Sneesby v Minister for Fisheries

[2001] NSWADT 133

CITATION:	Sneesby & anor -v- Minister for Fisheries [2001] NSWADT 133
DIVISION:	General Division
PARTIES:	APPLICANTS Willis Herbert John Sneesby Nola Sneesby RESPONDENT Minister for Fisheries
FILE NUMBER:	013049
HEARING DATES:	18/05/2001
SUBMISSIONS CLOSED:	05/18/2001
DATE OF DECISION:	05/18/2001
BEFORE:	Rice S - Judicial Member
APPLICATION:	Fishing licence - endorsement on licence - Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Fisheries Management Act 1994 Fisheries Management (General) Regulation 1995
CASES CITED:	Minister for Disability Services -v- People with Disabilities [2001] NSWADTAP 7
REPRESENTATION:	APPLICANTS J Fuggle, solicitor RESPONDENT C Cory, solicitor
ORDERS:	1. The Tribunal has jurisdiction in relation to the application filed; 2. The matter is stood over generally pending the conduct of internal review of the reviewable decision.

1 For the reasons I give now, in my view the Tribunal has jurisdiction to exercise in relation to this matter.

2 The jurisdiction of the Administrative Decisions Tribunal is triggered by section 38 of its Act only by the conferral of jurisdiction by another enactment. In this matter section 126 of the Fisheries Management Act confers jurisdiction on the Tribunal The applicant relies on section 126(1)(b), saying that there has been a decision to impose conditions on his authority.

3 I note that in terms used by the appeal panel in this Tribunal in Minister for Disability Services v People with Disabilities, which is number 7 of 2001, the primary responsibility for identifying a reviewable decision founding the jurisdiction of the Tribunal lies with the applicant for review. The applicant points to the letter he received from the Department of Fisheries, dated 2 February 2001, and says that the terms of that letter constitute the reviewable decision. The applicant draws attention to that part of the letter that reads:
After full and careful consideration, I am not prepared to approve the proposal.

4 The respondent points to other text in the letter that reads:
I am unable to provide a variation to the licence-splitting policy on the basis of the proposals and issues outlined.

5 The respondent says that those words indicate not the making of a decision but, taken with the rest of the letter, what the effect of the policy would be. The applicant, on the other hand, relying on the terms it refers to, says that the letter constitutes a decision.

6 In my view the letter does constitute a decision; it is a decision made by the respondent that the policy would be applied if the applicant was to sell his Queensland entitlements. The question then is: is that a decision imposing a condition within the meaning of section 126(1)(b) as the applicant says it is, or is it a decision merely indicating the effect of policy, as the respondent says it is?

7 The respondent says that a decision to impose conditions can only be one authorised by section 104 of the Fisheries Management Act. That is to say, conditions can only be imposed by prescription in the regulations under section 104(4)(a). The respondent refers to clause 138 of the Regulation as an example of the prescription of conditions. The respondent says the conditions also can be imposed if specified in the licence, and in this case the applicants' licence does carry specified conditions. The respondent says the only other manner in which conditions may be imposed is pursuant to section 104(6) by the Minister in writing.

8 The applicant says that in the letter of 2 February 2001 the Minister has, in writing, imposed conditions. The respondent says that in that letter there is no explicit addition of new conditions within the meaning of 104(6) in writing by the Minister.

9 I note in passing that as to the letter of 2 February, I am assuming that there is a delegation pursuant to section 127 of the Act from the Minister to the Director of Fisheries, who was the author of that letter.

10 Is the decision in the letter of 2 February a decision imposing a condition within the meaning of section 104(6) and therefore bringing it within section 126(1)(b). That turns, in my view, on the meaning to be given to the word 'condition'.

11 The respondent says what has been imposed is not explicitly a condition: it does not affect the operation of the licence at that point in time, it merely indicates a future effect on the licence if a certain course is adopted. In my view that is properly expressed, or can be properly expressed in another way. Put in other terms, the letter states that the licence will be affected if a certain course is adopted.

12 In the ordinary meaning of the word 'condition' is - and I'm looking among other definitions at the Butterworths Concise Australian Legal Dictionary - something demanded or required as a prerequisite to the granting or performance of something else. In the ordinary meaning the letter, having the meaning I say it does - that is, that a licence will be affected if a certain course is adopted - is a condition on the operation of the licence. It is as if written into the licence by the letter of 2 February are the words, "maintenance of this licence is conditional on the licence holder maintaining Queensland fishing entitlements."

13 The respondent says that the licence is only affected in the future. That might be the case but it does not affect the characterisation of the terms as a condition, even if they only have future effect.

