Southport Fishing & Dive Centre Pty Ltd v Minister for Fisheries

[2004] NSWADT 242

CITATION:	Southport Fishing & Dive Centre Pty Ltd & Anor v Minister for Fisheries [2004] NSWADT 242
DIVISION:	General Division
PARTIES:	APPLICANT Southport Fishing & Dive Centre Pty Limited & Neville Howard RESPONDENT Minister for Fisheries
FILE NUMBER:	033277
HEARING DATES:	23 April 2004, 27 October 2004
SUBMISSIONS CLOSED:	05/10/2004
DATE OF DECISION:	10/27/2004
BEFORE:	Higgins S - Judicial Member
APPLICATION:	Charter boat fishing licence - grant of licence - Fisheries Management Act - charter boat fishing licence - grant of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Commercial Vessels Act 1979 Commercial Vesses (Permit) Regulation 1986 Fisheries Management (General) Amendment (Charter Fishing Boats) Regulation 2000 Fisheries Management (General) Regulation 1995 Fisheries Management (General) Regulation 2002 Fisheries Management Act 1994 Marine Safety Act 1994 (Qld) Ports Corporation and Waterways Management Act 1995 Transport Operations (Marine Safety) Regulation 1995 (Qld)
CASES CITED:	Durham Holdings Pty Ltd v State of NSW (1999) 47 NSWLR 340 at 353-4, and on appeal (2001) 205 CLR 399 at 414 FAI Insurance Limited v Winneke (1981-1982) 151 CLR 343 Gordon Laidler & Associates Pty Ltd v Hocking (unreported) Young J, 6 March 1995 Kelly v Kelly (1990) 92 ALR 74 at 98 Springhall v Kirner [1988] VR 159 at 165
REPRESENTATION:	APPLICANT Dr C O'Connor, solicitor RESPONDENT Dr S Thompson, solicitor
ORDERS:	1 The time for making this application is extended to 7 October 2003; 2 The Minister’s decision is set aside and in substitution thereof a decision is made to grant the applicant’s application for a renewal of the transferable charter fishing boat licences for Sea Probe II and Sea Probe III

Background

1 This is an application by Southport Fishing & Dive Centre Pty Limited (“Southport Fishing”), of which Mr Howard is a director, seeking review of the decision of a delegate of the Minister, New South Wales Fisheries (“the Minister”) to refuse its application for the renewal of the transferable charter fishing boat licences for the vessels “Sea Probe II” and “Sea Probe III”. These licences had originally been issued on 5 June 2001 and were valid for one year. The reasons for refusing to renew the licences were that Sea Probe II and Sea Probe III had not been the subject of a certificate of survey as required under cl.301(1)(a)(iii) and (b) of the Fisheries Management (General) Regulation 2002.

2 The underlying facts in this application are not in dispute. These are as follows:

(a) Southport Fishing is a family fishing business that has operated since 1973. In 1989, Southport Fishing launched its first boat as a guided recreational fishing charter boat. This boat was named “Sea Probe I” and it operated from the sea port at Southport in the State of Queensland. Southport Fishing then obtained two further boats in 1991 and 1993 and also used them for guided recreational fishing from the same port.

(b) The boats owned by Southport Fishing fish about 20 nautical miles east from Southport. Due to the fact that the Queensland and New South Wales border is not directly due east, the boats owned by Southport Fishing in fact fish in New South Wales waters.

(c) In 1993, 1994 and 1995, Certificates of Survey and Registration were issued by the Queensland Department of Transport for Sea Probe II and Sea Probe III.

(d) On 1 January 1996, the Queensland Department of Transport issued a Certificate of Survey for Sea Probe II and Sea Probe III. The conditions on each Certificate of Survey were that the vessel specified in the certificate could travel within 50 nautical miles of a port or place of safe haven, and carry fifteen passengers plus two crew when unberthed, or two passengers plus two crew when berthed. These conditions were the same as those that had appeared on the previous Certificates of Survey and Registration.

(e) After 1 January 1996, the Queensland Department of Transport issued an annual Certificate of Registration for Sea Probe II and Sea Probe III. The conditions on these Certificates of Registration were in similar terms to those stated in the 1996 Certificate of Survey and the previous Certificates of Survey and Registration.

(f) During September/October 2000, Southport Fishing made an application to NSW Fisheries for a transferable charter fishing boat licence for Sea Probe II and Sea Probe III. In support of that application Southport Fishing provided a copy of the 1996, Queensland Department of Transport Certificate of Survey and a list of charter fishing trips both boats had undertaken in New South Wales waters during 1994 to 2000.

(g) On 5 June 2001, the Minister issued a transferable charter fishing boat licence under the Fisheries Management (General) Regulation 1995 to Sea Probe II and Sea Probe III. These licences were due to expire in June 2002.

(h) On 13 December 2001, the Queensland Department of Transport issued a Certificate of Survey for Sea Probe III. The conditions of this survey were that the boat was to carry a maximum of 16 persons of which 14 could be passengers. There was also a limit of 7 persons on the flybridge at any one time. A further Certificate of Survey, in the same terms, was issued on 1 July 2003.

(i) On or about 2 May 2002, Southport Fishing made an application to the Minister for renewal of the charter fishing boat licences for Sea Probe II and Sea Probe III.

