Minister for Fisheries v Woodward (GD)

[2001] NSWADTAP 3

Appeal Panel

CITATION:	Minister for Fisheries -v- Woodward (GD) [2001] NSWADTAP 3
PARTIES:	APPELLANT Minister for Fisheries RESPONDENT David James Woodward
FILE NUMBER:	009037
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	01/19/2001
DATE OF DECISION:	02/26/2001
DECISION UNDER APPEAL:	Woodward -v- Minister for Fisheries [2000] NSWADT 143
BEFORE:	O'Connor K - DCJ (President); Goode P - Judicial Member; Bolt M - Member
CATCHWORDS:	scope of Tribunal Order
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	003123
DATE OF DECISION UNDER APPEAL:	10/13/2000
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fisheries Management (General) Regulation 1995 Fisheries Management Act 1994
CASES CITED:	Minister for Fisheries v Puglisi [2001] NSWADTAP 2 Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404
REPRESENTATION:	APPELLANT R Lancaster, barrister RESPONDENT J Anthony, solicitor
ORDERS:	1. The appeal is dismissed. ; 2. The term in issue in the decision (the final part of Order 2) is affirmed.

1 This appeal arises from a decision of the General Division of the Tribunal (the Tribunal) to set aside a decision of the Minister for Fisheries refusing a hand gathering endorsement in the Estuary General Restricted Fishery on a commercial fishing licence held by David James Woodward, the applicant for review and respondent to the appeal: Woodward v Minister for Fisheries [2000] NSWADT 143 (General Division, 13 October 2000).

2 By agreement of the parties, the appeal has been decided on the basis of written submissions without an oral hearing. The Minister filed written submissions dated 20 December 2000 prepared by Mr Lancaster of counsel. The respondent filed written submissions dated 20 January 2001 prepared by Mr Bates of counsel. The Appeal Panel convened to consider the submissions on 30 January 2001.

3 The Minister’s appeal does not challenge the substantive decision of the Tribunal. But it challenges an element of the order made by the Tribunal as being in excess of power. The Tribunal’s full order was as follows:

‘1. The decision of the Minister refusing to issue the applicant with an endorsement with respect to the Estuary General Restricted Fishery - Hand Gathering is set aside.

2. In substitution, it is decided that the matter is referred to a review panel for further consideration taking into account the Tribunal’s reasons for decision.’

4 The Minister objects to the inclusion in Order 2 of the words ‘taking into account the Tribunal’s reasons for decision’.

5 The forms of order open to the Tribunal when determining an application for review are dealt with by s 63 of the Administrative Decisions Tribunal Act 1997, as follows:

‘(3) In determining an application for review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.’

6 (There is also a power in s 65 enabling the Tribunal to remit matters to the administrator for reconsideration at any stage of the proceedings before the Tribunal. That power is not relevant to the present case.)

7 As the Minister acknowledged, Order 1 falls within the power given by para (c) of s 63(3).

8 Order 2 is referable to one of the powers given to the Minister by cl 214D(1) of the Fisheries Management (General) Regulation 1995 (the Regulation), a regulation made pursuant to the Fisheries Management Act 1994 (the Act).

9 Before setting out cl 214D(1), it is helpful to refer briefly to the administrative controls governing activities in restricted fisheries. Where it is intended to operate in a restricted fishery, the holder of a commercial fishing licence must, in addition, have a relevant endorsement. Application for an endorsement must be made to the Director of Fisheries, with the Minister being responsible for the decision. See generally cl 214A of the Regulation. The Minister is advised by the Director and responsible officers.

