Minister for Fisheries v Sneesby

[2001] NSWADTAP 33

Appeal Panel

CITATION:	Minister of Fisheries -v- Sneesby & anor (GD) [2001] NSWADTAP 33
PARTIES:	APPELLANT Minister of Fisheries RESPONDENTS Willis Sneesby Nola Sneesby
FILE NUMBER:	019032
HEARING DATES:	10/09/2001
SUBMISSIONS CLOSED:	09/10/2001
DATE OF DECISION:	09/28/2001
DECISION UNDER APPEAL:	Sneesby -v- Minister for Fisheries [2001] NSWADT 133
BEFORE:	O'Connor K - DCJ (President); Goode P - Judicial Member; Bolt M - Member
CATCHWORDS:	jurisdiction
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	013049
DATE OF DECISION UNDER APPEAL:	05/18/2001
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fisheries Management Act 1994
CASES CITED:	Sneesby -v- Minister for Fisheries [2001] NSWADT 133
REPRESENTATION:	APPELLANT R Lancaster, barrister RESPONDENT J Priestley, barrister
ORDERS:	1. Appeal allowed; 2. Decision under appeal set aside; 3. Application for review dismissed for want of jurisdiction.

1 This is an appeal by the Minister against a decision by the General Division of the Tribunal that it has jurisdiction to hear an application for review: Sneesby v Minister for Fisheries [2001] NSWADT (18 May 2001). The applicant for review and respondent to the appeal is a licensed commercial fisher (the respondent).

2 An appeal may be made to the Tribunal constituted by an Appeal Panel as of right in relation to a question of law: s 113(2), Administrative Decisions Tribunal Act 1997 (the Tribunal Act). This appeal relates to a question of law, being whether the application for review identifies a reviewable decision within the meaning of the Tribunal Act, ss 8 and 38 (set out later in these reasons), and the primary enactment, the Fisheries Management Act 1994 (the Act), in particular s 126(b). Section 126(b) provides:
‘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: …

(b) the imposition of conditions on the person's relevant authority (otherwise than by regulation), ’.
3 The Tribunal’s finding of jurisdiction is challenged by the Minister. Mr Lancaster of counsel appeared on behalf of the Minister and provided detailed written and oral submissions. Mr J. Priestley, of counsel and Mr Fuggle, solicitor, participated in the hearing by telephone from the solicitor’s office at Lismore.

4 The respondent carries on commercial fishing in Queensland and New South Wales waters. He holds licences from both governments. This is a common situation. The licences carry entitlements. The entitlements may be disposed of subject to approval. In this instance, to use the words of his solicitor to the Tribunal below, the respondent wished to dispose of the balance of the fishing entitlements attached to his Queensland licence without prejudice to his New South Wales entitlements. There is government policy governing disposals.

5 The respondent’s Queensland licence had once carried an entitlement to 125 days and nights per year of prawn trawling. He had in the past without objection disposed of 75 days of entitlement. He now wishes to dispose of the final 50 days of entitlement.

6 Situations of this kind are affected by a policy referred to in the proceedings as the ‘licence splitting’ policy.

7 The respondent wrote, through his solicitor, to the Director on 11 January 2001 outlining his intentions and seeking ‘approval’ by the Director of such a disposal, in particular, without it having any effect on his New South Wales entitlements. The Director replied on 2 February 2001 stating that he had considered the proposals, referred to relevant licence splitting policy and said ‘I am unable to provide a variation to the licence splitting policy on the basis of the proposals and issues outlined’ and that he was ‘not prepared to approve the proposal.’ The Director did not purport in his reply to be exercising any power in respect of the respondent’s licences or purport to be making a decision pursuant to the Act that was reviewable by the Tribunal. Had that been the Director’s understanding, it would have been expected that as is usual, the Director would have referred to the provision he was invoking and that he would have given reasons in a form corresponding to the requirements of the Tribunal Act and would have advised the respondent of his rights in relation to internal review.

8 Nonetheless following receipt of that reply the respondent applied to the tribunal for review of an alleged decision. The Minister challenged the jurisdiction of the Tribunal. The Tribunal held that the application for review was competent on the basis that the letter of 2 February 2001 constituted a reviewable decision as it involved a decision to impose a condition.

9 The Tribunal concluded that the letter from the Director in effect added a new condition to the licence which it formulated as follows:

(1) ‘It is as if written into the licence by the letter of 2 February are the words, "maintenance of this licence is conditional on the licence holder maintaining Queensland fishing entitlements" (at [12]).
(2) ‘In my view that means only that the effective condition that I described would carry the following additional words so that it might in full read: "maintenance of this licence is conditional on the licence holder maintaining Queensland fishing entitlements subject to the fisher showing cause otherwise" (at [14]).
Licences Held
10 The applicant holds two current New South Wales authorities: Commercial Fishing Licence 218184 and Fishing Boat Licence 546593 for boat named Storm Bird LFB 11166 both issued by the Director of Fisheries pursuant to the provisions of the Act. The current licences came into force on 23 March 2001. The commercial fishing licence is issued pursuant to s 104(1) of the Act, and the fishing boat licence is issued pursuant to s 107(1) of the Act. (They are in all material respects identical to the licences held at the time of the correspondence in January and February 2001 that gave rise to the application for review.)

