Shine Fisheries Pty Ltd v The Minister for Fisheries
[2002] WASCA 11
•6 FEBRUARY 2002
SHINE FISHERIES PTY LTD -v- THE MINISTER FOR FISHERIES [2002] WASCA 11
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 11 | |
| THE FULL COURT (WA) | |||
| Case No: | CIV:2032/1999 | 13 OCTOBER 2000 | |
| Coram: | KENNEDY J PIDGEON J IPP J | 6/02/02 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi for writs of certiorari and mandamus made absolute Declaration that cl 8(4) of the Cockburn Sound (Line and Pot) Management Plan was beyond power and invalid | ||
| A | |||
| PDF Version |
| Parties: | SHINE FISHERIES PTY LTD THE MINISTER FOR FISHERIES PETER PHILIP ROGERS, EXECUTIVE DIRECTOR, FISHERIES WESTERN AUSTRALIA |
Catchwords: | Subordinate legislation Construction and validity of delegated legislation Proportionality Whether real exercise of the power |
Legislation: | Fisheries Act 1905 (WA), s 17, s 32, Fish Resources Management Act 1994 (WA), s 151(2), Third Schedule |
Case References: | Bank of New South Wales v Commonwealth (1948) 76 CLR 1 Coleman v Gray (1994) 55 FCR 412 Coulter v The Queen (1988) 164 CLR 350 Minister for Resources v Dover Fisheries Pty Ltd (1993) 116 ALR 54 Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402 Shanahan v Scott (1956) 96 CLR 245 South Australia v Tanner (1989) 166 CLR 161 Williams v Melbourne Corporation (1933) 49 CLR 142 Barker v Palmer (1881) 8 QBD 9 Birkdale District Electric Supply Co Ltd v Southport Corporation [1926] AC 355 Bond Corporation Holdings Ltd v Australian Broadcasting Tribunal (1988) 84 ALR 669; (1989) 86 ALR 424 Brunswick Corporation v Stewart (1941) 65 CLR 88 Chadwick v Commissioner of Stamp Duties (1977) 1 NSWLR 151 Re Ciffolilli; ex parte Rogers [1999] WASCA 205 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1978) 2 ALD 634 Federal Commissioner of Taxation v S Hoffnung & Co Ltd (1928) 42 CLR 39 Harris v Commissioner of Succession Duties [1941] SASR 173 La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 Lawrie v Lees (1881) 7 AC 19 Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 Mixnam's Properties Ltd v Chertsey Urban District Council [1964] 1 QB 214 Re Death of MRG (decd); ex parte Curtin; unreported; SCt of WA (Owen J); Library No 970280; 29 May 1979 P W Adams Pty Ltd v Australian Fisheries Management Authority (1995) 60 FCR 387; (1995) 61 FCR 314 Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332 Perder Investments Pty Ltd v Lightowler (1990) 25 FCR 150 Transport Amalgamated Pty Ltd v AAA Transport Services Pty Ltd [1975] WAR 101 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : SHINE FISHERIES PTY LTD -v- THE MINISTER FOR FISHERIES [2002] WASCA 11 CORAM : KENNEDY J
- PIDGEON J
IPP J
- Plaintiff
AND
THE MINISTER FOR FISHERIES
Defendant
BETWEEN : SHINE FISHERIES PTY LTD
- Applicant
AND
PETER PHILIP ROGERS, EXECUTIVE DIRECTOR, FISHERIES WESTERN AUSTRALIA
Respondent
(Page 2)
Catchwords:
Subordinate legislation - Construction and validity of delegated legislation - Proportionality - Whether real exercise of the power
Legislation:
Fisheries Act 1905 (WA), s 17, s 32,
Fish Resources Management Act 1994 (WA), s 151(2), Third Schedule
Result:
Order nisi for writs of certiorari and mandamus made absolute
Declaration that cl 8(4) of the Cockburn Sound (Line and Pot) Management Plan was beyond power and invalid
Category: A
(Page 3)
Representation:
CIV 2032 of 1999
Counsel:
Plaintiff : Mr C L Zelestis QC & Mr G I Macnish
Defendant : Ms C J Thatcher
Solicitors:
Plaintiff : Cocks Macnish
Defendant : State Crown Solicitor
CIV 2033 of 1999
Counsel:
Applicant : Mr C L Zelestis QC & Mr G I Macnish
Respondent : Ms C J Thatcher
Solicitors:
Applicant : Cocks Macnish
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Bank of New South Wales v Commonwealth (1948) 76 CLR 1
Coleman v Gray (1994) 55 FCR 412
Coulter v The Queen (1988) 164 CLR 350
Minister for Resources v Dover Fisheries Pty Ltd (1993) 116 ALR 54
Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402
Shanahan v Scott (1956) 96 CLR 245
South Australia v Tanner (1989) 166 CLR 161
Williams v Melbourne Corporation (1933) 49 CLR 142
(Page 4)
Case(s) also cited:
Barker v Palmer (1881) 8 QBD 9
Birkdale District Electric Supply Co Ltd v Southport Corporation [1926] AC 355
Bond Corporation Holdings Ltd v Australian Broadcasting Tribunal (1988) 84 ALR 669; (1989) 86 ALR 424
Brunswick Corporation v Stewart (1941) 65 CLR 88
Chadwick v Commissioner of Stamp Duties (1977) 1 NSWLR 151
Re Ciffolilli; ex parte Rogers [1999] WASCA 205
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1978) 2 ALD 634
Federal Commissioner of Taxation v S Hoffnung & Co Ltd (1928) 42 CLR 39
Harris v Commissioner of Succession Duties [1941] SASR 173
La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201
Lawrie v Lees (1881) 7 AC 19
Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381
Mixnam's Properties Ltd v Chertsey Urban District Council [1964] 1 QB 214
Re Death of MRG (decd); ex parte Curtin; unreported; SCt of WA (Owen J); Library No 970280; 29 May 1979
P W Adams Pty Ltd v Australian Fisheries Management Authority (1995) 60 FCR 387; (1995) 61 FCR 314
Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332
Perder Investments Pty Ltd v Lightowler (1990) 25 FCR 150
Transport Amalgamated Pty Ltd v AAA Transport Services Pty Ltd [1975] WAR 101
(Page 5)
1 KENNEDY J: Commercial fishing in Cockburn Sound was at its height in the two years prior to 1985, when up to 70 fishing boats were operating in these waters. This heavy commercial fishing in Cockburn Sound coincided with the area's developing into an important recreational fishery. Access to commercial fishing in Cockburn Sound was granted by way of an endorsement on a fishing boat licence, which excepted the fishing boat licence holder from the general prohibition against commercial fishing activities in Cockburn Sound imposed by notices gazetted from time to time by the Minister for Fisheries. By a notice published in the Government Gazette on 1 December 1989, the Minister for Fisheries, pursuant to s 9 of the Fisheries Act 1905 (WA), prohibited all holders of professional fisherman's licences from taking, or attempting to take, fish with the use of a boat in Cockburn Sound, other than the holder of a professional fisherman's licence using a licensed fishing boat, the licence for which was endorsed permitting it to be used to take fish in those waters. No additional endorsements were granted after 1985, and in the event of a transfer of a licence bearing such an endorsement, the endorsement was removed. These measures led to a small reduction in boat numbers; but as licence holders were not required personally to operate their boats, some licence holders entered into lease agreements, which resulted in the maintenance of high levels of commercial fishing in Cockburn Sound into the 1990s.