10 Where an endorsement is refused, the applicant may request a review. The Minister is empowered to constitute a Restricted Fisheries Review Panel (the review panel) to conduct the review: see cl 214B. These arrangements are transitional ones connected with the declaration of a number of new restricted fisheries that took effect on 28 February 1997. They seek to ensure that there is proper consideration of the situation of licence-holders required by the changes in policy to obtain endorsements in order to continue operating in areas or in a manner which falls within the terms of a restricted fishery. The scheme applies to applications for endorsements made not later than 31 December 1997. This scheme is examined in greater detail in the decision under appeal: see Woodward v Minister for Fisheries [2000] NSWADT 143 at [2] and following; and by another Appeal Panel in Minister for Fisheries v Puglisi [2001] NSWADTAP 2.

11 The review panel may decide either that a person ‘is’ eligible for an endorsement or ‘should be’ eligible for an endorsement; or endorse the Minister’s refusal: see cl 214C and cl 214D.

12 A decision that a person ‘is’ eligible for an endorsement might arise where there has been an error in considering the original application such as a mistake in calculating or assessing a person’s catch history. A decision that a person ‘should be’ eligible for an endorsement would be open where the strict catch requirements had not been met but one of the extenuating factors permitted to be taken into account by the review panel (see especially cl 214(2)(c)) is made out (see further Minister for Fisheries v Puglisi [2001] NSWADTAP 2).

13 The present case involved a situation where the Minister received a report back from the review panel rejecting the request for review and endorsing the Minister’s original decision. As permitted by cl 214D(1) the Minister proceeded to confirm his original determination. Section 214D(1) provides:

‘(1) On receipt of a report by a panel, the Minister may:

(a) in accordance with the decision of the panel, confirm the determination that was reviewed by the panel or set that determination aside and substitute a new determination, or
(b) refer the matter back to the panel (together with comments or recommendations) for further consideration.’

14 The Minister’s decision is reviewable by the Tribunal: Act, s 126. The review panel’s recommendation has not been declared to be reviewable.

15 As noted earlier, the first words of Order 2 are that ‘it is decided that the matter is referred back to a review panel for further consideration.’ It is clear that the first part of Order 2 was within the power of the Tribunal; and that is acknowledged by the Minister.

16 The Order continues, the next words being ‘taking into account the Tribunal’s reasons for decision.’ The Minister’s objection is to these words.

17 The submission of the Minister, in summary, is that the inclusion of these words in the terms of an order exceeds the power conferred on the Minister and consequently is also beyond the Tribunal’s powers. The submission as we understood it was that the inclusion of the words in issue might operate as some kind of fetter on the scope of the review panel’s reconsideration of the matter or amount to a form of dictation.

18 The material paragraphs of the written submissions made on behalf of the Minister are contained at paras 23 and following and we set them out.

‘23. In this case, the relief granted by the Tribunal exceeded the statutory power in clause 214D. On the proper construction of the words “comments or recommendations” in clause 214D of the Regulation, that clause does not extend to an order of the Tribunal referring the matter back to the review panel for further consideration “taking into account my above reasons for decision”. Whether that order is understood as (i) a direction to the review panel to consider the matter further in a way that is consistent with the “above reasons”, or (ii) a requirement upon the review panel to take into account each of the “above reasons” (that is, the Tribunal’s conclusions of fact and/or law) in the course of its further considerations, the order exceeds the limits imposed by the words of clause 214D.

24. Clause 214D does not permit a direction (or what is, in substance, a direction) to be made to the review panel to take certain things into account or to consider the matter in a certain way. A review panel is constituted as a three-member independent review body (see clause 214B(2)). The review panel is in charge of its own procedure (see clause 214B) and it determines the scope of its own considerations (see clause 214C). A direction to the review panel to reach a fresh decision by reference to reasons for judgment tends to subvert the scheme of the Regulation with respect to review panels. The Minister (and, therefore, the Tribunal in an appeal) may properly pass comment or give recommendations to the independent review panel, but may not require a particular decision to be made and may not require the review panel to arrive at a decision by having regard to particular considerations or a particular line of reasoning.

