New South Wales Department of Primary Industries v Musumeci and Ors (GD)

[2009] NSWADTAP 7

Appeal Panel - Internal

CITATION:

New South Wales Department of Primary Industries v Musumeci and Ors (GD) [2009] NSWADTAP 7
This decision has been amended. Please see the end of the decision for a list of the amendments.

PARTIES:

APPELLANT
New South Wales Department of Primary Industries

RESPONDENTS
(1) Antonio Musumeci;
(2) Camillo Puglisi, Eleanora Puglisi, Frank Puglisi, Joyce Mary Puglisi, Dominic Joseph Puglisi, Susan Marie Puglisi, Bruno Mark Puglisi, Innocennza Puglisi;
(3) The Director, Mueller Holdings Pty Ltd;
(4) The Director, Alltuna Fisheries Pty Ltd;
(5) Francesco Pirrello Jnr;
(6) Francesco Pirrello, Maria Stella Pirrello and Michael Pirrello

FILE NUMBER:

089041

HEARING DATES:

1 September 2008

SUBMISSIONS CLOSED:

1 September 2008

 
DATE OF DECISION: 

19 February 2009

BEFORE:

O'Connor K - DCJ (President); Montgomery S - Judicial Member; Bolt M - Non-Judicial Member

CATCHWORDS:

Fisheries Management – Commercial Fishing Licences – Surrender of External Fishing Authorities to Commonwealth – Consequential Cancellations of State Endorsements and Share Rights – Whether Decisions Reviewable – Held Not Reviewable – Fisheries Management Act 1994, s 34T, s 126 – Fisheries Management (General) Regulation 2002, Part 5A

DECISION UNDER APPEAL:

Musumeci and Ors v NSW Department of Primary Industries [2008] NSWADT 129

FILE NUMBER UNDER APPEAL:

073309, 073311, 073312, 073313, 073314 and 073315

DATE OF DECISION UNDER APPEAL:

05/01/2008

LEGISLATION CITED:

Administrative Decisions Tribunal Act 1997
Fisheries Management Act 1994
Fisheries Management (General) Regulation 2002
Marine Parks Act 1997

CASES CITED:

Musumeci and ors v NSW Department of Primary Industries [2008] NSWADT 129
Shanahan v Scott (1957) 96 CLR 245
Totalizator Agency Board v TAB Agents’ Association of NSW (1995) 36 NSWLR 594
Vanstone v Clark [2005] FCAFC 189

REPRESENTATION:

APPELLANT
M Dalla-Pozza, solicitor

FIRST RESPONDENT
P Singleton and B Clark, counsel / Bussoletti Lawyers

SECOND, THIRD and FOURTH RESPONDENTS
D Fitzpatrick, Pitzpatrick Legal (Melbourne)

FIFTH and SIXTH RESPONDENTS
M Kerin, Hozack Clisdell Lawyers

ORDERS:

1. Appeal allowed.
2. Decision under appeal set aside.
3. Accordingly, applications for review dismissed.

1 The Fisheries Management Act 1994 (FM Act) and the Fisheries Management (General) Regulation 2002 (FM Reg) confer on the Minister a wide variety of powers to make decisions affecting fishing activity in New South Wales waters. The powers are usually exercised under delegation by senior officers of the Department of Primary Industries. A delegate of the Minister, in this instance a Deputy Director General of the Department (‘the administrator’), made the decisions under notice in this appeal.

2 The administrator purported to cancel various authorities attached to the commercial fishing licences of the respondents. The respondents divide into six groups. Each group applied to the Tribunal for review of the decisions. Their applications for review concerned the following types of decisions:

(1) Application for Review No 073309: Antonio Musumeci: cancellation of certain share rights in share management fisheries and of certain restricted fishery endorsements.

(2) 073311: Puglisi family members (Camillo, Eleanora, Frank, Joyce Mary, Dominic Joseph, Susan Marie, Bruno Mark and Innocennza): cancellation of certain share rights.

(3) 073312: The Director, Mueller Pty Ltd: cancellation of certain share rights.

(4) 073313: The Director, Alltuna Fisheries Pty Ltd: cancellation of certain share rights.

(5) 073314: Francesco Pirrello (jnr): cancellation of certain share rights and certain restricted fishery endorsements.