2 On 24 February 1995, pursuant to s 32 of the Fisheries Act, the Cockburn Sound (Line and Pot) Limited Entry Fishery Notice 1995 (Notice No 660) ("the Notice") was published in the Government Gazette. It commenced to operate on 1 March 1995. The relevant terms of the Notice are set out in detail later in these reasons.
3 The plaintiff/applicant, Shine Fisheries Pty Ltd, is a company carrying on the business of commercial fishing in Western Australian waters. On 16 August 1995, it became the holder of Limited Fishery Licence No 2486 ("the Licence), granted under cl 8(2) of the Notice, which entitled it to fish in the Cockburn Sound (Line and Pot) Limited Entry Fishery ("the Fishery"). The licensed fishing boat was the "San Stefano" identified as LFB F633. Mr Scott Collins was engaged by Shine Fisheries Pty Ltd as its skipper and was nominated as the operator of the licensed boat. By virtue of the requirements of the Notice, unless he was otherwise authorized in writing by the Director, when the authorized boat was in the waters of the Fishery, Mr Collins was required to be on board the boat, and when the boat was operating in the fishery, to be in control of, or in charge of, those activities. Shine Fisheries Pty Ltd had the
(Page 6)
4 The original Licence granted to Shine Fisheries Pty Ltd in relation to the Fishery is not to be found in the evidence before us, nor is the nomination of Mr Collins as the operator under the licence. However, a copy of the Licence granted to Shine Fisheries Pty Ltd for the calendar year 1999 is annexed to the affidavit of Mr P J Millington, the Director of Fisheries Management Services in the Fisheries Department. The Licence identifies Mr Collins as being the "nominated operator" of LFB F633. This appears under what is termed Condition 20, although only two conditions are referred to in the Licence itself, the other, unnumbered, condition being that the holder of the Licence, or any persons acting on that person's behalf, must hold a commercial fishing licence. There is no reference in the Licence to the Director's approval having been given to the appointment of Mr Collins as the nominated operator; but no doubt this was implicit in the issuing of the original Licence - see cl 8(2) of the Notice.
5 Shine Fisheries Pty Ltd, in addition, holds 11 other licences, entitling it to operate within Western Australian Managed Fisheries. It owns five commercial fishing vessels which are operating in Western Australian waters and, under a joint venture agreement with Ocean Trawlers Pty Ltd, it is now the holder of two additional licences entitling it to operate within Western Australian Managed Fisheries. The joint venture owns two commercial fishing vessels operating in these waters.
6 Although there were, at the commencement of these proceedings, 30 licence holders in the Cockburn Sound Fishery, almost half of the licence holders were inactive and, in his affidavit, Mr Millington suggested that they posed a significant "latent effort" problem which would threaten the sustainability of the Fishery should all the licence holders undertake full-time fishing in the Fishery. Shine Fisheries Pty Ltd has itself been one of the inactive licence holders, and it has never submitted to the Fisheries Department (now known as Fisheries Western Australia) any record of a catch taken. At the time of Mr Millington's swearing his affidavit on 22 November 1999, of the 30 current licence holders, eight were held by bodies corporate, and a further five licences were held by two or more natural persons. The Fishery had decreased in size during the two years prior to the date of the affidavit, and production figures based on the statutory fishing returns lodged by fishers with the Fisheries Department for 1997-1998 totalling 13 tonnes at an estimated worth of $46,583, with nine vessels fishing over that period, and for
(Page 7)
- 1996-1997, 16 tonnes at an estimated worth of $57,525, with 15 vessels fishing over that period.
7 It is desirable at the outset to refer to the statutory scheme for the regulation of the fishing industry and for the conservation and management of fisheries, which was based upon a system of licensing.
8 Section 17(1) and (2) of the Fisheries Act provided as follows:
"(1) The granting, renewal, removal or transfer, whether with or without conditions as hereafter in this section mentioned, of any licence shall not be deemed to be as of right, but shall, subject as hereinafter provided, be in the discretion of the officer appointed to issue licences (hereinafter in this section referred as 'the Licensing Officer').
(2) Every Licensing Officer, other than the Minister, shall obey, and observe such directions, (including the imposition of conditions), as the Minister may give him regarding the granting, renewal, removal or transfer of licences or of any particular licence, and any grant, renewal, removal, or transfer of any licence contrary to any such direction shall be null and void."
