Minister for Fisheries v Oliver & Thomson; Minister for Fisheries v Rouse; Minister for Fisheries v Picton

[2002] NSWADTAP 43

Appeal Panel

CITATION:	Minster for Fisheries -v- Oliver & Thomson; Minister for Fisheries -v- Rouse; Minister for Fisheries -v- Picton [2002] NSWADTAP 43
PARTIES:	APPLICANT Minister for Fisheries RESPONDENTS Gregory John Oliver Christopher John Thomson John Rouse Peter John Picton
FILE NUMBER:	029011; 029013; 029014
HEARING DATES:	29/08/2002
SUBMISSIONS CLOSED:	08/29/2002
DATE OF DECISION:	12/19/2002
DECISION UNDER APPEAL:	Oliver & Thomson -v- Minister for Fisheries [2002] NSWADT 28; Rouse -v- Minister for Fisheries [2002] NSWADT 46; Picton -v- Minister for Fisheries [2002] NSWADT 47
BEFORE:	O'Connor K - DCJ (President); Britton A - Judicial Member; Mapperson K - Member
CATCHWORDS:	jurisdiction - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	013147, 013301, 013146
DATE OF DECISION UNDER APPEAL:	02/26/2002
LEGISLATION CITED:	Anti-Discrimination Act 1977 Fisheries Management (General) Regulation 1995 Fisheries Management Act 1994 Security Industry Act 1997
CASES CITED:	Oliver & Thomson -v- Minister for Fisheries [2002] NSWADT 28 Rouse -v- Minister for Fisheries [2002] NSWADT 46 Picton -v- Minister for Fisheries [2002] NSWADT 47
REPRESENTATION:	APPLICANT A Bell, barrister RESPONDENT J Priestley, barrister
ORDERS:	1. Appeal upheld; 2. Decisions under appeal set aside; 3. Application for review dismissed for want of jurisdiction.

1 The Minister for Fisheries (the Minister) appeals against the decision of the Tribunal in the following three cases: Oliver & Thomson -v- Minister for Fisheries [2002] NSWADT 28; Rouse -v- Minister for Fisheries [2002] NSWADT 46; and Picton -v- Minister for Fisheries [2002] NSWADT 47. The appeals have been heard together as they raise common issues. There are some differences in the factual circumstances, noted below.

2 The respondents are commercial fishers whose activities in New South Wales waters are regulated by the Fisheries Management Act 1994 (FM Act) and, relevantly to these cases, the Fisheries Management (General) Regulation 1995 (FMG Reg) (now repealed and replaced by the Fisheries Management (General) Regulation 2002). Under this legislation the Minister has wide-ranging powers, usually exercised under delegation by the Director of Fisheries and authorised officers.

3 In New South Wales in order to fish in a restricted fishery (areas or activities declared by the Minister after consultation under Part 4, Div 3 of the FM Act) it is necessary to have an endorsement to that effect on the licence (FM Act, s 112). Similarly it is necessary for the fishing boat being used to have a condition to that effect on its separate licence.

4 Prior to the decisions in issue, each of the respondents was entitled to fish in New South Wales waters. The respondents each held a commercial fishing licence and a fishing boat licence in Queensland and New South Wales. The Minister has purported to revoke all those endorsements and conditions that permitted the respondents to fish in New South Wales waters.

5 The Minister acted after being advised that each of the respondents had relinquished their Queensland licences under a ‘buy back’ scheme initiated in the year 2000 by the Queensland Government with a view to reducing the ‘fishing effort’ in Queensland waters by 15 per cent. (see Ex A to Appeal, Queensland East Coast Trawl Fishery, Structural Adjustment Scheme 2000.) New South Wales has developed policies designed to deal with the situation of ‘dual licensing’ or ‘licence splitting’ and to ensure that the ‘fishing effort’ in New South Wales does not increase. In summary, the danger, as the Minister and the Director see it, presented by dual licensees who relinquish their licences in one State but retain them in New South Wales is that they would become more active in New South Wales waters; thus thwarting the conservation and industry management objectives of the FM Act.