(6) 073314: Pirrello family members (Francesco, Maria Stella, Michael): cancellation of certain share rights and certain restricted fishery endorsements.

3 The decisions were notified to each group of respondents by letters dated 29 September 2007. The letters indicated that the decisions were made under cl 133E(3) of the FM Reg, a regulation said by the administrator to be made pursuant to the provisions of Part 2 of the FM Act. Though the administrator had informed the respondents that they had a right to apply to the Tribunal for review of the decisions, at hearing the administrator switched its position and objected to the Tribunal exercising jurisdiction. The administrator’s position is that the jurisdiction of the Tribunal is confined to decisions made under Part 4 of the FM Act, and the present decisions were not made under that Part. The Tribunal rejected the submission: Musumeci and ors v NSW Department of Primary Industries [2008] NSWADT 129. The administrator now appeals.

Background

4 The head of power the administrator relies on, cl 133E of the FM Reg, deals with the transfer of ‘external fishing authorities’ by ‘dual operator fishing businesses’. These terms are defined in cl 133C(2) as follows:

‘ dual operator fishing business means a fishing business the components of which include one or more NSW fishing authorities and one or more external fishing authorities.

external fishing authority means a fishing authority that is not a NSW fishing authority.’

5 Section 34P of the FM Act defines ‘fishing authority’ as ‘a licence, permit, endorsement or any other authority relating to fishing activities issued or given under this Act or any other law (whether or not of this State)’. All of the respondents, being the holders of licences and associated authorities permitting them to fish in adjacent New South Wales and Commonwealth waters, fit the definition of dual operator fishing business and are therefore subject to the provisions of cl 133E.

6 The respondents surrendered fishing entitlements held under their Commonwealth licences in response to a Commonwealth buy-back scheme giving rise to a transfer to the Commonwealth of components of their fishing businesses. Clause 133E provides for the cancellation of New South Wales fishing authorities where an external fishing authority is transferred in contravention of the regulations (cl 133E(3)). Clause 133E(2) contemplates that where external authorities are transferred by surrender, NSW authorities are to be surrendered to the Minister. Where this does not occur, the Minister may cancel any NSW fishing authority (cl 133E(3)). However, such action may be deferred pending a review pursuant to cl 133E(4).

7 New South Wales was concerned that as a result of the surrender of Commonwealth entitlements, there might be a displacement of the fishing effort to NSW waters through the respondents making greater use of their equivalent NSW fishing entitlements. New South Wales advised licensees that it would cancel some of their NSW entitlements if a review initiated pursuant to cl 133E(4) found that there would be a high level of displaced fishing effort to NSW waters (see, for example, letter from Anthony Hurst, Director, Wild Harvest Fisheries to A Musumeci, 13 November 2006). The review found that an increase in the fishing effort in NSW waters was likely to result if the respondents kept some of their State authorities. The delegate proceeded to make the decisions already noted purporting to exercise the power conferred by cl 133E(3). In the case of Mr Musumeci, for example, the following three endorsements were cancelled, ‘Ocean Fish Trawl Southern Restricted Fishery’, ‘Ocean Trawl Deepwater Prawn’ and ‘Ocean Trawl Fish Northern Zone’ (see letter dated 7 July 2007).

8 The relevant provisions are as follows.

9 Section 34T of the FM Act which appears in Division 4C (‘Fishing Businesses’) of Part 2 (‘General Fisheries Management’) provides:

‘ 34T Fishing business transfer rules

(1) The regulations or the management plan for a fishery (or both) may make provision for or with respect to the transfer of a fishing business (or components of a fishing business) and provide for the recognition, or restriction, of fishing rights following any such transfer. Such provisions are referred to as fishing business transfer rules.

(2) In particular, the fishing business transfer rules may provide that a person to whom a component of a fishing business is transferred does not, as a consequence of that transfer, acquire any right to be issued with or given a NSW fishing authority unless all components of the fishing business are either transferred to the person or surrendered to the Minister for cancellation.

Note. Some components of a fishing business, for example, endorsements in a restricted fishery, may not be transferable (see section 114). The fishing business transfer rules may require such endorsements to be surrendered to the Minister for cancellation if other components of the fishing business are transferred to another person.

(3) The fishing business transfer rules may authorise the Minister to cancel a NSW fishing authority that is a component of a fishing business if any other component of the fishing business is transferred in contravention of the fishing business transfer rules.

