Re Nicoletta Ciffolilli
[1999] WASCA 205
•15 OCTOBER 1999
RE NICOLETTA CIFFOLILLI; EX PARTE PETER PHILLIP ROGERS, Executive Director of the Fisheries Department of Western Australia [1999] WASCA 205
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 205 | |
| THE FULL COURT (WA) | |||
| Case No: | CIV:1110/1999 | 11 JUNE 1999 | |
| Coram: | PIDGEON J ANDERSON J PARKER J | 15/10/99 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi for certiorari made absolute | ||
| PDF Version |
| Parties: | PETER PHILLIP ROGERS, Executive Director of the Fisheries Department of Western Australia NICOLETTA CIFFOLILLI, Fisheries Objections Tribunal GUARDON PTY LTD |
Catchwords: | Administrative law Prerogative writs Certiorari Statutory power to make order Error of law on face of record Administrative law Fisheries Objections Tribunal Application to Director to vary fishing licence Additional entitlements sought Statutory notice by Director of "proposed" decision Objection lodged Proposed decision and objection referred to Tribunal Statutory power of Tribunal Not wider than Director's power Fish Resources Management Act 1994 (WA) s 142(1) Administrative law Fisheries Objections Tribunal Management Plan subsidiary legislation Legal force of Management Plan prevails over equity and good conscience Fish Management Plans Plan dealt exhaustively with licence entitlements No provision for additional entitlements Whether discretionary power to grant additional entitlements Fish Resources Management Act 1994 (WA) s 142(1) |
Legislation: | Fish Resources Management Act 1994 (WA) s 142(1) Interpretation Act 1984 s 42 |
Case References: | Avon v Administrative Appeals Court (1997) 69 SASR 7 Craig v South Australia (1994-1995) 184 CLR 163 Esber v The Commonwealth (1992) 174 CLR 430 Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 Santos v Saunders (1988) 49 SASR 556 Secretary, Department of Primary Industries and Energy v Collins (1992) 34 FCR 340 Trittenheim v H & H Nominees (1994) 63 SASR 434 Commonwealth v Huon (1945) 70 CLR 293 Ex parte Herman; re Mathieson (No 1) [1961] NSWR 1139 Klahn v Talbot (1995) 83 A Crim R 535 Lambidis v Commissioner of Police 37 NSWLR 320 R v Commonwealth Court of Conciliation and Arbitration; ex parte Brisbane Tramways Co Ltd (No 1) (1914) 18 CLR 54 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : RE NICOLETTA CIFFOLILLI; EX PARTE PETER PHILLIP ROGERS, Executive Director of the Fisheries Department of Western Australia [1999] WASCA 205 CORAM : PIDGEON J
- ANDERSON J
PARKER J
EX PARTE
PETER PHILLIP ROGERS, Executive Director of the Fisheries Department of Western Australia
Applicant
AND
NICOLETTA CIFFOLILLI, Fisheries Objections Tribunal
First Respondent
GUARDON PTY LTD
Second Respondent
(Page 2)
Catchwords:
Administrative law - Prerogative writs - Certiorari - Statutory power to make order - Error of law on face of record
Administrative law - Fisheries Objections Tribunal - Application to Director to vary fishing licence - Additional entitlements sought - Statutory notice by Director of "proposed" decision - Objection lodged - Proposed decision and objection referred to Tribunal - Statutory power of Tribunal - Not wider than Director's power - Fish Resources Management Act 1994 (WA) s 142(1)
Administrative law - Fisheries Objections Tribunal - Management Plan subsidiary legislation - Legal force of Management Plan prevails over equity and good conscience
Fish - Management Plans - Plan dealt exhaustively with licence entitlements - No provision for additional entitlements - Whether discretionary power to grant additional entitlements - Fish Resources Management Act 1994 (WA) s 142(1)
Legislation:
Fish Resources Management Act 1994 (WA) s 142(1)
Interpretation Act 1984 s 42
Result:
Order nisi for certiorari made absolute
Representation:
Counsel:
Applicant : Ms C J Thatcher
First Respondent : No appearance
Second Respondent : Dr J T Schoombee
Solicitors:
Applicant : State Crown Solicitor
First Respondent : No appearance
Second Respondent : Gray & Gray
(Page 3)
Case(s) referred to in judgment(s):
Avon v Administrative Appeals Court (1997) 69 SASR 7
Craig v South Australia (1994-1995) 184 CLR 163
Esber v The Commonwealth (1992) 174 CLR 430
Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26
Santos v Saunders (1988) 49 SASR 556
Secretary, Department of Primary Industries and Energy v Collins (1992) 34 FCR 340
Trittenheim v H & H Nominees (1994) 63 SASR 434
Case(s) also cited:
Commonwealth v Huon (1945) 70 CLR 293
Ex parte Herman; re Mathieson (No 1) [1961] NSWR 1139
Klahn v Talbot (1995) 83 A Crim R 535
Lambidis v Commissioner of Police 37 NSWLR 320
R v Commonwealth Court of Conciliation and Arbitration; ex parte Brisbane Tramways Co Ltd (No 1) (1914) 18 CLR 54
(Page 4)
1 PIDGEON J: In my view the order nisi should be made absolute. I reach this conclusion for the reasons to be published by Parker J with which reasons I agree.