6 As the respondents see it, they have now been put completely out of business when previously they split (or could have split) their time between Queensland and New South Wales. They say there is nothing that they can now do with New South Wales licences that is of any value to them. It was common ground, that today, in contrast to the situation that once prevailed, the scale of restricted fisheries means that the ways in which and the places at which commercial fishing can be undertaken depends entirely on the grant of relevant permissions to enter those fisheries.

7 In each case the Tribunal upheld the applications for review. The Tribunal concluded, having regard to the legislative scheme as a whole, that the Minister's power of revocation under ss 104(6) and 108(6) of the FM Act must be read down to exclude a revocation that would in effect be a cancellation, suspension or forfeiture of an endorsement or entitlement giving a licensed fisher or the boat access to a restricted fishery. (see Oliver & Thomson, para [110]; Picton [101]; and Rouse [91].

8 The Minister agreed that the grounds for cancellation of licences under the FM legislation did not include any based on the application of policy relating to ‘dual licensing’ or ‘licence splitting’: see, e.g., FMG Reg cl 191. The Minister indicated that because of these limitations, it had been decided not to cancel the licences but to exercise the powers of revocation in respect of endorsements and conditions. (see further Ex A to Appeal).

9 The approach adopted by the Tribunal below also bears on the question of the Tribunal’s jurisdiction. The relevant provisions do not, on their face, confer any jurisdiction on the Tribunal to review decisions to revoke either licences or attached endorsements and conditions.

10 The Minister now appeals under the right conferred by the Administrative Decisions Tribunal Act 1997, s 113 (the Tribunal Act) in relation to alleged errors of law.

Legislation

11 It is convenient at this point to set out the applicable legislation, first as it relates to the Tribunal’s jurisdiction and second as it relates relevantly to the Minister’s powers.

12 Jurisdiction: The Tribunal’s jurisdiction is conferred by ss 125 and 126 of the FM Act:

‘ 125. Definition of "relevant authority"
In this Division, "relevant authority" means:
(a) a commercial fishing licence, or
(b) an endorsement on a commercial fishing licence, or
(c) a fishing boat licence, or
(d) the registration of a member of the crew of a boat, or
(e) a fish receiver's registration.
126. Applications to Administrative Decisions Tribunal for reviews of certain decisions
(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 person's 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.’

13 Categories (a) (commercial fishing licences), (b) (endorsements on same) and (c) (fishing boat licences) are the authorities relevant to these cases.

14 It will be seen that s 126 appears only to give the Tribunal jurisdiction over -

• Refusals to issue (a), (b) or (c)
• Refusals to renew (a), (b) or (c)
• Imposition of Conditions on (a), (b) or (c) (otherwise than those imposed by regulation)
• Suspension of (a), (b) or (c)
• Cancellation of (a), (b) or (c).

15 Missing from the list, it is contended, is ‘revocation’. It is not unusual in its licensing review jurisdictions for the Tribunal to be given jurisdiction over revocations, see for example Security Industry Act 1998, s 29(1)(c); and for revocation to be differentiated from cancellation.

16 Licensing Provisions: Commercial fishing licences: Commercial fishers are required to be licensed by s 102(1) of the FM Act. Under sub-s (4) to fish in a restricted fishery the fisher must have a relevant endorsement. Section 112 provides:

‘(1) A commercial fishing licence does not authorise a person to take fish for sale in a restricted fishery unless the holder is authorised by the Minister, by an endorsement on the licence, to do so.’

17 The power to cancel or suspend a licence is conferred by s 104(4), as follows:

‘(4) A commercial fishing licence:
(a) is subject to such conditions as are prescribed by the regulations or specified in the licence, and
(b) remains in force for the period of 1 year or such other period as is specified in the licence, and
(c) may be renewed from time to time in accordance with the regulations, and
(d) is not transferable, and
(e) may be cancelled or suspended by the Minister in the circumstances authorised by the regulations.’