25. An analogy may be drawn with the authorities concerning the proper limits of governmental or Ministerial influence on statutory decision-makers: see, for example, Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404 at 429-430 (Mason and Wilson JJ) [the Bread Manufacturers’ case]. The statutory context in this case makes it clear that, while the review panel may consider comments or recommendations from the Minister (or from the Tribunal in an appeal), it is to undertake the further determination in the manner in which it sees fit.

26. The Minister submits that it would ordinarily be appropriate for the Minister (or the Tribunal in an appeal) to set out in a concise way the comments and/or recommendations made for the purposes of clause 214D. It is submitted that it is productive of uncertainty to refer a matter for further consideration by the review panel by reference to 62 paragraphs of a closely reasoned judgment.

27. In this case, the Minister submits that the Appeal Panel should set aside order 2 made on 13 October 2000 insofar as it contains the words “taking into account the Tribunal’s reasons for decision”.'

19 We now turn to the Bread Manufacturers’ case. The case involved a challenge by the principal trade association to the processes undertaken by the statutory body responsible for fixing the maximum price of bread in New South Wales (the Prices Commission). Three price fixing orders made between November 1979 and July 1980 were in issue.

20 The trade association was successful in the High Court in having the first of these orders declared invalid on the ground that a study commissioned by the body had been formally taken into the first order, without notice being given to parties to the public enquiry in particular the trade association.

21 The High Court upheld the validity of the second and third orders. In the case of the third order it reversed the decision of the New South Wales Court of Appeal which had found that order to be invalid because of undue intrusion by the Minister into the processes of the statutory body. It is this aspect of the decision that is seen by the Minister as relevant to the present case. The objection in essence is that the Tribunal order constitutes impermissible dictation to the review panel.

22 It is useful at this point to set out at length a passage from the judgment of Gibbs CJ (1981) 56 ALJR 89 at 95 (180 CLR 404 at 418):

‘The attack on Prices Regulation Order No. 798 [the third order] commences with the proposition that a statutory authority must not, in the purported exercise of its discretion, act under the dictation of some other person. This proposition is plainly correct. The Commission is the body entrusted with power to fix the price, and its decision must be its own. If it acted under pressure exerted by the Minister, or simply gave automatic effect to a decision of the Minister, the decision would not then really be that of the Commission but would be that of the Minister: see such cases as Evans v. Donaldson (1909), 9 CLR 140, at pp 153, 155; Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd. (1965), 113 CLR 177, at pp 192, 200, 202 and Lavender and Son v. Minister of Housing and Local Government, (1970) 1 WLR 1231, at p 1241; (1970)3 All ER 871, at p 880. It does not follow that it was impermissible for the Commission to consider the views of the Minister in coming to its decision. For the Commission to take ministerial policy into account in making a decision of its own is a different thing from automatically following ministerial policy: see Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd. (1965), 113 CLR, at pp 193, 201-202. In that case the whole Court accepted that when a discretion is vested in the head of a government department, the policy of the government is not necessarily an extraneous matter which he must not consider: see at pp. 192, 200, 202-203, 204. (See also Ansett Transport Industries (Operations) Pty. Ltd. v. The Commonwealth (1977), 139 CLR 154, at pp 82, 114-115. Although the members of the Commission are not all public servants and the Commission is an independent body, the Commission is required to give effect to views of public policy, with which the Minister also has a legitimate concern: see s 58. Further, the Minister is given important powers in connexion with the making of price-fixing orders, by s 20(1A) which provides as follows: "Notwithstanding subsection (1), the Commission shall, before causing an order referred to in subsection (1) to be published in the Gazette, serve a copy of the proposed order on the Minister and shall not cause the proposed order to be so published - (a) unless the Minister has informed the Commission that he does not propose to give it a direction under paragraph (b); or (b) if the Minister, in the public interest, has directed the Commission not to publish the proposed order."

