Mattsson v Director of Fisheries No. Dcaat-00-214

[2000] SADC 109

Mattsson v Director of Fisheries
[2000] SADC 109

Judge Muecke
Administrative Appeals Tribunal

1. Mr Neville Mattsson (‘the appellant’) holds a Marine Scalefish Fishery Licence number M454 whereby he is licensed to engage in activities that constitute the fishery.  His boat, ‘Falcon’, is registered by endorsement on his licence.  He is the registered Master of that boat.  He is also authorised to engage in fishing activities by the use of a specific number of specified registered devices.  For example, the licence entitles him to use two cockle rakes, fifty octopus traps, two dab nets, etc. 

2. Crab pots are not registered devices on the appellant’s licence. However, pursuant to section 59 of the Fisheries Act 1982 (‘the Act’), the Minister gave notice that the appellant would not be guilty of an offence when using up to 100 crab pots for the taking of sand crabs, rock crabs and spider crabs for the purpose of trade or business in coastal marine waters of South Australia (‘the permitted activity’). This section 59 exemption was published in the South Australian Government Gazette on 16 August 1999, and was subject to certain conditions. It was only valid in respect of the appellant’s boat ‘Falcon’; the appellant had to be on board the ‘Falcon’ at all times while it was being used for the purpose of engaging in the permitted activity and the appellant was only entitled to engage in the permitted activity until 30 June 2000.

3. I was told that the appellant does not engage in activities which are permitted by his licence. That is, he does not use any of the devices registered on his licence to catch fish. The only fishing activity he engages in is by utilising up to 100 crab pots pursuant to his section 59 exemption. That exemption expired on 30 June 2000.

4. At some time early this year, the appellant sought and obtained the consent of the Director of Fisheries (‘the Director’) to have what was referred to as a relief Master operate his Marine Scalefish Licence.  This was sought due to his ill health.  The request he made to the Director and the Director’s consent were not before me.  However, I have a letter written by the appellant’s solicitor to the Director on 10 February 2000 enclosing a medical certificate from Dr Richard Watts for a three month period.  The Director was informed that Dr Watts had told the appellant that a twelve month certificate could be issued.  The Director was informed:

   Our client will obtain this 12 month certificate when next he visits Dr Watts and we will onforward a copy thereof to you.  Consequently permission is sought for a relief Master, Mr Jason Troy Whittle of 76 Cardiff Road, Port Lincoln.

In his solicitor’s letter dated 10 February 2000 the appellant also made application for 100 ‘crab traps to be endorsed onto his Fishery Licence in lieu of the Ministerial Exemption, but subject to the same conditions’. (I assume crab traps are the same as crab pots.) The reason for the appellant’s application was because Ministerial section 59 exemptions have no commercial value. The appellant’s fishery licence has a commercial value in that it can be sold to another fisherman. If 100 crab pots were registered devices on the appellant’s licence rather than being the subject of a section 59 exemption, his licence would have greater commercial value than it currently has. The appellant wishes to maximise the value of his licence prior to his imminent retirement as a fisherman. I gathered that if the Ministerial section 59 exemption was converted to a permitted activity on his licence the appellant would retire and sell his licence.

1. By letter dated 26 April 2000 the appellant’s solicitor was advised:

   I am writing to you in regard to Mr Mattsson’s application to have a relief master operate his marine scalefish licence and your request to have the 100 crab pots that he is currently permitted to use under a Ministerial exemption, transferred to his marine scalefish licence (M454).

   As you are aware I have approved Mr Mattsson’s application to have a relief master operate his marine scalefish licence for the period from 21 March 2000 to 30 September 2000.  However please note that a relief master will not be permitted to operate Mr Mattsson’s marine scalefish licence beyond this period.

   The Minister has not agreed to grant an exemption to Mr Mattsson’s relief master enabling him to use crab pots. A Ministerial exemption is issued under Section 59 of the Fisheries Act 1982 to enable fishing activities to be undertaken that are not otherwise permitted under the Act. Ministerial exemptions are not transferable and do not confer any proprietary interest in the exempted activity.

   Your request to have the 100 crab pots endorsed on Mr Mattsson’s marine scalefish licence is also not supported.  I consider that the transfer of these crab pots to Mr Mattsson’s marine scalefish licence will increase effort on the sand crab resource in South Australia.  In order to properly manage the sustainability of this resource it is considered necessary that the taking of this species by crab pots continue to be managed by way of Ministerial exemption until the fishery is reviewed.  Furthermore, it was always the intent that this exemption be used for the purpose of developing new offshore fishing areas, not on inshore fishing grounds currently utilised by traditional hoop net fishers.  Should conflicts with inshore sand crab fishers continue, management measures addressing this matter will need to be considered.