18 The position in relation to endorsements is dealt with by sub-s (6), as follows:

‘(6) The Minister may, at any time by notice in writing to the holder of a commercial fishing licence, revoke or vary the conditions of or endorsements on the licence or add new conditions or endorsements. This subsection does not apply to conditions prescribed by the regulations.’

19 Commercial fishing boats: Boats are required to be licensed by s 107. Section 108(4) deals with suspension and cancellation of the licence:

‘(4) The licence for a boat:
(a) is subject to such conditions as are prescribed by the regulations or specified in the licence, and
(b) remains in force for the period of 1 year or such other period as is specified in the licence, and
(c) may be renewed from time to time in accordance with the regulations, and
(d) may be cancelled or suspended by the Minister in the circumstances authorised by the regulations.’

20 Section 108(6) deals with revocation or variation of conditions attaching to a fishing boat licence:

‘(6) The Minister may, at any time by notice in writing to the holder of a licence for a boat, revoke or vary the conditions of the licence or add new conditions. This subsection does not apply to conditions prescribed by the regulations.’

21 Assessment: The following conclusions flow, in our view, from the above provisions:

1. Commercial fishing licences may be issued subject to endorsement (in respect of taking fish for sale from a restricted fishery) and conditions.
2. The Minister may revoke or vary an endorsement or a specified condition (as distinct from the general conditions that are imposed by regulation).
3. The licence itself can not be revoked or varied. It can only be terminated by the action of suspension or cancellation.
4. A similar position applies to fishing boat licences, except that there is no provision for endorsements, conditions being the only vehicle through which restrictions are imposed.
5. The Tribunal does not have jurisdiction to review decisions to revoke or vary an endorsement or specified condition on a commercial fishing licence, or a specified condition on a fishing boat licence.
6. On the other hand, if a licensee disaffected by a revocation or variation seeks to have re-issued the old endorsement or condition and is refused, that refusal is a decision over which the Tribunal has jurisdiction.

22 The Minister’s policy of moving to curtail fishing in New South Wales waters in circumstances where the fishers had relinquished an interstate licence seeks to respond to the government policy of ensuring that there was no increase in the fishing effort in New South Wales. Section 3 of the FM Act is the objects clause and provides:

‘ 3. Objects of Act
(1) The objects of this Act are to conserve, develop and share the fishery resources of the State for the benefit of present and future generations.
(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 appropriately share fisheries resources between the users of those resources, and
(g) to provide social and economic benefits for the wider community of New South Wales.’

23 Before referring to the Tribunal’s reasoning, a summary of the background circumstances affecting all three cases, drawn from the Tribunal’s respective decisions follow. The reference to ‘specified conditions’ is to conditions other than the generally-applicable conditions imposed by regulation.

24 As noted earlier the respondents had been ‘dual licensed operators’ in New South Wales and Queensland, a not uncommon situation.

25 Oliver and Thomson: are the owners of a commercial fishing business no 1241 that involves ocean prawn trawl fishing and other types of fishing. They have been in business for over 20 years. Mr Thomson is the nominated fisher of the business and Mr Oliver is the general skipper. They are both holders of a commercial fishing licence. Mr Oliver's licence contains a "Skipper Endorsement" which authorises Mr Oliver to take fish for sale in restricted fisheries; namely ocean prawn trawl restricted fishery and ocean and line restricted fishery. The ocean prawn trawl restricted fishery endorsement provides:

‘Inshore
This endorsement authorises the holder to use an otter trawl net (prawns) to take fish (other than deepwater prawns) for sale from ocean waters beyond three nautical miles from the baselines of the territorial sea, and the waters of Coffs Harbour and Jervis Bay.
Offshore
This endorsement authorises the holder to use an otter trawl net (prawns) to take fish (other than deepwater prawns) for sale from ocean waters beyond three nautical miles from the baselines of the territorial sea.’

The endorsement in respect of ocean and line restricted fishery provides:

‘Line fishing (western zone)
This endorsement authorises the holder to use a line to take fish for sale from ocean waters that are less than 183 metres in depth. The endorsement does not authorise the holder to take school of gummy shark from waters that are south of a line drawn due east from the northern point of the entrance of the Moruya River.’