11 The commercial fishing licence authorises the respondent to take fish for sale from waters to which the Act applies. Under the heading ‘conditions of licence’ the following is stated:

‘The authority conferred by this licence is subject to change in accordance with the provisions of Part 5 of the Environmental Planning and Assessment Act 1979.
The licence holder is not authorised to take fish for sale from inland waters.’
12 Under the heading ‘Fishing Business No 1320’, the following is stated:
‘Pursuant to section 112(1) of the Act, the licence holder is hereby authorised to take fish for sale in accordance with the following restricted fishery endorsements:
1. OCEAN PRAWN TRAWL RESTRICTED FISHERY
· Inshore Endorsement
· Offshore Endorsement’
13 The fishing boat licence states that the Fisheries Activities authorised under Schedule 7 to the Act or a notification under section 8 of the Act are Offshore Commercial Fishing - OG1 and Ocean Prawn Trawl - Offshore.

14 Under the heading Conditions the following is stated:

‘This licence is subject to the conditions set out in clause 145 of the Fisheries Management (General) Regulation 1995 and to the following conditions:
‘OCEAN PRAWN TRAWL RESTRICTED FISHERY, Offshore - P1.
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 41.0 metres length of headrope. The boat may be replaced by a larger boat as provided in the Offshore Prawn Trawl 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.
This Licence cannot be transferred without the approval of the Director.’
Licence Splitting: Policy
15 In November 1996 NSW Fisheries issued the Licensing Policy . It has its general objective ‘to prevent increases in commercial fishing effort’ (p6). At para 1.4 of the policy, it states:
‘1.4 What is licence splitting and how does it apply?
The Commonwealth and the States have a general policy of not allowing licences to be split. For example, where a boat is licensed by both a State and a Commonwealth or by more than one State, or has multiple authorisations attached to the boat or owner, no transfer can take place, unless all the boat licences, endorsements and fishing authorisations for the boat are being transferred to the same new owner or are surrendered. Similarly, a boat replacement cannot take place unless all facets of a licence or licences are being placed on the new boat or are surrendered.
The licence splitting policy is considered essential at this stage and will strictly apply to fishing businesses and other related policies outlined in this document. Proposals regarded as licence splitting or contrary to the intention of the policy will not be approved.’
16 The submissions of the Minister at the appeal provided the following background information, which was not contested by the respondent.
‘11 The Licensing Policy grew out of a national approach to the management and protection of fisheries: See the resolutions of the Australian Fisheries Council on 28 July 1984, para 14.
12 The general approach of the NSW Licensing Policy was confirmed during 2000, in response to the introduction by the Queensland government of a Structural Adjustment Scheme in relation to the Queensland East Coast Trawl Fishery. The objective of the scheme was to achieve a 15% reduction in total fishing effort in that fishery through the voluntary transfer to government of commercial fishing boat licences and associated fishery symbols.
13 On 26 October 2000 the NSW Director of Fisheries wrote to all fishers who held endorsements to operate in the New South Wales ocean prawn trawl fishery. The letter is headed “To: All NSW Licensed Queensland Ocean Prawn Trawl Fishery concessional endorsement holders” and its subject is Queensland’s Structural Adjustment Scheme 2000. The stated purpose of writing the letter was to “confirm the NSW position with respect to licence splitting” as it applies to the scheme. The substance of the letter is in the following paragraph:
‘If, as a result of taking part in the proposed adjustment scheme, an operator disposes of the Queensland component of their fishing business (as defined by NSW) then NSW Fisheries will revoke the associated NSW endorsements.’’
Possible Changes in Policy
17 A circular dated 8 January 2001 set out possible changes in the above policy:
‘To OPTMAC [Ocean Prawn Trawl Management Advisory Committee] members
I refer to recent changes to the management rules that apply to Queensland licensed prawn trawlers.
Queensland have recently made changes to their East Coast Trawl management arrangements and have, in effect, developed a new policy relating to licence splitting. Your opinion is requested with particular regard to NSW Fisheries adopting complimentary ‘licence splitting’ arrangements.
In Queensland, each trawler has been allocated ‘Effort units’. Effort units are used to allocate the number of nights / days that a trawler may work.
The Queensland East Coast Trawl Fishery Management Plan (ECTFMP) allows for the transfer of effort units as a complete package, or part thereof. A business allocated less than 50 nights / days must, however, transfer all effort units as a complete package.

Following a transfer of effort units under the ECTFMP, at least 50 nights / days must be retained for a trawler to maintain access to the fishery.
To ensure that an increase in fishing effort does not occur in the NSW ocean prawn trawl fishery, it is proposed that complimentary [sic] arrangements are introduced.
It is proposed that any duel [sic] licensed trawler involved in a transfer of QLD effort units, must retain at least 50 nights / days in order to retain access to NSW waters.
Your advice or opinion on the proposed position is required by midday, Thursday 11 January 2001. Please fax your response or call me on [phone].
Yours sincerely
Darren Hale
Trawl Fisheries Manager OPTMAC member
MACLEAN
8 January 2001’

