Professional Fishers Association Inc v Minister for Fisheries

[2002] NSWLEC 15

Reported Decision: (2002) 120 LGERA 61

Land and Environment Court

of New South Wales

CITATION:	Professional Fishers Association Inc v Minister for Fisheries [2002] NSWLEC 15
PARTIES:	APPLICANT Professional Fishers Association Inc RESPONDENT Minister for Fisheries
FILE NUMBER(S):	40124 of 2001
CORAM:	Pearlman J
KEY ISSUES:	Construction and Interpretation - Judicial Review :- Judicial Review:- validity of commercial fishing closures and notification under s 8 - validity of recreational fishing fees - proposal for acquisition of commercial fishing entitlements - whether environmental assessment required Construction and Interpretation:- applicable environmental assessment regime - whether div 5 of pt 5 or ss 111 - 112 of the EP&A Act - construction of s 115R(2) of the EP&A Act
LEGISLATION CITED:	Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 cl 80 Environmental Planning and Assessment Act 1979 div 5 pt 5, s110, s 111, s 112 Fisheries Management (General) Regulation 1995 cl 140 Fisheries Management Act 1994 s 8, s 34G, div 4B pt 2 Fisheries Management Amendment Act 2001 Fisheries Management and Environmental Assessment Legislation Amendment Act 2000 Interpretation Act 1987 s 33, s 34, s 42
CASES CITED:	Cooper Brooks (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; Minister for Aboriginal Affairs and Anor v Peko-Wallsend Ltd and Ors I1986) 162 CLR 24; Re Bolton; ex parte Beane (1987) 162 CLR 514; Sustainable Fishing and Tourism Inc v Minister for Fisheries and Anor (2000) 106 LGERA 322; Sydney City Council v Reid (1994) 34 NSWLR 506
DATES OF HEARING:	30/01/02, 31/01/02
DATE OF JUDGMENT:	02/28/2002
LEGAL REPRESENTATIVES:	APPLICANT Mr R J Ellicott QC with Mr M G McHugh (Barrister) SOLICITORS Woolf Associates RESPONDENT Dr J E Griffiths SC SOLICITORS Crown Solicitors

JUDGMENT:

IN THE LAND AND 40124 of 2001
ENVIRONMENT COURT

Pearlman J

OF NEW SOUTH WALES 28 February 2002

PROFESSIONAL FISHERS ASSOCIATION INC

Applicant

v

MINISTER FOR FISHERIES

Respondent

JUDGMENT

Introduction

1. This case concerns a proposal to close Botany Bay and Lake Macquarie to commercial fishing.

2. To that end, the Minister for Fisheries published in the Government Gazette two notifications under s 8 of the Fisheries Management Act 1994 (“the FMA”), one relating to Botany Bay and the other to Lake Macquarie. Under s 8, a prohibition effected by a notification is called a “a fishing closure”.

3. The s 8 notification relating to Botany Bay is in the following terms:

I, EDWARD OBEID, prohibit the taking of fish for sale by the methods of commercial fishing described in Column 1 of Schedule to this Notification, from the waters described in Column 2, during the period specified in Column 3, respectively, of that Schedule. This Notification will be effective from 1 May 2002, for a period of five (5) years. This Notification replaces all other commercial fishing closures currently in force in the waters of Botany Bay prescribed in the schedule below.

SCHEDULE

Botany Bay

Column 1

Methods

All methods, with the exception that lobsters and abalone may be taken by in accordance with the relevant share management fishery management plans.

Column 2

Waters

The whole of the waters of Botany Bay, together with all its tributaries, creeks, bays and inlets.

Column 3

Period

For a period of five years.

4. The s 8 notification relating to Lake Macquarie is identical except in one respect – it omits the exception concerning lobsters and abalone, and merely prescribes “all methods”.

5. When the fishing closures commence to operate, they will, as is obvious, confine Botany Bay and Lake Macquarie exclusively to recreational fishers (except for the fishing of lobsters and abalone in Botany Bay).

6. In those circumstances, the applicant, which represents commercial fishers in New South Wales, brings three challenges. First, it challenges the validity of the s 8 notifications and the fishing closures. Secondly, it challenges the validity of receipts issued for the payment of recreational fishing fees pursuant to s 34G(1) of the FMA. Thirdly, it challenges the validity of a proposal by the Minister to acquire certain commercial fishing entitlements under division 4B of pt 2 of the FMA.

7. Each of the applicant’s three challenges is based on an allegation that the Minister has failed to comply with the requirements for environmental assessment stipulated in div 5 of pt 5 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) or alternatively in ss 111 and 112 of the EP&A Act.

8. It is common ground that, in relation to the matters the subject of each of the challenges, the Minister had not, at least by the time of the hearing, carried out the environmental assessment contemplated by either div 5 of pt 5 or ss 111 and 112. The central issue in dispute is whether or not the Minister was required to do so.

9. The resolution of that issue depends upon the proper construction of complex and technical statutory provisions. I have concluded, for the reasons which follow, that, on the proper construction of those statutory provisions, the Minister was not bound to comply with either div 5 of pt 5 or ss 111 and 112 in relation to each of the matters the subject of the applicant’s challenges. Accordingly, the applicant’s challenges must fail.

