fishing opportunities, and

(f) to provide social and economic benefits for the wider community of New South Wales.

36 The emphasis of the objectives of the FM Act is conservation of fishery resources, with commercial fishing being regulated so that it does not detract from the primary objective of conservation. At the same time, commercial fishing is to be regulated in a manner that promotes a viable commercial fishing industry. In my opinion, having regard to the structure of the FM Act the powers vested in the Minister under ss. 8 and 37 fall into the primary objective of conservation and the issue, suspension and cancellation of a commercial fishing licence falls into the secondary objective of promoting a viable commercial fishing industry. Furthermore, this secondary objective is subject to those provisions, which relate to the primary objective.

Commercial Fishing Licence and Endorsements

37 In Part 4 of the FM Act, Parliament has provided for a comprehensive licensing scheme for commercial fishers (s. 104 FM Act) and commercial fishing boats (s. 108 FM Act). As part of this licensing scheme, Parliament has also provided for restricted access by licensed commercial fishers to specified restricted fisheries (ss. 111 & 112 FM Act) and the share management scheme. Access to a restricted fishery is also contained in Part 4 of the FM Act, which is entitled “Licensing and Other Commercial Fisheries Management”, and the share management scheme is contained in Part 3 of the FM Act, which is entitled “Commercial Share Management Fisheries”. It is the access to these restricted fisheries or the share management scheme which provide the commercial value to the commercial fisher’s licence.

38 S. 104(3) of the FM Act requires the Minister to issue a commercial fishing licence where the applicant satisfies the matters prescribed under the FMG Regs (cl. 137). These requirements are specific to the applicant in that the Minister must be satisfied that he has the necessary qualifications and has not been convicted of any of the prescribed offences.

39 In issuing a commercial fishing licence under s. 104(4) of the FM Act the Minister authorises the licence holder to take fish for sale in waters over which NSW has jurisdiction (s.102 FM Act). That licence is subject to the conditions set out in cl 138 of the FMG Regs and any other condition that is “specified in the licence” (s. 104(4)(a) FM Act). The conditions set out in cl. 138(1) of the FMG Regs primarily relate to unlicensed crew members taking fish for sale or landed in NSW under the supervision of a licence holder and the licence holder using unlicensed crew members on a boat being used to take fish. Cl 138(2) expressly provides that additional conditions apply to endorsement holders in restricted fisheries.

40 Eligibility to an endorsement is contained in the regulations and in respect of a estuary general endorsement these are contained in cl. 191N of the FMG Regs. Again these eligibility requirements are specific to the applicant in that he must have a particular type of boat and he must satisfy a particular catch history. There are various sub-classes of an estuary general endorsement and these are described in cl 191L of the FMG Regs. The description of each sub-clause is that which a particular endorsement authorises an endorsement holder to do.

41 In this case, the commercial fishing licence issued to Mr Loy specifies on his licence the conditions that relate to his estuary general restricted fishery endorsement as provided in cl. 191M of the FMG Regs. These are stated in the licence to be as follows:

“The licence holder shall not take or attempt to take fish for sale other than by use of the boat/s licence under the Act as LFDC4, LFV841 and LFB5086 in accordance with the authorisations and conditions arising from fishing business No. 1081, unless:
1. working as part of a hauling crew in ocean haul or estuary general restricted fisheries; or

2. when engaged in the method of prawns said pocketing as defined in clause 31 of the Fisheries Management (General) Regulation 1995, in all waters, other than the Clarence River, where the use of the method is permitted.

This licence does not authorise the use of any licensed fishing boat in contravention of the conditions of the fishing boat licence.

The authority conferred by this licence is subject to change in accordance with the provisions of Part 5 of the Environmental Planning & Assessment Act 1979.

The licence holder is not authorised to take fish for sale from inland waters.”