Respondent’s Letter
18 The respondent solicitor wrote to the Director of Fisheries as follows on 11 January 2001.
RE: WILLIS SNEESBY & NOLA SNEESBY
TRANSFER OF FISHING LICENCES
We act for Mr & Mrs Sneesby who have instructed us in relation to there [sic] proposed sale of Queensland Fishing Entitlements.
We refer you to the telephone conversation between Mr Sneesby, and Mr Dunn and Mr Hale of your department.
Following the above mentioned conversations, our clients have received the facsimile from Mr Darren Hale of 8 January 2001.
We request an approval of the arrangement our clients have informed you of and submit the arrangements should be approved because the New South Wales and Queensland licenses[sic] pertaining to the boat “Stormbird” are owned by different entities. The Queensland license is owned by a partnership and the New South Wales license by an individual. The boat is merely a vehicle for each of the entities to utilise their license entitlements. The boat itself is operated by a third party being a private company. It is our contention that it can therefore not be argued that there is one owner to all the licenses and therefore the arrangement is not subject to the policy set out in 1.4 of the New South Wales Fisheries Licensing Policy.
In the alternative we note the proposed policy set out in your letter dated 8 January 2001, copy of which is enclosed.
Whilst our clients and we disagree with the proposal and believe that a license holder has the entitlement to transfer his own property for his benefit, we note that the proposed arrangement of our clients falls completely within the proposed policy as set out in the letter abovementioned. On those grounds we request that the arrangement be approved without prejudice to our clients New South Wales entitlements.
We further bring to your attention our clients wish to divest themselves of their balance of their Queenslands [sic] entitlements due to ill health of Mr Sneesby who has recently suffered a number of mini strokes which have adversely affected his health and ability to continue his fishing operations and business. Mr & Mrs Sneesby’s son in law is interested in taking over the business and boat within New South Wales waters but is not in a financial position to take over the business with the Queenslands [sic] entitlements. Our clients are not in a position to simply give the business away.
We note on prior occasions and in similar circumstances, such approval has been granted to other fishers.
Would you give your approval for the sale of the balance of 50 days of our clients Queensland quota without prejudice to our clients New South Wales entitlements.
We thank you for your assistance and look forward to your urgent response.’
Director’s Reply
19 The Director of Fisheries replied as follows by letter dated 2 February 2001:
‘Thank you for your letter of 11 January 2001 on behalf of Mr & Mrs Sneesby regarding the proposed sale of Mr Sneesby’s QLD fishing entitlements.
Licence splitting policies apply to dual licensed, or endorsed, commercial fishing vessels. These policies aim to prevent an increase in fishing effort that results when fishing entitlements are split from a business and fishing effort is then concentrated or redirected into a single jurisdiction.
Regardless of the operating arrangements applying to the Stormbird, the vessel is licensed under both jurisdictions and has worked in both Queensland and NSW waters. NSW fisheries regards the Stormbird licence package as a single unit of fishing effort and allowing the licenses to be split between NSW and Queensland would result in fishing effort increasing in NSW waters. At a time when management strategies are being developed to contain and reduce effort to ensure our fishery resources remain sustainable a proposal of this kind is not acceptable.
I have considered all of Mr Sneesby’s proposals and whilst I am sympathetic to Mr Sneesby’s personal circumstances I am unable to provide a variation to the licence splitting policy on the basis of the proposals and issues outlined.
Every request of this kind is treated on its own merit, fully exploring every argument and taking into account all the issues raised. After full and careful consideration I am not prepared to approve the proposal.
If you have any enquiries in regard to this matter, please do not hesitate to contact Mr Darren Hale, Trawl Fisheries Manager, on [phone].’
Tribunal Decision
20 As previously noted the Tribunal held that terms of the letter constituted within the meaning of s 126(b) of the Act ‘the imposition of conditions on the person's relevant authority (otherwise than by regulation)’ giving rise to a reviewable decision. It made further orders, referring the matter back to the Director to undertake the internal review procedure, before the Tribunal gave the matter any further consideration.

21 The Tribunal held at [20]:

‘20 … I am satisfied that the applicant's licence is, by virtue of a decision made and advised in the Minister's letter through his delegate of 2 February 2001, burdened with a condition that has been imposed in writing by the Minister within the meaning of section 104(6). That being the case, I'm of the view that there is in existence, in the terms of the letter of 2 February 2001, a reviewable decision.’
(i) Characterisation of Reply
22 The Tribunal rejected the appellant’s argument that the letter could only properly be characterised as a statement as to the likely effect of policy on the fisher’s licence. The Tribunal said in reply:
‘6 In my view the letter does constitute a decision; it is a decision made by the respondent that the policy would be applied if the applicant was to sell his Queensland entitlements. The question then is: is that a decision imposing a condition within the meaning of section 126(1)(b) as the applicant says it is, or is it a decision merely indicating the effect of policy, as the respondent says it is?
7 The respondent says that a decision to impose conditions can only be one authorised by section 104 of the Fisheries Management Act . That is to say, conditions can only be imposed by prescription in the regulations under section 104(4)(a). The respondent refers to clause 138 of the Regulation as an example of the prescription of conditions. The respondent says the conditions also can be imposed if specified in the licence, and in this case the applicants' licence does carry specified conditions. The respondent says the only other manner in which conditions may be imposed is pursuant to section 104(6) by the Minister in writing.
8 The applicant says that in the letter of 2 February 2001 the Minister has, in writing, imposed conditions. The respondent says that in that letter there is no explicit addition of new conditions within the meaning of 104(6) in writing by the Minister.’
(ii) Condition
23 The Tribunal, having determined that the letter amounted to a ‘decision’, then asked whether it imposed a ‘condition’. It said:
‘10 Is the decision in the letter of 2 February a decision imposing a condition within the meaning of section 104(6) and therefore bringing it within section 126(1)(b). That turns, in my view, on the meaning to be given to the word 'condition'.
11 The respondent says what has been imposed is not explicitly a condition: it does not affect the operation of the licence at that point in time, it merely indicates a future effect on the licence if a certain course is adopted. In my view that is properly expressed, or can be properly expressed in another way. Put in other terms, the letter states that the licence will be affected if a certain course is adopted.