The approach to construction

10. The government undertook a public participation process in relation to its fisheries policy. In January 2000, it issued a consultation paper entitled “Sustaining our Fisheries” and it also produced an issues paper in relation to Botany Bay and in relation to Lake Macquarie. It also undertook considerable community consultation, the details of which were the subject of separate reports for Botany Bay and Lake Macquarie.

11. Mr Ellicott QC, appearing for the applicant, drew the Court’s attention to a number of passages in these documents. It is not necessary to set them out here, but they indicate, first, that the government recognised the potential environmental impacts of changes in fisheries management and the uncertainty about the consequences of those impacts, and, secondly, that one of its key initiatives had been to amend the relevant legislation to provide for environmental assessment of fishing activities. Mr Ellicott pointed out that the new legislative amendments (see par 17 later) expressly included a requirement, in s 115H of the EP&A Act, that the application of the legislation was to be guided by ecologically sustainable development principles, including the precautionary principle.

12. Hence, in Mr Ellicott’s submission, the government’s intention was patent. It intended to undertake environmental assessment of its proposals as a precursor to the implementation of any of its policies, or decisions, relating to fishing activities. The new legislative amendments should be read, so he submitted, in the light of this intention.

13. The intention as expressed in the documents to which I have referred is not, however, determinative. The Court’s task is to construe the legislation, and, whilst the Court is obliged to prefer a construction which would promote the purpose or object underlying the relevant statute (s 33 Interpretation Act 1987), the Court must determine what is meant by the words used in the statute. The following passage from the joint judgment of Mason CJ, Wilson J and Dawson J in Re Bolton; ex parte Beane (1987) 162 CLR 514 at 518 is apposite:

It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law.

See also Sydney City Council v Reid (1994) 34 NSWLR 506 at 513.

14. Mr Ellicott also emphasised the social and economic impact of the fishing closures on commercial fishers and some affidavits about that impact were furnished. However, the Court is not empowered, in a case of judicial review such as this, to consider the merits or demerits of the fishing closures. The Court’s only role is to determine whether or not the Minister acted in accordance with the law in relation to the subject of the applicant’s challenges (Minister for Aboriginal Affairs and Anor v Peko-Wallsend Ltd and Ors I1986) 162 CLR 24).

15. I turn, then, to outline the statutory scheme. It will be necessary to return in detail later to some of the more important statutory provisions.

The statutory scheme

16. In general terms, pt 5 of the EP&A Act deals with the duty of determining authorities to consider the environmental impact of activities of which they are the proponents or in respect of which their approval is required. The expressions “activity”, “approval” and “determining authority” are defined in s 110(1).

17. Section 111 relevantly provides that a determining authority, in considering an activity shall “… examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity”. Section 112 relevantly provides that a determining authority shall not carry out an activity or grant approval to an activity, being an activity that “… is likely to significantly affect the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats …” unless, amongst other things, the determining authority has been furnished with an environmental impact statement.

18. In Sustainable Fishing and Tourism Inc v Minister for Fisheries and Anor (2000) 106 LGERA 322, Talbot J held, amongst other things, that pt 5 of the EP&A Act applied to the determination by the Minister of an application for a commercial fishing licence and hence the Minister was bound to comply with ss 111 and s 112. As a consequence of the implications of that decision, the legislature enacted the Fisheries Management and Environmental Assessment Legislation Amendment Act 2000 which, relevantly, amended the EP&A Act and the FMA in the following respects:

(1) A new division 5 (comprising ss 115G to 115R) was inserted into pt 5 of the EP&A Act;

(2) Part 1A, dealing with fishery management strategies, was inserted into the FMA;

(3) Schedule 1A, dealing with designated fishing activities, was inserted into the FMA;

(4) Schedule 1 of the FMA, which dealt with share management fisheries, was amended to provide for category 2 share management fisheries;

(5) Amendments were made to the FMA in relation to recreational fishing fees, in particular div 4A (comprising ss 34A to 34J) was amended;

(6) A new division 4B (comprising ss 34K to 34O) was inserted into pt 2 of the FMA.

19. The new div 5 is critical for the environmental assessment of fishing activities. It applies, by virtue of s 115I, to “designated fishing activities” described in sch 1A of the FMA. Schedule 1A describes a number of designated fishing activities, two of which are relevant for present purposes. One is “share management fisheries” which are described as “[f]ishing activities for commercial purposes in a share management fishery specified in Schedule 1”. (Eight share management fisheries are described in sch 1, including, for example, abalone fishery, lobster fishery, and estuary general fishery). The second relevant designated fishing activities are described as “[r]ecreational fishing activities”.

20. The environmental assessment of designated fishing activities is to be undertaken in accordance with div 5 (s 115J(1)). Such environmental assessment requires the preparation of a draft fishery management strategy, the contents of which are prescribed by s 7E of the FMA. The environmental assessment is to be undertaken on the basis of the activity described in the draft strategy (s 115J(3)). Section 115K requires the preparation of an environmental impact statement in respect of a designated fishing activity, and public notice of that preparation must be given by the Minister (s 115L). Under s 115O, the Minister is to make a determination with respect to the designated fishing activity that is the subject of an environmental impact statement, and, when making that determination, the Minister is “… to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment…” (s 115O(2)).