Since the Commission can fix a price only by order published in the Gazette (s 20(1)). The effect of s 20(1A) is that the Minister has complete power to prevent the Commission from fixing prices in any case. It would be a futility for the Commission to make an order which it knew that the Minister would veto, and it would therefore not be wrong for the Commission, in considering what price it should fix, to take into account the Minister's views, provided that in the end the decision reached by the Commission was its own. If the Commission can consider the Minister's views, it can treat them as decisive. There is obviously a fine line between a case in which the Commission automatically obeys a ministerial pronouncement, and that in which it decides for itself to grant the largest increase in price that the Minister will not veto. The fact that the Minister has a statutory power of veto makes the case an exceptional one.

In the present case the evidence does not in my opinion support a finding that the Commission acted under the dictation of the Minister, or that the Minister exercised undue influence on the Commission. … It may be inferred that the Commission ascertained from the Minister whether he would agree to a particular order and did not simply serve a copy of a proposed order on the Minister without knowing whether he would veto it or not. It may further be inferred that the reason for the change of mind on the part of one or more members of the Commission was that it was known or believed that the Minister would not consent to an increase greater than 3c. If it was right to conclude that the Minister expressed his views to the Commission, and that the Commission took those views into account in reaching its conclusion, that does not mean that either the Minister exerted improper pressure or that the Commission considered anything that was not a proper matter for its consideration. To say that the Commission considered that it should bring about a result "politically palatable" to the Government is, with all respect, to move into the realm of speculation. It is consistent with the evidence that the Commission decided for itself that it was better to allow an increase in price of 3c which would become effective, than to determine upon an increase of 4c which the Minister would veto, with the result that there would be no increase at all.’

23 Mason and Wilson JJ at ALJR 99-100 (at CLR 428) made the following observations on the nature of the relationship between the statutory body and the Minister in the Bread Manufacturers’:

‘5. The Commission and the Minister

We turn now to examine the relationship between the Minister and the Commission. It may be said at once that the Act does not subject the Commission to the control of the Minister. Its independence and the detailed provisions which provide security of tenure to its members are significant features of the Act. The powers of the Minister in relation to the price-fixing process are clearly defined. He may direct the chairman or Commission to furnish him with a report with respect to any named goods or services to assist him in determining whether to "declare" such goods or services pursuant to s 19 (s. 8A). The Commission, for the purpose of determining whether it should exercise any power conferred on it under s 20, must hold a public inquiry unless it obtains the consent of the Minister to dispense with such an inquiry (s. 8B). Reference has already been made to the power of veto conferred on the Minister by s 20(1A). Mr. McHugh pointed to evidence in the case that suggested a degree of consultation between the Minister and the chairman of the Commission which went beyond the strict necessities of the provisions we have mentioned, and argued that this was improper and not in accordance with the Act. A similar argument found some favour both at first instance with Woodward J and with the Court of Appeal. With respect, we think the submission is based on a misconception of the Act. All that can be said is that the Act requires the Commission to make up its own mind, to come to a decision of its own, in fixing the maximum price of bread, without dictation from the Minister and without merely deferring to the Minister so that the decision ceases to be that of the Commission and becomes that of the Minister.

The extent to which a tribunal or public official required by statute to make decisions which affect the rights of the citizen can take into account and act upon the views of the Government or a minister has been, and no doubt will continue to be, a vexed question. See e.g., the differences in approach and emphasis expressed in the judgments of this Court in Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd. (1965) 113 CLR 177; and Ansett Transport Industries (Operations) Pty. Ltd. v. The Commonwealth (1977) 139 CLR 54. As these judgments tend to show, the problem is not one which admits of an answer having a universal application. So much depends on a variety of considerations, for there are few cases in which the statute explicitly provides that the tribunal is bound to give effect to, or to give weight to, a ministerial direction. One must take into account the particular statutory function, the nature of the question to be decided, the character of the tribunal and the general drift of the statutory provisions in so far as they bear on the relationship between the tribunal and the responsible Minister, as well as the nature of the views expressed on behalf of the Government. What is permitted to one organization may be prohibited to another. What will be an extraneous consideration to a tribunal applying the law to the facts, e.g., the Court Martials Appeal Tribunal, may be a relevant consideration to a tribunal such as the Commonwealth Conciliation and Arbitration Commission which takes into account government economic policy.