9 Section 17(3) provided that, subject to any direction of the Minister, the Licensing Officer might in his discretion grant, renew, remove or transfer any licence, upon conditions which were to be reduced to writing and might be endorsed on the licence. Such conditions could be added to, varied, cancelled or suspended at any time, and from time to time, during the currency of the licence, and might include conditions relating to any one or more of the matters set out in the subsection. Those matters included: "(e) such other conditions as the Minister may consider shall be in the interests generally of the fishing industry or of the State."
10 By s 17(3a) the Minister was empowered, in his discretion at any time, by notice in writing given to the licensee, to suspend for any period he might think fit, or cancel, any licence issued under the Act.
11 Section 17(4) empowered any person who considered himself aggrieved by the refusal of a licence or of the renewal, removal, suspension, cancellation or transfer of a licence, or by the imposition of any one or more conditions, to appeal to the Minister, who might, if he thought fit, direct the licence to be issued, renewed, removed, restored or
(Page 8)
- transferred or to remain suspended or cancelled, as the case may be, either without conditions or subject to the same or other conditions, as he might think fit.
12 By s 32(1) of the Fisheries Act, the Minister was empowered, by notice published in the Government Gazette, to declare any fishery in which fish, aquatic organisms or products were taken for sale or disposal for gain or reward to be a limited entry fishery.
13 Section 32(2) provided as follows:
"A notice under subsection (1) in relation to a limited entry fishery may specify –
(a) the species of fish or aquatic organisms or products that constitutes the limited entry fishery;
(b) a description of the waters included or not included;
(c) the criteria which would be applied to determine the boats or persons which may operate in that fishery;
(d) the maximum number of fishing boat licences and professional fisherman's licences which may be issued or endorsed so as to authorize the boat or person licensed to operate in relation to that fishery;
(e) the procedure and form for issuing those licences and endorsements;
(f) the period for which such a licence or endorsement shall be valid;
(g) the number and type of fishing gear and fishing boats authorized to operate by such a licence or endorsement;
(h) the manner, time, period and area of fishing and the means of capture that may or shall not be used either by specified boats or by all boats or by specified persons or by all persons;
(i) the method of giving notice from time to time of the names and addresses of licensees authorized to engage in that fishery or in any specified operations in that fishery;
(Page 9)
- (j) the names and registration numbers of boats so authorized; and
(k) the method by which boats or persons authorized to operate in that limited entry fishery shall be replaced, and by which an authorization may be transferred."
14 By s 32(3), it was provided that a licence or endorsement authorizing a boat or person to operate in a limited entry fishery should be granted, and renewed, subject to the payment by the licensee of the prescribed annual fee in relation to that licence or endorsement which was to be calculated as specified in that subsection.
15 By s 32(4), a notice declaring any fishery to be a limited entry fishery could be varied or revoked by the Minister by notice published in the Government Gazette, which notice might suspend or cancel all or any part of the operations specified therein.
16 Section 32(5) of the Fisheries Act provided that a person who was not the holder of a professional fisherman's licence might, subject to the Act (except for s 32 and any notice made thereunder), take or keep any fish, aquatic organism or product, the subject of a limited entry fishery, for his own personal use or pleasure, but might not sell or otherwise dispose of that fish, aquatic organism or product for gain or reward.
17 It is necessary now to have regard to the terms of the Notice. The term "Fishery" is defined in cl 3 of the Notice to mean the Cockburn Sound (Line and Pot) Limited Entry Fishery declared under clause 4. The term "authorized boat" is defined in the same clause to mean a licensed fishing boat, in respect of which a licence is issued pursuant to the Notice. The term "authorized person" was amended on 27 November 1998 to mean:
"(a) in the case where the licence holder does not also hold a class A licence in the Cockburn Sound (Crab) Managed Fishery, the nominated operator or if no nominated operator, the holder of the licence; or
(b) in the case where the licence holder does also hold a class A licence in the Cockburn Sound (Crab) Managed Fishery, the holder of the licence or a person acting on that person's behalf."
(Page 10)
18 By cl 4 of the Notice, it is declared that the taking of any species of fish or otherwise operating from the waters described in the Schedule to the Notice by line or octopus pot shall constitute a limited entry fishery named the Cockburn Sound (Line and Pot) Limited Entry Fishery.
19 Clause 6 of the notice provides:
"A person, other than a person to whom section 32(5) of the Act applies, shall not operate in the Fishery unless -
(a) the person holds a professional fisherman's licence issued pursuant to the Regulations; and
(b) the person operates from an authorized boat."
21 Clause 8 of the Notice, as amended on 27 November 1998, relevantly provides:
"8(1) The licensee of a licensed fishing boat as described in Clause 7 may apply to the Director [of Fisheries] for a licence to operate in the Fishery.
(2) Where more than one person (whether natural persons or otherwise) or a body corporate is the proposed licensee and that proposed licensee does not hold a class A licence in the Cockburn Sound (Crab) Managed Fishery, the proposed licensee must nominate one natural person to be the nominated operator and a licence shall not issue unless the Director approves such nomination.
(2A) Where a licence is held in the manner described in subclause (2) and the licence holder holds a class A licence in the Cockburn Sound (Crab) Managed Fishery,
(Page 11)
- the Executive Director may vary the licence by removing the name of the nominated operator.
- (2B) Where a licence has been varied by the Executive Director in accordance with subclause (2A), the licence continues to operate as if the provisions of subclause (2) had not been made.
(3) A nomination made under subclause (2) shall be in writing to the Director on the approved form.
(4) Subject to clause 13, the nominated operator of a licence shall not be replaced.
(5) A licensee may apply to the Director for the renewal of a licence at any time within 30 days before the licence expires.
(6) If the Director considers that it is appropriate to do so, the Director may in the case of an application under -
(a) subclause (1) – approve the issue of a licence;
(b) subclause (3) – approve the person nominated to be the nominated operator of the licence; or
(c) subclause (5) – approve the renewal of a licence
(7) Where the Director has approved the issue or renewal of a licence, the licence expires on 31 December of the year for which the licence was issued.
