Oceaneer Fisheries Pty Ltd and Hon Jon Ford MLC, Minister for Fisheries and Anor

[2007] WASAT 184

OCEANEER FISHERIES PTY LTD and HON JON FORD MLC, MINISTER FOR FISHERIES & ANOR [2007] WASAT 184

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 184
Act:	FISH RESOURCES MANAGEMENT ACT 1994 (WA)
Case No:	DR:170/2007	Heard:	18 JUNE 2007
Coram:	JUSTICE M L BARKER (PRESIDENT)	Delivered:	12/07/07
No of pages:	13	Judgment Part:	1 of 1
Result:	Tribunal does not have jurisdiction or power to review Minister's decision Applicant is not an "affected person" Application for review dismissed
Category:	B
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Parties:	OCEANEER FISHERIES PTY LTD HON JON FORD MLC, MINISTER FOR FISHERIES CHIEF EXECUTIVE OFFICER OF DEPARTMENT OF FISHERIES
Catchwords:	Fishery management plan Amendment to management plan Minister's decision to reduce capacity of fishery Tribunal's jurisdiction or power to review decision No jurisdiction or power
Legislation:	Fish Resources Management Act 1994 (WA) s 4(1), s 54, s 54(1), s 54 (2), s 64, s 64(2), s 64(3), s 65, s 65(1), s 65(2), s 65(3), s 65(4), s 66, s 66(3), s 69(1), s 69(3), s 69(4), s 79, s 80, s 81, s 81(3), s 81(4), s 83, s 87, s 87(1), s 87(2), s 87(4), s 87(5), s 92, s 95, s 95(1), s 95(3), s 95(4), s 146, s 147, s 147(1), s 149 Shark Bay Snapper Management Plan 1994 cl 12, cl 13, cl 13(1), cl 13(2), cl 13(3), cl 23, Sch 4
Case References:	Nil

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : FISH RESOURCES MANAGEMENT ACT 1994 (WA) CITATION : OCEANEER FISHERIES PTY LTD and HON JON FORD MLC, MINISTER FOR FISHERIES & ANOR [2007] WASAT 184 MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : 18 JUNE 2007 DELIVERED : 12 JULY 2007 FILE NO/S : DR 170 of 2007 BETWEEN : OCEANEER FISHERIES PTY LTD

Applicant

AND

HON JON FORD MLC, MINISTER FOR FISHERIES
First Respondent

CHIEF EXECUTIVE OFFICER OF DEPARTMENT OF FISHERIES
Second Respondent

Catchwords:

Fishery management plan - Amendment to management plan - Minister's decision to reduce capacity of fishery - Tribunal's jurisdiction or power to review decision - No jurisdiction or power

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Legislation:

Fish Resources Management Act 1994 (WA) s 4(1), s 54, s 54(1), s 54 (2), s 64, s 64(2), s 64(3), s 65, s 65(1), s 65(2), s 65(3), s 65(4), s 66, s 66(3), s 69(1), s 69(3), s 69(4), s 79, s 80, s 81, s 81(3), s 81(4), s 83, s 87, s 87(1), s 87(2), s 87(4), s 87(5), s 92, s 95, s 95(1), s 95(3), s 95(4), s 146, s 147, s 147(1), s 149

Shark Bay Snapper Management Plan 1994 cl 12, cl 13, cl 13(1), cl 13(2), cl 13(3), cl 23, Sch 4

Result:

Tribunal does not have jurisdiction or power to review Minister's decision

Applicant is not an "affected person"
Application for review dismissed

Category: B

Representation:

Counsel:

Applicant : Ms CH Thompson
First Respondent : Mr TW Preston
Second Respondent : Mr TW Preston

Solicitors:

Applicant : Nielsen & Co
First Respondent : Department of Fisheries
Second Respondent : Department of Fisheries

Case(s) referred to in decision(s):

Nil

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 In 1994, the Minister for Fisheries determined the Shark Bay Snapper Management Plan 1994.

2 Oceaneer Fisheries Pty Ltd, the applicant, at material times held a licence to fish on certain conditions and in accordance with the 1994 Management Plan. Under that authorisation, the applicant was entitled to a unit value of 66 kilograms of weight.