21. Section 115O(4) provides that the Minister may determine to permit the designated fishing activity to be carried out, or may determine to permit it to be carried out subject to such modifications as will, in his opinion, eliminate or reduce its environmental effect, or he may determine to prevent the carrying out of the designated fishing activity.

22. Section 115R(1) makes it apparent that div 5 is intended to provide an exclusive regime for the environmental assessment of designated fishing activities. That section provides that the other provisions of pt 5 of the EP&A Act (including ss 111 and 112) do not apply to or in respect of designated fishing activities. That exclusivity is subject, however, to two exceptions.

23. The first exception appears in s 115R(2), which is in the following terms:

115R(2) Despite subsection (1), those provisions apply to a designated fishing activity if the Fisheries Minister has not made a determination with respect to the activity under this Division before:
(a) 1 July 2003, except as provided in paragraph (b), or
(b) a later date prescribed by the regulations for the purposes of that fishing activity.
In that case, those provisions cease to apply if the determination is made after that date.

24. Section 115R(2) is not free of difficulty in its meaning, but at least two things about it are plain. First, the reference to “those provisions” is a reference to the provisions contained in pt 5 of the EP&A Act other than the provisions contained in div 5 of pt 5. Secondly, the reference to “a determination with respect to the activity under this Division” is a reference to the power of the Minister to make a determination of the kind described in s 115O(4) (and which I have set out in par 21 above).

25. Assistance in the task of interpreting s 115R(2) may, however, be derived from its purpose and its context. Its purpose is, as I have shown, to provide an exception to the exclusivity of div 5 in its application to designated fishing activities, and, as a corollary, to stipulate in what particular circumstances the other provisions of pt 5 will apply to designated fishing activities. The context is also important (Cooper Brooks (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304). Section 115R falls within div 5 which is part of pt 5 of the EP&A Act. The whole of pt 5 is concerned with environmental assessment, providing one statutory regime under div 5 for designated fishing activities, and another statutory regime under the other provisions of pt 5 for activities which fall within the ambit of those provisions. Environmental assessment under each of these statutory regimes is consistent with the object of the EP&A Act, which is, amongst other things, “the protection of the environment” (s 5(a)(vi)).

26. Construed with that purpose and context in mind, it can be seen that the trigger for the application of the other statutory regime (that is, the other provisions) to a designated fishing activity is the circumstance where the Minister has not made a determination with respect to the activity before the prescribed date. If that trigger exists, then the other provisions apply. And they continue to apply until the determination is made. This construction gives, in particular, a meaning to the last sentence of s 115R(2), which is the most ambiguous part of the section. It is a construction, furthermore, which recognises that the procedural steps required under div 5 (a draft management strategy and an environmental impact statement) will take time to carry out. In addition, it is a construction which promotes the purpose or object of the EP&A Act (s 33, Interpretation Act) because it ensures that, for the purpose of the protection of the environment, environmental assessment of designated fishing activities will be carried out in accordance with one or other of the statutory regimes as the case may be in the particular circumstances.

27. I am fortified in the conclusion I have reached by having regard to the Second Reading Speech concerning the amending legislation, a course I am entitled to pursue under s 34 of the Interpretation Act. In that speech, after referring to the decision in Sustainable Fishing v Minister for Fisheries, the Minister said (p 9617, Hansard):

… [I]t became clear that amendments to the Environmental Planning and Assessment Act would be essential for us to have a truly meaningful process of environmental assessment. The existing provisions of part 5 of the Environmental Planning and Assessment Act would require us to assess each fishing licence individually. The result would be extremely bureaucratic, costly, and time consuming and would not have allowed a full evaluation of the environmental impact of the fishery. For this reason the bill will strengthen the requirements of part 5 of the Environmental Planning and Assessment Act by requiring whole-of-fishery assessments.

28. There is no doubt that the legislative intention was to replace a case-by-case environmental assessment by a whole-of-fishery environmental assessment. Thus, whereas the Minister may previously have made a decision to approve an individual activity, now, under div 5, the Minister is to make a determination on that activity as a whole. Hence the purpose of the exceptions to s 115R(1) is to allow for a transition from a case-by-case assessment to a whole-of-fishery assessment, and it would follow that s 115R(2) is intended to operate to apply the case-by-case assessment in the absence of a whole-of-fishery assessment completed by a determination under s 115O.

29. The construction of s 115R(2) that I prefer to adopt, as set out in par 26 above, is contrary to the construction submitted by Dr Griffiths SC, who appears for the Minister. Dr Griffiths submitted that s 115R(2) should be interpreted as a “sunset” provision. By that he meant, as I understood him, that div 5 is now and continues to be the exclusive regime for the environmental assessment of designated fishing activities, but if the Minister has not made a determination under s 115O by the date specified in s 115R(2), then that exclusivity will cease, and the other provisions, that is, ss 111 and 112, will apply on their terms until the Minister has made such a determination.

30. In my opinion, this suggested construction does not accord with either the language of s 115R(2) or its context. The words used, namely, that those other provisions “… apply … if the Fisheries Minister has not made a determination …” by the specified date indicates that those provisions apply now in the absence of a determination. Furthermore, as I have pointed out in par 25, the statutory context indicates that environmental assessment of designated fishing activities will be carried out, depending upon the particular circumstances, under either div 5 or ss 111 and 112.