2 ANDERSON J: I agree with the judgment of Parker J, to which there is nothing I wish to add. The order nisi should be made absolute.
3 PARKER J: This is the return of an order nisi for a writ of certiorari directed to the first respondent who constituted the Fisheries Objections Tribunal ("the Tribunal"), having been so constituted by the Minister pursuant to s 152(1)(a) of the Fish Resources Management Act 1994 ("the Act").
4 On 21 December 1998, pursuant to s 152(2) of the Act, the Tribunal directed the applicant, who is the Executive Director of the Fisheries Department of this State ("the Director"), to allocate to the second respondents' existing authorisation to fish a further 12 Zone 4 units of entitlement to take small pelagic fish in the South Coast Purse Seine Limited Entry Fishery ("the Fishery").
5 By an Application for the variation of an authorisation, ie a licence, dated 7 May 1997 the second respondent ("Guardon") had applied to the Director for an additional 15 Class D units to be endorsed on its managed fisheries licence No 2539, which was then current for the period 1 April 1997 to 31 March 1998. It has since been renewed and is current. At that time that licence was endorsed with 35 Class D units. The Director gave notice to Guardon, as required by s 147 of the Act, that it was proposed to refuse the Application. Guardon gave notice of Objection, which thereupon was referred to the Minister pursuant to s 149 of the Act, and the Minister constituted the Tribunal to hear and determine the Application and Objection. By s 152(2) the Tribunal had power "to make such decision as it thinks fit".
6 For the Director, it is contended that in reaching its decision the Tribunal made an error of law on the face of the record, and further that it acted in excess of its jurisdiction, in that -
"(a) As the Management Plan for the Fishery provides for a scheme relating to the extent of entitlements conferred by the authorisation but does not provide for the entitlements to be increased or reduced, there is no power to increase Guardon Pty Ltd's entitlement by varying the terms of the authorisation;
(Page 5)
- (b) In the alternative, as the Management Plan for the Fishery specifies the extent of entitlements allocated to licence holders, increasing the entitlement of Guardon Pty Ltd as specified on the authorisation is inconsistent with the Management Plan and therefore beyond power."
7 It is accepted for the Director that no specific submission in accordance with ground (a) was advanced to the Tribunal, but as the point of ground (a) is that the Tribunal lacked power to make the order it did, it is submitted that the absence of specific submission before the order was made cannot confer power on the Tribunal if, as a matter of law, the Tribunal had no power.
8 The original application to the Director, the second respondent's notice of Objection and the reasons for decision of the Tribunal, which reasons include the record of the decision made by the Tribunal, are before this Court. Having regard to the nature of this Tribunal and the reasons of the High Court in Craig v South Australia (1994-1995) 184 CLR 163 it is clear that the record comprises or includes these documents and that an absence of statutory power to make the order which it did would constitute jurisdictional error for relevant purposes.
Legislative background
9 On 19 August 1988, pursuant to the then Fisheries Act 1905, the taking of fish by means of a Purse Seine Net in the Southern Ocean and other identified waters was prohibited, except by licensed professional fishermen using a licensed fishing boat with a suitably endorsed licence. By Notice of 22 February 1994 a limited entry fishery was constituted. It was designated the South Coast Purse Seine Limited Entry Fishery ("the Fishery"). This notice described the boundaries of the Fishery. On 29 September 1995 that Notice was amended by describing a Zone 4 within the Fishery and established criterion for operation within Zone 4. This Notice specified the method for determining the number of units of entitlement to be endorsed on the licence. Units of entitlement allow an operator to take a certain weight of small pelagic fish.
10 By operation of cl 9 of Schedule 3 of the Act, that Notice became the South Coast Purse Seine Management Plan ("the Management Plan") when the Act came into operation on 1 October 1995. Guardon was then the holder of a fishing boat licence which was endorsed to authorize the taking of fish by means of a purse seine net in the Esperance zone. This satisfied the criterion for operation within Zone 4 of the Fishery so that on
(Page 6)
- or about 4 April 1996 Guardon was issued with a managed fishery licence No 2539 which was endorsed with 28 Zone 4 units of entitlement.