(4) No compensation is payable by or on behalf of the State for the cancellation of a NSW fishing authority in accordance with the fishing business transfer rules.’

10 FM Reg Part 5A (Fishing Business Transfer Rules) is intended to be in amplification of Division 4C of Part 2. To that effect, see cl 133C(1) which states: ‘(1) Expressions used in this Part have the same meaning as they have in Division 4C of Part 2 of the Act.’

11 Clause 133D provides:

‘ 133D Surrender of fishing authority to be treated as transfer

(1) For the purposes of the definition of transfer in section 34P of the Act, a transfer of a component of a fishing business includes the surrender of an external fishing authority that is a component of a fishing business.

(2) For the purposes of this Part, the surrender of an external fishing authority means the surrender, voluntary cancellation or relinquishment of an external fishing authority that is a component of a fishing business (whether or not for consideration).’

12 Clause 133DA provides:

‘ 133DA Notice of transfer of external fishing authorities

A person must not transfer (including by surrender) an external fishing authority that is a component of a dual operator fishing business unless the person gives written notice of the proposed transfer to the Minister no less than 7 days before the proposed transfer, or within a lesser period approved by the Minister in the particular case.

Maximum penalty: 50 penalty units.’

13 Clause 133E provides:

‘ 133E Transfer of external fishing authorities by dual operator fishing businesses

(1) An external fishing authority that is a component of a dual operator fishing business is not to be transferred (other than by surrender of the authority) to a person unless:

(a) all components of the fishing business (other than NSW fishing authorities) are transferred to that same person, and

(b) all NSW fishing authorities that are a component of the fishing business are transferred to that same person or surrendered to the Minister for cancellation.

(2) An external fishing authority that is a component of a dual operator fishing business is not to be transferred by surrender of the authority unless all NSW fishing authorities that are components of the fishing business are surrendered to the Minister for cancellation.

(3) If an external fishing authority that is a component of a dual operator fishing business is transferred in contravention of subclause (1) or (2) or clause 133DA, the Minister may take one or more of the following actions:

(a) cancel or refuse to renew any NSW fishing authority that is a component of the fishing business,

(b) refuse to transfer a NSW fishing authority that is a component of the dual operator fishing business, or refuse to issue a new NSW fishing authority, to any person to whom a component of the dual operator fishing business is transferred,

(c) refuse to issue a new NSW fishing authority if eligibility for that fishing authority is determined on the basis of catch history that is a component of the dual operator fishing business,

(d) impose (in accordance with the Act) conditions on any NSW fishing authority that is a component of the fishing business, so as to restrict the fishing activities of the fishing business, or exercise any other powers conferred on the Minister by the Act so as to restrict the fishing activities of the fishing business.

(4) Despite a contravention of subclause (2), the Minister may defer taking any action under subclause (3) until an assessment is undertaken of the actual or potential level of fishing effort by the fishing business, or by fishing businesses generally, in any waters to which the Act applies since the surrender of an external fishing authority or a class of external fishing authorities.

(5) The Director-General may refuse an application to revoke or amend a fishing business determination in respect of a dual operator fishing business if satisfied that:

(a) the purpose of the application is to avoid the requirements of subclause (1) or (2) or clause 133DA, or

(b) a component of the fishing business has been transferred in contravention of subclause (1) or (2) or clause 133DA.’

14 The administrator now appeals on the basis that the Tribunal erred in law in asserting jurisdiction, and consequently the applications for review should have been dismissed. Its appeal is confined to the question of law, and is interlocutory in nature: see Administrative Decisions Tribunal Act 1997 (ADT Act), ss 112, 113. Because of the importance of the matter, a full Appeal Panel was constituted instead of a single presidential member bench (s 24A).

Provisions relating to the Tribunal’s jurisdiction

15 Section 126 of the FM Act provides (emphasis added):

‘ 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.’

16 Section 126 is to be read in light of the definitions contained in s 125. Section 125 provides as relevant to this case:

‘In this Division, relevant authority means:

(a) a commercial fishing licence, or

(b) an endorsement on a commercial fishing licence.’

17 ‘Endorsement’ is defined in s 3 of the FM Act:

‘ endorsement means an endorsement on a commercial fishing licence that authorises a person to take fish for sale in a restricted fishery or to take fish in a share management fishery (and includes any endorsement given in the form of a document that is separate from the commercial fishing licence of a person, pursuant to an arrangement referred to in section 68 (8C), 70 (6) or 112 (5) of the Act).’