2. By notice dated 26 May 2000 the appellant appealed against what he said were two decisions contained in this letter.  Particulars of the decisions by which he was aggrieved were as follows:

   1.1... The Director of Fisheries on 26th April 2000 refused to endorse the Applicant’s Marine Scale Fishery Licence M454 with authorisation to use 100 crab pots in lieu of a ministerial exemption permitting the use by the Applicant of 100 crab pots granted pursuant to Section 59 of the Fisheries Act 1982.

   1.2The Director of Fisheries on 26th April 2000 refused to permit the Applicant to exploit his Marine Scale Fishery Licence M454 by the use of a relief Master.

3. By Application for Directions dated 8 August 2000 the respondent Director sought orders dismissing the appellant’s Application for Review as being incompetent. It was alleged by the Director that the decisions complained of were not decisions in respect of which an appeal lay to this Court pursuant to section 58 of the Act. I heard this application on 24 August 2000.

4. At the hearing the Director conceded that the decision identified in paragraph 1.1 of the appellant’s Notice of Appeal can properly be the subject of an appeal.  That concession was made on the basis that that decision was a decision of the Director refusing an application for an authority (a registration of devices).  The Director maintained his objection that this Court can review the decision of the Director which was characterised by the appellant as a refusal to permit the appellant to exploit his Marine Scalefish Fishery Licence M454 by the use of a relief Master.

5. There was some confusion before me as to precisely what the appellant had asked by his solicitor’s letter, and what decisions had been made by the Minister or the Director.  The Director’s position was that the appellant has a licence authorising him to use a registered boat and certain registered devices, not including crab pots.  If fishing activities authorised by the licence are conducted on the ‘Falcon’ when the appellant, as Master, is not in charge of the boat, the Director can consent to a relief Master acting in place of the appellant.  The Director gave his consent for relief Master Jason Whittle to be in charge of the ‘Falcon’ for the purpose of engaging in fishing activities authorised pursuant to the appellant’s licence M454, for the period 21 March 2000 to 30 September 2000.

6. The Director maintained that activities the appellant could lawfully engage in pursuant to the section 59 exemption were not authorised pursuant to the appellant’s licence M454, but pursuant to the exemption. The Director had not consented to relief Master Jason Whittle being in charge of the ‘Falcon’ from 21 March 2000 to 30 September 2000 whilst the ‘Falcon’ was used to engage in activities permitted by the exemption. A condition of the exemption was that the appellant must be on board the ‘Falcon’ at all times while the boat is using crab pots for the taking of sand crabs, rock crabs and spider crabs.

7. The Director maintained that whilst his decision not to vary the appellant’s licence to register 100 crab pots as registered devices is reviewable by this Court, his refusal to consent to the appellant’s use of a relief Master whilst operating his Marine Scalefish Licence M454 is not. The Director submitted that the appellant’s section 59 exemption, and any conditions attached thereto, is also not reviewable by this Court.

8. It is not clear whether the appellant has, at any time since 21 March 2000, allowed the ‘Falcon’ to conduct activities permitted by the section 59 exemption with the relief Master, Jason Whittle, in charge. The exemption expired on 30 June 2000. I was told that there is currently before the Minister an application by the appellant for a further section 59 exemption. I do not know whether that application seeks a condition which would allow either the appellant as Master, or a relief Master, to be on board the ‘Falcon’ while being used for the purpose of engaging in permitted activities under the proposed new exemption.

9. One question that arises on this appeal is whether the Director’s letter dated 26 April 2000 evidences any decision at all in respect of the use of a relief Master by the appellant. One reading of the letter is that the Director’s decision as to the use of a relief Master was made some time before the letter and was a decision whereby the Director consented to the appellant using a relief Master, but on condition that such consent have no effect beyond 30 September 2000. On that reading there is no decision of the Director contained in the letter from which the appellant could appeal. The appellant relies on section 58 of the Act to submit that his appeal is competent. That section relevantly provides that a person aggrieved by a decision of the Director which refuses an application for an authority may appeal to this Court. On one construction of the letter the Director has not refused anything. Rather, he has given his consent to the use by the appellant of a relief Master, with conditions.

10. However, I am prepared to construe the Director’s letter of 26 April 2000 as a decision by the Director which refuses to consent to the appellant having a relief Master operate his Marine Scalefish Licence beyond 30 September 2000.

11. Part 4 of the Act regulates fishing. Section 34 requires persons and boats engaged or used in fisheries to be licensed. Section 34(2) provides that a person must not permit a boat to be used for the purpose of engaging in a fishing activity unless the boat is in the charge of a natural person, who is registered by endorsement of the licence as the Master of the boat that may be used pursuant to the licence. Alternatively, the boat must be in the charge of a person who is acting in the place of the Master with the consent of the Director and in accordance with the conditions (if any) of that consent.  This person is referred to as a relief Master.

12. I have construed the Director’s letter of 26 April 2000 as a refusal by him to consent to the appellant using a relief Master beyond 30 September 2000. The appellant submitted that the Director’s refusal to consent pursuant to section 34 was a refusal of ‘an application for an authority’, and is therefore reviewable pursuant to section 58 of the Act.