(8) A licence may be issued or renewed subject to conditions that shall be endorsed on it.
(9) When a licence is issued or renewed, the licence shall be endorsed to show … (b) the name and address of the licensee and nominated operator (if any) of that boat …".
22 The relevant subclause of cl 13 to which cl 8(4) was initially subject was deleted on 27 November 1998. From that date, in terms of cl 8(4), no nominated operator of a licence could be replaced.
23 Clause 9 of the Notice provides as follows:
(Page 12)
- "9(1) Notwithstanding the provisions of clause 7, the licensee of a licensed fishing boat that does not satisfy the criteria mentioned in clause 7 may, on application and with the written approval of the Minister, be issued with a licence to operate in the Fishery.
(2) The Minister may, pursuant to this clause, direct that any licence (including a supplementary licence) be issued.
(3) Without limiting subclause (2), a licence issued under this clause may be restricted –
(a) to any part of the Fishery;
(b) to any period of operation; and
(c) by any conditions that the Minister may impose."
"10. Unless otherwise authorized in writing by the Director, an authorized person shall –
(a) when the authorized boat is in the waters of the Fishery, be on board the authorized boat; and
(b) when the authorized boat is being used to operate in the waters of the Fishery, be in control of or in charge of those activities."
26 Clause 12(1) provides that an authorized boat may only be replaced by another licensed fishing boat with the prior written approval of the Director.
27 The transfer of licenses is dealt with in cl 13 of the Notice, which, as amended on 27 November 1998, provides as follows:
"13(1) A licensee who –
(a) in respect of an authorized boat holds a licence and a class A licence in the Cockburn Sound (Crab) Limited Entry Fishery; and
(Page 13)
- (b) has obtained the prior written approval of the Director
may on application made to the Director, transfer both licences simultaneously with the authorized boat or to the licensee of another licensed fishing boat which qualifies under clause 12 as a replacement boat for the authorized boat.
- (2) Except as provided in this clause, a licence shall not be transferred.
(3) The licences affected by a transfer under this clause shall be endorsed accordingly."
28 The Fisheries Act was repealed and replaced by the Fish Resources Management Act 1994 (WA) which was proclaimed to come into operation on 1 October 1995.
29 By cl 8 of Schedule 3 to the Fish Resources Management Act, it is provided that a fishery that was, immediately before the commencement of the Act, a limited entry fishery under s 32 of the repealed Act is, on the commencement of this Act, taken to be a "managed fishery".
30 By cl 9(1) of Schedule 3 it is provided as follows:
"(1) A notice under section 32 of the repealed Act in force immediately before the commencement of this Act continues to have effect, on the commencement of this Act, and may be amended or repealed, as if the notice were a management plan determined under section 54 [of the Fish Resources Management Act] and as if a reference in the notice –
(a) to a limited entry fishery were a reference to a managed fishery;
(b) to a licence, or an endorsement on a licence, in respect of the limited entry fishery were a reference to a managed fishery licence;
(c) to the repealed Act or a provision of the repealed Act were a reference to this Act or to the corresponding provision of this Act;
(Page 14)
- (d) to the Director were a reference to the Executive Director."
31 If at the time of its publication, cl 8(4) of the Notice was beyond the powers conferred upon the Minister by the Fisheries Act, in my opinion, it was not capable of constituting a part of the Notice which was "in force" immediately before the commencement of the repealed Act. It could not, ex post facto, have validity conferred on it by the new Act.
32 In or about October 1997, Shine Fisheries Pty Ltd transferred Mr Scott Collins from the "San Stefano" to another of its vessels, the "Mana", which operated in the West Coast Purse Seine Managed Fishery. Shine Fisheries Pty Ltd contended that it was necessary to transfer Mr Collins to the "Mana" as no suitable person, not otherwise engaged by either Shine Fisheries Pty Ltd or the joint venture, could be found to skipper that vessel. He was said to be the only skipper engaged by Shine Fisheries Pty Ltd and the joint venture suitably skilled and experienced in the fishing method used in the Purse Seine Fishery. It was contended by Shine Fisheries Pty Ltd that, since Mr Collins had been transferred to the "Mana", the company has been unable to utilise the Licence and it was argued that, if he were to be transferred back to the "San Stefano", Shine Fisheries Pty Ltd would suffer a significant economic loss.
33 Shine Fisheries Pty Ltd further contended that the effect of cl 8(4) of the Notice would have been unreasonably to inhibit the exploitation of the Licence, and the management of its business, even if Mr Collins were to have been transferred back to the "San Stefano", because it would lose the Licence and could not operate in the Fishery should Mr Collins die or become incapacitated, or if he should lose his Commercial Fishing Licence for reasons unconnected with the Fishery, or if it terminated Mr Collins' employment. As events ultimately transpired, on 26 November 1999, following the institution of the present proceedings, Mr Collins resigned from his employment with Shine Fisheries Pty Ltd.
34 If cl 8(4) of the Notice is a valid provision, the Licence has now become worthless by reason of the position which Mr Collins vacated not being capable of being filled. In an attempt to overcome this situation, by an application dated 14 December 1998, Shine Fisheries Pty Ltd sought a variation of the Licence by substituting Mr Radomir Bilcich as the nominated operator in the place of Mr Collins. There is no suggestion in the material before us that there has been any attempt by the respondent to cancel the Licence under s 144 of the Fish Resources Management Act or otherwise.
(Page 15)
35 By a letter dated 9 February 1999, the Executive Director advised Shine Fisheries Pty Ltd that he proposed not to grant the requested variation, for the reason that cl 8(4) of the Cockburn Sound (Line and Pot) Management Plan stated that the nominated operator of a licence shall not be replaced. Notwithstanding that assertion, the letter went on to indicate that, in accordance with s 149 of the Fish Resources Management Act, within 21 days after being given notice of his proposal not to grant the application, Shine Fisheries Pty Ltd could lodge an objection with the Executive Director. By s 149(4), any such objection is required to be referred to the Minister.
