Minister for Primary Industries, Water & Environment v Hodgson
[2000] TASSC 187
•22 December 2000
[2000] TASSC 187
CITATION: Minister for Primary Industries, Water & Environment v Hodgson
[2000] TASSC 187
PARTIES: PRIMARY INDUSTRIES, WATER
AND ENVIRONMENT, MINISTER FOR
v
HODGSON, Alan
TRETHOWAN, Kevin
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 65/2000
DELIVERED ON: 22 December 2000
DELIVERED AT: Hobart
HEARING DATE/S: 9 November 2000
JUDGMENT OF: Crawford, Evans and Blow JJ
CATCHWORDS:
Primary Industry - Fish - Licences - Fishing licence - Power of Minister to grant licence delegated to Secretary - Requirement of management plan as to catch history - Power of Secretary to qualify lesser amount of scalefish as a catch history - Minister's power to review Secretary's decision.
Living Marine Resources Management Act 1995 (Tas), s78(1) and (3).
Fisheries (Scalefish) Rules 1998 (Tas), rr97(2) and 123.
Aust Dig Primary Industry [28]
REPRESENTATION:
Counsel:
Appellant: F C Neasey
Respondent: D J Porter QC
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Chris Boland
Judgment ID Number: [2000] TASSC 187
Number of paragraphs: 25
Serial No 187/2000
File No FCA 65/2000
MINISTER FOR PRIMARY INDUSTRIES, WATER AND ENVIRONMENT
v ALAN HODGSON and KEVIN TRETHOWAN
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
EVANS J
BLOW J
22 December 2000
Orders of the Court:
Appeal allowed.
Orders of Slicer J made on 18 August 2000 set aside.
Order of the Resource Management and Planning Appeal Tribunal on 16 November 1999 affirmed.
Serial No 187/2000
File No FCA 65/2000
MINISTER FOR PRIMARY INDUSTRIES, WATER AND ENVIRONMENT
v ALAN HODGSON and KEVIN TRETHOWAN
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
22 December 2000
I agree with the reasons for judgment of Blow J and in particular that the relevant provisions in the Act and Rules make it clear and unambiguous that the Minister has no power to review the decision of the Secretary under the Fisheries (Scalefish) Rules 1998, rr97(2) and 123.
The appeal should be allowed and the decision of the Resource Management and Planning Appeal Tribunal should be restored.
File No FCA 65/2000
MINISTER FOR PRIMARY INDUSTRIES, WATER AND ENVIRONMENT v
ALAN HODGSON and KEVIN TRETHOWAN
REASONS FOR JUDGMENT FULL COURT
EVANS J
22 December 2000
I have had the advantage of reading the Reasons for Judgment prepared by Blow J, and agree with his reasons for allowing the appeal and the orders he proposes.
The observations I wish to make relate to provisions of the Living Marine Resources Management Act 1995 ("the Act"), the Fisheries (General and Fees) Regulations 1996 ("the Regulations") and the Fisheries (Scalefish) Rules 1998 ("the Rules"), which are referred to in Blow J's judgment. I will not reproduce them.
My initial impression on reading the Act, ss78 and 283, and the Regulations, reg17 and Sch2, Pt2, item 2, was that Parliament intended that the Minister should determine all issues relating to the grant of an application for a licence, and that such determination should be subject to review by the Appeal Tribunal. On this construction of those provisions, it would be arguable that the Rules, rr97(2) and 123, insofar as they make decisions of the Secretary on whether an applicant is qualified to apply for a licence decisive, are inconsistent with the Act and invalid, with the consequence that responsibility for determining those issues reverted to the Minister. This is the only means by which I can conceive it could be held that the Minister, not the Secretary, determined the qualification of the respondents to apply for a licence, with the result that the Minster's consequent determination of that issue was reviewable by the Appeal Tribunal pursuant to the Act, s283.