(j) On 20 December 2002, Southport Fishing completed an application to New South Wales Fisheries (“the Department”) to transfer its interest in the transferable charter fishing boat licence issued to Sea Probe II. That application was received by the Department on 3 February 2003.

(k) On 8 April 2003, the Department advised Southport Fishing that their inquiries had shown that neither, Sea Probe II or Sea Probe III were in survey during the relevant period (i.e. between 22 October 1995 to 4 August 1999) and that licences should not have been issued in the first instance. Southport Fishing was also requested to show cause why the Minister should not cancel each licence.

(l) On 23 April 2003, Southport Fishing provided a response to the show cause letter the Department.

(m) On 19 June 2003, the Minister determined to cancel the charter fishing boat licences for Sea Probe II and Sea Probe III. Subsequently, Southport Fishing requested an internal review of the Minister’s decision. The internal review was determined on 19 August 2003. The determination was that the decision to cancel the licences was set aside on the basis that the initial licences had expired. However, this decision was substituted with a new decision to the effect that Southport Fishing’s application for renewal of the licences was refused on the grounds that the boats failed to meet the eligibility criteria for the issue of a charter fishing boat licence (i.e. no survey during the relevant period);

Hearing

3 The substantive matters in this application were heard on 23 April 2004 and the parties provided the Tribunal with additional detailed written submissions thereafter. In the course of preparing my decision I noted from the dates stamped on the material that had been filed it appeared that the applicant had filed its application on 7 October 2003, which is more than the time prescribed (i.e. 28 days - see s. 55(1)(d) of the Administrative Decisions Tribunal Act 1997 and rule 15(3) of the Rules of the Administrative Decisions Tribunal 1998) and no application for an extension of time had been made (see s. 57 Administrative Decisions Tribunal Act 1997).

4 Accordingly, I had the matter relisted for 27 October 2004 in order for the parties to address this specific issue. At this hearing Dr O’Connor made an application under s. 57(1) of the Administrative Decisions Tribunal Act 1997 and this application was not opposed by Dr Thompson who appeared on behalf of the Minister. In light of this and the fact that there was not a significant delay and that Mr Howard commenced these proceedings without any legal advice, in my opinion it is appropriate for the Tribunal to extend the time for Mr Howard and Southport Fishing to make this application to 7 October 2003.

Jurisdiction

5 The Tribunal has jurisdiction to hear and determine this application by virtue of ss.125, 126(1)(c) and 127F of the Fisheries Management Act 1994 (“the Act”) and s.38(1) of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).

Relevant Legislation

a) Fisheries Management Act 1994 (NSW) and Regulations

6 The legislation primarily relevant to this application is contained in Part 4A of the Fisheries Management Act 1994(NSW) (“the FM Act”), which relates to the management of recreational charter fishing in New South Wales waters. These provisions were inserted into the FM Act in 1997 (see Fisheries Management Amendment Act 1997 assented to 19 December 1997). However, the provisions did not come into operation until mid 1998. Prior to this there was no regulation of guided recreational charter fishing activities in New South Wales waters.

7 Section 127B(1) of the FM Act 1994 provides that the regulations may declare that all or any specified class of charter fishing boats are required to be licensed under Part 4A. Section 127D(3) of the Act creates an offence where the owner of a boat permits the boat to be used as a charter fishing boat if it is required to be licensed under the regulations and the boat is not so licensed.

8 Section 127C(3) of the FM Act provides that the Minister is required to issue a licence under that Part unless he is authorised under the regulations to refuse the application. Section 127C(4)(b) provides that a licence remains in force for 1 year subject to any other period specified in the licence.

9 Section 127C(4)(c) of the FM Act provides that a licence can be renewed from time to time in accordance with the regulations.

10 It was not until 7 July 2000 that regulations were gazetted for the purposes of Part 4A of the FM Act 1994 (see Fisheries Management (General) Amendment (Charter Fishing Boat) Regulation 2000, (“the 2000 Regulation”). This amending regulation inserted a new Part 9A into the Fisheries Management (General) Regulation 1995 (“the 1995 Regulation”). That Part contained provisions regulating guided recreational charter fishing activities. The licence requirement under the new part came into effect on 13 November 2000 and provided that a charter fishing boat "used for any guided recreational charter fishing that involved estuarine fishing near shore bottom fishing and sport fishing, game fishing and deep sea bottom fishing was to be licensed for the purpose of section 127B of the Fisheries Management Act".

11 The 2000 Regulation made provision for two classes of licence; a "transferable" and a "non transferable" licence. On 1 September 2002, the 1995 Regulation, including Part 9A was repealed by virtue of s.10(2)(b) of the Subordinate Legislation Act 1989. On the same date it was replaced by the Fisheries Management (General) Regulation 2002 (“the 2002 Regulation”) which incorporated into Part 10 similar provisions to that which had been in Part 9A of the 1995 Regulation (i.e the provisions of the 2000 Regulation). Cl.417 of the 2002 Regulation provided that any act, matter or thing that had effect under the repealed regulation immediately before its repeal was to be taken to have effect under the 2002 Regulation. By reason of this provision, Southport Fishing’s application for a renewal of the licences issued under the repealed regulation became a renewal application under cl.308 of the 2002 Regulation.