26 The ocean and line restricted fishery endorsement also contains two conditions. These restrict the area in which fish can be taken and prohibits the taking of certain species of fish. No conditions were attached to the ocean trawl prawn restricted fishery.

27 Mr Thomson's commercial fishing licence contains the same endorsements, however they are described as being endorsements of the fishing business No 1241.

28 They own two fishing boats, the "Sandalee", and the "Sandalee II". The "Sandalee" is licensed under the FM Act and is the holder of licence No LFB 98. The "Sandalee II" is a smaller vessel and is also licensed under the FM Act and is the holder of licence No. LFB 102. Boat licence LFB 98 is subject to conditions, including a condition that the boat may be used to trawl for prawns in ocean waters in accordance with the terms of an offshore prawn trawl endorsement. This means that the "Sandalee" boat licence has attached to it a condition that enables it to be used in the offshore prawn trawl restricted fishery in accordance with the abovementioned offshore prawn trawl restricted endorsement. Boat licence LFB 102 contains no conditions for offshore prawn trawl fishery and is used in the ocean and line fishery (western zone).

29 Decision made 7 May 2001 to revoke the endorsements allocated to revoke their commercial fishing business and to revoke the specified conditions, other than those prescribed by the regulations, on the boat licence of their fishing boat the "Sandalee". The basis for the revocation was the voluntary "transfer/surrender" to the Government of Queensland by Messrs Oliver and Thomson of their Queensland fishing licence that was attached to the "Sandalee". The Minister's delegate stated that this "transfer/surrender" was "inconsistent with the NSW licence splitting policy and the objects of the FM Act and could result in an increase in fishing effort in NSW waters".

30 Picton: is the owner of a commercial fishing business that involves ocean and estuary prawn trawl fishing. He has been a commercial fisherman for about 17 years. He holds a commercial fishing licence, and in 1996 he owned the "Santa Maria Star" (LFB 9779). His commercial fishing licence is subject to two endorsements which authorise him to take fish for sale in two types of restricted fisheries; namely ocean prawn trawl restricted fishery (inshore and offshore) and estuary prawn trawl restricted fishery. His boat licence LFB 9779 is subject to the following conditions:

‘OCEAN PRAWN TRAWL RESTRICTED FISHERY, Offshore – Pl. Fishing Closure Notification OP1 - Offshore Prawn Trawling. The boat may be used to trawl for prawns in ocean waters more than three nautical miles from the baselines of the territorial sea, using not more than 37.9 metres length of headrope. The boat may be replaced by a larger boat as provided in the Offshore Prawn Trawling Management Rules, Version 1.2. This authorisation is transferable with the fishing boat licence.
CLARENCE RIVER PRAWN TRAWL FISHERY. The boat in respect of which this licence was issued or renewed is authorised to take prawns by the use of an otter trawl net (prawns) in the waters of the Clarence River.
FISHING CLOSURE NOTIFICATION OG1 - OFFSHORE COMMERCIAL FISHING. The boat may be used to take fish in ocean waters more than three nautical miles from the baselines of the territorial sea.’

31 It is these conditions which entitle the "Santa Maria Star" to be used to catch fish in NSW offshore prawn trawl restricted fishery and the Clarence River estuary prawn trawl restricted fishery.

32 Decision made 7 May 2001 to revoke the endorsements on commercial fishing business and to revoke the specified conditions on the boat licence of his fishing boat the "Santa Maria Star". The basis for the revocation was the voluntary "transfer/surrender" to the Government of Queensland, by Mr Picton, of his Queensland fishing licence that was attached to the "Santa Maria Star". The Minister's delegate stated that this "transfer/surrender" was "inconsistent with the NSW licence splitting policy and the objects of the FM Act and could result in an increase in fishing effort in NSW waters".