13. ‘Authority’ is defined in the Act as meaning a licence, permit, registration or lease provided for, by or under the Act. The appellant relied on the word ‘permit’ in this definition. He submitted that because section 34(2) ‘is addressing the “permit(ing)” of a boat to be used in a fishing activity’, the Director’s consent pursuant to that section was a permit provided for under the Act.

14. The Director submitted that the consent of the Director pursuant to section 34(2) is neither a licence, permit, registration or lease provided for, by or under the Act. It is simply a consent allowing the use of a relief Master.

15. The Act provides for the granting of certain licences. It, and the regulations made under it, also provide for the granting by the Director of certain registrations. These include registrations of Masters, boats, devices, owners, fish processors etc. Section 48G of the Act empowers the Director to issue permits to persons, authorising certain activities in aquatic reserves. The Director may vary or revoke a condition of any such permit, or impose further conditions. Section 48A empowers the Minister to grant leases on appropriate terms and conditions, entitling persons to rights of entry, use or occupation of marine parks. All these licences, permits, registrations and leases are provided for, by or under the Act. They are issued to appropriate persons and in respect of boats and devices, used to pursue activities authorised by them.

16. As already indicated the appellant submitted that a ‘consent’ referred to in section 34(2)(a)(ii) is a ‘permit provided for by or under (the) Act’. It was submitted that this was so because the Director’s consent ‘permits’ the use of a relief Master. I reject that submission. The Director’s consent for a relief Master to act in place of a Master could also be said to ‘allow’ a relief Master to so act. It could also be said to ‘authorise’ a relief Master to act in place of a Master. In my view, that does not mean that the consent is an ‘authority’ provided for by the Act. The appellant did not argue that it was an ‘authority’ on that basis, and in my judgment such an argument could not be maintained. I agree with the respondent’s counsel that the Director’s consent in section 34 is simply a consent to allow something to happen, subject to any conditions. The words used in sub‑section 2 are consistent with those in the definition of a ‘registered master’. This is defined as including a person acting in the place of a Master with the consent of the Director and in accordance with the conditions (if any) of that consent.

17. In my view, not only does the construction of ‘permit’ contended for by the appellant strain the ordinary grammatical meaning of that word and the manner in which it is used in the Act, it is also, in my view, inconsistent with the general scheme of the Act. The Act regulates fishing by granting licences and permits and by the registration of certain boats and equipment incidental to fishing. As part of that regulation the Act requires that registered boats be in the charge of registered Masters. The Act recognises, however, that there may be circumstances which occur from time to time where there should be some flexibility in allowing a relief Master to be in charge of a registered boat. This is no doubt to assist licence holders to conduct their fishing activities despite the illness or incapacity of a Master. I see nothing in the Act to suggest that the policy of the legislators was that a consent given by the Director to enable this to occur was intended to be the subject of an appeal to this Court.

18. I also conclude that an exemption made by the Minister pursuant to section 59 of the Act is not reviewable by appeal to this Court. Although the appellant did not argue that a section 59 exemption was reviewable, the respondent submitted that, in the circumstances of this case, the relief sought by the appellant in paragraph 3.3 of his Notice of Appeal implied that he might consider that his exploitation of rights conferred by his licence M454, included rights conferred by any section 59 exemption.

19. My view is that the refusal by the Minister to grant a section 59 exemption and the making of, or the refusal to make, conditions in respect of any such exemption is not reviewable by this Court under section 58 of the Act (see also Altamura & Anor v Primary Industries SA, Judgment No D3716, 7 November 1997).

20. It is not strictly necessary for me to decide whether or not the Director’s authority to consent to a registered boat being in the charge of a relief Master applies whilst the boat is engaged in activities which are permitted by a section 59 exemption. I think probably that it does not apply. This is because, pursuant to section 59, the Minister may vary or revoke an exemption or a condition of an exemption. The appellant’s section 59 exemption is subject to the condition that he must be on board the ‘Falcon’ at all times while the boat is being used for the permitted activity. That condition could be varied by the Minister to allow a relief Master to be on board in lieu of the appellant. That may be a matter the appellant will pursue on his current application for a section 59 exemption.

21. My conclusion is that the appellant has no right of appeal from the decision of the Director on 26 April 2000, refusing consent for a relief Master to operate the appellant’s Marine Scalefish Licence M454 beyond 30 September 2000.

22. Furthermore, I conclude that the appellant has no right of appeal from a refusal to grant a section 59 exemption, or from any conditions imposed on such an exemption, including any decision not to allow the appellant to exploit any section 59 exemption by using a relief Master.

23. Accordingly, I strike out the appellant’s appeal insofar as it relates to these matters.  I strike out paragraphs 1.2 and 3.3 of the Notice of Appeal dated 26 May 2000.