11 By an amendment of the Management Plan gazetted on 27 March 1997 ("the disallowed amendment") what had been Zone 4 units were converted to Class D units and the entitlement then endorsed on authorizations (ie licences) to Zone 4 units were converted to Class D units in accordance with a prescribed mathematical formula. In the result Guardon's licence became endorsed for 35 Class D units. The disallowed amendment also changed the criteria for the grant of a new licence to fish in Zone 4. The amendment of 27 March 1997 was disallowed by Parliament on 26 August 1997. This was possible because, by s 54 and s 55 of the Act, a Management Plan for a Fishery is "subsidiary legislation" for the purposes of the Interpretation Act 1984 as if it were a regulation. A consequence is that management plans, and amendments to management plans, are liable to disallowance by the Parliament pursuant to s 42 of the Interpretation Act.
12 It will be seen from this short statement of the legislative background that when Guardon sought an additional 15 Class D units by its Application dated 7 May 1997, that reflected the units of entitlement under the Management Plan in its then form which included the disallowed amendment (before that amendment was disallowed).
13 The Director dealt with the Application on that basis. By the time the Tribunal was constituted, however, and the Application came to be considered by it, the amendment had been disallowed. By s 42(2) of the Interpretation Act, on disallowance by Parliament the amendments affected by the disallowance -
"Shall thereupon cease to have effect, but without affecting the validity or curing the invalidity of anything done or the omission of anything in the meantime."
- Further by s 42(6) of the Interpretation Act, the disallowance revived the previous provisions of the Management Plan as they were before the disallowed amendment.
14 Very shortly after the disallowance, on 29 August 1997, a further amendment of the Management Plan was gazetted by the Minister which amendment was in force when the Tribunal dealt with this Application in December 1998.
(Page 7)
15 By virtue of these legislative developments, when the Application was dealt with by the Tribunal, Guardon's licence again specified 28 Zone 4 units of entitlement rather than 35 Class D units. The Tribunal dealt with and granted the Application on the basis that what was sought was a further 12 Zone 4 units which was in accordance with the conversion provided by the amendment to Management Plan. No issue is raised in this respect.
16 When the Application was dealt with by the Tribunal, however, both Guardon and the Director accepted that the Tribunal should deal with the Application on the basis of the Management Plan as it was when the Application was originally made to the Director, ie the Management Plan as it existed on 7 May 1997 which included the amendments which were subsequently disallowed. The Tribunal proceeded accordingly. The effect of this was that in December 1998 the Tribunal purported to determine the Application and Objection in accordance with the Management Plan as amended by the disallowed amendments (save for the designation and number of the units of entitlement).
17 As will appear later in these reasons, in fact, this had no effect on the outcome of the Tribunal's consideration of the Application. As a matter of law, however, in my respectful view the Tribunal was led into error in this respect by the position taken by the parties. By virtue of s 55 of the Act, the Management Plan had the force and effect in law of subsidiary legislation. It was part of the relevantlaw in force at the time the Tribunal came to deal with the Application. The disallowed amendments had "ceased to have effect". Insofar, therefore, that the Tribunal was required to determine the Application in accordance with the applicable law, that applicable law was the Management Plan as it was in force at the time of the Tribunal's decision. Not at the time of the original Application.
18 The parties before the Tribunal appear to have approached this matter on the basis that s 42(2), or s 37(1)(c), of the Interpretation Act, or both of them, had the effect that the Management Plan as at the date of the Application continued to apply for the purposes of the determination of the Application. In my respectful view this involves a misunderstanding of the effect of those provisions. By s 42(2) it is provided that the disallowed amendments "cease to have effect, but without effecting the validity … of anything done …". Relevantly, all that had been done was for Guardon to apply for a variation of its authorisation or licence. Under the legislative scheme of Division 1 part 14 of the Act, cf s 149, the Director does not make a decision on the Application. He must give notice of what is proposed by way of decision on the Application and, if
(Page 8)
- an Objection is received to what is proposed, the Director "is to refer" the Objection to the Minister, s 149(4), who "is to establish a Tribunal … and refer" what is proposed by way of decision and the Application to the Tribunal. The Tribunal "is to hear and determine the matter and is to make such decision as it thinks fit". Hence, there was no more than an Application which had not been heard or determined. No decision had been made by the Director or the Minister or the Tribunal when the amendment was disallowed. There had been no decision, therefore, the validity of which s 42(2) could preserve despite the disallowance. Section 37(1)(c) deals in terms with the repeal of "written laws", which includes subsidiary legislation. It is not dealing with disallowance. Even were s 37(1)(c) to have application to a disallowance, in my respectful view it could not assist Guardon. Section 37(1)(c) relevantly provides that repeal does not, unless the contrary intention appears, …
"(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal."