36 On 9 March 1999, the solicitors acting for Shine Fisheries Pty Ltd wrote to the Executive Director, noting that the period of 21 days allowed for an objection had expired, and seeking an extension of time for lodging a notice of objection. The Executive Director replied to this letter on the same day, expressing the opinion that he had no discretion to refer to the Minister an objection received outside the 21-day period, regardless of the reasons for the delay. Accordingly, he said, he was unable to refer the objection to the Minister with a view to the establishment of a Tribunal under s 152 of the Act.
37 Notwithstanding this unfavourable response, on 10 March 1999, Shine Fisheries Pty Ltd lodged a notice of objection to what was described as the proposed decision of the Executive Director not to grant a variation changing the nominated operator from Mr Collins to Mr Bilcich. The ground for the objection was that cl 8(4) of the Cockburn Sound Management Plan was ultra vires. The notice of objection was returned by the Executive Director of Fisheries to the solicitors for Shine Fisheries Pty Ltd under cover of a letter dated 10 March 1999, in which he maintained that the notice of objection was invalid.
38 The solicitors for Shine Fisheries Pty Ltd, in a letter dated 12 March 1999, advised the Executive Director of their view that he had a discretion to accept the notice of objection out of time, adding that, if he were not prepared to exercise his discretion, their client would simply reapply for the variation previously sought by him and that, on the assumption that the Executive Director's proposed decision in respect of that application would be the same as that in respect of the first application, they would then object to it. A fresh application for a change of the nominated operator was then forwarded to the Executive Director, who declined to consider it.
(Page 16)
39 Further correspondence ensued, with neither of the parties departing from their previously expressed views.
40 On 8 October 1999, Shine Fisheries Pty Ltd obtained an order nisi for a writ of certiorari directed to the Executive Director to show cause why his decision made on 16 March 1999 to refuse its first application to change the nominated operator approved under Cockburn Sound (Line and Pot) Managed Fishery Licence 2486 should not be quashed, on the grounds that:
"(i) clause 8(4) of the Cockburn Sound (Line and Pot) Management Plan, which purports to prohibit the replacement of a nominated operator, and upon which the Executive Director relied in refusing the [first] application, is beyond power and is invalid;
(ii) the Executive Director erred in law in failing to consider the applicant's notice of objection dated the 10th March 1999; and
(iii) the Executive Director erred in law in failing to consider the [first] application on its merits or at all."
41 Shine Fisheries Pty Ltd also obtained an order nisi for a writ of certiorari, directed to the Executive Director, to show cause why his decision made on 18 March 1999 not to consider its further application dated 15 March 1999 to change the nominated operator under the licence should not be quashed, on the grounds that:
"(i) on the proper construction of s 151(2) of the Fish Resources Management Act 1994, that provision did not preclude the making of the further application following the refusal of the original application;
(ii) the Executive Director was under a statutory duty to consider and determine the further application on its merits."
42 The respondent was further called upon to show cause before the Full Court why a writ of mandamus should not be issued against him, directing him to consider and determine the original application or, alternatively, the further application, according to law, on the foregoing grounds.
(Page 17)
43 By an originating summons dated 16 September 1999, Shine Fisheries Pty Ltd sought a declaration, as against the Minister for Fisheries, that cl 8(4) of the Cockburn Sound (Line and Pot) Management Plan is beyond power and invalid.
44 Particulars of the grounds for the declaration were subsequently provided pursuant to an order of the Court. They were as follow:
"1. The [Minister for Fisheries] purportedly pursuant to Section 32 of the Fisheries Act 1905 ('the Fisheries Act') promulgated Cockburn Sound (Line and Pot) Limited Entry Fishery Notice 1995, Notice No 660 ('the Notice') the operation of which commenced on the 1st March, 1995.
2. The Notice by Clause 4 thereof declared the Cockburn Sound (Line and Pot) Limited Entry Fishery ('the Fishery').
3. The Fisheries Act was repealed by the Fish Resources Management Act 1994 ('the FRMA') which, pursuant to Section 2 [thereof] came into operation on the 1st October, 1995.
4. Pursuant to Clause 9 of Schedule 3 to the FRMA the Notice, or such parts thereof which had been validly promulgated, continued to have effect on the commencement of the FRMA as if the Notice were a Management Plan ('the Management Plan') determined under Section 54 of the FRMA.
5. Pursuant to Clause 10 of Schedule 3 to the FRMA a licence in force under the Fisheries Act immediately before the commencement of the FRMA continues in force on the commencement of the FRMA as if it were a Managed Fishery Licence granted under Section 66 of the FRMA.
6. The Management Plan is, pursuant to Section 55 FRMA subsidiary legislation for the purposes of the Interpretation Act 1984.
7. At all material times [Shine Fisheries Pty Ltd] was the registered licensee of Managed Fishery Licence 2486
(Page 18)
- ('the Licence') issued pursuant to and in respect of the Management Plan.
- 8. The Licence is a Licence in respect of the Fishery.
AN APPLICATION TO VARY LICENCE
9. By Application dated the 15th March, 1999 [Shine Fisheries Pty Ltd] sought a variation of the Licence by changing the nominated operator from Scott Collins to Radomir Bilcich ('the Application').
10. The Executive Director of Fisheries, Western Australia ('the Executive Director') refused the Application purportedly on the ground that Clause 8(4) of the Management Plan precluded the replacement of the nominated operator of the Licence.
VALIDITY OF CLAUSE 8(4) OF THE MANAGEMENT PLAN
11. The power of the [Minister for Fisheries] to promulgate a notice under the Fisheries Act is and was limited to the purposes specified in the Fisheries Act which did not include nor authorise the inclusion of Clause 8(4) in the Notice which was in consequence beyond power and invalid.