18 Section 126 appears in Part 4 of the FM Act at Division 6. Part 4 is headed ‘Licensing and Other Commercial Fisheries Management’. The five Divisions that precede Division 6 have the following headings:

- Division 1 Commercial fishing licences

- Division 2 Commercial fishing boats

- Division 3 Exploratory, developmental and other restricted fisheries

- Division 4 Fish receivers

- Division 5 Fish records

19 This case does not raise any issues relating to the provisions regulating commercial fishing boats, fish receivers and fish records. The issues it raises involve commercial fishing licences (Division 1) and the grant of endorsements to fish in restricted fisheries (Division 3).

20 Section 102 (in Division 1) requires all commercial fishers to hold licences. Section 104 (Division 1) deals with the application procedure, and provides relevantly:

‘(4) A commercial fishing licence: …

(e) may be cancelled or suspended by the Minister in the circumstances authorised by the regulations.

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

21 The FM Act has the usual broad regulation making power – at s 289 (to make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for the purpose of carrying out or giving effect to this Act).

22 One of the administrator’s arguments is that the reference to ‘circumstances authorised by the regulations’ in s 104(4) is a reference to the matters dealt with by cl 148 of the FM Reg. Clause 148 provides:

‘ 148 Grounds for suspension or cancellation of licence

For the purposes of section 104 (4) (e) of the Act, the Minister may cancel or suspend a commercial fishing licence if:

(a) the holder of the licence has been convicted or found guilty 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 or found guilty 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 or found guilty 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 not paid any fee or contribution due and payable in connection with a licence, 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, or

(h) the holder of the licence has requested to the Minister, in writing, that the licence be cancelled or suspended, or

(i) the holder of the licence has been convicted or found guilty of an offence under the Marine Parks Act 1997 or the regulations under that Act.’

23 Clause 148 appears in Part 7 of the FM Reg (‘Licensing and Other Commercial Fisheries Management’) Division 1 (‘Commercial Fishing Licences’).

24 The respondents acknowledged that the cancellations in these cases were not made on any of the grounds to which cl 148 refers. They submitted that s 104(6) was the relevant head of power (i.e. they were revocations of endorsements).

25 There are further specific provisions in Part 4 relating to the grant of endorsements to take fish in restricted fisheries, and to revoke or vary those endorsements. Section 112(1) provides:

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

26 Section 112(3) provides:

‘(3) The Minister may, at any time by notice in writing to the holder of a licence who is authorised by an endorsement to take fish in a restricted fishery, revoke or vary the conditions of the endorsement or add new conditions. This subsection does not apply to conditions prescribed by the regulations.’

27 The power to place endorsements on a licence to take fish from a share management fishery flows from s 68 of the FM Act, which appears in Part 3 not Part 4. To appreciate some of the submissions of the administrator it is desirable to set out several elements of s 68:

‘ 68 Endorsements on licences

(1) The Minister may endorse a commercial fishing licence for the taking of fish in a share management fishery during a specified fishing period for the fishery.

(2) The relevant fishing period is to be determined by the Minister in accordance with the management plan for the fishery.

(3) A licence may be so endorsed only if:

(a) the licensee is the holder of shares in the share management fishery or is duly nominated by that holder to take fish on behalf of that holder, and

(b) the shareholder has not less than the minimum shareholding in the share management fishery required under this Division, or the minimum such shareholding for the class of shares concerned, and

(c) any community contribution, management charge or other amount due and payable by the holder under this Part has been paid.

(4) The licence of the holder of shares may not be endorsed if the holder has duly nominated some other commercial fisher to take fish on behalf of that holder. This subsection is subject to the management plan for the fishery.

(4A) The licence of the holder of shares (or of a person nominated by the holder) may not be endorsed if the holder is not eligible for an endorsement as a consequence of a contravention of the fishing business transfer rules.

(4B) The licence of a shareholder may not be endorsed if the shareholder is already authorised, by endorsement, to take fish in another share management fishery, unless the further endorsement is authorised by the management plan for each fishery in which the shareholder is, or will (as a consequence of the further endorsement), be authorised to take fish.