The legislative scheme, as already outlined, had not created in favour of Guardon any right, interest, title or privilege to, or in, any additional units. It may be said that in the circumstances Guardon had a right to have its Application heard and determined by the Tribunal, but that right was created by s 149 of the Act, not by the disallowed amendments to the Management Plan. In light of discussion later in these reasons, the only view that can be taken of the scheme of s 149 and the related provisions of the Act is that any right to have the Tribunal hear and determine the Application is a right to have it heard and determined according to law. Given the terms of the legislative scheme that can only be the law as it is in force at the time the Application is heard and determined, not at the time that the Application was originally made. In my respectful view the Tribunal was bound to apply the Management Plan according to its terms, force and effect as at the date of the decision of the Tribunal, which is the only decision made on the Application.
19 The matter appears to have been confused by reference to Esber v The Commonwealth (1992) 174 CLR 430. That case concerned the repeal of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) by the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth). Before the repeal took effect, Mr Esber had sought a review by the Commonwealth Administrative Appeals Tribunal of a decision refusing his application to redeem weekly payments which he was receiving under the 1971 Act. Under the 1988
(Page 9)
- Act he could no longer redeem those weekly payments. Section 129(2) of the 1988 Act provided that proceedings instituted under the 1971 Act but not completed upon the repeal "may be continued on and after" the date of the repeal. The High Court by a majority held that s 129(2) of the 1988 Act was not a procedural provision but gave Mr Esber a substantive right to have his application heard and determined under the 1971 Act. That right was also a right within s 8(c) of the ActsInterpretation Act 1901 (Cth), which is substantially equivalent to s 37(1)(c) of the Interpretation Act. This decision has no application in the present circumstances, however, as in this case there is a disallowance, not a repeal, and most significantly, there is no equivalent of s 129(2) of the 1988 Act which expressly created a right to a hearing and determination under the repealed provisions.
20 Hence, in my respectful view, the Tribunal was led into error and ought to have applied the Management Plan as it was at the date of its decision, to the extent that the Management Plan was relevant and material to its decision. As I have indicated, however, that error did not effect the ultimate outcome, although it did bear upon some of the reasoning of the Tribunal.
Legislative Scheme re Management Plan
21 Part 6 of the Act provides for Management Plans. By s 54 the Minister may by instrument in writing published in the gazette, determine a Management Plan for a fishery. That Management Plan may be amended or revoked. As has been indicated in these reasons, by the operation of cl 8, cl 9 and cl 10 of Sch 3 to the Act, the Notice of 22 February 1994 made under the former Fisheries Act 1905 became the original South Coast Purse Seine Management Plan "as if it were a Management Plan determined under s 54" of the Act. By s 56 of the Act a Management Plan was required to:
(a) identify the fishery to which it relates and
(b) declare the fishery to be a managed fishery or an interim managed fishery.
- These requirements were satisfied by the Notice of 22 February 1994. By s 56(3) of the Act it is provided:
"(3) A management plan may include any provision that, in the Minister's opinion is necessary for the protection or management of the fishery or any part of the fishery."
(Page 10)
- By s 57 a management plan may have effect only for a specified period. Section 58 makes extensive and detailed provisions as to what may be provided by a management plan as to "authorizations", a term which by s 53(a) includes a managed fishery licence which is the type of licence held by Guardon.
22 Section 58 of the Act provides:
"58. (1) Without limiting section 56(3), a management plan may prohibit a person from engaging in fishing or any fishing activity of a specified class in the fishery or any part of the fishery otherwise than in accordance with an authorization.
(2) The management plan may -
(a) provide for different classes of authorizations;
(b) restrict the number of authorizations that can be granted or provide that no further authorizations can be granted;
(c) specify criteria to be satisfied before the Executive Director can grant an authorization;
(d) specify a procedure for determining which persons are to be granted authorizations if the number of eligible persons seeking an authorization exceeds the number of authorizations that can be granted;
(e) provide for the submission and consideration of objections to the grant of authorizations;
(f) provide for specified things to be endorsed on authorizations;
(g) specify conditions to which authorizations are subject;
(h) specify grounds on which the Executive Director may cancel, suspend or refuse to
(Page 11)
- renew an authorization (in addition to those already specified in section 143(1)(a) to (g));
- (i) specify a period for which an authorization remains in force after it has been granted or renewed;
(j) specify criteria to be satisfied before the Executive Director can vary an authorization on the application of the holder of the authorization;
(k) specify grounds on which the Executive Director may refuse to transfer an authorization or any part of an entitlement under an authorization;"
- Of these s 58(1) and s 58(2)(b), (c), (d) and (j) are particularly significant.
23 By s 59 a management plan may specify the capacity of a fishery interalia by reference to the quantity of fish that may be taken, the number of boats that may be used, and any other thing. That capacity is to be determined in accordance with the method specified in the management plan or prescribed in regulations.
24 Section 60 deals with entitlements under a management plan and provides:
"60. (1) Without limiting section 56(3), a management plan may provide for a scheme relating to the extent of the entitlements conferred by authorizations in respect of the fishery or any part of the fishery.