However, it is apparent from a consideration of the Act as a whole that my initial impression was wrong. The Act contains most unusual provisions in relation to rules, particularly in relation to rules contained in a management plan. The Minister is empowered to make rules relating to fisheries by the Act, Div1, Pt3. Division 2 of that Part empowers the Minister to make management plans which consist of rules relating to a specified fishery. That Division prescribes the procedure for the creation of a management plan which culminates with giving public notice of the plan in accordance with the Act, s48. The Rules are a management plan. Public notice to that effect was given on 17 June 1998, in the Tasmanian Government Gazette, Number 19, at page 883. Rules 97(2) and 123, which empower the Secretary to determine the qualification of applicants to apply for licences, are accordingly provisions of a management plan. Ordinarily, in the event of any inconsistency, provisions of an act prevail over subordinate legislation. Such is not necessarily the case here. The Act, s76, provides:
"76 (1) Any provision of a management plan which is inconsistent with any provision of this Part prevails over the latter provision to the extent of that inconsistency.
(2) Subsection (1) does not apply to a provision of a management plan that relates to any matter referred to in Division 6A."
Section 76 is in Pt4 of the Act which deals with licences, quotas and agreements. By s76, Parliament has expressly manifested an intention that the provisions of a management plan prevail over inconsistent provisions in the Act, Pt4, except for Div6A, which has no relevance to this appeal. The Act, s78, the section which deals with the Minister's power to grant applications for licences, is also in Pt4 of the Act. In result, rr97(2) and 123 prevail insofar as they are inconsistent with s78.
There can be no mistaking Parliament's intent that management plans should have primacy within the legislative framework which governs fisheries. Besides empowering the Minister to make rules and management plans, the Act contains provisions empowering the Governor to make regulations. The Act, ss41 and 41A, provide as follows:
"41 Any provision of rules made under this Division which is inconsistent with a provision of any regulations prevails over the latter provision to the extent of that inconsistency.
41A Any provision of a management plan which is inconsistent with any provision of any rules made under this Division prevails over the latter provision to the extent of that inconsistency."
These sections are in the Act, Div1, Pt3, which governs the Minister's power to make rules relating to fisheries. The combined effect of ss41, 41A and 76 is that the provisions of a management plan prevail over any inconsistent provisions in Pt4 of the Act (excepting Div6A), rules made under the Act which are not in a management plan and regulations made under the Act.
There is accordingly no basis upon which it can be contended that the Act, s78, impacts on rr97(2) and 123 to invalidate the role of the Secretary in making decisions about the qualifications of applicants thereby vesting that responsibility in the Minister and making the decision on that issue a decision of the Minister which is subject to review by the Appeal Tribunal.
File No FCA 65/2000
MINISTER FOR PRIMARY INDUSTRIES, WATER AND ENVIRONMENT
v ALAN HODGSON and KEVIN TRETHOWAN
REASONS FOR JUDGMENT FULL COURT
BLOW J
22 December 2000
This appeal concerns applications made by the respondents on 19 March 1999 pursuant to the Living Marine Resources Management Act 1995 ("the Act") for two scalefish fishing licences, namely a " fishing licence (scalefish A)" and a "fishing licence (banded morwong)". Under the Act, s78(1), the Minister (ie, the appellant) has the power to grant an application for a licence. Under s78(3), the Minister may delegate to any person the power to grant or refuse an application for particular types or classes of licences. The applications in question were dealt with by the Secretary of the Department of Primary Industries, Water and Environment as a s78(3) delegate of the Minister. He refused both applications. The respondents applied under the Act, s281(1) for the review by the Minister of the decision made by the Secretary as his delegate. The Minister affirmed that decision. The respondents appealed to the Resource Management and Planning Appeal Tribunal ("the Tribunal"), pursuant to the Act, s283(1). That appeal was unsuccessful. They then appealed to this Court, pursuant to the Resource Management and Planning Appeal Tribunal Act 1993, s25(1). They were successful at first instance. The learned primary judge made orders allowing the appeal, setting aside the decision of the Tribunal, and remitting the matter to the Tribunal for reconsideration in accordance with law. The Minister has appealed, contending that the learned primary judge erred in law, and that the Secretary as his delegate had no power to grant the licences that had been applied for.