42 The abovementioned conditions are the descriptions of the relevant sub-classes of endorsement contained in cl 191L of the FMG Regs and the particular boats on which his eligibility was based. Accordingly, Mr Loy’s commercial fishing licence authorises him to take fish for sale from Region 1 of the estuary general restricted fishery and the conditions (prescribed and specified) of his licence and endorsement set the parameters of his authorisation.

43 Under Part 4 of the FM Act, once a licence has been issued and an endorsement is attached to it, the licence and endorsement remain in force until such time as they expire unless cancelled or suspended by the Minister prior thereto (s. 104(4)(e) FM Act and cl 191 FMG Regs). Once a licence has expired the commercial fisher is entitled to a renewal of the licence and the endorsement attached to it (s. 104(4)(c) FM Act and cl. 191 FMG Regs).

44 The Minister’s power to cancel or suspend a commercial fishing licence or endorsement attached to it is limited to the circumstances prescribed in cls. 140 and 191R of the FMG Regs. These primarily relate to the licence holder breaching a condition of his licence or the endorsement or where he is convicted of other specified offences.

45 Accordingly, in Part 4 of the FM Act Parliament has set out a regulatory scheme that authorises licensed commercial fishers to take fish for sale in specified fisheries and subject to prescribed or specified conditions. Those prescribed and specified conditions merely set out the parameters of the fisher’s authority.

Fishing Closures

46 Ss.8 and 37 of the FM Act are not contained in Part 4 of the Act. They are contained in Part 2 of the FM Act, which is entitled “General Fisheries Management”. The provisions in this Part are divided into various Divisions. Only one Division, Division 4B, is applicable to commercial fishing. This Division (inserted into the FM Act by Schedule 5 of the Fisheries Management and Environment Assessment Legislation Amendment Act 2000) provides a mechanism of compensation to commercial fishers for the acquisition of their fishing entitlements. These entitlements could include an endorsement to a share management fishery or a restricted fishery.

47 There is another provision in Part 2 that expressly relates to commercial fishing. This is s. 20, which is contained in Division 2 of that Part. This Part is entitled “Prohibited Size Fish, Bag Limits and Protected Fish”. Sub-s. 20(1) provides that the regulations may declare that “fish of a specified species are protected from commercial fishing” and sub-s. 20(2) provides that “the regulations may declare specified waters to be waters in which all or a class of commercial fishing is prohibited absolutely or conditionally”. The taking of fish for sale in contravention of a declaration made under this section constitutes an offence (sub-s. 20(3)). Sub-s. 20(5) provides that the section does not limit the Minister’s powers to make “a fishing closure in relation to commercial fishing.”

48 The express words of this section indicate an intention that regulations made pursuant to this section are for general fisheries management and not for the management of commercial fisheries. There can be no question that such a regulation will have the effect of prohibiting commercial fishing of fish or in waters to which the regulation applies. That is, it has the effect of “prohibiting” that, which may otherwise be lawfully “authorised” under Part 4 of the Act. In my opinion this prohibition is not a cancellation or suspension of what is “authorised” under Part 4, as Parliament has prescribed specific grounds on which such a decision can be made. These grounds have no relevance to Parliament making a regulation under s. 20, which is of general application.

49 Nor do the express words of s. 20 or any of the other provisions in this Division of Part 2 operate in a way so as to “specify” a “condition” on a commercial fisher’s “authority”. Had Parliament intended this to be the effect of regulations made under this section it would have expressly provided for this.

50 Accordingly, a regulation made under s. 20 of the FM Act prohibits all commercial fishers who have been authorised to take fish or fish in waters the subject of the regulations from taking such fish or fishing in such waters. However, in all other respects the commercial fisher’s authority will remain in force.

51 S. 8 is contained in Division 1 of Part 2 of the FM Act. That Division is entitled “Fishing Closures”. S. 8 gives the Minister a very wide power to “prohibit” absolutely or conditionally the taking of fish from any waters to which the FM Act applies. Where the Minister exercises his powers under this section he is required to publish a notification of that closure, unless he considers that the closure is required as a matter of urgency (s. 9 FM Act). The Minister is given power to issue, amend and revoke such a closure from time to time (s. 11 FM Act). However, a fishing closure cannot be in operation for more than 5 years (s. 10(2) FM Act).