31. Section 115R(3) is the second exception to the exclusive operation of div 5. I will return to consider the proper construction of that section later when I consider the applicant’s challenge to the issue of receipts under s 34G of the FMA.

The fishing closures

32. The applicant claims that, prior to making the fishing closures by issuing the s 8 notifications, the Minister was required to comply with div 5 or alternatively with ss 111 and 112.

33. Section 8 of the FMA is in the following terms:

8 Closure of waters to fishing

(1) The Minister may from time to time, by notification, prohibit absolutely or conditionally, the taking of fish, or of a specified class of fish, from any waters or from specified waters.

(2) Any such prohibition is called a fishing closure.

34. As I understood it, the applicant’s challenge is based on the following propositions:

(1) Section 8 relates to the “taking of fish”. The “taking of fish” is a “fishing activity” within the definition in s 4. A “fishing activity” may be a “designated fishing activity” if it so described in sch 1A. Included amongst designated fishing activities in sch 1A are “[s]hare management fisheries” which are described as “[f]ishing activities for commercial purposes in a share management fishery specified in Schedule 1”. Clause 11 of sch 1 includes “[e]stuary general fishery” which consists of “the taking of fish from estuarine waters by any lawful method other than prawn trawling”. Botany Bay and Lake Macquarie are estuaries. Hence, the activity described by the s 8 notifications, that is, “the taking of fish for sale by the methods of commercial fishing” is a designated fishing activity;

(2) Each of the fishing closures was concerned with a designated fishing activity, because they were each determinations “… to prevent the carrying out of the designated fishing activity”. Therefore each of them amounted to a determination within s 115O(4)(c) of the EP& A Act;

(3) Each of the fishing closures and the s 8 notifications is accordingly invalid because the Minister has not carried out in relation to them the environmental assessment required by div 5;

(4) In the alternative, if it could be said that the fishing closures and the s 8 notifications were not determinations within s 115O, then, by virtue of the operation of s 115R(2) (see pars 23 to 28 above), ss 111 and 112 applied to the designated fishing activity the subject of each of the s 8 notifications;

(5) The Minister was bound, in the circumstances set out in proposition (4) above, to comply with ss 111 and 112 because:

(a) a designated fishing activity is an “activity” as defined in s 110(1) because s 115R(2) so stipulates when it says “… those provisions apply to a designated fishing activity …”;

(b) Even if s 115R(2) did not so stipulate, commercial fishing is an “activity” as defined in s 110(1) since it is a use of land – see Sustainable Fishing v Minister for Fisheries at pars 25 - 37;

(c) the Minister is a “determining authority” within the meaning of s 110(1), since his approval (in the form of a licence issued under s 102 of the FMA) is required to carry out the activity of commercial fishing;

(d) although s 8 authorises a prohibition rather than an approval, nevertheless that prohibition amounts to a change in an activity, and hence is amenable to environmental assessment under ss 111 and 112.

35. In the alternative, Mr Ellicott drew attention to the fact that the effect of each of the fishing closures is to render Botany Bay and Lake Macquarie exclusive to recreational fishing. Hence, in his submission, div 5 applied, because recreational fishing is, adopting the same steps in the analysis as is set out in proposition (1) above, a designated fishing activity. The effect of the fishing closures in each case was to permit a designated fishing activity to be carried out within the meaning of s 115O(4)(a), and hence each fishing closure and s 8 notification amounted to a determination. Alternatively, even if the fishing closures and the s 8 notifications did not amount to determinations, nevertheless, by virtue of s 115R(2), ss 111 and 112 applied – a designated fishing activity is an “activity”, and the Minister fell within the definition of “determining authority” because the fishing closures and the s 8 notifications amounted to an authorisation of recreational fishing and were each therefore “approvals” which were required from the Minister.

36. There are a number of difficulties with the propositions put in the applicant’s case. The first concerns the proper construction of s 8 of the FMA. Having regard to the context of s 8, it is apparent that it is intended to empower the Minister to close waters to fishing in the interests of general fisheries management. Thus, the fishing closures which are contemplated by s 8 are prohibitions rather than activities which require environmental assessment. Furthermore, the Minister is empowered to issue notifications “from time to time”. He is required by s 9 to publish a notification, but special provision is made, in s 9(2), for the publication of notifications when “the Minister considers that the fishing closure is required urgently”. The Minister is also empowered, under s 11, from time to time to revoke a fishing closure. This context supports s 8 being construed as relating to fisheries management and not to the environmental assessment of fishing activities. A fishing closure under s 8 is defined in s 115G of the EP&A Act as a “fishing regulatory control” and it is, in its effect, a machinery or implementation provision.

37. A second matter to note is that div 5 is concerned with “designated fishing activities”. Section 115G provides that a “designated fishing activity” is a “fishing activity”. Section 115G also provides that a “fishing activity” bears the same meaning as the definition in the FMA. The definition of “fishing activity” in s 4(1) of the FMA is as follows:

fishing activity means the activity of taking fish, including:
(a) searching for fish, or
(b) any activity that can reasonably be expected to result in the locating, aggregating or taking of fish, or
(c) carrying fish by boat from the place where they are taken to the place where they are to be landed.