3 In 2006 and 2007, the Minister amended the 1994 Management Plan by reducing the capacity of the Fishery as originally described in the 1994 Management Plan. The effect of the amendments to the Management Plan on the unit value of the applicant's authorisation was to reduce the unit value to 58 kilograms of weight.

4 The applicant then sought review of the Minister's decision to amend the 1994 Management Plan pursuant to s 149 of the Fish Resources Management Act 1994 (WA). Section 149 permits an "affected person" to apply to the State Administrative Tribunal for review of a decision referred to in s 147(1) or s 148(1) of the Fish Resources Management Act. Section 147(1)(b) includes a reference to a decision to "give a notice varying any conditions of, or adding new conditions to, an authorisation".

5 The applicant contended that the type of decision referred to in s 147(1)(b) of the Fish Resources Management Act included the decision of the Minister to amend the 1994 Management Plan, because that amendment had the effect of varying a condition of the authorisation as to the unit value it conveyed.

6 The Tribunal held, however, that a decision of the Minister, who, under the Fish Resources Management Act has the power to make or amend a management plan, is not subject to review by the Tribunal under s 149.

7 The Tribunal found that s 149 only conveys a right to an affected person to seek review of a decision made by the CEO under the Fish Resources Management Act to give a notice varying any conditions of or adding new conditions to an authorisation, which was different from that of the Minister to amend a term of the 1994 Management Plan.

8 The Tribunal said the overall regulatory operation of the Fish Resources Management Act is such that the Minister is responsible,

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following appropriate consultation with expert persons, the industry and individual persons, to specify the primary management rules for fisheries in Western Australia. The Minister's decision-making at this policy level is not subject to review by the Tribunal.

9 However, decisions made by the Chief Executive Officer of the Department of Fisheries under express provisions of the Fish Resources Management Act, in implementation of management plans and the like, are subject to review where those decisions are of a type referred to in s 147(1)(a) - (e) of the Fish Resources Management Act.

10 The Tribunal dismissed the application for review because the Tribunal did not have the jurisdiction or power to entertain the application to review the Minister's decision to amend the 1994 Management Plan.

Application

11 In these proceedings, Oceaneer Fisheries Pty Ltd (applicant) has filed an application in the Tribunal to review a decision of the Hon Minister for Fisheries (Minister).

12 The decision sought by the applicant on review is stated in these terms:

"set aside the decision of the first respondent dated 5 April 2007, gazetted in the Government Gazette 74 on 11 April 2007 pursuant to which he amended clause 12 of the Shark Bay Snapper Management Plan 1994 and thereby set the capacity of the fishery at 297 250 kilograms whole weight for the period to 31 August 2007 and 276 750 kilograms whole weight for the period commencing on 1 September in any year."

13 With the leave of the Tribunal, the Chief Executive Officer of the Department of Fisheries (CEO) was added as a second respondent in the proceedings.

14 A preliminary question arises whether the Tribunal has the jurisdiction or power to review the decision of the Minister.

15 The applicant made it clear in its submissions pertaining to this preliminary point that it does not seek any review of any decision made by the CEO and seeks only review of the decision of the Minister just described.

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Facts

16 On 27 July 2004, the Shark Bay Snapper Limited Entry Fishery Notice 1994, Notice No. 656, otherwise known as the Shark Bay Snapper Management Plan 1994 (Management Plan) was published in the Government Gazette pursuant to the Fish Resources Management Act 1994 (Act).

17 Clause 12 of the Management Plan originally provided that the capacity of the Fishery for any year commencing on 1 September is 338 250 kilograms of snapper (whole weight).

18 Clause 13 of the Management Plan deals with the scheme of entitlements. By cl 13(1), the sum of the entitlements to fish for snapper that may be conferred by all the licences is equal to the capacity of the Fishery as provided for in cl 12. By cl 13(2), the entitlement to fish for snapper conferred by a licence shall be expressed in terms of units of entitlement. By cl 13(3), the extent of the entitlement to fish for snapper that arises from a unit (unit value) shall be determined in accordance with Sch 4 and limited by reference to a quantity of snapper measured in kilograms (whole weight). Schedule 4 says that the unit value is the capacity of the fishery at the relevant time divided by the total number of units conferred by all the licences at the relevant time.