(4C) Subsection (4B) does not prevent a shareholder from nominating another person to take fish on behalf of the shareholder in any fishery in which the shareholder is prevented from holding an endorsement, subject to compliance with any requirements under section 69.

(5) An application for an endorsement is to be made in the form and manner approved by the Minister and accompanied by the fee prescribed by the regulations.

(6) An endorsement expires at the end of the fishing period to which it relates, but the licence may be endorsed for a further period or periods.

(6A) The authority conferred by such an endorsement is subject to such conditions as are prescribed by the regulations or specified in the endorsement.

(6B) The Minister may, at any time by notice in writing to the holder of a licence who is authorised by an endorsement to take fish in a share management fishery, revoke or vary the conditions of the endorsement or add new conditions. This subsection does not apply to conditions prescribed by the regulations.

(6C) The holder of a commercial fishing licence who contravenes any condition of an endorsement on the licence under this section is guilty of an offence.

Maximum penalty: 100 penalty units.

(7) An endorsement may be suspended or cancelled by the Minister:

(a) if the holder of the licence ceases to be eligible to have the licence endorsed, or

(b) if the shareholder fails to pay any community contribution, management charge or other amount due under this Part, or

(c) for any other reason authorised by the management plan for the fishery or the fishing business transfer rules.

(8) If an endorsement of a shareholder is suspended or cancelled, the shareholder is not entitled to nominate another person to take fish on the shareholder’s behalf.

(8A) An endorsement of the licence of a shareholder, or of the licence of a nominated fisher of a shareholder, may also be revoked by the Minister on a request made by the shareholder in accordance with the requirements (if any) of the management plan for the fishery.

(8B) The Director-General is to record particulars of any endorsement under this section, and any suspension, cancellation or revocation of an endorsement, in the Share Register.

(8C) The Minister may approve arrangements under which a person who is eligible for an endorsement is given such an endorsement in the form of a separate document from the commercial fishing licence of the person. Any such document is taken to be an endorsement on the commercial fishing licence of the person authorised by the endorsement to take fish in the fishery, and references in this Act or the regulations to an endorsement extend to an endorsement in that form.

(9) Until the commencement of the management plan for a fishery, the Minister may determine the matters required by this section to be determined by the plan. During that period, the requirement for a minimum shareholding does not apply and this section has effect subject to any other necessary modification.’

28 The respondents’ essential position is that the references in s 126 to decisions to cancel or suspend authorities embrace any decision to cancel or suspend an authority regardless of whether the anterior steps leading to the decision flow from particular provisions in Part 4 or some other Part of the Act or Regulations. Further the respondents submit that s 104 allows authorities to be cancelled on grounds provided by the Regulations. The present decisions were in the exercise of grounds provided by the Regulations. Accordingly, it is argued that the Tribunal has jurisdiction. The argument is that the power to cancel finds its ultimate source in s 104, while provisions like s 34T and cl 133E contain specific criteria for cancellation. It is argued further that the wide power and the more specific criteria should be read as belonging to a single scheme of powers allowing cancellation of authorities, with the result that the Tribunal has jurisdiction to examine the decisions the subject of the review applications.

29 The respondents contend that s 34T is directed not at licensing but at the regulation of fishing businesses generally and specifically at the transfer of fishing businesses. The respondents note that s 34T(3) provides that the regulations ‘may authorise the Minister to cancel a NSW fishing authority that is a component of a fishing business if any other component of the fishing business is transferred in contravention of the fishing business transfer rules.’ They submit that s 104 and s 34T were intended to be construed so they operate sensibly together: Totalizator Agency Board v TAB Agents’ Association of NSW (1995) 36 NSWLR 594 at 604 (Full Industrial Court, Cahill Dep CJ, Hungerford, Marks JJ).

Tribunal’s Reasons

30 The Tribunal agreed with the respondents’ submissions. It said:

‘15 The Applicants submit the Department’s contention that clause 133E of the FM Regulation is the source of the power to cancel should be rejected. While clause 133E(3) specifies circumstances in which the power to cancel may be exercised, it is the FM Act, in section 126 (presumably, the reference to section 126 was an error and the reference should have been to section 104) which provides the statutory authority to cancel:

“9. In approaching the construction of reg 133E and the scope of the powers in Pt 4 of the FM Act it is necessary to read the two together but with the Act as providing the controlling provisions; a regulation must not be inconsistent with or repugnant to the Act: Vanstone v Clark [2005] FCAFC 189, at [120].”