12. The power of the [Minister for Fisheries] to promulgate a management plan, alternatively, the Management Plan and the power to include provisions therein is, by Section 56(3) of the FRMA, limited to those provisions that, in the [Minister's] opinion, are necessary for the protection or management of the Fishery or any part of the Fishery the subject of the Management Plan.
13. Alternatively to paragraph 12 hereof only those provisions of the Notice which were valid or, which if promulgated originally under Section 54 of the FRMA as a management plan would have been valid and within the power of the [Minister for Fisheries] under Section 56 of the FRMA continue to have effect as valid provisions of the Management Plan.
(Page 19)
- 14. The Fisheries Act contemplated, and the FRMA contemplates that, and authorises the variation of, authorisations including the Licence.
15. By Clause 8(2) of the Management Plan the [Minister for Fisheries] was required to nominate [sic] one natural person to be the nominated operator of the Licence.
16. Clause 8(4) of the Management Plan purports to provide that 'the nominated operator of a licence shall not be replaced'.
17. Clause 8(4) of the Management Plan:
(i) is not necessary for the protection or management of the Fishery or any part of the Fishery;
(ii) is not a provision that is, or could properly be said to be, a provision which, in the [Minister for Fisheries'] opinion, was necessary for or in respect of any of the matters pleaded in sub-paragraph (i) hereof;
(iii) subject to Clause 13 of the Management Plan, inconsistently with the provisions of the FRMA, purports to preclude absolutely the variation of the Licence contrary to the provisions of the FRMA;
(iv) is inconsistent with the express provisions, alternatively the manifest intention, of the FRMA;
(v) is a provision which is manifestly arbitrary and leads to injustice;
(vi) is not reasonably proportionate to the pursuit of the enabling purpose contained within the FRMA.
18. In the premises Clause 8(4) of the Management Plan is beyond power and invalid."
45 It was ordered that the originating summons be reserved for the determination of the Full Court and that it be heard together with the applications for the prerogative writs.
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46 The authority for the Minister's publishing the Notice must be found in s 32 of the Fisheries Act. Section 32(2) sets out the matters which may be specified in such a Notice. It does not confer upon the Minister any broad, general power, as is frequently to be found when provision is made for delegated legislation in an Act of Parliament. On the contrary, it is quite precise, and relatively restrictive, in its terms. Section 32 is to be compared with the breadth of the power of the Minister to impose conditions in granting licences, as to which see s 17(3)(e). And see also s 6(1)(o).
47 Although there is no reference in s 32 of the Fisheries Act to nominated operators, as such, it is provided in s 32(2)(k) that a notice in relation to a limited entry fishery may, inter alia, specify the methods by which persons authorized to operate in the fishery should be replaced and by which an authorization may be transferred. The expressions "authorized" and "authorization" are not defined in the Fisheries Act; but, on the face of it, there would seem to be no reason for excluding Mr Collins, at the relevant times, from the category of persons authorized to operate in the Fishery. Thus, in cl 10 of the Notice, it is provided that, unless authorized in writing by the Director, an authorized person shall, when an authorized boat is being used to operate in the waters of the Fishery, be in control of, or in charge of, those activities. Accordingly, the Act expressly contemplated the replacement of authorized persons. It did not, on the face of it, contemplate a prohibition against the replacement of all authorized persons.
48 Clause 8(4) of the Notice, since the deletion of the original cl 13(2), purports absolutely to prohibit the replacement of a nominated operator under a licence. The need for such a replacement could arise for a multiplicity of reasons, including the death, illness or other incapacity of the operator, his dismissal or resignation, events which are not directly related to the proper control of the Fishery, but which may well be described as fortuitous, arbitrary or haphazard. Furthermore, neither the legislation, nor the Notice, makes any reference to the removal of the licence in such an eventuality, although there was provision for the removal or non-renewal of a licence in s 17 of the Fisheries Act, and there is now such a provision in s 143 of the Fish Resources Management Act, for the cancellation, suspension and non-renewal of authorisations, subject to a right of objection on the part of a licence holder under Part 14 of that Act. Under s 149(1), an "affected person", a term defined in s 146, is given a right of objection to a proposal under s 147(1) of the Act within 21 days after being given notice of the proposal. Section 147, however,
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- deals only with authorizations, an expression defined in s 4(1) to mean "a licence or permit".
49 Section 17 of the Fisheries Act, in my opinion, must necessarily be read with s 32. Section 17(1) applies to "any" licence, as do subsections (2) and (3), whilst subsection (3a) refers to the Minister having the discretion at any time, by notice in writing given to the licensee, to suspend for any period he may think fit, or cancel "any licence issued under this Act". Subsection (4) then goes on to give any person aggrieved by, inter alia, the suspension or cancellation of a licence a right of appeal to the Minister. When, for whatever reason, a nominated operator of a licence ceases to act in that capacity the licence is not automatically cancelled, but for all practical purposes the effect is the same as if it had been, with the important exception that the licence holder would have had no right of appeal under s 17(4) of the Fisheries Act and has no right of appeal against the "cancellation" under Pt 14 of the Fish Resources Management Act. Clause 8(4), as Senior Counsel for Shine Fisheries Pty Ltd observed, penalises a licence holder in an absolute way, simply because the operator is no longer there, and no consideration is given to the determination of the matter in accordance with its merits. The terms of cl 8(4), eliminating any discretion, are inconsistent with the emphasis placed by s 17 on discretionary considerations.
50 The Notice falls within the definition of subsidiary legislation in s 5 of the Interpretation Act 1984 (WA), being a notice made under a written law and having legislative effect. By s 43(1) of the Act, subsidiary legislation is not to be inconsistent with the provisions of the written law under which it was made, and subsidiary legislation is declared to be void to the extent of any such inconsistency. Reference was also made on behalf of the defendant and the respondent to s 7 of the Act. This is, however, concerned with the limits of the legislative power of the State, which is not relevant to these proceedings.