12 The “eligibility criteria” for a "transferable" guided recreation charter fishing boat licence are set out in cl.301 of the 2002 Regulation (previously cl. 226H of the 2000 Regulation). That clause provides (so far as is relevant to this application) as follows:

“Cl.301(1) A person is eligible for a transferable licence in respect of a boat owned or otherwise under the control of the person if the person satisfies the Minister that:

(a) the person is eligible to claim a history of operations in respect of a boat that:

(i) was actively used for guided recreational charter fishing activities in the marine and estuarine charter fishing sector before 22 October 1997; and

(ii) was actively used for those activities for at least 100 days during the period of 24 consecutive months between 24 October 1995 and 4 August 1999; and

(iii) was used in accordance with the requirements of the certificate of survey for the boat at all times during the period during in which it was used for those activities; and

(b) the certificate of survey for the boat referred to in paragraph (a) was at all times during the period in which it was used for those activities, consistent with the type of licence applied for by the person.

(2) If any one of the eligible criteria is not satisfied the person is not eligible for a transferable licence”. (underlining added)

13 The eligibility criteria for a non transferable licence is set out in cl. 302 of the 2002 Regulation (previously cl. 262I of the 2000 Regulation ). The only difference between this provision and cl 301 is the number of days of operation with a transferable licence requiring a minimum of 100 days operation and a non transferable licence requiring 50 days.

14 Entitlement to claim a “history of operation” is governed by cl. 303 of the 2002 Regulation (previously cl. 226J of the 2000 Regulation) and is limited to:

a) those persons who used the boat for which a licence is being sought during the years and days specified under cl. 301 and 302 and who have not transferred their entitlement to that history of operation; and

b) those persons who had acquired the entitlement to that “history of operation” from a person set out in (a) above and in accordance with the transfer provisions in cl. 305 (previously cl.226L).

15 Cl.295 of the 2002 Regulation (previously cl. 226B of the 2000 Regulation ) defines the term "certificate of survey" of a boat to mean the following:
“The certificate of survey issued by or in accordance with the requirements of the Waterways Authority or other relevant authority approved by the Director.”
16 Cl.307 of the 2002 Regulation (previously cl.226L of the 2000 Regulation ) sets out the basis on which the Minister is authorised to refuse an application for a licence. Cl.307(a) provides that the Minister is authorised to refuse an application for a licence if he “ is not satisfied that the applicant is eligible to be issued with a licence, or the class of licence applied for, in respect of the boat .” (underlining added)

17 Cl.308 of the 2002 Regulation (previously cl. 226N of the 2000 Regulation) makes provision for the renewal of a charter fishing boat licence. Sub cl.308(1) provides that an application for renewal of a licence is to be made in a form approved by the Minister. There is no dispute in this application that the renewal applications of Southport Fishing were made in the proper form.

18 Sub cl.308(2) provides that the Minister is authorised to refuse to renew a licence if one or more of the circumstances specified in that sub-clause have not been satisfied. This clause provides, so far as is relevant as follows:

308(2) The Minister is authorised to refuse to renew a licence if:

(a) the holder of the licence is not eligible for the licence, or

…

b) Other NSW legislation

19 The parties have identified the following New South Wales legislation as being relevant to this application:

· The Commercial Vessels Act 1979 (“the CV Act”)

· The Commercial Vessels (Permit) Regulation 1986 (“the CV Regulation”)

· The Ports Corporation and Waterways Management Act 1995 (“the PCWM Act”)

20 The CV Act, iter alia, regulates the operation of vessels used for commercial purposes in New South Wales waters. This includes matters relating to the suitability and safety of the vessel for the purpose it is to be used. The Act provides that all commercial vessels be issued with a permit (s.8 CV Act). There are various classes of permits, which are prescribed in the CV Regulation (cl.5). A permit for a vessel is issued by the Minister for Transport on application (ss.14 & 16 CV Act), and on receipt of an application the Minister is required to have the vessel inspected by a surveyor (s.16 CV Act). Each permit that is issued is required to be issued together with a survey schedule that specifies when the vessel and its parts and components must be periodically submitted for survey and the nature of the survey that is required (s.15(3) CV Act). A failure to submit the vessel for survey as required by the schedule constitutes an offence (s.28(1) CV Act). It also is a basis on which the Minister can suspend the permit (s.21(1)(a) CV Act). The CV Act also provides for the issue of temporary permits for vessels that are subject to “inspection and investigation in the nature of a survey” under Commonwealth law and the law of another State or Territory (ss.21 to 25 CV Act).

21 The purpose of the PCWM Act was to establish various statutory bodies as Port Corporations to be responsible for the operation of the various ports in New South Wales and to establish the Waterways Authority of New South Wales. S.24 of this Act provides that the Minister for Transport has general responsibility for marine safety, which includes the safe operation of recreational and commercial vessels and the protection of the environment in connection with the use of vessels in State waters (s.24(a) and (c) PCWM Act). S.27 of the Act also enables the Minister for Transport to delegate his functions under various “marine legislation” for which he is responsible. The term “marine legislation” is defined in s.3 to include the CV Act and it would appear that the Minister has delegated many of his functions under the CV Act to the Waterways Authority.