38. Accordingly, that with which div 5 is concerned is the activity of taking fish as described in sch 1A of the FMA. It is not concerned with the prohibition of the taking of fish. In its context, as part of pt 5 of the EP&A Act, div 5 is concerned with an activity (being the taking of fish as described in sch 1A), and div 5 requires that activity to be environmentally assessed by way of a draft management strategy and an environmental impact statement. It may be that the consequence of the environmental assessment is a decision (called a “determination” under s 115O) by the Minister that the activity shall be prevented, but that is a consequence, not a starting point.

39. Section 8 of the FMA, however, deals with prohibition as a starting point. There is, under s 8, no fishing activity to environmentally assess. The expression “the taking of fish” as it appears in s 8 may describe a designated fishing activity if it falls within the relevant definition, but s 8 is directed towards the prohibition of that activity, not an environmental assessment as to whether or not it should be carried out.

40. Furthermore, s 115O draws a distinction between the power to make a determination and the power to implement such a determination. That distinction is to be found in s 115O(6) which is as follows:

115O(6) When giving effect to a determination, the Fisheries Minister is to comply with the applicable provisions of the Fisheries Management Act 1994 and the regulations under that Act.

41. The effect of s 115O(6) is that a provision such as s 8 of the FMA is, for the purposes of s 115O, a provision designed to implement or give effect to a determination, and that the exercise of the power conferred upon the Minister under s 8 is not itself the making of a determination under s 115O(4).

42. For all these reasons, I conclude that the fishing closures and the s 8 notifications are not determinations under s 115O, and the Minister was not bound to comply with div 5 prior to making or issuing them. Nevertheless, by virtue of the operation of s 115R(2), ss 111 and 112 apply (see pars 23 - 28 above). But they apply according to their terms, and it is necessary therefore to consider whether the fishing closures and the s 8 notifications involve an “approval” and whether the Minister is a “determining authority” as defined in s 110(1).

43. Section 110(1) relevantly provides as follows:

110(1) In this part -
activity means
(a) the use of land …
approval includes -
(a) a consent, licence or permission or any form of authorisation;…
determining authority means a Minister … and, in relation to any activity, means the Minister … by or on whose behalf the activity is or is to be carried out or any Minister … whose approval is required in order to enable the activity to be carried out.

44. Having regard to the above definitions, I am of the opinion that ss 111 and 112 do not apply to a fishing closure or a notification under s 8. That is because s 8 does not involve an “approval” since a s 8 notification is not “a consent, licence or permission or any form of authorisation”. Section 8 empowers the Minister to prohibit the taking of fish, not to furnish a consent, licence or permission or any form of authorisation for the taking of fish. Furthermore, it seems to me to be completely artificial to describe the fishing closures or the s 8 notifications as consents, licences or permissions or any forms of authorisation in relation to recreational fishing. Their effect may well be to render Botany Bay and Lake Macquarie exclusive to recreational fishing, but that is a consequence of the prohibition of commercial fishing, not by reason of any form of consent, licence or the like of recreational fishing.

45. It follows that the Minister is not a “determining authority” so far as concerns the exercise of the power conferred upon him under s 8, because he is not a person whose approval is required for the carrying out of an activity.

46. Furthermore, although commercial fishing has been held to be an “activity” within the meaning of s 110(1) (see Sustainable Fishing v Minister for Fisheries), it is not an activity when subject to the exercise of the power under s 8. No “activity” is to be carried out pursuant to the s 8 notifications; on the contrary, the taking of fish is to be prohibited as a result of that exercise of power.

47. For all these reasons, I conclude that the Minister was not bound to comply with either div 5 of pt 5 or ss 111 and 112 when making the fishing closures and in issuing the s 8 notifications.

The alternative challenge to the s 8 notifications

48. In the alternative, the applicant claims that s 8 does not empower the Minister to prohibit the taking of fish by reference to the purpose for which they are taken, that is, for sale for commercial purposes. Accordingly, the applicant claims that the s 8 notifications are invalid and inoperative.

49. In Mr Ellicott’s submission, the scheme of the FMA is that s 8 deals only with the prohibition of the taking of fish. It does not authorise the prohibition of the taking of fish “for sale”. He pointed out that commercial fishing activities are controlled by the licensing provisions of the FMA to be found in ss 102 – 104, and that the power of the Minister to prohibit commercial fishing is to be found in those sections. Thus, s 104(4)(e) provides that a commercial fishing licence may be cancelled by the Minister in the circumstances authorised by the regulations, and s 104(6) entitles the Minister to revoke or vary the conditions of any commercial fishing licence at any time.

50. There are a number of reasons why, in my opinion, this submission must fail. First, s 8 expressly provides that the Minister may prohibit the taking of fish “absolutely or conditionally”. Section 8 contains no express or implied limitation of the word “conditionally”. I can find no justification for reading that word down so as to confine it to a condition only about the manner of the taking of fish rather than its purpose.