51 In Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402, the High Court was concerned with the validity of a regulation under the Excise Act 1901 (Cth). Section 164 of the Excise Act provides as follows:
"The Governor-General may make regulations not inconsistent with this Act prescribing all matters which by this Act are required or permitted to be prescribed or as may be necessary or convenient to be prescribed for giving effect to this Act or for the conduct of any business relating to the Excise."
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52 At 410 in their joint judgment, Dixon CJ, McTiernan, Williams, Webb, Fullagar and Kitto JJ said:
"There is no provision in the Act prescribing any matter or expressly permitting any matter to be prescribed to which the regulation would be relevant. The validity of the regulation, therefore, depends upon the words 'all matters … as may be necessary or convenient to be prescribed for giving effect to this Act or for the conduct of any business relating to the Excise'. A statutory power of this description has been considered by this Court in Carbines v Powell (1925) 36 CLR 88; Gibson v Mitchell (1928) 41 CLR 275; Broadcasting Co of Australia Pty Ltd v The Commonwealth (1935) 52 CLR 52.
A power expressed in such terms to make regulations enables the Governor-General in Council to make regulations incidental to the administration of the Act. Regulations may be adopted for the more effective administration of the provisions actually contained in the Act, but not regulations which vary or depart from the positive provisions made by the Act or regulations which go outside the field of operation which the Act marks out for itself. The ambit of the power must be ascertained by the character of the statute and the nature of the provisions it contains. An important consideration is the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned.
In an Act of Parliament which lays down only the main outlines of policy and indicates an intention of leaving it to the Governor-General to work out that policy by specific regulation, a power to make regulations may have a wide ambit. Its ambit may be very different in an Act of Parliament which deals specifically and in detail with the subject matter to which the statute is addressed. In the case of a statute of the latter kind an incidental power of the description contained in s 164 cannot be supposed to express an intention that the Governor-General should deal with the same matters in another way."
53 Subsequently in Shanahan v Scott (1956) 96 CLR 245 the High Court was concerned with the regulation making power under the marketing of Primary Products Acts 1935 (Vict). Section 43(1) of the Act began by conferring on the Governor in Council a power in very general terms to make regulations. It then proceeded to give particular powers,
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- the granting of which was not to affect the generality of what had preceded them. The judge at first instance relied in part upon the general power authorising the Governor in Council to make regulations providing for all or any purposes (whether general or to meet particular cases) necessary or expedient for the administration of the Act or for carrying out the objects of the Act. Dixon CJ, Williams, Webb and Fullagar JJ, at 250, said:
"Powers of this kind have been discussed in more than one case in this court; see Carbines v Powell (1925) 36 CLR 88; Gibson v Mitchell (1928) 41 CLR 275; Broadcasting Co of Australia Pty Ltd v The Commonwealth (1935) 52 CLR 52; Grech v Bird (1936) 56 CLR 228; Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402 at 409, 410.
The result is to show that such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends."
"To determine whether a by-law is an exercise of a power, it is not always enough to ascertain the subject matter of the power and consider whether the by-law appears on its face to relate to that subject. The true nature and purpose of the power must be determined, and it must often be necessary to examine the operation of the by-law in the local circumstances to which it is intended to apply. Notwithstanding that ex facie there seemed a sufficient connexion between the subject of the power and that of the by-law, the true character of the by-law may then appear to be such that it could not reasonably have been adopted as a means of attaining the ends of the power. In such a case the by-law will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of the power.
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- (Compare Widgee Shire Council v Bonney (1907) 4 CLR 977 at 982, 986)."
55 The reasonable proportionality test of validity, that is to say, whether the subsidiary legislation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose is now well established in Australia: see South Australia v Tanner (1989) 166 CLR 161 at 165, 178 and Minister for Resources v Dover Fisheries Pty Ltd (1993) 116 ALR 54 per Gummow J at 64 - 67. In particular, at 66-67, having referred to a number of decisions of the High Court on the proportionality doctrine, including South Australia v Tanner at 165 and Coulter v The Queen (1988) 164 CLR 350 at 357, Gummow J said:
"These observations in the High Court indicate that whatever may be the sweep of the proportionality principle in federal constitutional law, when the question of validity is concerned with delegated legislation made pursuant to a law of the parliament whose validity itself is not impugned, the proportionality principle is differently focused. The observations by their Honours further suggest that here at least there has been no significant shift in doctrine and, indeed, that the subject still is controlled by what was said by Sir Owen Dixon over 50 years ago; see the discussion by Mr Peter Bayne in his note 'Reasonableness, Proportionality and Delegated Legislation' (1993) 67 ALJ 448 esp at 449-50. The fundamental question is whether the delegated legislation is within the scope of what the parliament intended when enacting the statute which empowers the subordinate authority to make certain laws; see Austral Fisheries [(1993) 112 ALR 211 at 214, per Lockhart J].
The treatment by four members of the Court in Tanner of the remarks of Dixon J in Williams as identifying what they understood by the proportionality criterion as applied to the validity of delegated legislation, brought with it, in my view, the subsequent elaboration by Dixon J of his views. In the joint judgment, to which Dixon CJ was a party, in Shanahan v Scott (1957) 96 CLR 245 at 250, the following was propounded. A power such as that in s 25(1) of the Act does not authorise the making of regulations which vary or depart from the positive provisions of the Act, or which go outside the field of operation which the Act marks out; such a power does not support attempts to widen the purposes of the Act, to add new and different means of carrying them into effect, or to depart from
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- or vary the plan which the legislature has adopted to obtain its ends. These are indicia which assist in deciding the general question of whether the regulations in question are a reasonable means of attaining the ends of the legislative delegation of power."
56 In my opinion, in the circumstances, cl 8(4) of the Notice does not come within the scope of what the parliament intended when enacting the Fisheries Act. It revealed a different means for carrying the purposes of the Act into effect and was not a real exercise of the power. The order nisi for a writ of certiorari referred to in par 2 of the order nisi herein should be made absolute on the ground that cl 8(4) of the Cockburn Sound (Line and Pot) Management Plan is beyond power and is invalid and that the Executive Director erred in law in failing to consider the application on its merits.