14 The respondent says that it, despite what is said in the letter of 2 February, a process might be undertaken, were the Queensland units sold, by which the applicant would be invited to show cause, and could result in the applicant's licence not being adversely affected. In my view that means only that the effective condition that I described would carry the following additional words so that it might in full read: "maintenance of this licence is conditional on the licence holder maintaining Queensland fishing entitlements subject to the fisher showing cause otherwise".

15 I do not accept that the letter of 2 February 2001 is merely an indication of what the future application of policy would be; it is not worded in those terms. It is explicitly confirmation of the application of policy to the applicant's circumstances and, having regard to the terms of that policy, it is clear what the consequent effect would be. The letter, for example, does not merely invite an applicant to look to the policy and go ahead with the proposed cause of action in light of their own judgment as to the effect the policy might have, nor does it merely invite the applicant to undertake the transaction as proposed and then take advantage of an opportunity to show cause later why they wouldn't be adversely affected.

16 If the letter is merely the application of policy and not the imposition of a condition, then it would seem to enable effective limitations to be imposed on licences avoiding review. That is not to ascribe any improper motive to those preparing or acting under the policy, but simply to point out what would be the consequence if a policy restricting the operation of a licence was seen as merely the effect of policy and not the imposition of a condition. There would be no effective review available despite the clear terms of the Act which make available merits review in circumstances where the operation of a licence is limited in some way. I don't believe it is the intention of the legislation to remove from the Act's merits review provisions the placing of restrictions on licences simply by characterising the steps taken as the effect of policy rather than the imposition of conditions.

17 If, as the respondent says, the letter of 2 February is only an indication of what policy would do, and is not an actual decision as to how the applicant is affected by the policy, then I look ahead to what the actual decision would be when the time comes and it appears that that decision would be, consequent on the application of policy, that the applicant's entitlements would be revoked. The course of action that an applicant, therefore, in the respondent's view, should take is to do as he intends to do and sell the Queensland entitlements. He would then show cause, as invited, as to why his entitlements should not be revoked. If he fails to successfully show cause the entitlements would be revoked. At that point the applicant would have no remedy, at least so far as merits review of the decision goes, because the Minister has elected to characterise the consequence of sale of Queensland units as being the 'revocation' rather than 'cancellation' of the licence.

18 It is a submission of the Minister that, if that point is reached, revocation of entitlements is not within the jurisdiction of this Tribunal because it is not covered by section 126 of the Fisheries Management Act. To the extent that anything turns on the meaning of 'revocation' as a term of art, the Minister appears to me, although I don't have to decide it, to be correct. I'm uncertain as to the difference in administrative law between 'revocation' and 'cancellation'. If revocation means, differently from cancellation, to render an authority void, I don't see that that is a relevant meaning under the Fisheries Management Act unless there's an intention to somehow invalidate a whole history of catch made under a licence. It concerns me that by use of the word 'revocation' rather than 'cancellation', when I see no obvious intended difference in meaning between the words in the Act, the policy currently at issue would, if applied, disentitle the fisher to merits review of the decision, whereas merely using the word, 'cancellation' for 'revocation' would give them access to merits review.

19 It may be there's a reason in the legislation why the word 'revocation' hasn't been used in section 126 but, as I say, in these circumstances I can't see that adopting the word, 'revocation' rather than 'cancellation' in the policy is justified, and my concern is that the interpretation the Minister wishes to place on the letter of 2 February 2001 would put in train a course of events that renders the limitations placed on fishers' licences effectively unreviewable.

20 In any event, without looking at the alternative position, the circumstances, and consequences that might follow, I am satisfied that the applicant's licence is, by virtue of a decision made and advised in the Minister's letter through his delegate of 2 February 2001, burdened with a condition that has been imposed in writing by the Minister within the meaning of section 104(6). That being the case, I'm of the view that there is in existence, in the terms of the letter of 2 February 2001, a reviewable decision.

21 It does not then follow that this Tribunal has jurisdiction at this point in time. There is, pursuant to section 55 of the Administrative Decisions Tribunal Act, the requirement that internal review pursuant to section 53 has taken place unless, in circumstances described in section 55, the need for internal review is dispensed with.

22 It is a matter I don't need to deal with; I would draw to the parties' attention the need for the provisions of section 55 to be met before the Tribunal can exercise jurisdiction in relation to a reviewable decision.

23 That being the case, these proceedings are adjourned generally; they will be restored to the list on the application of either party having regard to my observations in relation to sections 55 and 53 of the Administrative Decisions Tribunal Act.