33 Rouse: is the owner of fishing business no 183. He does not hold a commercial fishing licence under the FM Act and uses other licensed commercial fishers for his fishing business. The business has held an entitlement to an ocean prawn trawl restricted fishery endorsement (inshore and offshore classes of endorsement), under the FM Act since 1 March 1997. The boat licence is subject to the following conditions:

‘OCEAN PRAWN TRAWL RESTRICTED FISHERY, Offshore - Pl. Fishing Closure Notification OP1 - Offshore Prawn Trawling. The boat may be used to trawl for prawns in ocean waters more than three nautical miles from the baselines of the territorial sea, using not more than 44.4 metres length of headrope. The boat may be replaced by a larger boat as provided in the Offshore Prawn Trawling Management Rules, Version 1.2. This authorisation is transferable with the fishing boat licence.
FISHING CLOSURE NOTIFICATION OG1 - OFFSHORE COMMERCIAL FISHING. The boat may be used to take fish in ocean waters more than three nautical miles from the baselines of the territorial sea.’

34 It is these conditions, which entitle the "Sue Maree" to be used to catch fish in NSW offshore prawn trawl restricted fishery.

35 Decision made 29 November 2001 to revoke endorsements on commercial fishing business; and to revoke the specified conditions on the commercial fishing boat licence for the ‘Sue Maree’ LFB 11598.

36 The basis for revocation was the voluntary ‘transfer/surrender’ to the Queensland government of the Queensland fishing licence attaching to the ‘Sue Maree’. The Minister’s delegate said that this ‘transfer/surrender’ was ‘inconsistent with the NSW licence splitting policy and the objects of the FM Act and could result in an increase in fishing effort in NSW waters’.

37 Advice and Warnings: The appellant submitted that in the case of Oliver and Thomson they had sought advice and been warned that if they took advantage of the Queensland offer, they would place in jeopardy their New South Wales licences. See Ex A to Appeal: ‘If, as a result of taking part in the proposed adjustment scheme, an operator disposes of the Queensland component of their fishing business, then NSW Fisheries will revoke the associated NSW endorsement’: circular letter, 26 October 2000. On the other hand the appellant acknowledged that the position is less clear in relation to the situation of Picton. The position in relation to Rouse was not addressed.

Tribunal Reasons

38 The critical passages in Oliver & Thomson are at [103] as follows:

‘ Power of Revocation
103 In this case the Minister made his decision on the basis of Messrs Oliver and Thomson's successful participation in the Queensland scheme and he has purported to have made his decision in the exercise of his discretion under ss. 104(6) and 108(6) of the FM Act. The parties have not been able to point to any decisions on or relevant to these particular sub-sections. Other than s. 224 of the FM Act, which provides that the Minister must administer the Act in accordance with its objectives, the Act does not provide any express limitations on how this discretion is to be exercised.
104 The objectives set out in s. 3 of the FM Act, in my opinion, place primary emphasis on the conservation of fish stocks and at the same time, consistently with that objective, to promote viable commercial fishing. The difficulties this creates for the administrators in administering the Act cannot be underestimated. Since 1990, and after the enactment of the FM Act and its regulations, substantial changes have been made to rationalise the commercial fishing industry with a focus on conserving fish stocks by reducing the number of commercial fishermen in the expanded NSW managed fisheries and placing restrictions on fishing capacity of licensed fishing vessels. These changes are ongoing with steps being taken to bring into operation the commercial share management provisions in Part 3 of the Act with further reductions.
105 To date, the changes have come about through the creation of restricted fisheries with entry being limited to those persons or businesses who have been able to satisfy the prescribed fishing catch history (Part 8 FMG Regs). It is this catch history, which has formed the basis of demonstrating that a fisher has a commitment to and dependence on the restricted fishery to which that fisher has access.
106 At the same time caps have been placed on the fishing capacity of those fishers who have been given entry to these NSW restricted fisheries. These include, the unitising of vessels, restrictions on upgrading, replacing and transferring licensed fishing vessels and restrictions on the fishing gear that is to be used.
107 In being given access to restricted fisheries under the FM Act and FMG Regs the Minister has given commercial fishers a right that is of commercial value in the form of entitlements, endorsements and authorisations. At the same time the FM Act and FM Regs provide that the Minister is not able to cancel or suspend those rights unless specific circumstances have arisen (e.g. cl. 181, 182, 191F, & 191H of the FMG Regs). In the case of an offshore and inshore prawn trawl endorsement, a ground for the cancellation of such an endorsement or entitlement is the transfer of the fishing boat licence, which made the fisher eligible for that endorsement (cl. 182 FMG Regs). In this case a transfer by Messrs Oliver and Thomson of the "Sandalee" (LFB 98) fishing boat licence would entitle the Minister to cancel the endorsement on their commercial fishing licence.
108 In my opinion a P1 authorised endorsements under the 1990 and 1994 revised offshore prawn trawling management rules fall into the same category in that the commercial fisher has been given a right that is of commercial value and which cannot be cancelled or forfeitable except on specified grounds (e.g. transfer of the fishing boat licence to which these endorsements are attached).
109 In my opinion, as a matter of construction, the fact that the legislation expressly sets out the basis on which fishers are eligible for these rights and on what grounds they may be cancelled or suspended by the Minister, indicates that these powers of cancellation and suspension are distinguishable from the power to revoke or remove these rights. As can be seen from the various powers of cancellation and suspension the grounds for exercising that power relate to unlawful conduct by the licence holder, breaches of conditions attached to that licence and changed circumstances of the licence holder which no longer makes him eligible for the particular endorsement. An example of the latter is the transfer of the fishing boat licence to which the endorsement is attached.
110 Accordingly, in my opinion, the Minister's power of revocation under ss. 104(6) and 108(6) of the FM Act must be read down to exclude a revocation that would in effect be a cancellation, suspension or forfeiture of an endorsement or entitlement giving a licensed fisher access to a restricted fishery or an endorsement attached to a licensed fishing boat to the restricted fishery.’