As so often happens the statute in the present case gives no explicit guidance. We are left then to spell out what is appropriate from the framework of the relationship which the statute has sketched in. We have the initial complication that arises from the split personality of the Commission - the quasi-judicial character which it is required to assume in conducting public inquiries and the executive style role which it plays in making other determinations.

In making such determinations the Commission is not expected to operate in a vacuum, giving vent to arbitrary or capricious decisions. One would expect it to engage in gathering, from a wide variety of sources, information which has relevance to declared goods and services, information which will provide the basis for the consideration of the Commission in preparing a proposed order. There is nothing in the Act to exclude the Minister from the category of those who may be able to contribute information that is relevant to the Commission's task.

In some contexts it may be important to draw a distinction between the gathering of information and the gathering of what is merely opinion. But we do not think that this distinction is material in relation to the function of the Commission in determining a maximum price, when it is not conducting a public inquiry, having regard to s 58(a) and the relationship that exists under the statute between the Commission and the Minister. As we have already said, s 58(a) requires the Commission to take account of the interests of consumers and of the community generally, as well as those of manufacturers and traders. In the absence of a statutory prohibition, the Commission is free to take into consideration the opinion or view of the Minister as to the impact on consumer or community interests of a proposed increase in the maximum price.

No doubt there is some ground for apprehension that if the members of a statutory body are entitled to take into account the views of a Minister they will merely defer to them or give too much weight to them. However the remarks of Menzies J in Ipec (1965) 113 at p. 202 provide a reassuring answer.

It is evident that the operation of s 88 requires that there will be consultation between the Commission and the Minister. The Minister, in deciding whether he will dispense with a public inquiry, is entitled to ask the Commission what is the likely outcome of their deliberations in the event that no public inquiry is held and what are the perceived advantages and disadvantages of proceeding without such an inquiry. It is only to be expected that the Commission will respond to such a request. Further, it would not be unreasonable for the Commission to ascertain the views of the Minister before making a final determination under s 20. The Commission will, in the nature of things, wish to avoid an exercise by the Minister of his power of veto under s 20 if it can be avoided consistently with the Commission making a determination of its own. 26. It is impossible to suppose that the legislature intended that the only avenue whereby the Minister can express a view concerning the fixation of a maximum price under the Act which it is his task as a Minister of the Crown to administer is by way of a public rejection of a formal decision of the Commission in the form of a veto of a proposed order. This would be an extraordinary intention to impute to the legislature in any circumstances, but particularly in the light of the many situations where the Act cannot operate without consultation between the two bodies who between them are responsible for the administration of the Act. Apart from the provisions already mentioned there is provision for a report, and we think a consequential need for consultation concerning the report, in connexion with extension of the range of declared goods or services (s. 8A). The need for close involvement between the Commission and the Minister is apparent from other sections (see ss 4H, 4K, 4M, 8, 43, 49 and esp. s 24).’

24 In this case the Minister seeks to rely on the dicta of Mason and Wilson JJ in the Bread Manufacturers’ case. The review panel, it is said, operates independently of the Minister; and that it not open to the Minister to direct the review panel as to how it is to go about its task. There is a delineation between the roles to be performed by the review panel and by the Minister. The Minister’s powers of decision are qualified. The Minister must either adopt the report of the review panel or ‘refer the matter back to the panel (together with comments or recommendations) for further consideration’: s 214D(1)(b).

25 In our view, the form of order made in this case conformed to the powers vested in the Minister by s 214D(1)(b) and involved no more than the mildest of recommendations - that the Tribunal’s reasons for decision be ‘taken into account.’

26 In our view the order seeks to convey no more than what would be expected in a rational and orderly administrative decision-making process; and in this regard we draw support from the passages cited above from the Bread Manufacturers’ case.