16 The Applicants refer to the High Court decision in Shanahan v Scott (1957) 96 CLR 245 (‘Shanahan’) at 250, where the majority of the Court (Dixon CJ, Williams, Webb and Fullagar JJ) held that the power to make regulations:

“does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends.”

17 Thus, the Applicants submit that regulations must accord with and not depart from the statutory scheme, and regulations should not be read in a way that qualifies or reduces rights, including rights of review, conferred by an Act. In the case of the FM Act, it is clear that Parliament intended that there should be merits review of decisions to cancel fishing authorities, reflecting the legislative purpose of providing safeguards in relation to powers that have the potential to severely affect livelihood.

18 By reading clause 133E as regulating the circumstances in which the statutory power can be exercised gives effect to this intent and allows for review by the Tribunal. Moreover, this is consistent with the important statutory objective of ensuring independent review of Departmental decisions. …

24 In my view, a distinction needs to be drawn between the source of the power to take some action, for example, relevantly, to make regulations or to cancel a fishing authority – which is contained in the Act in sections 289 and 104(4) respectively, and the circumstances in which the power may be exercised. An outline of these circumstances may be set out elsewhere in the Act, for example as in sections 20, 34T and 45, with the detailed circumstances being set out in the regulations, for example, as in clause 133E of the FM Regulation. This is consistent with decisions such as that in Shanahan, emphasising the ancillary nature of regulations.

25 In my view, since the source of the Minister’s power to cancel a fishing authority resides in section 104(4), with the specific circumstances relevant to these matters being set out in clause 133E, then because section 104(4) is within Part 4 of the Act, Division 6 of Part 4 applies to such a decision and a person who is dissatisfied by such a decision may apply to the Tribunal for a review pursuant to section 126(1)(c). Thus, the Tribunal has jurisdiction in these matters.

26 I agree with the Applicants’ submission that such an interpretation is consistent with the apparent intent of the FM Act to provide a statutory right of review by the Tribunal for those affected by such a decision. I also note that the Deputy Director-General’s letters to the Applicants dated 19 September 2007, notifying them of the cancellation of their fishing authorities, stated that if the Applicants were dissatisfied with the decision, they could apply to the Tribunal for a review of the decision.’

31 Section 126 of the FM Act formed part of the package of amendments that accompanied the legislation establishing the Administrative Decisions Tribunal. One of the objects of the main Act, the ADT Act, s 5(a)(iii) was to establish an independent tribunal ‘to review decisions made by administrators where it is given jurisdiction to do so’. The cognate bill, the Administrative Decisions Tribunal Legislation Amendment Act 1997, No 77, s 3, Sch 5 (Amendments transferring the jurisdiction of courts), at 5.14 set out the amendments to the FM Act. Item 5.14[2] repealed the old ss 126 and 127, and inserted the new s 126. In our view, like the Tribunal below, a construction should be given to legislation conferring independent review rights which is facilitative rather than literal.

32 In the present case had the words ‘under this Part’ not appeared at the beginning of s 126 the Tribunal would undoubtedly have had jurisdiction to deal with these applications. The opening words of s 126 when rewritten to address the present context would read as follows: ‘Any person who is dissatisfied with a cancellation under this Part of a person’s licence or of an endorsement may apply to the Tribunal for a review of the decision concerned’.

33 The administrator’s submissions seek to draw a distinction between, what might be called, the use of ‘ordinary’ or ‘general’ powers (those in Part 4) and ‘special’ powers (those belonging to other Parts of the Act or the Regulations connected to those Parts). If that is the distinction the administrator’s submissions can be summed up as: exercise of the ‘ordinary’ powers is reviewable; exercise of any separate, special powers not found in Part 4 is not ‘reviewable’.

34 The principal difficulty the administrator’s submissions face is the breadth of the language of s 104(4) and s 104(6) when read in conjunction with s 126. Section 104(4) is sweeping. The Minister is given a discretion to cancel ‘in the circumstances authorised by the regulations’. Section 104(6) is not as explicit. Its express exclusion from the right to apply for review of one type of ‘conditions prescribed by the regulations’ would suggest that otherwise the right of review refers to all decisions of revocation or variation taken in relation to endorsements and conditions. Run together, s 126(c) and s 104(6) might therefore be interpreted as conferring jurisdiction to review any decision to cancel or suspend an endorsement or revoke or vary an endorsement or condition (other than decisions to do with prescribed conditions).