c) Queensland Legislation

22 In 1994, Queensland introduced a new regime for regulating the maritime industry (including the design and safety of requirements for vessels and machinery and equipment on vessels) over which it has responsibility. The legislation that introduced these changes was the Transport Operations (Marine Safety) Act 1994 (Qld)(“the new Queensland Act”) and the Transport Operations (Marine Safety) Regulation 1995 (Qld)(“the new Queensland Regulation”). The relevant aspect of this legislation to this application was the removal of the requirement for vessels registered under the new Act to undergo an annual survey. That is, under the new legislation vessels were only required to register annually and compliance with safety specifications of the vessel that had been the subject of a survey became the responsibility of the owner of the vessel who was required to certify, at the time of seeking registration. This included vessels that had been registered under the previous Queensland legislation (Marine Safety Act 1994 (Qld)). In this regard the new Queensland Act provided for the establishment of standards that included survey standards and the appointment of inspectors who were authorised to randomly inspect registered vessels to ensure that they complied with the relevant standards. When building a vessel the builder was required to obtain a certificate of compliance for survey from an accredited surveyor in respect of the various parts of the vessel (cl. 34 of the new Queensland Regulation) and that certificate ceased to have effect if subsequent to the issue of the certificate alterations were made to the vessel. The legislation did provide for the issue of a certificate of survey (s. 70A of the new Queensland Act), however this was entirely voluntary.

23 The new legislation contained a transitional provision in respect of certificates of survey issued under the previous legislation and which remained valid at the time that legislation was repealed and replaced by the new Queensland Act and the Regulation. The relevant provision was cl.191 of the Queensland Regulation, which preserved the validity of such certificates for the purposes of the new Queensland Act pending the issue of a replacement certificate of survey under cl. 191(3). The issue of such replacement certificates were mandatory and were to be issued at no cost to the certificate holder (cl. 191(4)). Cl. 191(5) provided that the certificate was to be taken as an authority under part 6 of the Regulation, which included a certificate of survey. Accordingly, by reason of this sub-clause the replacement certificate became a certificate of survey under the new legislation. The same sub-clause provided that the replacement certificate was not renewable and that it was to be issued for an unlimited term and that it was valid for the purpose of part 4 of the Act, which contained the general safety obligations in respect of vessels. Cl. 191(6) provided that the provisions in that clause expired 12 months after the commencement of the new Queensland Regulation.

Issues

24 The parties have identified the area of dispute as being a question of whether Southport Fishing satisfied the survey requirements of cl. 226H of the 2000 Regulation (now cl. 301(1) of the 2002 Regulation) in respect of Sea Probe II and Sea Probe III and even if it did not whether the Minister, having issued the licences in 2001 on being so satisfied, is able to reconsider this matter in determining whether to renew a licence under s.308(2)(a) of the 2002 Regulation (previously cl. 226N of the 2000 Regulation).

25 In my opinion, for the reasons set out below the issues in this application are as follows:

a) do the eligibility criteria as set out in cl. 301 apply to cl. 308(2)(a) (i.e. a renewal application)?

b) if they do apply does the 1996 replacement certificate of survey for Sea Probe II and Sea Probe III satisfy the survey requirements of cl. 301?

c) if the replacement certificates do not satisfy cl. 301, should the Minister’s discretion under cl. 308 be exercised to refuse the renewal applications?

Evidence

26 As I have indicated above, the underlying facts are not disputed and in my opinion the evidence that is relevant to the matters in issue in this application are as follows:

a) The Certificates of Registration and Survey for Sea Probe II and Sea Probe III issued by Queensland Transport in 1993 to 1995;

b) The Certificate of Survey for Sea Probe II and Sea Probe III issued by Queensland Transport in 1996.

c) Letter dated 5 July 1996, from the Queensland Department of Transport, which stated the following:

“Enclosed is a Replacement Certificate of Survey for your ship issued in accordance with Section 191 of the Transport Operations (Marine Safety) Regulation 1995.

This new regulation became effective on 1 January 1996 and requires that your last Certificate of Survey and Registration issued under the Queensland Marine (Registration, Survey, Equipment and Loadlines) Regulation 1987 be replaced by a Replacement Certificate of Survey. This certificate is provided as proof that the ship complied with the previous Marine (Registration, Survey, Equipment and Loadlines) Regulation 1987) and remains valid for an unlimited term provided no changes have been made to the ship since the last Certificate of Survey and Registration was issued.

…

It is important to note that at the time of annual registration renewal, the new legislation gives owners a choice of making a declaration of compliance in regard to their ship’s seaworthiness and safety. The owner or an accredited marine surveyor, builder or designer must test the safety and seaworthiness of the ship before registration can be granted.

If an owner has carried out significant modifications to the ship that affects marine safety as per Regulation 23 of the Transport Operations (Marine Safety) Regulation 1995, then a marine surveyor should be employed who is appropriately accredited by the department to inspect the ship and complete a Certificate of Compliance”. (underlining added)

d) The Certificates of Registration issued for Sea Probe II and Sea Probe III from 1996 to 2003.

e) a letter, dated 22 February 2001, from the Director of New South Wales Fisheries to Southport Fishing concerning Southport Fishing’s application for a transferable charter fishing licence. That letter states as follows:

“…

NSW Fisheries was able to verify that your vessels were in survey with Queensland Transport over the criteria period. Interstate survey certificates are honoured by NSW Waterways with the issue of a NSW temporary permit. Without issue of a temporary permit, your vessel could not have been authorised to operate in NSW waters.