(2) The management plan may -
(a) specify the way in which entitlements are to be fixed and allocated;
(b) provide for all or any of the entitlement to be specified in an authorization;
(c) provide for entitlements to be expressed in terms of units (however described) and
(Page 12)
- from time to time specify the extent of the entitlement arising from such units;
- (d) suspend entitlements during a specified period;
(e) provide for entitlements to be increased or reduced;
(f) provide for the conversion of one kind of entitlement into another kind of entitlement;
(g) prohibit a person from doing any thing in excess of an entitlement;
(h) authorize the temporary transfer of entitlements (either generally or only in specified circumstances);
(i) specify -
(i) the criteria that a person must satisfy before the person can buy any forfeited entitlement under section 76(4); and
(ii) the way in which any forfeited entitlement may be sold under that section."
- Of these s 60(1) and s 60(2)(a), (b), (c) and (e) are particularly significant. Section 61 contains express and detailed provisions authorising management plans to prohibit fishing activities or classes of fishing activities in a variety of ways and circumstances, including by authorising the Director to do so by a specified method. Section 62 contains extensive terms as to other types of provision which may be included in the management plan, which provisions may loosely be described as directed to the regulation of fishing in the fishery, including by whom and by what means and under a variety of conditions or restrictions which may be imposed, and also the regulation of the possession, handling and dealing in fish from the fishery.
25 It will be seen from this quick review that a management plan must contain a few matters, and may contain a very wide range of other matters. It is the case, therefore, that management plans for different fisheries may vary considerably as to their content. A management plan may make only
(Page 13)
- limited and general provision or may extend to very detailed, extensive and even highly restrictive provisions.
26 It is the effect of s 58, and especially s 58(1) and s 58(2)(b),(c) and (d), that a management plan may, but need not, make detailed and exhaustive provision as to which persons may be authorized to fish in a fishery, and by s 58(2)(j) as to the criteria to be satisfied before the Director can vary an authorisation on the application of a holder of an authorisation. Similarly, it is the effect of s 59 and s 60, especially s 60(1) and s 60(2)(a), (b) and (c), that a management plan may, but need not, make detailed and exhaustive provision to determine the entitlement to take fish conferred from time to time by an authorisation.
27 Division 3 of Part 6 of the Act provides the procedure to be followed by the Minister in determining or amending a management plan. By s 64 the Minister must consult with any advisory committee established in respect of the fishery, and other advisory committees thought appropriate, and publish a draft of the plan and invite representations, not less than two months before determining a plan. Representations must be considered. By s 65, except for urgent or minor amendments for which special provision is made, the Minister must consult with all relevant advisory committees before amending or revoking a management plan.
28 Importantly, any management plan or amendment must be tabled in each House of the Parliament and may be disallowed, so that both the process and the nature and extent of the content of each management plan remains under the direct supervision of the Parliament. As the history of amendment to this management plan reveals, that can be a very effective supervision.
29 By s 69, an authorisation (or licence) is subject to any conditions that are specified in the management plan and also to any conditions imposed by the Director. The Director by s (2) may impose such conditions as he thinks fit and specifies in the authorisation. Of course any such condition could not be inconsistent with the Act or the management plan. By s 69(3) the Director may delete or vary conditions or add new conditions to an authorisation, but by s (4) the power in s (3) "does not apply to conditions specified in the Management Plan."
30 By s 74, s 75 and 222 any contravention of a management plan is constituted an offence for which substantial penalties and also very substantial additional penalties are provided, together with powers in the court to cancel or suspend an authorisation. By s 76 the Court must
(Page 14)
- reduce the entitlement under an authorization of an offender in specified circumstances.
The provisions of the South Coast Purse Seine Management Plan 1994
31 The following provisions in particular should be noticed as to the provisions of the Management Plan as it was in force at the time of the Tribunal's decision.
32 The limited entry fishery was declared and its area defined by cl 4 and sch 1. This was divided into zones, including Zone 4, which is the zone relevant for the purposes of this proceeding. Clause 6A was inserted by the amendment gazetted on 29 August 1997 and provided:
"6A (1) Subject to subclause 2 no licence is to be granted after the commencement of this amendment.
(2) The Executive Director may grant a licence authorising a person to fish in Zone 4 where all the following criteria are satisfied -
(a) the person is the holder of a fishing boat licence which was in force in respect of a fishing boat which was used during the period 1 March 1992 to 31 December 1993 to take for sale a minimum of 50 tonnes of small pelagic fish from the waters of Zone 4;
(b) the fish referred to in (a) were sold; and
(c) complete and correct returns were furnished under and in accordance with s 18 of the Fisheries Act 1905 in respect of the fish referred to in (a) and (b)."