35 In many Parts of the Act there are decision-making powers vested in the Minister that do not belong to the categories set out in s 126.

36 Among the powers granted by Part 2 of the Act are, for example, power for the Minister to notify closures of fisheries, for the regulations to specify minimum sizes of fish that can lawfully be caught, bag limits and daily limits. These are not decisions affecting the licences themselves or endorsements, though clearly they bear on the commercial circumstances of licensees. They may give rise, in due course, to prescribed conditions which are not reviewable.

37 Divisions 4B and 4C of Part 2 are headed, respectively, ‘Acquisition of Commercial Fishing Entitlements’ and, as noted, ‘Fishing Businesses’. The purpose of Division 4B is ‘to provide an equitable mechanism for the reallocation of fisheries resources and for the payment of compensation to commercial fishers for the acquisition of their fishing entitlement’. The Minister may acquire fishing entitlements, and proceed to cancel shares in a share management fishery or the licence itself (see s 34N). This is the main area of contention in this case.

38 Part 3 of the FM Act is headed ‘Commercial Share Management Fisheries’. It contains a detailed code governing Commercial Share Management Fisheries. Share Management Fisheries are specified in Schedule 1 to the FM Act. Part 5 of the FM Act is headed ‘Co-operation with Commonwealth and Other States in Fisheries Management’.

39 Many later Parts of the Act deal with matters to do with conservation such as protection of habitats, protection of endangered species, biodiversity and the like. At many points, powers are vested in the Minister and other administrators to make decisions affecting holders of licences.

40 The administrator’s submissions note that the commercial fishing licences of the respondents have not been cancelled. The notices issued to the respondents purported to cancel their ‘shares’ and ‘endorsements’. In the case of those endorsements that related to restricted fisheries, where shares are not involved, the notice purported simply to cancel the endorsements held under s 112.

41 In our view, the licensing framework to which the FM Act refers has at its centre the commercial fishing licence, and a licence bears ‘conditions’ or ‘endorsements’. The shares held by a licensee in a share management fishery are brought within the sphere of a licence by way of an ‘endorsement’. We accept that in this case there was no decision to remove the licence itself. A bare licence would, we expect, have minimal commercial value. Its value depends on the endorsements and conditions it bears.

42 The Tribunal below saw any cancellation of an endorsement as depending ultimately on the general power given to the Minister, and to be within the reach of the jurisdiction of the Tribunal.

43 We favour the view of the administrator. In our view, the Fishing Business Transfer Rules comprise an element of regulation independent of the licensing provisions set out in Part 4. The Rules have as a primary focus the situation that may arise when a State licensee surrenders entitlements held under the licence of another jurisdiction, State or Commonwealth. The provisions, we think, stand apart from the provisions in Part 4. They establish their own scheme of control. One element is exercise of the power of cancellation if the State licence is not handed in when the other licence is surrendered. In our view the objective of the provisions is a conservation one. It is seeking to provide a mechanism that allows the administrator to make a new decision as to the scope of the entitlements that will in future attach to the State licence. In our view a cancellation effected under this scheme is not a cancellation of the kind to which s 126 refers. The words ‘under this Part’ do, we consider, seek to differentiate between decisions made under Part 4 of the FM Act and those made under other Parts of the Act.

44 In our view, the attention given to Shanahan was misplaced. This case dealt with the question of whether a regulation made under a statute controlling the supply and marketing of eggs was within power. The High Court held (by majority) that it was not. The Court referred to a general regulation making power in the statute which had further sub-sections setting out specific heads of power for the making of regulations. The majority approached the issue on the basis that the specific heads must fall within the wide general power which in turn is to be confined by the purpose and subject matter of the statute. The majority concluded that a regulation going to the storage of eggs by a producer did not fall within the subject matter of the statute, and was not a proper exercise of the general power to make regulations or the sub-powers.

Order

1. Appeal allowed.

2. Decision under appeal set aside.

3. Accordingly, applications for review dismissed.

02/06/2009 - Second, Third and Fourth Respondents' Representative and Fifth and Sixth Respondents' Representative added. - Paragraph(s) Cover page