19 On 29 December 2006, an amendment to the Management Plan was published in the Government Gazette No 234 which maintained the capacity for a year commencing on 1 September at 338 250 kilograms of snapper (whole weight), although it further provided that the capacity of the Fishery at any time before 31 March 2007 was 225 500 kilograms of snapper (whole weight).

20 On 11 April 2007, further amendment to the Management Plan was published in the Government Gazette No 74 which provided that for the period ending on 31 August 2007, the capacity of the Fishery is 297 250 kilograms of snapper (whole weight), and for the period commencing on 1 September in any year, the capacity of the Fishery is 276 750 kilograms of snapper (whole weight).

21 On 5 April 2007, the applicant wrote to the Minister seeking that the decision to amend the capacity of the Fishery - the total allowable commercial catch - be placed on hold pending a third party review in the Tribunal.

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22 The parties agree that the effect of the changes to the Management Plan is that whereas under a licence issued to the applicant in accordance with the Management Plan as initially gazetted, the applicant was entitled to a unit value of 66 kilograms of weight, following the amendments made, the unit value is 58 kilograms of weight.

23 The applicant says it is entitled to request the Tribunal to review the Minister's decision to amend the initial Management Plan as to the capacity of the Fishery.

The Tribunal's review jurisdiction under the Act

24 Part 14 of the Act is headed "Right to object or apply for review".

25 Section 149 provides that:

"(1) An affected person may apply to the State Administrative Tribunal for a review of a decision referred to in section 147(1) or section 148(1);

(2) An affected person applying under subsection (1) for a review is required to give the CEO a copy of the application on the day on which it is lodged with the State Administrative Tribunal."

26 Section 146 gives a statutory meaning to the expression "affected person" and, so far as is relevant in this proceeding, means in relation to a decision referred to in s 147(1)(b), "the holder of the authorisation": s 146(c).

27 Section 147 requires the CEO to notify persons of certain decisions. Section 147(1) provides as follows:

"Before giving effect to a decision to ¾

(a) refuse to grant an authorisation;

(b) give a notice varying any conditions of, or adding new conditions to, an authorisation;

(c) cancel, suspend or refuse to renew, an authorisation under section 143;

(d) refuse to vary an authorisation after a person has applied for the variation;or

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(e) refuse to transfer an authorisation, or part of an entitlement under an authorisation, after a person has applied for the transfer,

the CEO must -

(f) give to each affected person notice in writing, or in such other manner as is prescribed, of the decision; and

(g) allow sufficient time for the person to make an application under this Division for a review of the decision and the application to be determined."

28 In this case, the applicant draws attention to s 147(1)(b) which it says is relevant to the decision made by the Minister.

Contentions of the applicant

29 The applicant says that while the CEO is required by s 147(1), before giving effect to a decision of the type referred to in s 147(1)(a) - (e), to give the required notice in writing to an affected person and allow sufficient time for the person to make an application for review under the Act, this requirement does not necessarily mean that the decisions referred to in s 147(1)(a) - (e) are limited to decisions made by the CEO, and may include a decision made by the Minister - for example, a decision of the Minister to amend a Management Plan which amendment varies a condition of an authorisation.

30 The applicant says that, in this case, the Minister when he proceeded to amend the Management Plan in the manner described earlier, in substance made a decision to give a notice varying a condition of an authorisation.

31 The applicant says it at all material times held an authorisation allocating it 100 units on entitlement under the Management Plan. Prior to the amendment to the Management Plan made by the Minister, the 100 units, having regard to the capacity of the Fishery initially stated in the Management Plan in cl 12, each had a unit value of 66 kilograms of weight. This unit value is calculated by applying the formula set out in Sch 4 to the Management Plan.

32 The applicant says that the amendment of the Management Plan made by the Minister whereby the capacity of the Fishery was changed, had the effect, or would have the effect if implemented, of reducing the

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unit value under the applicant's authorisation to 58 kilograms of weight, applying the same formula set out in Sch 4 of the Management Plan.

33 In these circumstances, the applicant says that the amendments of the Management Plan by reducing the capacity of the Fishery effected a variation of, or had the effect of varying, a condition of the authorisation as initially issued to exercise a unit value of 66 kilograms of weight.

Contentions of the Minister and CEO

34 The primary contention of the Minister and the CEO is that the various decisions referred to in s 147(1)(a) - (e), on the proper interpretation of s 147, are those of the CEO and not the Minister, and that a decision of the Minister to review a management plan is not subject to review under s 149 and s 147 of the Act.