39 The reasoning and ultimate conclusions in Rouse and Picton are to the same effect.

Further Matters

40 We agree with the submissions of the respondents that it is not at all clear why it was necessary for the Minister to go so far as to deprive them completely of their endorsements and conditions. It is said that this is in accord with the national licence splitting policy. Counsel for the Minister was, in our view, unable to explain at hearing in any sensible way why the Minister did not simply restrict the future activity of the respondents in New South Wales waters to the level of activity that they had previously undertaken in those waters - if avoidance of any increase in the fishing effort on the part of the respondents was the objective.

41 Each of the Tribunal decisions recorded the amount of activity over several years of each of the respondents in New South Wales waters, in summary, as follows:

• Oliver & Thomson: The boat ‘Sandalee’ (LFB 98) was used almost equally as between Queensland and New South Wales in the three years 1996-98, 343 days versus 373 days, and in 1999 was only used in New South Wales waters for a total of 111 days. The Tribunal found that they would be likely to fish about 200 days a year in future in New South Wales waters. See [85] of Tribunal’s decision.
• Picton: In the four years 1996-99, his boat had fished 83 days in Queensland waters and 234 days in New South Wales waters. The Tribunal was not given any specific information for 2000 and 2001. Nonetheless it found that he will continue to fish more days in NSW managed fisheries and that he will continue to do so. The Tribunal said that how many more days was not necessary to determine, but on the basis of the above mentioned figures it could be estimated to be about 100 to 120 days per year. See [68] of the Tribunal’s decision.
• Rouse: In the four years 1996-99, his boat had fished 452 days in Queensland waters and 170 days in New South Wales waters. In 2000 and 2001 the boat had fished exclusively in New South Wales waters for economic reasons, the total number over the two years being 291. The Tribunal found that Rouse had made his decision prior to there being any announcement of the Queensland buy-back scheme. See [64] of the Tribunal’s decision.

42 There was no evidence as to the principles for assessing compensation under the Queensland scheme. If Queensland had sought to compensate the fisher for the total value of his fishing business including the New South Wales component, then that might explain a decision by the New South Wales regulator to take away the entirety of the fisher’s entitlement in relation to New South Wales.

43 The parties agreed that the licences and associated endorsements and conditions were operative on a 365 days a year basis, with the holders making the decision as to the level of their use.