51. Secondly, as I have pointed out in par 35 above, s 8 forms part of a regime by which the Minister may manage fisheries. But the Minister’s powers in relation to the cancellation of commercial fishing licences are not directed to the management of fisheries but are referrable to particular circumstances concerning the holder of the commercial fishing licence. Thus, cl 140 of the Fisheries Management (General) Regulation 1995 prescribes the following matters as the grounds of cancellation of a licence - the conviction of the holder of an offence under the Act or regulations, the conviction of the holder of an offence relating to theft or assault on a fisheries official, the contravention by the holder of a licence condition, the sale by the holder of the holder’s licensed fishing boat or boats, the making of a false or misleading statement by the holder in relation to the application for the issue or renewal of the licence, or the fact that the holder is not authorised by the FMA to hold a licence. In my opinion, having regard to these provisions, the width of the word “conditionally”, or the width of the application of s 8 generally, cannot be read down by reference to the Minister’s power to cancel a commercial fishing licence under s 104.

52. Thirdly, as Dr Griffiths pointed out, s 12 of the FMA takes effect. Section 12 is in the following terms:

12 General provisions relating to closures
Sections 42-45 of the Interpretation Act 1987 apply to notifications of fishing closures in the same way as they apply to statutory rules within the meaning of that Act.

53. Section 12 is followed by a note which relevantly provides as follows:

Note. The above provisions of the Interpretation Act 1987 relate to standard provisions authorising…the making of differential closures …

54. Section 42(2) of the Interpretation Act is relevant. It provides as follows:

42(2) A statutory rule may:
(a) apply generally or be limited in its application by reference to specified exceptions or factors,
(b) apply differently according to different factors of a specified kind, or
(c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body,
or may do any combination of those things.

55. In Dr Griffiths’ submission, which I accept, the effect of s 42(2) is that s 8, being a statutory rule by virtue of the express terms of s 12, may be limited in its application by reference to specified factors, such as the taking of fish for sale by commercial methods, or may apply differently according to different factors of a specified kind, such as the taking of fish for sale by commercial methods.

56. For these reasons, I reject the applicant’s challenge to the validity of the s 8 notifications on this alternative ground.

Fishing fee receipts

57. Division 4A of pt 2 of the FMA relates to recreational fishing fees. Section 34C provides that a fishing fee is payable by all recreational fishers, subject to certain exemptions which are presently irrelevant. Recreational fishing fees may be paid in respect of differing periods of time (s 34D), and the fee differs by reference to the various periods (s 34E).

58. Section 34G is in the following terms:

34G Issue of receipt on payment of fishing fee
(1) A person who pays a fishing fee is entitled to be issued with an official receipt for the payment.
(2) A receipt is evidence of the payment of the fishing fee and not an authority to take fish, and accordingly cannot be refused or made subject to any conditions.
(3) A receipt is to be in a form approved by the Minister.
(4) The regulations may make provision for the issue of replacement receipts for receipts that are lost, destroyed or damaged.
(5) A receipt is not transferable.

59. Section 34J provides for two offences in relation to recreational fishing fees in the following terms:

34J Offences
(1) A recreational fisher who is required by this Division to pay a fishing fee is guilty of an offence if the fisher fails to pay the fishing fee.
Maximum penalty: 20 penalty units.
(2) A recreational fisher who is required by this Division to pay a fishing fee is guilty of an offence if the fisher does not have an official receipt for the payment of the fishing fee in his or her possession when taking fish from any waters.
Maximum penalty: 20 penalty units.

60. Against the background of these provisions, the applicant’s claim may be stated as follows. The purpose of div 5 is to ensure that no decision affecting a fishing activity shall be made without a draft fishery management strategy and an environmental impact statement. Division 5 applies to designated fishing activities, and, by virtue of the definitions in s 115G and sch 1A of the FMA, recreational fishing is a designated fishing activity. The applicant claims, accordingly, that the issue of a fishing fee receipt under s 34G(1), or, alternatively, the approval by the Minister of the form of the receipt under s 34G(3), are determinations by the Minister under s 115O in relation to a designated fishing activity to which div 5 applies.

61. In the alterative, the applicant claims that, if it is the case that the Minister has made no determination under s 115O in relation to recreational fishing activities, then, ss 111 and 112 apply. The Minister will be required to undertake the environmental assessment contemplated by those provisions either prior to the issue of a fishing fee receipt under s 34G(1), or prior to approving the form of the receipt under s 34G(3). This is so, the applicant claims, by reason of the fact that in substance the receipt is an “approval”, and the Minister is a “determining authority” within the meaning of s 110(1).

62. In putting the applicant’s case, Mr Ellicott emphasised the substance of what the fishing fee represents. The form of the actual receipts and other provisions of the FMA make it clear, he submitted, that the fishing fee is, in substance and effect, a permit or authorisation to carry out recreational fishing. Thus he pointed to the sample forms of receipts that were in evidence, and drew attention to the fact that each bears a number referred to as a “licence number”. In the same vein, he noted that the form of receipt issued for a fee paid by way of the Internet or the telephone is headed “fishing licence” and also contains a “licence number”.