The appellant contends that, in order for licences of the types sought to be granted, an applicant must have a "catch history" that satisfies the Fisheries (Scalefish) Rules 1998 ("the rules"), r97(1), or alternatively satisfy the Secretary ¾not as a delegate of the Minister, but in his personal capacity ¾of certain matters referred to in either r97(2) or r123. It is common ground that neither of the respondents had a "catch history" that satisfied r97(1), and that the Secretary was not personally satisfied either of the matters referred to in r97(2) or of the matters referred to in r123. The learned trial judge held that these facts did not preclude the Minister in review, nor the Tribunal on appeal, from forming their own views as to the matters referred to in rr97(2) and 123 and, if satisfied as to such matters, granting the licences that were sought. The respondents contend that he was correct in that conclusion.
The legislation
The Act, s60(1) prohibits a person without a fishing licence from participating in fishing, taking fish, or using any apparatus for the purpose of fishing, in State waters. An application for the grant of a fishing licence is required by s77 to be in an approved form, contain any information the Secretary requires, be accompanied by the prescribed fee, and be lodged with the Secretary. Decisions as to the granting of licences are made by the Minister or, as I have said, by a delegate appointed by him under s78(3). A number of prerequisites to the granting of a licence are prescribed by s78(1), which reads as follows:
"78 ¾ (1) The Minister may grant an application for a licence, subject to any condition the Minister determines, if satisfied that ¾
(a)the applicant has complied with this Act; and
(b)the applicant, within 5 years before the date of the application, has not been convicted of any offence under this Act, any other Act or a corresponding law which the Minister considers relevant to the holding of a licence; and
(c)the applicant is not disqualified from holding the licence; and
(d)granting the application is not likely to contravene a management plan; and
(e)there are no environmental or resource constraints in granting the application; and
(f)the applicant is a fit and proper person to hold the licence; and
(g)the applicant has paid the appropriate, levies, fees and charges."
The appellant contends that granting the application for the two licences would have contravened a "management plan", and that s78(1)(d) therefore precluded the granting of either application. The term "management plan", is defined in the Act, s3 as "a management plan approved under Part 3". The Act, Pt3, contains the following provisions:
"PART 3 ¾ FISHERIES MANAGEMENT
Division 1 ¾ Rules relating to fisheries
Management plan
32 A management plan consists of rules relating to a specified fishery.
Rules
33 ¾ (1) The Minister may make rules in respect of -
(a)a management plan; or
(b)a fishery in respect of which there is no management plan; or
(c)any other matter under this Act.
(2) …
(3) …
Fishing licence rules
34 Rules may be made in relation to the following matters relating to fishing licences:
(a)different classes of licences;
(b)the number of licences to be granted;
(c)the criteria and qualifications for the granting of a licence;
(d)the procedure or system for determining who are to be granted or issued licences.
…".
By virtue of s76(1), any provision of a management plan prevails over any inconsistent provision in the Act, Pt4, which relates to licences, quotas and agreements. As will be seen, I consider it significant that the provisions of a management plan prevail over any inconsistent provision in s78(1), whereby the power to grant licences is given to the Minister.
On 1 June 1998, the then Minister made the rules. They do not expressly purport to constitute a management plan for the purposes of the Act. However, they are rules relating to a specified fishery. By virtue of r4(1), they apply to the fishery for scalefish, subject to certain exceptions. It follows that they constitute a management plan for the purposes of the Act.
The rules, Pt6, contain the following provisions in relation to catch histories:
"part 6 ¾ criteria and qualifications for licences
Division 1 ¾ Qualifications
Claims of catch history
96 A person may only claim a catch history if -
(a)the person is the holder of a fishing licence (vessel) at least on and from 24 January 1998; and
(b)that licence is in that person's name.
Qualifications in relation to amounts for catch history
97 ¾ (1) Subject to subrule(2), the amount of scalefish required for a catch history to qualify for a licence is as follows:
(a)for a fishing licence (scalefish A), at least 13 tonnes in any 2 catch years combined from 1 June 1990 to 31 May 1994;
(b)…
(c)for a fishing licence (banded morwong), at least 2 tonnes of banded morwong from 1 January 1993 to 31 May 1994;
…
(2) A lesser amount of scalefish than that specified in subrule (1)may qualify as a catch history for a licence if the Secretary is satisfied that ¾
(a)exceptional circumstances prevented that specified amount of scalefish from being caught; and
(b)the lesser amount is very close to the specified amount; and
(c)the person applying for the licence demonstrates a continuing commitment to the scalefish fishery."