12 In the ordinary meaning of the word 'condition' is - and I'm looking among other definitions at the Butterworths Concise Australian Legal Dictionary - something demanded or required as a prerequisite to the granting or performance of something else. In the ordinary meaning the letter, having the meaning I say it does - that is, that a licence will be affected if a certain course is adopted - is a condition on the operation of the licence.
13 The respondent says that the licence is only affected in the future. That might be the case but it does not affect the characterisation of the terms as a condition, even if they only have future effect.’
(iii) Decision versus Advice
24 The Tribunal rejected the argument that the letter was merely in the nature of an advice as to the possible implications of the course of action proposed by the fisher. It said:
‘14 The respondent says that it, despite what is said in the letter of 2 February, a process might be undertaken, were the Queensland units sold, by which the applicant would be invited to show cause, and could result in the applicant's licence not being adversely affected.
15 I do not accept that the letter of 2 February 2001 is merely an indication of what the future application of policy would be; it is not worded in those terms. It is explicitly confirmation of the application of policy to the applicant's circumstances and, having regard to the terms of that policy, it is clear what the consequent effect would be. The letter, for example, does not merely invite an applicant to look to the policy and go ahead with the proposed cause of action in light of their own judgment as to the effect the policy might have, nor does it merely invite the applicant to undertake the transaction as proposed and then take advantage of an opportunity to show cause later why they wouldn't be adversely affected.
16 If the letter is merely the application of policy and not the imposition of a condition, then it would seem to enable effective limitations to be imposed on licences avoiding review. That is not to ascribe any improper motive to those preparing or acting under the policy, but simply to point out what would be the consequence if a policy restricting the operation of a licence was seen as merely the effect of policy and not the imposition of a condition. There would be no effective review available despite the clear terms of the Act which make available merits review in circumstances where the operation of a licence is limited in some way. I don't believe it is the intention of the legislation to remove from the Act's merits review provisions the placing of restrictions on licences simply by characterising the steps taken as the effect of policy rather than the imposition of conditions.
17 If, as the respondent says, the letter of 2 February is only an indication of what policy would do, and is not an actual decision as to how the applicant is affected by the policy, then I look ahead to what the actual decision would be when the time comes and it appears that that decision would be, consequent on the application of policy, that the applicant's entitlements would be revoked. The course of action that an applicant, therefore, in the respondent's view, should take is to do as he intends to do and sell the Queensland entitlements. He would then show cause, as invited, as to why his entitlements should not be revoked. If he fails to successfully show cause the entitlements would be revoked. At that point the applicant would have no remedy, at least so far as merits review of the decision goes, because the Minister has elected to characterise the consequence of sale of Queensland units as being the 'revocation' rather than 'cancellation' of the licence.’
(iv) General Considerations
25 The Tribunal then referred to the consequences as it saw them for licensed fishers it the Minister’s submissions were adopted:
‘18 It is a submission of the Minister that, if that point is reached, revocation of entitlements is not within the jurisdiction of this Tribunal because it is not covered by section 126 of the Fisheries Management Act . To the extent that anything turns on the meaning of 'revocation' as a term of art, the Minister appears to me, although I don't have to decide it, to be correct. I'm uncertain as to the difference in administrative law between 'revocation' and 'cancellation'. If revocation means, differently from cancellation, to render an authority void, I don't see that that is a relevant meaning under the Fisheries Management Act unless there's an intention to somehow invalidate a whole history of catch made under a licence. It concerns me that by use of the word 'revocation' rather than 'cancellation', when I see no obvious intended difference in meaning between the words in the Act, the policy currently at issue would, if applied, disentitle the fisher to merits review of the decision, whereas merely using the word, 'cancellation' for 'revocation' would give them access to merits review.
19 It may be there's a reason in the legislation why the word 'revocation' hasn't been used in section 126 but, as I say, in these circumstances I can't see that adopting the word, 'revocation' rather than 'cancellation' in the policy is justified, and my concern is that the interpretation the Minister wishes to place on the letter of 2 February 2001 would put in train a course of events that renders the limitations placed on fishers' licences effectively unreviewable.’
GROUNDS OF APPEAL
26 By notice of appeal filed 25 June 2001, the Minister applied for the decision to be set aside relying on the following alleged errors of law:
(a) the letter dated 2 February 2001 did not constitute a reviewable decision
(b) it did not constitute or contain “ the imposition of conditions on the person’s relevant authority (otherwise than by regulation)”
(c) it did not constitute or contain (see [20] of the reasons for decision) a decision to “add new conditions” to a commercial fishing licence
(d) in construing sections 8 and 38 of the Administrative Decisions Tribunal Act 1997 and/or sections 104(6) and 126(1)(b) of the Fisheries Management Act 1994 the Tribunal erred by taking into consideration the matters set out at [16]-[19] of the reasons for decision.
(e) the Tribunal erred in failing to find that the letter from the Director of Fisheries to Mr Fuggle dated 2 February 2001 does not constitute or contain a final or operative decision that is subject to review by the tribunal, in that:
(i) the letter is based upon hypothetical future events, namely the proposed sale of Mr Sneesby’s Queensland fishing entitlements:
(ii) the letter does not itself affect legal rights, nor is it a condition precedent to the exercise of a power which will affect legal rights. It is merely a preliminary statement of the application of current fishing licence policy to the proposed conduct of Mr Sneesby;
(iii) the letter is in the nature of advice upon the operation of New South Wales licence splitting policy as it applies to the proposed conduct of Mr Sneesby. The determination (in para 4 of the letter) not to vary the licence splitting policy is not a reviewable decision.
(iv) Further or in the alternative, the determination (in paras 3 and 5 of the letter) not to approve Mr Sneesby’s proposal (contained in a letter dated 11 January 2001) to vary the application of the licence splitting policy is not a reviewable decision.
(f) The Tribunal erred in failing to find that the application is in substance an application for the review by the Tribunal of government fishing licence policy and is not within the jurisdiction of the Tribunal.’
Relevant Legislation
Administrative Decisions Tribunal
27 The Tribunals review jurisdiction is conferred by s 38(1) of the Tribunal Act, which provides:
‘ 38. Conferral of jurisdiction to review reviewable decisions
1. Conferral of review jurisdiction
The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) 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 functions of the administrator identified by the enactment.’
28 In the scheme of the legislation these decisions are ‘reviewable decisions’ as provided by s 8:
‘ 8. What is a reviewable decision?
A " reviewable decision " is a decision of an administrator that the Tribunal has jurisdiction under an enactment to review.’
Fisheries Management Legislation
29 Commercial fishing is closely regulated in particular by the Act, Part 4 and the Regulation, Part 7. It is necessary to the decision in this case to describe in some detail the scheme of regulation of commercial fishing licences and of commercial fishing boat licences.