(Page 15)
- under cl 11(1) or the renewal under cl 11(3) of a licence; in each case conditions may be endorsed on the licence. Clause 11(6) provides that:
"11 (6) The licence shall be endorsed to show -
(a) the name and licensed fishing boat number of the boat in respect of which it is issued,
…
(f) the number and type of units of entitlement specified in the licence, and the zones of the fishery in which the holder of the licence may operate,
…"
"12 (1) The authority to fish for small pelagic fish conferred by a licence which is in force on the date of commencement of this amendment shall be limited by reference to a specified quantity of small pelagic fish expressed in terms of units of entitlement.
…
(3) The numbers of Zone 3 or Zone 4 units of entitlement that shall be specified on a licence shall be equal to four-fifths (eighty (80) percentum) of the numbers of 'Class C' or 'Class D' units respectively that were specified on the licence on 20 August 1997."
34 Clause 13 provided for quotas. It provided:
"13 (1) A person shall not take small pelagic fish from the waters of the fishery other than in accordance with a unit of entitlement specified on a licence.
(2) The authority conferred by a licence to fish for small pelagic fish in the fishery shall be of no effect
(Page 16)
- unless, from the date of last renewal of the licence, the amount of small pelagic fish taken from the waters of the fishery under the authority or purported authority of the licence is less than the units of entitlement specified on the licence."
35 It may be seen from this brief summary of the Management Plan that it specified exhaustively the qualifications of those who might hold licences to operate in the Fishery and determined exhaustively the units of entitlement to be specified on a licence for a zone of the Fishery. The Director had no discretion or other power in these respects. It is the case, as was submitted for Guardon, that there was not any provision in the Management Plan which expressly provided to the effect that no additional or other licences might be granted, or other entitlements specified on a licence, but any such provision would be surplusage. The exhaustive provision that was made did not allow the possibility of additional or other licences or entitlements.
36 For present purposes the most material distinction between the Management Plan as it was in force at the time of the decision of the Tribunal and the Management Plan as in force at the time that the application was made and on which the Tribunal purported to act, was the then cl 12(7) which provided:
"12 (7) The number and class of units that shall be conferred by and endorsed on a licence granted after the commencement of this amendment and in accordance with cl 6A(2) is 25 Class D units of entitlement, provided that where the total amount of small pelagic fish to which the criteria relate is not less than 208 tonnes the number of Class D units that shall be conferred by the licence is the quotient of the number of tonnes divided by 8 rounded down to the nearest whole number."
- The notice of objection of the second respondent dated 20 June 1997 which gave rise to the appointment of the Tribunal was directed to demonstrating that the second respondent qualified under the proviso to cl 12(7). Before the Tribunal the second respondent submitted that the purpose of cl 12(7) was to specify criteria for the variation of an authorisation; s 142(3) of the Act. On the second respondent's argument to the Tribunal, if this were so, the second respondent was entitled as of right to the additional units which it sought. In dealing with the then cl 12(7) the Tribunal reached the conclusion, correctly in my respectful
(Page 17)
- view, that the then cl 12(7) did not provide criteria for the allocation of a further quota or allow a licence to be varied by granting additional quota. It was concerned to prescribe a formula for the conversion of the former zone units to class units. The Tribunal was of the view, therefore, that cl 12(7) did not assist the second respondent at all and provided no basis for the application to be dealt with pursuant to s 142(3) of the Act.
37 The correctness of this is not challenged by either party before this Court. It was by virtue of this that, in fact, the Tribunal's reliance on and application of the Management Plan in the form which included the disallowed amendments, did not in the end prove material to its decision. Clause 12(7) is the only material distinction identified by the parties. The Tribunal concluded it was of no relevance to the determination of the application.
Discretion to Vary
38 The essential point of the Tribunal's decision on which the Director's case is based is crystallised in the concluding words of the following extract from the Tribunal's reasons for decision"
"Therefore, cl 12(7) does not assist at all and accordingly s 142(3) does not apply. This means that the Objector is not entitled to the variation as of right and the Executive Director has a discretion whether or not to grant the variation."
- It is the submission for the Director that pursuant to the terms of this Management Plan, though not necessarily so for all management plans, he had no discretion to grant this application. The Management Plan did not provide for or permit that to occur.
39 The Tribunal having, by the words quoted above, concluded that the Director had a discretion to grant the application, it proceeded to determine how that discretion should be exercised. It did so on the basis that under the scheme of the Act the Tribunal is placed in the position of the Director once there is an objection to the public notification by the Director of his proposed decision, so that on the Minister convening the Tribunal and referring the proposed decision and the objection to the Tribunal, it is the scheme of the Act that the Tribunal should effectively stand in the shoes of the Director and determine the application. In my respectful view the Tribunal was correct in this perception of its role. The critical issue remains, however, whether the Director had any discretion in the matter which might be exercised by the Tribunal.