57 It was submitted on behalf of the defendant and the respondent that, without cl 8(4) of the Notice, the Notice would be different in character and substance in that it would fail to afford the same protection by way of management of the fishery as was intended, and would achieve a different result to that which was intended. Reliance for this submission was based upon the decision of Gummow J (with whom Davies J agreed) in Coleman v Gray (1994) 55 FCR 412 at 429-431. In this case, Gummow J was concerned with s 46 of the Acts Interpretation Act 1901 (Cth) which, like s 15A of that Act, deals with severance in federal law. He cited the following passage in the decision of Dixon J in Bank of New South Wales v Commonwealth (1948) 76 CLR 1, at 371:
"[T]he courts have insisted that a provision … must share the fate of so much of the statute, regulation or order as is found to be invalid, once it appears that the rejection of the invalid part would mean that the otherwise unobjectionable provision would operate differently upon the persons, matters or things falling under it or in some other way would produce a different result. This consideration supplies a strong logical ground for holding provisions to be inseverable, whether the prima-facie presumption be in favour or against severability. It is important where there is no statutory clause like s 15A and it is important in using s 15A. For the inference in such a case is strong that provisions so associated form an entire law and that no legislative intention existed that anything less should operate as a law.
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- Further, where severance would produce a result upon the persons and matters affected different from that which the entire enactment would have produced upon them, had it been valid, it might be said with justice that unless the legislature had specifically assented to that result, contingently … "
58 At 430, Gummow J went on to say:
"The reasoning of Dixon J in that passage from the Bank case must apply with particular force where, as here, the delegated legislation in question operates as part of a regulatory scheme with penal provisions which operate by reference to, and which assume the efficacy of, that delegated legislation. In considering the effect upon the Plan as a whole of the declaration that par 11 is void, it is important to bear in mind also two other provisions of the Act. The first is s 7B(8) which, as I have indicated, obliges the Minister and the Secretary to perform their functions and exercise their powers under the Act in accordance with the Plan 'and not otherwise'. The second is s 7B(2) which requires that the Plan 'set out' the objective of the Plan and the measures by which the objective is to be attained.
It is appropriate now to seek to apply the reasoning of Dixon J to the present case. Once it appears that by reason of the rejection of par 11 as void the balance of the Plan would operate differently upon the persons, matters or things falling under it, or in some other way would produce a different result, there is strong logical ground for holding inseverable the balance of the provisions of the Plan. Furthermore, if the consequence of the excision of par 11 is that the Plan no longer sets out measures by which the objective of the Plan is to be obtained, the instrument does not satisfy the statutory requirement of s 7B(2). That which remains would not be a plan of management in the statutory sense."
59 For the reasons which his Honour gave, it was apparent, as he indicated at 431, that the consequence of the rejection of the void par 11 was that "otherwise unobjectionable but crucial provisions to the plan, for example, par 14, operate[d] differently, or indeed [could not] operate, upon the persons, matters or things falling within them", thereby indicating that the balance of the Plan could not be saved by severance of par 11.
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60 The position is different in the present case. The severance of cl 8(4) would not, in my opinion, mean that the otherwise unobjectionable provisions would operate differently upon the persons, matters or things falling within them or in some other way produce a different result. The scheme of the Notice, as published, would have remained essentially unaffected, with the Licensing Officer retaining the powers under s 17 of the Act, subject to any direction of the Minister, at his discretion, to remove licences with or without conditions, and the Minister, by s 17(3)(a), having the power, in his discretion, at any time, by notice in writing to suspend or cancel any licence issued under the Act. The exercise of these powers was, of course, subject to a right of appeal under s 17(4).
61 In my opinion, the Executive Director did not err in law in failing to consider the applicant's notice of objection dated 10 March 1999. By s 149 of the Fish Resources Management Act an affected person has 21 days after being given notice of a proposal by the Executive Director under s 147(1) of the Act to refuse to vary a licence to object to that proposal. There is no provision in the Act for an extension of time for objecting to the proposal. By s 151(1) of the Act, the Executive Director not having received an objection to his proposal, and the time allowed for making such an objection having elapsed, he was entitled to give effect to the proposal. In his letter dated 16 March 1999, the Executive Director formally notified Shine Fisheries Pty Ltd, through its solicitors, that he had given effect to his proposal to refuse the variation which it had sought. The decision of the Executive Director, having been given effect to, was final - see s 151(2).
62 Shine Fisheries Pty Ltd sought to avoid the consequences of its having failed to give notice of objection within the period of 21 days by making a fresh application for the variation of the nominated operator, relying upon s 48 of the Interpretation Act which provides that where a written law confers a power or imposes a duty, the power may be exercised, and the duty shall be performed, from time to time as occasion requires. This submission ignores the provisions of s 3(1)(b) of the Interpretation Act which provides that the provisions of the Act do not apply in relation to a particular written law in the case of an Act, the intent and object of which, or something in the subject or context of which, is inconsistent with such application. Furthermore, the duty in question was a duty to refer to the Minister an objection which had been made within 21 days after notice of a proposal had been given. In the circumstances, the Executive Director was under no statutory duty to consider and determine the further application of Shine Fisheries Pty Ltd. For these
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- reasons, I would discharge the order nisi seeking to quash the decision made by the Executive Director not to consider the further application of Shine Fisheries Pty Ltd dated 15 March 1999 to change the nominated operator under the Licence.
63 For the reasons expressed above, I would make the declaration sought by Shine Fisheries Pty Ltd that cl 8(4) of the Cockburn Sound (Line and Pot) Management Plan is beyond power and invalid.
64 PIDGEON J: I am in agreement with the reasons published by Kennedy J and with the orders proposed by him.
65 IPP J: I have had the benefit of reading the reasons for judgment of Kennedy J. I am in agreement with those reasons and have nothing further to add.
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