30 Commercial Fishing Licences: Commercial fishers are required to be licensed (s 102). A commercial fishing licence may contain endorsements. If a fishery is declared to be a restricted fishery the commercial fishing licence does not authorise the holder to take fish for sale unless he or she is authorised to do so by the Minister by an endorsement on the licence (s 112). An endorsement is not transferable unless authorised by the regulations (s 114).

31 Any commercial fisher who is an ‘eligible applicant’ is entitled to a licence from the Minister ‘unless the Minister is authorised by the regulations to refuse the application’ (s 104(3)). Section 104(4) provides that:

‘ (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
may be cancelled or suspended by the Minister in the circumstances authorised by the regulations.’
32 The conditions specified by the regulations are found in cl 138 of the Regulation. These conditions deal with such matters as the circumstances in which it is permissible to use unlicensed crew and restrictions on the taking of finfish in inland waters. Additional licence conditions apply to endorsement holders in share management fisheries and in restricted fisheries (see Part 6 and Part 8) of the Regulation.

33 Section 104(6) provides that:
‘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.’

34 It is an offence to contravene a condition of a commercial fishing licence subject to a maximum penalty of 100 penalty units: s 104(7). The regulations ‘may prescribe the qualifications relating to fishing activities required for the issue of a licence’: s 104(8).

35 Eligible Applicants: There are detailed regulations governing commercial fishing licences set out in Division 1 of Part 7 of the Regulation. Clause 135 contains a list of what categories of individuals are ‘authorised to hold a commercial fishing licence.’ Some categories are defined by reference to objectively verifiable criteria: for example, category (a) - ‘an individual who holds shares in a share management fishery on a provisional basis (under section 48 of the Act).’ Others involve objective and subjective criteria: for example, category (c) - ‘an individual who satisfies the Minister that if a licence is not issued to the person an available fisheries resource would not be utilised and that the manner in which the individual proposes to utilise the fisheries resource will not threaten its sustainability and will not result in an inequitable allocation of the resource.’

36 Refusal of Licence: Clause 137 deals with the grounds upon which a commercial fishing licence can be refused to an otherwise eligible applicant. It provides:

‘137. Grounds for refusal to issue commercial fishing licence to otherwise eligible applicant
(1) For the purposes of section 104 (3) of the Act, the Minister is authorised to refuse to issue a commercial fishing licence to an eligible applicant if:
(a) the applicant has been convicted of an offence under the Act or regulations made under the Act or of an offence relating to commercial fishing operations under the law of the Commonwealth, another State, a Territory or New Zealand, or
(b) the applicant has been convicted of an offence relating to the theft of fish, fishing gear or a boat or intentional damage to fishing gear or a boat, or
(c) the applicant has been convicted of an offence relating to an assault on a fisheries official, or
(d) the applicant has not paid any fee or contribution due and payable in connection with the issue of his or her licence, or
(e) the Minister is satisfied that the applicant has not demonstrated that he or she has the capacity or qualifications necessary to enable the individual to successfully engage in commercial fishing operations.’
37 Refusal to Renew : Under cl 139 (3) the Minister
‘may refuse to renew the licence if:
(a) the applicant has been convicted of an offence under the Act or regulations made under the Act or of an offence relating to commercial fishing operations under the law of the Commonwealth, another State, a Territory or New Zealand, or
(b) the applicant has been convicted of an offence relating to the theft of fish, fishing gear or a boat or intentional damage to fishing gear or a boat, or
(c) the applicant has been convicted of an offence relating to an assault on a fisheries official, or
(d) the applicant has, in the opinion of the Minister, contravened a condition of his or her licence or of an endorsement on that licence or of a permit issued to him or her under the Act, or
(e) the applicant has sold his or her licensed fishing boat or boats and the Minister is of the opinion that the applicant is not able to maintain a viable fishing operation because he or she has an insufficient number of licensed boats or catch history (as referred to in section 51 of the Act), or
(f) the application for renewal of the licence is received by the Minister more than 60 days after the date the licence would have expired (but for subclause (6)), or
(g) the applicant is not authorised, by or under section 103 (2) of the Act, to hold a commercial fishing licence, or
(h) the applicant has not paid any fee or contribution due and payable in connection with the renewal of his or her licence.’
38 Suspension or Cancellation : Under cl 140 the Minister may suspend or cancel a licence if:
‘(a) the holder of the licence has been convicted of an offence under the Act or regulations made under the Act or of an offence relating to commercial fishing operations under the law of the Commonwealth, another State, a Territory or New Zealand, or
(b) the holder of the licence has been convicted of an offence relating to the theft of fish, fishing gear or a boat or intentional damage to fishing gear or a boat, or
(c) the holder of the licence has been convicted of an offence relating to an assault on a fisheries official, or
(d) the holder of the licence has, in the opinion of the Minister, contravened a condition of the licence or of an endorsement on that licence or of a permit issued to him or her under the Act, or
(e) the holder of the licence has sold or disposed of the holder's licensed fishing boat or boats, or transferred the holder's right to a fishing boat licence or licences, and the Minister is of the opinion that the holder is not able to maintain a viable fishing operation because the holder has an insufficient number of licensed boats or catch history (as referred to in section 51 of the Act), or
(f) the holder of the licence made a statement in connection with the holder's application for the issue or renewal of the licence that was, in the opinion of the Minister, false or misleading in a material particular, or
(g) the holder of the licence is not authorised, by or under section 103 (2) of the Act, to hold a commercial fishing licence.’
39 Fishing Boat Licences : A basically similar scheme of regulation applies to the issuance of commercial fishing boat licences. Commercial fishing boats must be licensed: s 107(1). The Minister is required to issue a licence for a boat ‘if application for the licence is duly made unless the Minister is authorised by the regulations to refuse the application’: s 107(3).