…

… Please understand, however, that without confirmation of issue of a NSW Waterways temporary permit, NSW Fisheries is not able to determine that the history being claimed is NSW based. As a consequence, NSW Fisheries does not consider that the eligibility criteria has been met and cannot approve issue of a licence. …”

f) Letter dated 5 June 2001, from the Director of New South Wales Fisheries to Southport Fishing. This letter informs Southport Fishing that transferable charter fishing licences would be issued for Sea Probe II and Sea Probe III. The letter also states:
“…

NSW Fisheries has received confirmation that commercial charter fishing vessels operating beyond 12 nautical miles from the NSW coastline do not require authorisation from NSW Waterways. …”

Submissions

27 The parties had filed written submissions prior to the hearing. In addition to this they made oral submissions on the date of hearing. Subsequently, they provided the Tribunal with additional detailed written submissions.

28 I have dealt with the various submissions of the parties below in the context of the issues for which a determination is required. In addition to those issues that have already been identified the parties also raised an issue as to whether Southport Fishing had standing to seek review of the Minister’s decision in respect of the refusal to renew the licence for Sea Probe II on the basis that the boat had been sold to a third party in December 2002.

Reasons and Decision

29 The role of the Tribunal is to determine whether the Minister’s decision is the correct and preferred decision, having regard to the relevant facts and the applicable law: see s.63 ADT Act.

30 This application raises several issues of construction of the provisions of the 2000 and 2002 Regulation. It is further complicated by the changes that were made to the relevant Queensland legislation in 1995.

31 I wish to raise a preliminary point before I deal with the substantive issues in this application and this is the question of the validity of the licences that were originally issued for Sea Probe II and Sea Probe III. These licences expired in June 2002.

32 Dr Thompson, who appeared on behalf of the Minister, contended, in accordance with the Minister’s internal review decision that the original licences had been issued by mistake. On the other hand, Dr O’Connor, who appeared on behalf of Southport Fishing, contended that the original licences had not been issued by mistake. While the parties did not expressly argue that what was in issue was the validity of the decision to issue the licence in the first place, this in my opinion is the effect of their arguments. This gives rise to a question as to whether the Tribunal has jurisdiction to examine the validity of this decision, which is not the subject of an application before it. In my opinion the Tribunal has no such jurisdiction: see s.38 of the ADT Act. Consequently, in regard to this application, the Tribunal must make its determination on the basis that the licences that were issued originally were valid, i.e. not issued by mistake.

c) General issues of construction

33 As mentioned above, prior to 1997, guided recreational charter fishing was not a regulated activity in waters coming within the jurisdiction of New South Wales. Provision was made to regulate this activity by the insertion of Part 4A to the FM Act by the Fisheries Management Amendment Act, 1997. However, regulation of this fishing activity, in particular the requirement to licence a boat that is used for guided recreational charter fishing, did not come into operation until 7 July 2000 when the 2000 Regulation was enacted. The essence of the scheme to regulate commercial charter fishing in New South Wales waters was as follows:

a) from 13 November 2000, any boat used for specified guided recreational charter fishing was required to be licensed under Part 4A of the FM Act ( s. 127B of the FM Act and cl. 226E);

b) the creation of two classes of licence, a transferable and a non transferable licence, the eligibility criteria for which were set out in cl. 226H and 226I. These eligibility criteria being based on a prescribed history of operation. In this regard I accept the findings of the decision in Baker v & Anor v Minister for Fisheries [2003] NSWADT 141 (currently the subject of appeal) that this history of operation relates to operations in New South Wales waters. I note that this is not a matter in issue in this application;

c) a requirement that those who were entitled to claim a history of operation were to apply for a licence by 30 September 2000 (cl. 226K). That time limit could only be extended by the Minister if he was satisfied that there were good reasons why the application was not made by that date;

d) licences were to be issued by the Minister, who was required to issue a licence unless authorised by the regulations to refuse the application (s. 127C(3) of the FM Act and cl. 226M). The grounds of refusal included a ground where the Minister was satisfied that the applicant was not eligible to be issued with a licence, or a class of licence applied, for in respect of the boat;

e) the establishment of a review panel to review a decision of the Minister to refuse a licence on the basis that he was not satisfied that the person was eligible for a licence (cl. 226S-226Y). The life of the review panel was limited as requests were to be made within 60 days of the Minister’s refusal and no later than 31 March 2001;

f) licences were valid for one year and could be renewed in accordance with the regulations (s. 127(4)(b) and (c) of the FM Act and cl. 226N). A ground on which the Minister was authorised to refuse a renewal application was in circumstances in which the holder of the licence was not eligible for the licence; and

g) provision for persons who held a transferable licence to seek the Minister’s approval to transfer that person’s entitlement to a history of operations that related to the boat the subject of the licence (cl. 226L). Where a history of operation was transferred in accordance with the regulation, the recipient of that history became entitled to claim the history and seek a licence (cl. 226J).

34 As I have already mentioned these regulations were made pursuant to the provisions of the FM Act the objectives of which include the conservation of fish stocks and the promotion of viable commercial fishing (see s. 3(2)(a) and (d)).