(Page 18)
40 The basis for the view that the Director had a discretion lies in three provisions of the Act; these are s 135(1), s 147(1) and s 142(1). Guardon relies primarily on s 142(1) which provides for three circumstances under which the Director may vary an authorisation. The first of these is:
"(a) The holder of the authorisation applies to the Executive Director for the variation."
- This provision is not expressly qualified or limited in any way. The second is the provision of s 135(1) which provides:
"135. (1) An application for the grant, renewal or variation of an authorization or for the transfer of an authorization or part of an entitlement under an authorization (an "application") must be -
(a) made to the Executive Director in a form approved for that purpose by the Executive Director;
(b) accompanied by the fee (if any) prescribed, or specified in the relevant management plan, for such an application; and
(c) accompanied by any information that the Executive Director reasonably requires for a proper consideration of the application."
41 This view commended itself to the Tribunal. It directed itself as to the factors, arising by implication from these provisions, which might be relevant to the exercise of that discretion and after a review of factual evidence it had received it was persuaded that, in the exercise of the discretion, the additional units should be granted.
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42 The Director objects that it was not open in law to the Tribunal or the Director to grant this application because the Management Plan had dealt exhaustively with the entitlement to Zone 4 units in respect of this Fishery and had done so in terms which left no room for a discretion to grant any additional entitlement. Reliance is placed on observations of Heerey J in Secretary, Department of Primary Industries and Energy v Collins (1992) 34 FCR 340 at 346.
43 From the review of the Management Plan which has been set out earlier it may be accepted that it purports to deal exhaustively with entitlements to Zone 4 units in respect of this Fishery and that there is no provision for any additional units whether discretionary or otherwise.
44 In answer to the Director's submissions, it is put that they involve the proposition that the Management Plan, which is subsidiary legislation, can curtail the operation of express language of the enabling Act. That, of course, could not be so. But on analysis that is not what is involved. Insofar as this Management Plan has dealt exhaustively with entitlements to Zone 4 units in respect of this Fishery and has made no provision for any discretionary units, the Management Plan has done so pursuant to express provisions of the enabling Act which allow, but do not require, a Management Plan to be framed to make provisions with these effects. These provisions can only be included after the consultation processes provided for original determination and amendment have been complied with. They are subject to disallowance.
45 The Management Plan having been determined or amended to include provisions to this effect, pursuant to the express enabling powers in the Act, the legal question which arises is whether there is conflict between the enabling provisions for management plans and s 135(1), s 147(1) and s 142(1). It is not a question of subsidiary legislation seeking to limit the operation of the enabling statute.
46 In this case s 135(1) and s 147(1) may be seen to be intended to provide a general procedural regime, rather than to deal with entitlements. Section 142, however, deals specifically with the variation of entitlements. While s 142(3) creates an entitlement to a variation when criteria specified in the Management Plan are satisfied, s 142(1) is merely a permissive provision. Section 142(1)(b) and (c) each stipulate criteria which give rise to a discretionary power to vary an authorisation; these are to correct an error, or to give effect to provisions of the Act. Section 142(1)(a) stands uniquely as lacking in specification of any criteria. Were it intended to create a power to vary to be exercisable merely on
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- application, ie unfettered and uncontrolled at all by criteria, then s 142(1) could have been drafted as a much shorter and simpler provision even though enabling variation at the instigation of the holder of the authorisation or the Director as is appropriate. Further, if s 142(1)(a) is to be construed as Guardon submits, that would preclude a management plan from making exhaustive provision for entitlements under authorizations, even though the scheme of the express earlier provisions appears to be directed to enabling that to occur, in a case that is where that is considered to be appropriate. Such an interpretation of s 142(1)(a) would appear not merely to be inconsistent with, but to contradict the effect of, express provisions such as, s 58(1), s 58(2)(b), (c), (d) and (j), s 59(1), s 60(1), s 60(2)(a), (b), (c), (e) and (g), especially their effect in combination.
47 The reconciliation of this possible contradiction is to be found, in my view, in an interpretation of s 142(1)(a) which sees its purpose as enabling variation, where that is possible under the terms of the Management Plan, but not as intended to create a right to variation where the terms of a duly made management plan are exhaustive and preclude variation. This could mean that in a case such as the present the procedure exists for the applicant to apply for variation but the Management Plan precludes the application being granted by the Director or the Tribunal. That appears to be a consequence which is more consistent with, and in furtherance of, the scheme of the Act than to give to s 142(1)(a) the operation and effect for which Guardon contends and on which the Tribunal acted in this case.