52 The express words of s. 8 give the Minister a wide power to prohibit fishing in specified waters. It can be directed to commercial or any other category of fishing and Pearlman J has stated in Professional Fishers Association Incorporated v Minister for Fisheries [2002] NSWLEC 15 (at para 36), that under this section Parliament intended to empower the Minister to close waters in the interests of general fisheries management, not commercial fisheries management. The Minister’s power under s. 8 is not limited in any way other than being required to exercise his power in accordance with the objectives of the FM Act (see s 222A).

53 In my opinion, s. 8 is similar to s.20 of the FM Act in that a decision by the Minister under s. 8 will “prohibit” a commercial fisher from fishing in waters to which his decision relates. Again such a “prohibition” is not a suspension or cancellation of the commercial fisher’s “authority”. Nor does it have the effect of “specifying” a “condition” on a commercial fisher’s “authority”. The structure of the FM Act and the express words of the section indicate the contrary. This Division contains no provisions relating to the licensing of commercial fishers. The section is worded in broad terms giving the Minister power to make a fishing closure without having to have regard to rights that persons may have to fish in the waters concerned. As stated above, the reasons for this are clear, as Parliament intended the Minister to exercise this power in circumstances where a particular fishery needed to be protected for conservation reasons. Accordingly, this protection operates as a prohibition on fishing the subject of a fishing closure and not as a condition of the commercial fisher’s authority to fish. That authority, if valid, remains in force but is subject to any prohibition that is made by the Minister under this section. If the prohibition (fishing closure) is amended or revoked, the fisher can again exercise his authority in those waters.

54 In my opinion, Mr Loy’s interpretation of s. 8 of the FM Act would lead to an inconsistency and inequity in that a commercial fisher would be able to seek review of a Minister’s decision under that section but any other person affected by the decision could not.

S 37 Permit

55 S. 37 is contained in Division 5 of Part 2 of the FM Act. That Division is entitled “General”. S. 35, in this Division creates an offence of possessing fish that are taken in contravention of the FM Act or under the law of another State or Territory or of the Commonwealth relating to fisheries. This is an offence of general application and s. 37 provides a defence to such an offence.

56 At the same time, s. 37 of the FM Act gives the Minister power to issue a permit to take and possess fish. The purposes for which such a permit can be given is prescribed in s. 37(1). These are restricted and do not expressly include commercial fishing. Having regard to all the provisions in this Division, in my opinion, the intention of this section is also for the purpose of general fisheries management to achieve the primary objective of conservation. While the section is wide enough to enable the Minister to issue a permit to a commercial fisher in waters to which a s. 8 closure applies, in issuing such a permit the Minister’s power is limited to those matters set out in s. 220ZW of the FM Act. These are matters, which relate to harming threatened species and have no bearing or relevance to those matters, which are relevant to the issue of a commercial licence and the eligibility of an endorsement to a restricted fishery as set out in cl. 140 and cl 191N of the FMG Act.

57 Accordingly, as a matter of construction, for the reasons set out above:

(a) a decision by the Minister under s. 8 of the FM Act is not a decision imposing a condition on a commercial fishing licence and the endorsement attached to it; and

(b) a refusal of the issue of a permit by the Minister under s. 37 of the FM Act is not a decision refusing to issue a commercial fishing licence or endorsement attached to it.

58 For the reasons set out above, I find that the Minister’s decision that the Richmond River estuary and the other 28 specified estuaries be closed to commercial fishing pursuant to ss. 8 of the FM Act , and the Minister’s decision of refusing Mr Loy a permit pursuant to s. 37 of the FM Act , are not decisions that come within the terms of s. 126 of that Act and I order that:
(a) The Tribunal has no jurisdiction to hear this application;

(b) The application is dismissed.