40 Section 107(4) provides that 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.’
41 Section 107(6) provides:
‘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.’
42 Clause 145 of the Regulation sets out the prescribed conditions. These deal with such matters as use of non-employees, display of licence number, circumstances in which unlicensed crew may be used, special restrictions on boats used for prawn trawling

43 It is an offence to contravene a condition of a fishing boat licence: s 107(7). The regulations may make provision for or with respect to licences for boats: s 107(8).

44 Refusal of Licence: In the case of a fishing boat licence, cl 144 of the Regulation deals with the grounds for refusal to issue a licence. These include if:

‘(a) the boat is not licensed under the Act at the commencement of this Regulation (unless paragraph (b) applies), or
(b) the boat replaces another boat ( "the original boat" ) that is licensed under the Act or for which the licence is in abeyance under clause 149:
(i) the Minister is of the opinion that the boat concerned is not of sufficiently similar dimensions or characteristics to the original boat, or
(ii) the licence for the original boat has been in abeyance for a period of more than 2 years, or
(b1) the application for the fishing boat licence is an application for renewal of an expired fishing boat licence that is treated as an application for issue of a fishing boat licence in accordance with clause 146 (8) and that is received by the Minister more than 2 years after the date the licence would (but for clause 146 (6)) have expired, or
(c) in the case of a boat licensed under the Act at the commencement of this Regulation, the boat was sold or disposed of after that commencement or the right to a fishing boat licence for the boat was transferred after that commencement (unless the transfer of the right to a licence for the boat to the applicant has been approved by the Director under clause 150), or
(d) the Minister is authorised to refuse to issue a licence in respect of the boat under a share fishery management plan, or
(e) the owner of the boat has been convicted of an offence under the Act or regulations made under the Act or of an offence relating to commercial fishing operations under the law of the Commonwealth, another State, a Territory or New Zealand and the Minister is satisfied that the boat was used by that owner for or in connection with the commission of the offence, or
(f) the owner of the boat has been convicted of an offence relating to the theft of fish, fishing gear or a boat or intentional damage to fishing gear or a boat, or

(g) the owner of the boat has been convicted of an offence relating to an assault on a fisheries official, or
the applicant has not paid any fee due and payable in connection with his or her fishing boat licence.’
45 The Minister may refuse to renew a licence (cl 146(3)) if:
‘(a) the holder of the licence has been convicted of an offence under the Act or regulations made under the Act or of an offence relating to commercial fishing operations under the law of the Commonwealth, another State, a Territory or New Zealand and the Minister is satisfied that the boat was used by that holder for or in connection with the commission of the offence, or
(b) the holder of the licence has, in the opinion of the Minister, contravened a condition of the licence, or
(c) the holder of the licence has been convicted of an offence relating to theft of fish, fishing gear or a boat or intentional damage to fishing gear or a boat, or
(d) the holder of the licence has been convicted of an offence relating to an assault on a fisheries official, or
(e) the application for renewal of the licence is received by the Minister more than 60 days after the date the licence would have expired (but for subclause (6)), or
(f) the holder of the licence has not paid any fee due and payable in connection with the renewal of his or her licence, or
(g) the licence has been in abeyance under clause 149 for a period of more than 2 years.’
46 There is an additional licence fee for boats authorised to prawn trawl in the ocean prawn trawl restricted fishery (cl 147) based essentially on the size of the boat (its ‘unitage’, see further cl 147(4)).