35 The regulation of the commercial charter fishing industry was enacted in accordance with these objectives (see: second reading speech for Fisheries Management Amendment Bill 1997, 22 October 1997 at p 1207). That is, the overall objective of this newly regulated activity was to restrict the fishing effort involved in this activity for environmental reasons and at the same time to ensure that those operating in that activity remained commercially viable. The same objectives applied to the previously introduced restricted fisheries under s. 111 of the FM Act.

36 The 2000 Regulation provided the means by which these objectives were to be achieved by requiring all boats involved in this activity to be licensed with licences being restricted to those persons and boats that had a record of operating in the industry previously. This was achieved by requiring persons who sought a licence to establish an entitlement to a “history of operations” in respect of the boat they sought to licence. It was this “history of operations” that became commercially valuable as without it a person was not able to continue to engage in commercial charter fishing within New South Wales waters. Where a persons “history of operation” in respect of a boat was sufficient to qualify for a transferable licence its value was even greater as this history was also transferable. Of significance was the fact that the prescribed “history of operation” pre-dated the coming into force of the 2000 Regulation and the requirement to be licensed. It is also noted that the scheme underlying these regulations are similar to those relating to the various categories of the regulated restricted fisheries under the FM Act.

37 As mentioned above, the 2002 Regulation substantially re-enacted the provisions of Part 9A of the 2000 Regulation in Part 10 of that Regulation. This included the provisions relating to the time within which an application for a licence was to be made and the review mechanism. Many of these provisions were of no or limited operation at the time the 2002 Regulation came into force. However, there were some amendments, including the insertion of a provision enabling the holder of a licence under Part 10 to make an application to the Minister for approval to replace the boat that is the subject of the licence (cl. 306).

d) Standing

38 I will firstly deal with Southport Fishing’s standing in respect of its renewal for a transferable charter fishing boat licence for Sea Probe II. Dr Thompson, who appeared on behalf of the Minister, argued that as Sea Probe II had been sold in December 2002, Southport Fishing was no longer an “interested person” for the purposes of s.55(1)(a) of the ADT Act. It was contended that the “interested person” was the purchaser of Sea Probe II. As they were not a party and Southport Fishing had not adduced any evidence to the effect that it was acting as an agent of the purchaser, it had no standing.

39 In my opinion Dr Thompson’s contention cannot be supported.

40 S.55(1) of the ADT Act gives an “interested person” a right to make an application to the Tribunal for review of a “reviewable decision”. The term “interested person” is defined in s.4 of the ADT Act to mean:

“A person who is entitled under an enactment to make an application to the Tribunal for an original decision or a review of a reviewable decision (as the case may be).”
41 A “reviewable decision” is defined in s.8 of the ADT Act to mean a decision of an administrator that the Tribunal has jurisdiction under an enactment to review. The term “enactment”, so far as it relates to a “reviewable decision” is defined in s.5(a) of the ADT Act to mean any Act or statutory rule, other than the ADT Act. In this case the relevant Act is the FM Act, ss.125(c), and 126(1)(a) of which provide that a person who is dissatisfied with a Minister’s decision to refuse that person a boat licence (including a charter fishing boat licence – s.127F of the FM Act ) has standing to make an application to the Tribunal to seek review of that decision. The Minister, in this context is an administrator.

42 In this case, the decision for which Southport Fishing is seeking review is the decision of the Minister to refuse its application for a renewal of its licence for Sea Probe II. There is no doubt that the Minister made such a decision and that Southport Fishing is dissatisfied with that decision. Accordingly, in my opinion, this fact alone is sufficient for Southport Fishing to satisfy s.55(1)(a) of the ADT Act.

43 In any event it is clear that Southport Fishing has an ongoing interest in the Minister’s decision that is the subject of review as it had made its application within time and at a time that it was the holder of a transferable licence for Sea Probe II. By reason of cl.308(3) of the 2002 Regulation (previously cl. 226(3) of the 1995 Regulation) it continued to be the holder of such a licence until 19 August 2003 when the Minister refused its application for a renewal. It again became the holder of such licences when the Tribunal granted a stay of the Minister’s decision, that stay being in force until the determination of this application. Furthermore the continuation of the licence was of utmost interest to Southport Fishing as after it had made its renewal application and before the Minister had determined that application, it also made an application (3 February 2003) to transfer its entitlement to the history of operations in respect of Sea Probe II. I have assumed that the Minister has not made any determination in respect of that application, but in any event it is not an application that is before the Tribunal and even if it was it is arguably not a matter coming within the Tribunal’s jurisdiction.

44 For the reasons stated above, in my opinion, Southport Fishing continues to have standing under the provisions of the FM Act and s.55(1) of the ADT Act in respect of the Minister’s decision to refuse to renew its charter fishing boat licence for Sea Probe II.

e) Application of cl. 301 to cl. 308(2)(a)

45 In respect of the substantive issues in this application the starting point, in my opinion, are the relevant provisions of the 2002 Regulation, in particular whether the “eligibility criteria” in cl. 301 apply for the purpose of cl. 308(2)(a). In this regard Dr O’Connor contended that they did not apply. He argued that cl. 301 only applied when the charter fishing boat licences were originally issued to Southport Fishing for Sea Probe II and Sea Probe III (ie. 2001).