35 The Minister and CEO further contend that the Minister's decisions or actions leading to the amendment of the Management Plan, including the publication in the Government Gazette of the amendment pursuant to s 54 of the Act, do not collectively constitute a decision "to give a notice varying any conditions of … an authorisation".

36 In essence, the Minister and CEO contend that the decision to amend the capacity of the Fishery does not involve the varying of any conditions of the authorisation, even though the effect of the decision to reduce the capacity, through the amendments of the Management Plan, reduces the entitlement of the applicant to claim a unit value from 66 kilograms of weight to 58 kilograms of weight.

Tribunal's finding

37 The applicant's first contention is that the obligation s 147 imposes on the CEO to undertake certain notification procedures before giving effect to certain decisions, includes, by virtue of s 147(1)(b), a decision of the Minister under s 65 of the Act to amend a management plan to alter the capacity of the Fishery. For the reasons that follow, I do not accept that contention.

38 In my view, as a matter of proper interpretation of s 147(1), the various decisions referred to in s 147(1)(a) - (e) are those of the CEO alone. I consider this follows as a matter of grammatical construction and, in particular, follows from a closer consideration of the terms and operation of the Act.

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39 Having regard to the terms of the Act, each of the decisions referred to in s 147(1)(a) - (e) finds expression in a particular provision of the Act which empowers the CEO to make that kind of decision. On the understanding that s 4(1) defines an "authorisation" to mean a licence or permit, and a "licence" to include a range of licences mentioned under the Act, and a "permit" to include an interim managed fishery permit or a permit granted under s 80, a range of examples may be provided.

40 Part 6 of the Act deals with management of fisheries. Part 6 Div 4 deals with managed fishery licences and interim managed fishery permits. These types of licences and permits are within the definitions in s 4(1) of "licence" and "permit". Under s 66 the CEO may grant such authorisations. In granting an authorisation the CEO may limit the quantity of fish that may be taken, amongst other limitations imposed by the authorisation: s 66(3)(a).

41 Under s 69, an authorisation is subject (a) to any conditions specified in the relevant management plan and (b) to any conditions imposed by the CEO under s 69: s 69(1).

42 The CEO may at any time "by notice in writing given to the holder of an authorisation, delete or vary conditions of the authorisation or add new conditions to the authorisation": s 69(3).

43 However, significantly in my view, subsection (3) does not apply to conditions specified in the management plan: s 69(4).

44 It is also interesting to note that by s 70 an authorisation ceases to have effect if a management plan ceases to have effect.

45 Under Pt 7 of the Act, fish processing establishments are not to be established without a permit and the CEO has the power to grant such a permit: s 80.

46 By s 81, the CEO may impose conditions on a permit and may at any time "by notice in writing given to a permit holder, delete or vary conditions of the permit or add new conditions to the permit": s 81(3).

47 However, subsection (3) does not apply to prescribed conditions to which a permit is subject under s 81(1)(a): s 81(4).

48 A similar approach is taken to the regulation of fish processors' licences. The CEO may grant such a licence: s 83. Conditions may be attached: s 87. The CEO may at any time by notice in writing given to a

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licence holder, delete or vary conditions of the licence or add new conditions to the licence: s 87(4). However, subsection (4) does not apply to a prescribed condition imposed under s 87(2)(a) or a condition referred to in s 87(1), which provides that it is a condition of the fish processor's licence that the place specified in the licence under s 83(2) must not be modified or altered without the written approval of the CEO: s 87(5).

49 And the same approach is also taken to the regulation of aquaculture under Pt 8 of the Act. The CEO is responsible for the grant of an aquaculture licence: s 92. Conditions may be imposed: s 95. The CEO may at any time by notice in writing given to a licence holder, delete or vary any conditions of the licence or add new conditions to the licence: s 95(3). But subsection (3) does not apply to a prescribed condition imposed under s 95(1)(a): s 95(4).

50 In this statutory context, it is, in my view, quite clear that when s 147(1)(b) refers to a decision "to give a notice varying any conditions of, or adding new conditions to, an authorisation", the range of decisions referred to includes all of those provisions noted above in which the CEO is given the express statutory power to vary conditions or add new conditions to an authorisation, where the CEO imposes those conditions in the first place, and where the conditions are not conditions specified in the management plan (s 69(4)), or specified conditions (in the case of the other provisions referred to), or within any other particular class of excluded condition.