27 In the present instance, decision-making responsibilities have been allocated by legislation to two bodies. One body, the Minister, oversees the other, the review panel, but any final decision made by the Minister must be the same as that made by the review panel. While the Minister’s discretion is limited in this way, the Minister has the important power, if not fully satisfied, to refer the matter back for further consideration.

28 In this instance the Tribunal standing in the shoes of the Minister formed the view that the review panel report ought not to be accepted and that the power to refer back ought to have been exercised by the Minister.

29 Clearly, it would not be conducive to good administration if the review panel did not give serious consideration to any differences of opinion or concerns conveyed to it by the Minister - or the Tribunal armed with the powers of the Minister. It is to be expected that the review panel would ‘take account’ of any information or conclusions reached, in this instance by the Tribunal on external review of the Minister’s decision.

30 Being asked to take account of an alternative perspective does not compromise the independence of the review panel. It remains an independent body. It must work in a close relationship to the Minister and the Department. It must seek to ensure that relevant legislation and lawful policy is implemented. Realities of this kind were firmly recognised by the High Court in the Bread Manufacturers’ case.

31 Restricted fisheries review panels do not operate in a vacuum. They have a key role in achieving an orderly and fair transition from open to restricted fisheries. In particular they have the power to modify the strict application of the rules as to who can be granted endorsements to operate in fisheries that are now restricted.

32 It is not a threat to a review panel’s independence, nor the exercise of undue influence or dictation, to be advised by the Minister or, in this instance, the Tribunal exercising the powers of the Minister, that upon close consideration its report and recommendation were found not to be persuasive. It is not a threat to its independence for it to be asked to take into account additional material or to have regard to views expressed by the recipient of its report (in this instance the Tribunal).

33 We acknowledge that as a matter of practicality a Minister receiving a review panel report is unlikely to be in a position to undertake the kind of examination that can occur upon the hearing on an application for review of the Minister’s decision by the Tribunal. The Minister would not ordinarily examine the material before the review panel afresh, nor would the Department go that far in tendering its advice to the Minister as to whether to accept or refer back the recommendation.

34 But the creation of the external review right does give rise to those possibilities. The processes undertaken by the Tribunal do allow for direct examination of the evidence afresh. In this case it is plain from the decision below that a very thorough examination occurred.

35 If the result is that new perspectives in relation to the case of an applicant are obtained, that should be seen as positive. This is consistent with the objects of the Administrative Decisions Tribunal Act 1997, cl 3 in particular ‘(f) to foster an atmosphere in which administrative review is viewed positively as a means of enhancing the delivery of services and programs.’

36 We note that the Bread Manufacturers’ case dealt with a context where the decision-making body was making orders which had an economic and financial impact on the community as a whole. Here we are dealing with a decision-making process that affects the circumstances of individual licence-holders. It may be that Ministers and Governments should, subject to any statutory constraints, be relatively more free in their relationship with economic policy making bodies than would be appropriate where the body makes decisions in relation to individual cases especially where livelihood interests are affected. Nonetheless if a Minister has obtained significant relevant information which could reasonably lead to an alteration of view on the part of the independent body, and has the power to invite reconsideration, then it would be very odd if the exercise of that power could be challenged as somehow involving an unlawful intrusion into the independence of the other body. On the contrary, the failure of a Minister to exercise his power in this way in such circumstances may be challengeable.

37 There is, in our view, no substance in the objection in this case.

38 We note in conclusion that a point can, we consider, be reached where the order of a Tribunal in this area could exceed the proper boundaries as to what could be said by way of ‘comments’ or ‘recommendations’ to the independent review panel. In the case of Puglisi v Minister for Fisheries [2000] NSWADT 105 (General Division, 4 August 2000), that line was breached. The Appeal Panel concluded that this was not permissible: see Minister for Fisheries v Puglisi [2001] NSWADTAP 2 at [66].

39 The appeal is dismissed. The term in issue in the decision (the final part of Order 2) is affirmed.