46 On the other hand, Dr Thompson contended that cl. 308(2)(a) of the 2002 Regulation which expressly used the term “eligible” incorporated the provisions of cl. 301(1) as that clause set out the basis on which a person was “eligible” for a transferrable charter fishing boat licence. That is, he argued that on a proper construction of these provisions, each time that there was an application to renew an existing licence under Part 10 the Minister was required to reconsider the eligibility criteria as set out in cl. 301 (a transferrable licence) and cl. 302 (non transferrable licence).

47 On a literal interpretation of these provisions there is support for Dr Thompson’s contention. However, it is well established that provisions in a statute are to be interpreted in their context as well as having regard to the purpose and objects of the legislation as a whole and the provisions in question (see s.33 of the Interpretation Act, 1987 (NSW)). Subordinate legislation is also to be interpreted having regard to the terms of the enabling legislation.

48 For the reasons already stated a clear objective and purpose of the newly inserted Part 4A of the FM Act and the provisions of the 2000 Regulation was to first limit access to the newly regulated charter fishing activity to those persons who owned or otherwise controlled boats that had operated in this activity previously and that had operated within a specified period of time for the prescribed number of days during that time. This is reflected in the terms of cl. 226H and cl. 226I of the 2000 Regulation (now cl. 301 and 302 of the 2002 Regulation). Those who wished to continue to operate in this activity were required to make an application for a licence for that boat within a specified period of time. Once a licence had issued, in some cases following a review process, the holder of the licence was not required to make a new application for a licence but was entitled to make an application for renewal of that licence. Access to the regulated activity was then capped by the number of licences that were issued to boats that had previously operated in this activity, with new licences only being issued to persons that had acquired, in accordance with cl.226L of the 2000 Regulation (now cl.305 of the 2002 Regulation), the history of a boat from the holder of an existing transferable licence or the holder of an existing licence who has obtained approval from the Minister to replace the boat that is the subject of that licence.

49 The licensing scheme, in my opinion, was of a propriety nature that gave licence holders a proprietary right. The Courts have held that in interpreting legislation that has the effect of destroying that right, the legislation should be construed narrowly (see Durham Holdings Pty Ltd v State of NSW (1999) 47 NSWLR 340 at 353-4, and on appeal (2001) 205 CLR 399 at 414 and Kelly v Kelly (1990) 92 ALR 74 at 98, Springhall v Kirner [1988] VR 159 at 165 and Gordon Laidler & Associates Pty Ltd v Hocking (unreported) Young J, 6 March 1995).

50 I also note the difference in wording between cl. 226M(1)(a) and 226N(2)(a) of the 2000 Regulation (now 307(1) and 308(2)(a) of the 2002 Regulation). In the case of cl. 226M(1)(a) the Minister is authorised to refuse the application for a licence where he is not satisfied that the applicant is “eligible to be issued with a licence, or a class of licence applied for, in respect of the boat.” Accordingly, by the use of the words “class of licence, in respect of the boat” the Minister is expressly required to consider the eligibility criteria as set out in cl.226H and 226I and determine whether the applicant is eligible for the class of licence applied for.

51 Cl. 226N(2)(a) on the other hand is in different terms. It provides that the Minister is authorised to refuse to renew a licence if the holder of the licence is not eligible for the licence. There is no reference to a “class of licence, in respect of the boat”. I note that cl. 226O(a) of the 2000 Regulation is in similar terms to cl. 226N(2)(a) and makes no reference to “a class of licence, in respect of a boat”. The inference to be drawn from failure to include this phrase in these sections is that Parliament did not intend for that there would be a re-examination of the licence holder’s entitlement (i.e. eligibility criteria as set out in cl. 301 and 302) to the class of licence that had been issued.

52 In my opinion, having regard to the express words of cl. 226N of the 2000 Regulation (now cl. 308(2) of the 2002 Regulation), the express words of cl. 226M(1)(a) and 226O, the provisions of Part 4A of the FM Act and the purpose and objectives of this newly regulated activity, Parliament did not intend that the question of a persons eligibility for the issue of a particular class of licence be re-examined each time there was a renewal application. If this construction were correct then there would be no need for a separate renewal provision. It would also provide great uncertainty for those who had been issued with a licence as their entitlement to that licence would continually be open to question and the possibility of being destroyed notwithstanding the fact that they had not engaged in any conduct for which the renewal of their licence could be refused. This would have a dramatic effect on the commercial value of such a licence. In my opinion, the fact that cl. 226H and 226I of the 2000 Regulation were re-enacted into the 2002 Regulation as cl. 301 and 302 does not give rise to any reason why this construction does not equally apply to the 2002 Regulation as there is no substantial difference between the two Regulations.

53 This does not mean that cl. 301 and 302 have no operation. As outlined above, they continue to operate where there has been a transfer of the entitlement to claim a history of operation in accordance with the regulations as the transferee will be required to seek a new licence in his/her name in respect of that boat. It will also apply to those circumstances where there has been a replacement of a boat that had previously been the subject of a licence.

54 Accordingly, for the reasons set out above, in my opinion, it was not open to the Minister to refuse Southport Fishing’s applications for renewal of the transferable licences for Sea Probe II and Sea Probe III on the basis that it had failed to satisfy him that it met the eligibility criteria as set out in cl.301(1) of the 2002 Regulation. On this basis I find that Minister’s decision to refuse Southport Fishing’s applications for the renewal of the transferable licences for Sea Probe II and Sea Probe III is not the correct and preferred decision and that it should be set aside with the substitution of a decision to renew the licences as there is no material before the Tribunal to refuse the licence on the grounds set out in cl. 308 of the 2002 Regulation.

f) The survey requirements of cl.301

55 While my findings as set out in the abovementioned paragraph are sufficient to dispose of this application, I have also given consideration to the question of the survey requirements in cl. 301(1) and 302(1) of the 2002 Regulation as this aspect of the application was extensively argued by the parties.