51 The fact that s 69(4) expressly provides that the CEO's power to delete or vary conditions does not apply to conditions specified in the management plan rather confirms that where the terms of a management plan impose conditions or have the effect of imposing conditions on fishing activities, they may not be deleted or varied or added to by the CEO.

52 Taken together, these provisions suggest that Parliament intended the terms of a management plan to be fundamental to the management of fisheries in Western Australia and that the terms of the management plan, or their amendment, are not subject to review pursuant to s 149 or s 147 of the Act.

53 That this is so makes sound policy sense when one has regard to the nature of the Minister's power to make and amend management plans. Management plans are prepared under Div 2 of Pt 6 of the Act. Division 3 specifies the procedure to be followed before a management

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plan is determined or amended. Section 64 requires the Minister before making a management plan to consult with any advisory committee established in respect of the fishery and such other advisory committees or persons as the Minister thinks appropriate, and to consider any representations made under s 64(3). By subsection (2) the Minister is required to gazette a draft management plan for public comment. By subsection (3) persons interested may make representations to the Minister. A management plan is ultimately determined by the Minister publishing it as an instrument in writing in the Government Gazette: s 54(1).

54 The Minister also has the power under s 54(2) to amend or revoke a management plan by further instrument in writing published in the Government Gazette. The process for amending or revoking a management plan is set out in s 65. Again the Minister must consult with the advisory committee or advisory committees or the person or persons specified for that purpose in the plan: s 65(2). Section 65(1) provides that the management plan must specify a committee or committees or person or persons for this purpose. In respect of the Management Plan, all licensees under the Plan are the people that are to be consulted before the plan is amended or revoked: cl 23. Even where the Minister acts to amend in urgent circumstances under s 65(3), the Minister is still obliged to consult after the amendment is made: s 65(4).

55 These provisions make it clear that the opportunity for the involvement of persons and representation of relevant interests occurs in the management plan making and amendment process, not by way of review in the Tribunal.

56 In my view, a decision of the Minister to amend a management plan in a way that amends a condition contained in a management plan, or in a way that has the effect of amending a condition contained in the management plan, is not a decision referred to in s 147(1)(b) of the Act.

57 In these circumstances, it is not necessary for the Tribunal further to consider whether the amendment of the management plan in question here, by the reducing the capacity of the Fishery, involved the variation of a "condition" on the applicant's existing authorisation. Whether or not it did, the CEO did not have the power to revoke or vary that "condition", by reason of s 69(4). Further, by reason of the overall context and operation of the Act, s 147(1)(b) does not refer to a decision of the Minister to amend a management plan to vary any condition specified in a management plan gazetted under s 54.

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58 The overall regulatory operation of the Act is such that the Minister is responsible, following appropriate consultation with expert persons, the industry and individually affected persons, for specifying the primary management rules for fisheries in Western Australia. The Minister's decision-making at this policy level is not subject to review by the Tribunal.

59 However, decisions made by the CEO under express provisions of the Act, in implementation of management policies and the like, are subject to review where those decisions are decisions of the type referred to in s 147(1)(a) - (e) of the Act.

Conclusion and Order

60 For the reasons set out above, the applicant's application for review of the Minister's decision to amend the relevant management plan in this case must fail by reason of the Tribunal's lack of jurisdiction or power in the matter.

61 The applicant is not an "affected person" for the purposes of s 149 of the Act and is not entitled to seek review of the Minister's decision to amend the relevant management plan in the Tribunal.

62 Consequently, the Tribunal does not have any jurisdiction or power to entertain the application made to the Tribunal for review of the Minister's decision.

63 In these circumstances the Tribunal makes the following orders:

1. The applicant is not an "affected person" for the purposes of s 149 of the Fish Resources Management Act 1994 (WA) for the purposes of making a review application in the Tribunal in respect of a decision of the Minister for Fisheries to amend a relevant management plan.

2. The Tribunal does not have jurisdiction to entertain the application made to the Tribunal for review of the Minister's decision.

3. The application made by the applicant for review of the Minister's decision is dismissed.

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I certify that this and the preceding [63] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUSTICE M L BARKER, PRESIDENT