As can be seen, r97(2) is an ameliorative position that gives a fact-finding role to the Secretary in his own right, independently of any power that he might have as a delegate of the Minister. A similar provision is made in r123, which reads as follows:
"Qualifying for licence
123 A person who does not meet all the requirements of these rules may qualify for a licence if the Secretary is satisfied that ¾
(a)exceptional circumstances prevented the person from meeting those requirements; and
(b)the person demonstrates a continuing commitment to the scalefish fishery."
Although rr96 and 97(1) are worded as if there is an express legislative requirement that an applicant for a fishing licence is to have an appropriate catch history, there is no such express provision. These provisions have been clumsily drafted. It occurred to me initially that there might be a requirement of Ministerial policy, perhaps well known in the fishing industry, that an applicant should have an appropriate catch history, and that the rules might constitute subordinate legislation prescribing details as to a non-legislative requirement. However, I have come to the conclusion that, in making those rules, the Minister intended to impose by subordinate legislation a requirement that, subject to rr97(2) and 123, licences of the types specified in r97(1) were not to be granted in the absence of a catch history satisfying the appropriate paragraph of r97(1). The headings to Pt6 and Div1 thereof support this interpretation. Those headings constitute part of the rules by virtue of the Acts Interpretation Act 1931, ss6(2), 4(1A)(a), 5(2), and 2A. Such an interpretation also promotes the purpose or object of the rules, and therefore should be preferred by virtue of the Acts Interpretation Act, s8A.
There is no provision in the rules or elsewhere for the review of a decision made by the Secretary for the purposes of r97(2) or r123, nor for any review of a failure by the Secretary to be satisfied of the matters listed in either provision, nor is there any provision as to an appeal in such a situation. Under the Act, s281(1), a person may apply to the Minister to review a prescribed decision made by a delegate of the Minister. By virtue of the Fisheries (General and Fees) Regulations 1996, reg16 and Sch2, Pt1, item 2, a grant of or refusal to grant a licence is so prescribed. Under the Act, s283(1), a person may appeal to the Tribunal against a prescribed determination of the Minister under s282. By virtue of those regulations, reg17 and Sch2, Pt2, item 2, a determination substituting, confirming or revoking a decision relating to the grant of or refusal to grant a licence is so prescribed.
Effects of rr97(2) and 123
In respect of the respondents' licence applications, the Secretary was not satisfied of the matters listed in r97(2) (exceptional circumstances, the taking of a lesser amount very close to the specified amount, and demonstration of a continuing commitment to the scalefish fishery), nor was he satisfied of the matters listed in r123 (exceptional circumstances, and demonstration of a continuing commitment to the scalefish fishery). As he was not satisfied of those matters, and as the respondents did not satisfy the catch history requirements of r97(1)(a) and (c), the granting of the licences sought would have contravened the management plan constituted by the rules. In his capacity as the Minister's delegate, the Secretary was therefore obliged by s78(1)(d) to refuse the two applications.
In my view, the catch history requirements of r97(1) constitute resource constraints, within the meaning of s78(1)(e). I say this because they are obviously aimed at preventing overfishing in relation to various types of fish. It therefore follows that the Secretary, as the Minister's delegate, was obliged by s78(1)(e) to refuse the two applications.
Mr Porter QC submitted on behalf of the respondents that a determination adverse to them made by the Secretary pursuant to r97(2) or r123 was a component of his reviewable decision as a delegate to refuse the licences, and that, on a review of his decision as a delegate, the Minister was obliged to consider whether his determination under r97(2) or r123 was reasonable. I reject that submission. If rr97(2) and 123 are valid at all, their effect must be that, whenever a licence applicant lacks the catch history required by r97(1), a favourable determination by the Secretary and no-one but the Secretary, immune from any statutory review or appeal, is a prerequisite to the granting of a licence. Whether the Secretary has become satisfied of the matters listed in r97(2) or of the matters listed in r123 is a question of objective fact. In the absence of any controversy as to whether the Secretary was satisfied of the matters listed in either provision, there was no occasion for the Minister, in the course of reviewing the decision made by the Secretary in his capacity as his delegate, to treat the failure of the Secretary to be satisfied of the relevant matters as anything but a fait accompli. All the relevant provisions in the Act and rules that lead me to this conclusion are clear and unambiguous.