44 Accordingly, the respondents, through their solicitor, contended that the consequence of the Tribunal’s decisions in their favour, was that they could now use their endorsements and conditions up to 365 days a year. The maximum number of days of use in any of the years referred to above was 245 in the year 1998 by Oliver and Thomson, and 247 by Rouse also in 1998. If the respondents were in future to use their boats for say 200 days only in New South Wales waters, this would represent in all cases a significant increase in their historical levels of activity in NSW taking 1996 as the starting point.

45 This evidence clearly vindicates the Minister’s concern that there may be an increase in the fishing effort on the part of the respondents if no action is taken.

46 On the other hand it is also evident that the respondents did in most years split their time in varying proportions between Queensland and New South Wales. The most equitable approach, as we see it, would have been for the Minister to specify the number of days that the respondents could now fish in New South Wales waters. One method might have been to average the number of days fished in New South Wales waters for the period 1996-99 and allow that average to be fished in future. So for example Oliver and Thomson would be allowed about 120 days, Picton about 60 days and Rouse about 45 days. If it is accepted that Rouse had already withdrawn from Queensland waters before the scheme became known, then he might have a claim to about 120 days.

47 Instead the Minister’s decision has reduced them to zero days. In justification of this approach, the following evidence is referred to by the Tribunal (in the Oliver & Thomson decision) at [86]:

‘In the document prepared by Ms Caldwell [Principal Manager Fisheries Services]
… she states:
"Regardless of their previous fishing patterns the fact remains that they can shift all their available time into fishing in NSW waters. Until such time as NSW adopts a similar management regime of days fished [to Queensland] there is no way Messrs Thompson (sic) and Oliver's effort can be capped at historical levels."’

48 The appellant contended that the Tribunal’s reasoning was in error in that it treated revocation as tantamount to cancellation.

49 The appellant submitted that the Parliament had given the Minister a variety of tools to regulate commercial fishing. As relevant to these cases, they included powers to revoke, suspend or cancel. Each belonged to a different part of the spectrum. The Minister did not purport to interfere with the licences to take fish for sale held by the various individuals nor with the licences attached to their boats. This was significant. The possession of a licence attests that the holder had met the various qualification requirements, and was not affected by any disqualifying factors. For example if a licence is cancelled, then it is necessary for the affected person if he or she wishes to return to the industry to go through the application procedures and qualification procedures. It is possible that a person who could meet the requirements say 20 years ago might have difficulty doing so today. If the licence is left unaffected these possibilities do not have to be faced.

50 Counsel for the appellant noted that, in contrast to the position that applies to suspension and cancellation, the legislation does not prescribe the grounds for revocation, that power not being available in any case in relation to licences. The legislation is silent as to what the grounds for revocation of conditions or endorsements may be. Accordingly, the Minister has a broad discretion encumbered only by the requirement that the discretion not be exercised ultra vires. Therefore, it was open to the Minister to revoke an endorsement or condition provided that was done on the basis of relevant considerations, and was not in the circumstances a manifestly unreasonable decision. In this case, the decision was based on, what would appear to have been, relevant considerations – ensuring that the fishing effort in New South Wales was contained; and applying the dual licensing policy to a new set of circumstances created by the Queensland buy-back scheme.

51 Counsel for the appellant pointed to aspects of the legislative scheme where the possession of a bare licence (the position that the respondents are faced with) continues to have some value for the licence holder. Against this view stands the statement in the letters of revocation from the Director of Fisheries that: ‘From the date of this letter, you can no longer take fish for sale or otherwise operate the entitlements associated with fishing business [number given] in the NSW commercial fishing industry.’

52 The respondents contended that the Tribunal was correct in concluding that in the present circumstances the power of revocation could only be exercised on the grounds that applied to cancellation. The basis for this contention was found, their counsel submitted, in the consequences that revocation of the endorsement had for his clients.

53 He submitted that to remove the one endorsement attaching to their licence was to make the licence itself useless. The removal of the endorsement in effect forced them out of the industry. In effect their licence had been ‘cancelled’; and therefore it was appropriate for the Tribunal to take the approach that he had. He also said that before the Tribunal he had submitted that the action of revoking the endorsement should properly be characterised as a ‘cancellation’.