47 Suspension or cancellation of licence: Under cl 148 the Minister may cancel or suspend the licence if:

‘(a) the holder of the licence made a statement in connection with the holder's application for the issue or renewal of the licence that was, in the opinion of the Minister, false or misleading in a material particular, or
(b) the holder of the licence has, in the opinion of the Minister, contravened a condition of the licence, or
(c) the holder of the licence has been convicted of an offence under the Act or regulations made under the Act or of an offence relating to commercial fishing operations under the law of the Commonwealth, another State, a Territory or New Zealand and the Minister is satisfied that the boat was used by that holder for or in connection with the commission of the offence, or
(d) the holder of the licence has been convicted of an offence relating to theft of fish, fishing gear or a boat or intentional damage to fishing gear or a boat, or
(e) the holder of the licence has been convicted of an offence relating to an assault on a fisheries official, or
(f) the holder of the licence has transferred his or her right to the licence in accordance with clause 150, or
(g) the boat has been lost at sea or otherwise disposed of by the holder of the licence.’
48 Placing Licence in Abeyance : The Minister is given power to suspend the licence ‘by placing [it] in abeyance, from time to time’ if the Minister is ‘of the opinion that the holder of the licence is unable to use the licensed boat for a particular period (for example, because the boat has been disposed of or lost at sea).’ (s 149(1)).

49 Transfer of right to a fishing boat licence: Trading in fishing boats is affected by s 150 which provides:

‘150. Transfer of right to a fishing boat licence
(1) The Director may approve the transfer of the right to a fishing boat licence in accordance with this clause.
(2) An application for approval of the transfer of the right to a fishing boat licence may be made in writing to the Director jointly by the holder of the fishing boat licence and a person intending to acquire the right to that licence.
(3) The application is to be accompanied by a fee of $260.
(4) The Director may approve the transfer, or may refuse to approve the transfer, of the right to a fishing boat licence to the person.
(5) The Director may refuse to approve the transfer on any of the grounds on which the Minister could refuse to approve the issue of a fishing boat licence to the person.
(6) If the transfer is approved, the transferee may apply for, and is to be issued with, a fishing boat licence (whether for the boat previously licensed to the transferor or for another boat that replaces the boat licensed to the transferor).
(7) Nothing in this clause affects the power of the Minister to refuse to issue a licence as authorised by clause 144 (including on the ground that the boat concerned is not of sufficiently similar dimensions or characteristics to the licensed boat of the transferor).
This clause applies to a licence whether or not it is suspended or in abeyance under clause 149.’
50 Ocean Prawn Trawl Restricted Fishery : Relevant to this case are the additional requirements pertaining to being permitted to take fish for sale in the ocean prawn trawl restricted fishery. The types of endorsement permitted to be held are set out in cl 178. In this case the fisher’s commercial fishing licence has an ‘inshore endorsement’ and an ‘offshore endorsement’ and the fishing boat licence contains restrictions as to the extent of its use in the offshore ocean prawn trawl restricted fishery. Under cl 181(4) the Minister ‘may refuse an application from the holder of a current endorsement only if:
(a) the applicant has been convicted of an offence against the Act, this Regulation or any other regulation made under the Act, or
(b) the applicant has, in the opinion of the Minister, contravened a condition of the endorsement, or
(c) the applicant has been convicted of an offence relating to the theft of fish, fishing gear or a boat or intentional damage to fishing gear or a boat, or
(d) the applicant, or if the applicant is a nominated fisher, the owner of the fishing business who nominated the fisher, has ceased to be entitled to the endorsement (see clause 212Y), or
(e) the application for endorsement for a further period is received by the Minister after the expiration of the current endorsement, or
(f) the applicant has not paid any fee due and payable in connection with the endorsement.’
51 Powers (a) to (d) are also the grounds for cancellation or suspension: cl 182.

52 Effect of Sale or Disposal of Fishing Business on Endorsement: In the context of this case these provisions of the Regulation inserted on 28 February 1997 are of particular importance, and are set out in full:

‘Division 4C---Entitlements of fishing business owners
Note. This Division does not apply in respect of the inland restricted fishery.
212X. Eligibility for an endorsement (owners of fishing businesses)
(1) If the owner of a fishing business is eligible for an endorsement in a restricted fishery, the owner may:
(a) if the owner is a natural person, apply to have his or her commercial fishing licence endorsed, or
(b) whether or not the owner is a natural person, nominate an individual to take fish for sale on behalf of the business.
(2) Only one individual is entitled to an endorsement in respect of a fishing business. Accordingly, only one individual may be nominated under this clause to take fish for sale on behalf of the fishing business at any one time.
(3) If a fishing business is owned by more than one person, they may nominate one of them to take fish for sale on behalf of the business or may nominate another individual to take fish for sale on behalf of the business.
(4) Despite subclause (3), if a fishing business is owned by a partnership, each partner may be entitled to an endorsement, but only an endorsement in the estuary general restricted fishery.
(5) A nomination must be in a form approved by the Director and may be revoked at any time by the owner of the fishing business by notice in writing to the Director.
(6) A nomination has no effect unless it is approved by the Director. The Director may impose conditions on the granting of such approvals. For example, the Director may impose a limit on the number of nominations that may be made in respect of a fishing business under this clause.
(6A) The Director is to refuse to approve any nomination made in respect of a fishing business that is owned or partly owned by a person who holds a skipper's endorsement under clause 212R in respect of a fishing business that is owned by another person.
(7) If a nomination is approved, the Minister is to cancel or suspend any other endorsement held in respect of the fishing business.
(8) If a nomination is revoked, the Minister is to cancel the endorsement of the nominated fisher. This does not limit the powers of the Minister to refuse to endorse a commercial fishing licence, or suspend or cancel an endorsement, under the provisions of this Part.
(9) In this clause:
"endorsement" means an endorsement on a commercial fishing licence that authorises a commercial fisher to take fish for sale in a restricted fishery but does not include the classes of endorsement provided for by Division 4B (Special classes of endorsement).
"owner" , of a fishing business, means the person or persons who own the fishing business.
Note. Clause 135 provides that if the fishing business is a recognised fishing operation, the individual nominated under this clause by the owner of the business is authorised to hold a commercial fishing licence. Accordingly, if the business is a recognised fishing operation, the individual nominated under this clause need not be a commercial fisher at the time of nomination.
Division 4B allows special endorsements to be obtained by individuals. The limit of one endorsement per fishing business does not apply in respect of those endorsements.
212Y. Effect of sale or disposal of fishing business on eligibility
(1) A person ceases to be entitled to an endorsement in a restricted fishery if any part of the fishing business that made the person eligible for the endorsement is sold or disposed of. For example, if a person sells the licensed fishing boat that made the person eligible for an endorsement, the person ceases to be entitled to such an endorsement.
(2) A person who acquires any part of the fishing business of another person does not thereby become eligible for an endorsement in a restricted fishery, except in accordance with guidelines relating to the transfer of fishing businesses issued from time to time by the Director.’
ASSESSMENT OF TRIBUNAL DECISION
53 The regulatory scheme, as this survey of the relevant provisions demonstrates, deals in a close and detailed way, with the exercise of the power to grant, refuse to renew, or suspend and cancel commercial fishing licences and fishing boat licences. Similarly there are detailed provisions governing the grant and withdrawal of endorsements, as well as in relation to the transfer of businesses holding such endorsements. The scheme differentiates between licences and endorsements on the one hand and, on the other hand, business events such as the transfer of rights to a fishing boat licence and the eligibility of purchasers for endorsements in restricted fisheries.