Mr Porter QC stressed that by virtue of s78 it was the Minister who was responsible for making the decision whether to grant or refuse a licence. However, Parliament, by s33, also gave the Minister power to make rules, by s32 provided that such rules could constitute a management plan, and by s76 provided that the management plan was to prevail over (inter alia) s78. I think the result must be that s78 was intended by Parliament to be no more than a default provision, intended to apply only to the extent that its provisions had not been superseded by rules made by Ministers that constituted management plans in respect of particular fisheries. I believe the rule against sub-delegation, to the extent that it could have applied in this situation, was displaced, so that the Minister was able to make rules preventing the granting of particular classes of licences unless designated individuals (not necessarily the Secretary) were satisfied of matters prescribed in those rules.
Mr Porter QC submitted that the scheme set up by the Act and the rules was of the same type as that considered by the High Court in Taylor v Public Service Board (NSW) (1976) 137 CLR 208. In that case, the respondent board was authorised by legislation to delegate any of its powers and functions in the conduct of an inquiry or investigation. It appointed a delegate to inquire into certain charges, and adopted the findings and recommendations of that delegate. The High Court held that, whilst the board itself had to decide whether disciplinary charges had been made out and any consequences thereof, it was not precluded in doing so from adopting the findings and recommendations of its delegate. In my view, this case involves a different sort of situation. One has to be careful to distinguish the two capacities that the Secretary had in this case ¾his capacity as a delegate of the Minister for the purposes of s78, and his capacity as a designated person whose findings as to certain facts could have certain consequences under the rules. The making of rr97(2) and 123 by the previous Minister did not constitute a delegation of the decision-making power conferred by s78. It was not in his capacity as the Minister's delegate that the Secretary was able to form his own opinion as to the matters referred to in rr97(2) and 123, nor did the Minister, on the statutory review of his delegate's decision, have any scope to reach his own conclusions as to such matters. Instead, the rules made the opinion of the Secretary as to the relevant issues critical as to the eligibility for a licence of a person who lacked the prescribed catch history.
Mr Porter QC submitted that it was absurd to have the determinations of the Secretary reviewable only in proceedings for prerogative relief, and not amenable to the statutory processes of review and appeal created by the Act. I agree wholeheartedly. I think the situation is unjust, as well as absurd. I can see no logical reason why the decision-making and review processes in relation to Tasmanian fisheries should be any different from those adopted by the Commonwealth, which were discussed by the Administrative Appeals Tribunal in Re O'May and Australian Fisheries Management Authority (1999) 57 ALD 181; [1999] AATA 720. Under the equivalent Commonwealth regime, delegates of the Australian Fisheries Management Authority make decisions whether to issue or refuse fishing permits, and do so in accordance with policies that provide for quotas to be imposed according to operators' verified catch histories, and provide some discretion if certain exceptional circumstances exist to impute to an operator a greater catch history than the operator's verified catch history. All decisions, including ones involving the imputation or non-imputation of a greater catch history to an operator, can be reviewed internally under the Fisheries Management Act 1991 (Cth), s165(2), and thereafter reviewed by the Administrative Appeals Tribunal under s165(7). On review, the Authority's policies are given appropriate weight in accordance with the decision of the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577. I think the Minister would do well to consider copying the Commonwealth scheme, thereby making straightforward statutory merits review processes applicable to all aspects of the decision-making process, and avoiding the sort of confused and clumsy mixture of sections and rules that has given rise to this litigation. Whilst I agree with Mr Porter QC that the inability to challenge a decision of the Secretary under r97(2) or r123 otherwise than by proceedings for prerogative relief is absurd, I do not believe that the relevant provisions can legitimately be interpreted in such a way as to overcome that absurdity.
Conclusion
For the reasons set out above, my view is that the Tribunal had no power to do anything that could overcome the failure of the Secretary to be satisfied of the matters listed in rr97(2) and 123. It follows that the Tribunal was correct in law when it affirmed the Minister's decision affirming his delegate's refusal of the licence applications. I would therefore allow this appeal, set aside the orders of the learned primary judge, and substitute an order affirming the decision of the Tribunal.
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