48 Guardon also sought to gain some support from s 7 of the Act. This confers powers in the Minister or the Director to exempt from specified provisions of the Act. By s 7(3), however, the Director's powers to exempt are curtailed to specific purposes. Exemption under s 7 was not a matter raised by the application with the Director, or pursued before the Tribunal, and there has been no consideration of the question whether the second respondent might come within any of the specified purposes. Further and critically, s 7 is a provision which deals with exemption. The power to exempt under s 7 is not a matter that is within the jurisdiction of a Tribunal.
49 Guardon also sought to gain some support from s 71(2) of the Act. Section 71 provides that engagement in a fishery before a management plan is determined does not confer any right to the grant of an authorisation once a management plan is determined but, despite this, the Director is to take into account a person's past history of fishing in a fishery when determining whether to grant an authorisation to the person. It is the contention for Guardon that because the Director must take into
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- account a person's past history of fishing in the fishery, and as that is a matter that may well not be provided for in the Management Plan, it follows necessarily that the Act contemplated that the Director would have regard to matters outside the scope of a management plan when deciding whether or not to grant an authorisation.
50 In my view this submission misconstrues the intended operation of s 71. It should be noted that s 71 is precisely mirrored by s 72 which deals with the situation where one management plan succeeds another. Further, s 71 does not provide or require that a person who has previously engaged in a fishery has an entitlement to an authorisation. Section 71, particularly s 71(2), is a provision of very general operation and is one which does not create substantive rights. Given the legislative scheme for the Act in respect of management plans it would be strange that a general provision such as s 71 was intended to override a management plan which, within the scope of the express legislative power provided by the Act, provided for the criteria which determined who might receive an authorisation. In my view s 71(2) is to be more readily seen as being directly in furtherance of s 66(1) which provides that if an applicant for an authorisation has satisfied the criteria specified in a management plan and has qualified in accordance with the procedure specified in the management plan then "the Executive Director may grant to the person an authorisation". (emphasis added). Section 71(2) has its place in the process by which the Director comes to consider the exercise of his discretion, which is expressly contemplated by s 66(1), whether or not to grant an authorisation . A consideration of the past history of fishing of an applicant by the Director could well be determinative, especially where there are more applicants than authorizations to be granted, or where an applicant who is otherwise within the criteria and has complied with the procedure has a bad record for offending against fisheries legislation.
51 Further, s 71 deals only with the grant of an authorisation. It is not dealing with the entitlement or quota to be endorsed on an authorisation. It is the extent of that entitlement which is now in issue. Guardon has been granted an authorisation. The discretion of the Director pursuant to s 66(1) read with s 71(2) (and pursuant to the then cl 6 of the original Management Plan) to grant an authorization has been exercised in favour of Guardon.
52 In my view s 71(2) cannot assist Guardon in these proceedings.
53 Guardon further seeks to contend that, even if the Director could not grant a variation of entitlement unless the Management Plan specified
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- criteria on which a variation might be allowed and Guardon satisfied those criteria, nevertheless, the Tribunal could do so by virtue of s 142(1). For the reasons already given the scheme of the Act should not be read to differentiate between the range of powers open to the Director and the Tribunal, and s 142(1) does not have the effect relied on in support of this contention. It would make a nonsense of the scheme of the Act if by s 142(1)(a) Guardian had to apply to the Director, who had no power to grant the application, to enable the Tribunal to exercise the power. In further support of this contention Guardon sought to gain some support from s 154. This section follows a rather familiar pattern by providing that the Tribunal is to act according to equity and good conscience and the substantial merits of the case without regard to technicalities and legal forms and is not bound by the rules of evidence, but is bound by the regulations in matters of procedure. Section 155 goes onto provide that a question of law which arises in proceedings for the Tribunal may be referred by way of case stated for the opinion of the Supreme Court which has jurisdiction to consider and determine that question of law. The effect of provisions such as s 154, especially where there is a provision for the Supreme Court to review questions of law arising in the proceedings, was considered by Gleeson CJ and Handley JA in their decision in Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29-31. I would respectfully adopt the reasoning of their Honours and apply to this present case the conclusion expressed by their Honours at 31 where they said:
"In our view the duty to act according to equity and good conscience, in the context of this Act, did not free the Tribunal from its duty to apply the general law in deciding the issues raised .…"
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55 Guardon also sought to gain some support from the history of the regulation of fisheries in this State in that under the Fisheries Act 1905 there was power in the Minister to adjust licences as the Minister thought fit. The submission of Guardon saw an echo of these words in s 152(2) of the present Act. While it may be said that the Tribunal today performs a function that has similarities to the function of the Minister under the 1905 Act, the generality of that proposition masks the many material distinctions between the legislative scheme of the 1905 Act and the present Act. So material are the distinctions that no valid support may be found from the role of the Minister under the previous Act in the interpretation of the role of the Tribunal, or of the Director, under the present Act.
Conclusion
56 In my respectful view, for the reasons given, the Tribunal fell into error of law which is apparent on the face of the record in granting this application. The order nisi should be made absolute.
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