54 He said that at one time in the history of regulation of commercial fishing in New South Wales a licence conferred on the fisher a right to fish commercially. Now, with the wide introduction of restricted fisheries, the licence alone did not confer any entitlement to fish in a particular way or at a particular place. That entitlement was now conferred by way of endorsement.

55 So, to take away the endorsement was to take away the benefit of the licence, and in effect to cancel the licence.

56 Counsel for the respondents said that the Tribunal had properly approached the nature of the powers exercised by the Minister as one of characterisation. He noted for example that it was possible for an endorsement to be ‘cancelled’ (see FMR, Cl 182) as well as to be ‘revoked’. The grounds for revocation, he submitted, could not have a wider sphere of operation than the grounds for cancellation or suspension. He submitted that the Minister’s decision was much more than the revocation of an endorsement. It was a clear decision to prohibit further activity of any kind in the industry by the respondents.

Conclusions

57 The Minister’s delegate in his letters of 7 May 2001 to Oliver and Thomson and in his letter of the same date to Picton, purported to ‘revoke’ the relevant endorsements and conditions. The same is the case in relation to the letter of 29 November 2001 to Rouse. That the Minister had a power to ‘revoke’ endorsements and conditions is clear from the legislation set out above.

58 Under the legislative scheme the power to ‘cancel’ is circumscribed by limitations. The power to ‘revoke’ is not circumscribed by limitations. Parliament is entitled to set wide or narrow grounds for the exercise of administrative powers. We are satisfied that ‘revocation’ was the intended course of action here, and under the scheme a decision to ‘revoke’ is not reviewable by the Tribunal.

59 In this case, in our view the Tribunal mischaracterised the nature of the Minister’s exercise of discretion. The Minister had an unfettered power to revoke (subject only to considerations of ultra vires). In many situations there will be no practical difference in effect as between a revocation and a cancellation. Dictionary definitions often give as the meaning for ‘revoke’ ‘cancel’ and vice versa. But revocation and cancellation are frequently differentiated in licensing schemes. As we see it, the Parliament deliberately circumscribed cancellation (perhaps because it carries greater odium) but left uncircumscribed revocation. If the Minister’s powers of revocation were to miscarry, as the licence holders contend in this case, they were left to the narrow compass of judicial review before the Supreme Court. They could not access the merits review jurisdiction of the Tribunal.

60 As noted earlier, the licence holders can eventually get their grievances back before the Tribunal if they were to apply for re-issuance of the old endorsements and conditions. Once they do that, and if they are then refused (as would seem inevitable), then the Tribunal’s jurisdiction to review refusals could be invoked. The present application is premature.

61 We note further that it is a significant allegation for a review applicant to make that an administrator’s expressed basis for exercise of a power was not the actual basis on which it was exercised. That is what is being said in this case (and with which the Tribunal below agreed). It is tantamount to a claim that a power was used for an improper purpose. This claim needs to be squarely made in proceedings and the subject of specific findings by the Tribunal.

62 The respondents, understandably, have a sense of injustice over what has occurred. The endorsements and conditions could not have been ‘cancelled’ on the grounds given for their revocation.

63 The absence of a power to review revocation decisions is unsatisfactory, and represents an incoherent approach to the conferral of external review jurisdiction (and is at odds with the recent recommendations of a recent Parliamentary Inquiry – Committee on the Office of The Ombudsman and the Police Integrity Commission, Report on the Jurisdiction and Operation of the Administrative Decisions Tribunal, November 2002). The Appeal Panel recommends that this shortcoming in the scheme of review be corrected by the Parliament at the earliest opportunity.

64 In our view the Tribunal erred in law, and the error went to its jurisdiction. Accordingly the decision should be set aside and the applications dismissed for want of jurisdiction.

ORDER

1. Appeal upheld.

2. Decisions under appeal set aside.

3. Applications for review dismissed for want of jurisdiction.