63. The particular provisions of the FMA to which Mr Ellicott drew attention to support his claim were s 34J and s 257. The former, which I have set out above, creates offences in relation to recreational fishing fees. These provisions, in Mr Ellicott’s submission, are in substance an indication that recreational fishing is not permitted or authorised without the payment of a fee and without having the receipt for the fee in one’s possession. In truth, so he said, they indicate that the receipt is a permit or authorisation of recreational fishing.

64. Section 257 sets out the powers of a fisheries officer to require production of a fishing authority. Section 257(5) provides as follows:

257(5) In this section, fishing authority includes, in the case of any fishing activity for which a person is required to pay a recreational fishing fee, an official receipt for the fee under Division 4A of Part 2.

Mr Ellicott relied upon this provision again to support his contention that the receipt in substance is a permit or authority to carry out recreational fishing.

65. I deal first with the submissions made by Mr Ellicott in relation to the application of div 5. Those submissions are predicated upon the underlying submission that the issue of receipts, or the approval of the form of receipts, are determinations made by the Minister under s 115O. However, nothing in div 5 obliges the Minister to carry out an environmental assessment of a designated fishing activity simply because that designated fishing activity exists. Rather, he is to carry out that environmental assessment only if he proposes to make a determination under s 115O. No determination under s 115O may be validly made unless the stipulated environmental assessment has been carried out. That is clear from the terms of s 115O itself. Thus, s 115O(2) provides that, “[w]hen making the determination”, the Minister is to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment, and under s 115O(3), the Minister is to consider, amongst other things, the relevant environmental impact statement. The applicant’s challenge, therefore, depends upon the Minister being in breach of div 5 because he has made a determination without having first complied with the requirements of div 5.

66. The flaw in this argument is that the issue of receipts under s 34G does not amount to a determination under s 115O. Such determinations are either to permit or to prevent a designated fishing activity. Whilst recreational fishing is a designated fishing activity, a recreational fishing receipt is not a permit or authorisation to carry out recreational fishing. In my opinion, the words of s 34G(2) are clear and unambiguous – a receipt is not an authority to take fish. That conclusion is not displaced by either the wording of the receipts that are currently being issued, or by the application of s 257(5). Firstly, the words used in the receipts themselves cannot derogate from the clear words of the statute. Whether or not they are called “licences”, the receipts are not in effect “licences” as a consequence of s 34G(2). Secondly, s 257(5) defines a receipt issued under div 4A of pt 2 (that is, under s 34G) as a “fishing authority” but that definition is expressed to apply only to s 257 and not generally under the FMA.

67. Nor does the approval of the form of receipt under s 35G(3) amount to a determination under s 115O. It is merely the approval of the form of the document, and, if, for the reasons I have outlined, the issuing of the document does not amount to a permit or authorisation to carry out recreational fishing, it must follow that the approval of the form is also not such a permit or authorisation.

68. On 14 December 2001, the Fisheries Management Amendment Act 2001 came into force. Relevantly, it amended the FMA by inserting a new s 34AA as follows:

34AA Purpose of fishing fees
The purpose of fishing fees is to provide revenue to assist activities supported through the recreational fishing trust funds established under Division 3 of Part 8, including the following:
(a) enhancing recreational fishing,
(b) carrying out research into fish and their ecosystems,
(c) managing recreational fishing,
(d) ensuring compliance with recreational fishing regulatory controls.

69. Dr Griffiths relied upon s 34AA as supporting the view that the receipt for a fishing fee is not a permit or authority to take fish. Once again, one is confronted with a provision that is far from clear. For example, the four activities that are recited are similar to, but not identical with, the purposes for which trust funds may be used as stipulated in ss 234(2) and 235(2) of div 3 of pt 8. That raises a difficulty in the proper construction of s 34AA, but it is not one that needs to be resolved here. It is sufficient to note that s 34AA provides that the purpose of fishing fees is to raise revenue for the trust funds, and, although not determinative of the proper construction, it is an indication that the purpose of those fees is not to permit or authorise the taking of fish.

70. I turn now to the claim that, absent a determination, ss 111 and 112 apply to the issue of the receipts, or to the approval by the Minister of the form of receipt. Whether those sections apply depends upon whether or not the Minister is a “determining authority”, that is, whether or not he is a Minister “… whose approval is required in order to enable the activity to be carried out”. That in turn requires attention to be paid to the definitions of “activity” and “approval”. Under s 110(1), “activity” means, amongst other things, “the use of land”. The word “land” is defined in broad terms in s 4(1) to include water. The question is whether recreational fishing is a “use of land”. In Sustainable Fishing v Minister for Fisheries, Talbot J was confronted by the same issue in relation to commercial fishing. His Honour discussed the issue in pars 25 – 37, and proceeded upon the basis that, although the question is one of fact and degree, a use of land must be something more than a mere transitory and incidental activity, and a specific reference to identified fisheries (as was the case with the commercial fishing licence in that case) was a relevant factor. I am prepared, with respect, to adopt his Honour’s approach. I would conclude, therefore, that recreational fishing is not a use of land because it is transitory and it does not relate to any particular fishery.

71. Furthermore, I consider that, in this context, the Minister is not a “determining authority” within the meaning of s 110(1). That is because his approval is not required to enable the activity of recreational fishing to be carried out. The word “approval” is defined in s 110(1) to include, amongst other things, “a … licence or permission or any form of authorisation”. For the reasons I have outlined in pars 64 - 68, I have concluded that neither the issue of a receipt nor the approval of the form of receipt is a permit or authorisation to take fish.