54 A number of factors point against the conclusion by the Tribunal that the letter of 2 February 2000 recorded a decision to impose a condition of a licence and thereby constituted a reviewable decision. The Minister has a power to revoke or vary the conditions of a commercial fishing licence: s104(6); similarly, in the case of a fishing boat licence: s 108(6). The Director as delegate of the Minister did not purport to do that in this case. Most importantly s 104 (4)(a) provides that a commercial fishing licence is subject to conditions specified in the licence. This supports a conclusion that any new conditions would themselves have to be specified by the Minister (or delegate) to be lawful. As we read the scheme it is not open to the Tribunal to ‘specify’ the condition.

55 Moreover, it would be conducive to great uncertainty both for the regulated (fishers) and the regulator (the Minister and the Director) if conditions were to be found to arise by inference from exchanges of correspondence in which no official statement that a condition was being imposed could be found. This is particularly so in a scheme requiring strict adherence to conditions, on pain of prosecution and a fine of up to 100 penalty units.

56 We are satisfied that the Tribunal erred in its interpretation of the legal effect of the letter of 2 February 2001. The Director did not specify a new condition on either or both of the licences by way of the letter of 2 February 2001.

57 That conclusion is enough to dispose of the appeal. A number of other issues were canvassed at the hearing. Our views follow.

58 ‘Relevant authority’: In our view, the Tribunal also erred in construing the reply as one pertaining to a ‘relevant authority.’ We have noted that the fishing boat licence does state on its face ‘This Licence cannot be transferred without the approval of the Director of Fisheries.’ While this clause in the licence was not addressed by the Tribunal below or at the appeal hearing, it could possibly be argued that this clause represents a condition on a relevant authority. In our view it is simply advice drawing attention to the powers given to the Director by cl 150 of the Regulation.

59 The Tribunal’s jurisdiction derives from s 126 read in combination with s 125. These two provisions follow:

‘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. (Repealed)’
60 Cl 150 of the Regulation (transfer of right to a fishing boat licence) sets up a procedure to be followed once a fishing boat licence holder has identified a possible transferee. Subject to an application in proper form accompanied by an appropriate fee, ‘The Director may approve the transfer, or may refuse to approve the transfer, of the right to a fishing boat licence to the person’ (cl 150(4)).

61 That a transfer is seen as a different process to the issue of licence is, we consider, reflected by sub-cl (5) of cl 150: ‘The Director may refuse to approve the transfer on any of the grounds on which the Minister could refuse to approve the issue of a fishing boat licence to the person.’ Sub-cl (6) provides that: ‘If the transfer is approved, the transferee may apply for, and is to be issued with, a fishing boat licence (whether for the boat previously licensed to the transferor or for another boat that replaces the boat licensed to the transferor).’ A further indication the transfer process is seen as distinct from the process of issuing licences is found in sub-cl (8) which states: ‘This clause applies to a licence whether or not it is suspended or in abeyance under clause 149.’ It may well be that the licence splitting policy would be taken into account at this point, and a proposed transfer might not be approved. As we interpret the scheme of the legislation this is an administrative decision that is not covered by ss 125 and 126.

62 As Mr Lancaster emphasised in his submissions no new condition has been imposed and no decision has been taken adverse to the respondent’s licence. Clearly the respondent faces the risk that he will lose his New South Wales licences if he disposes of his Queensland entitlements below the minimum threshold set by the licence splitting policy. Whether the Director, as delegate of the Minister, can lawfully suspend or cancel New South Wales licences based on those considerations is a matter which would arise once the Director made any such decision. At that point an application for review could be made: see s 126(1)(c).

Order

1. Appeal allowed.
2. Decision under appeal set aside.
3. Application for review dismissed for want of jurisdiction.