72. For completeness, I should add that I have not ignored cl 80 which falls within pt 9 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 (“the Regulation”), but I consider that (insofar as it is still on foot) it does not apply to the issue of receipts or the approval of the form of receipt. Clause 80 is in the following terms:

80 For the purposes of the definition of activity in section 110(1) of the Environmental Planning and Assessment Act 1979, the carrying out of a fishing activity pursuant to a fisheries approval issued for a period of not more than 12 months, being a fishing activity that is carried out at any time before:
(a) a fisheries management plan that has been the subject of environmental impact assessment under Part 5 of the Environmental Planning and Assessment Act 1979 is made with respect to the carrying out of the fishing activity, or
(b) 1 July 2003,
whichever first occurs, is prescribed not to be such an activity.

73. In cl 79 the expression “fisheries approval” is defined for the purpose of pt 9 as meaning “a licence, endorsement or permit, of any kind …” issued under the FMA. For the reasons I have earlier set out, the issue of receipts for fishing fees, and the approval of the form of receipt by the Minister, are not licences, endorsements or permits. Mr Ellicott emphasised the width of the expression “of any kind”. Whilst I agree that the expression is wide, it is nevertheless governed by the preceding words. However, neither the receipts for fishing fees, nor the approval of the form of receipt by the Minister, are any “kind” of licence, endorsement or permit, in view of the plain words of s 34G(2).

74. This brings me to one further matter (to which I alluded in par 30). Section 115R(3) applies, in certain circumstances, the provisions of ss 111 and 112 to a “fisheries approval” that relates to a designated fishing activity. The expression “fisheries approval” is defined in s 115G, for the purposes of div 5 of pt 5, in terms identical to the definition set out in cl 79 of the Regulation. Again, for the reasons I have earlier set out, I do not consider that the issue of receipts for fishing fees, or the approval of the form of receipt by the Minister, are fisheries approvals within the meaning of s 115G.

75. For all these reasons, the applicant’s challenge to the issue of receipts and the approval of the form of receipts must fail.

The proposed acquisitions under div 4B

76. The applicant’s challenge in relation to div 4B of pt 2 was but faintly pressed. It involves a claim that the Minister’s proposal to acquire certain commercial fishing entitlements is in breach of the EP&A Act because the Minister has failed to carry out the environmental assessment required by either div 5 or by ss 111 and 112.

77. As stipulated in s 34K of the FMA, div 4B is designed 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 entitlements”.

78. Under s 34L, the Minister is empowered, by order published in the Government Gazette (called an “acquisition declaration”), to declare that specified commercial fishing entitlements (called “the acquired entitlements”) are to be acquired under div 4B. There is provision in s 34M for consultation in regard to the proposed acquisition declaration with the holders of the acquired entitlements, with an advisory council and with the local community affected. Section 34N provides that, as soon as practicable after an acquisition declaration, the Minister is to cancel the acquired entitlements, and, for that purpose, to, amongst other things, cancel a commercial fishing licence. Section 34O provides for the payment of compensation to persons whose acquired entitlements are cancelled under div 4B.

79. It is common ground that the Minister has not made any acquisition declaration under div 4B. The applicant’s claim, however, is based upon an implied threat to do so said to be discernible from a letter which the Director of Fisheries sent to all commercial fishing business owners on or about 1 August 2001 (a similar letter was sent at the same time to licensed commercial fishers). The letter sought registration of interest in a “voluntary buy out of commercial fishing licences”. The letter relevantly stated as follows:

… this letter is giving commercial fishers the opportunity of taking part in an early voluntary assessment process in accordance with the Government’s commitment not to undertake compulsory buy backs for at least six months.

Under this process an ex-gratia payment may be offered to eligible fishing business owners for the surrender of their commercial fishing entitlements …

80. The letter stated that there was no guarantee that any offers would be made as part of the process, and it also stated that there was no obligation to accept any offer that might be made.

81. Dr Griffiths submitted that this claim should be rejected because it is entirely hypothetical. I agree with this submission. The Minister has not made an acquisition declaration pursuant to div 4B, nor is there any evidence that the Minister proposes to make an acquisition declaration. The reference to the Government’s commitment not to undertake compulsory buy back for at least six months cannot fairly be read as a proposal to make an acquisition declaration – it is no more than a statement that no such proposal is to be made for at least six months. Nor does the letter reflect any concluded contract between the Minister and any of the letter’s recipients – it merely seeks expressions of interest which may or may not elicit a future offer.

82. I refrain from endeavouring to consider the application of div 5 of pt 5 or ss 111 and 112 in these circumstances.

83. Accordingly, the applicant’s challenge must fail.

Orders

84. The applicant has failed in each of its challenges, and accordingly its application must be dismissed. It is appropriate in those circumstances to apply the normal rule for applications of this nature, which is that costs follow the event, that is, the applicant who has entirely failed in its challenges must pay the costs of the Minister.

85. My formal orders are as follows:

(1) The application is dismissed.

(2) The applicant must pay the costs of the respondent as agreed or as assessed.

(3) The exhibits may be returned.