56 Again the starting point is the relevant provisions of the 2000 and 2002 Regulation. The relevant provision is cl.301(1)(a)(iii) and (b) of the 2002 Regulation, which is in exactly the same terms as cl.226H(1)(a)(iii) and (b) of the 2000 Regulation. As mentioned above, this provision specifies that in order for a person to be entitled to claim a history of operations in respect of a boat that person, in addition to establishing that the boat was used for guided recreational charter fishing activities during the relevant years for the prescribed number of days, must establish that these activities were undertaken in accordance with the requirements of the “certificate of survey” for the boat during the relevant years and that this “certificate of survey” was consistent with the type of licence that had been applied for.

57 From the evidence before the Tribunal a certificate of survey in respect of a vessel specifies the dimensions of the vessel, its registration details, the class of vessel, details of the main engine, the limits and conditions of operation (e.g. within 50 nautical miles of port or safe haven) and the maximum number of passengers and crew permitted on the vessel. That is, it is a certificate that verifies that the vessel is safe for the commercial use that is specified on the certificate. Under the laws of New South Wales and the laws of Queensland such certificates are issued by the delegate of the New South Wales Minister of Transport (i.e. the Waterways Authority) and the chief executive officer of the Queensland Department of Transport. However, in both cases a certificate will only issue where, prior to the issue of the certificate, a surveyor had inspected the vessel and verified the existence and condition of the matters specified in the survey.

58 Having regard to the content of a certificate of survey, in my opinion, the purpose of the certificate of survey requirement in cl. 301(1) and 302(1) of the 2002 Regulation was not to ensure that the boat met the safety requirements for vessels at the relevant time, as such matters were not and are not the responsibility of the Minister. They are the responsibility of another Minister of the Crown. The purpose of the certificate of survey requirement was a means to ensure that the boat for which a licence was being sought did in fact operate as a commercial charter fishing vessel during the relevant years. That is, the certificate formed an essential part of the means by which the fishing effort in the newly regulated charter fishing activity was to be capped at a level that did not exceed the level of fishing effort in this activity during 1995 to 1999. This effort being measured not only in the number of persons involved in the industry but also the size and capacity of the vessels used. Accordingly, applicants were prevented from seeking licences for vessels with improved capacity (i.e. able to carry more passengers and therefore take more fish) to that which existed during the relevant years.

59 As mentioned above, cl.301(1) of the 2002 Regulation specifically refer to a “certificate of survey” which is defined in cl.295 (previously cl.226B of the 2000 Regulation). In my opinion, that definition when broken down means the following:

a certificate of survey issued by or in accordance with the requirements of:
a) the Waterways Authority; or

b) another relevant authority approved by the Director

60 That is, a “certificate of survey” is a document, that can be described as a “certificate of survey”, which has been issued by the Waterways Authority or another relevant authority or which has been issued by a third party in accordance with the requirements of the Waterways Authority or another relevant authority. While the definition appears to provide for certificates issued by a third party, as mentioned above, the CV Act and its Regulation does not make any provision for this. On the other hand, the new Queensland Regulation makes provision for a certificate of compliance by a surveyor in respect of a vessel. As mentioned above, there is no requirement to obtain such a certificate and as no such certificate was obtained in this case I have not considered any further the question as to whether such a certificate would satisfy cl. 295 of the 2002 Regulation .

61 There is no question that at no time did Southport Fishing have a permit or other authority issued by the Waterways Authority during the relevant time. There is a suggestion that Southport Fishing operated in New South Waters illegally, however this is not a relevant matter to this application or a matter coming within the responsibility of the Minister.

62 I have also assumed that the Queensland Department of Transport is an “authority” approved by the Director of the Department. In this regard cl. 295 of the 2002 Regulation only provides that the Director is able to approve a particular authority, he does not have power to approve or not approve a particular certificate issued by such an approved authority.

63 Accordingly, in my opinion the primary matter for determination in this application is whether the replacement certificate of survey that was issued by the Queensland Department of Transport in July 1996 for Sea Probe II and Sea Probe III, pursuant to cl.191 of the new Queensland Regulation, was a “certificate of survey” coming within the terms of cl.295 of the 2002 Regulation and if it was how long was it was effective for.

64 As mentioned above, the relevant years under cl.301(1) and 302(1) of the 2002 Regulation is 24 October 1995 to 4 August 1999. In this regard, on the basis of the material before the Tribunal I find that the Queensland Department of Transport issued certificates of survey for Sea Probe II and Sea Probe III for the 1995 year, which is a relevant certificate for the purposes of cl.301(1) of the 2002 Regulation. On the basis of cl.191(1) of the new Queensland Regulation these certificates remained valid until the replacement certificates were issued in July 1996. I also find that the replacement certificates come within the description of a “certificate of survey” for the purposes of cl.295 of the 2002 Regulation.

65 Cl.191(5) and (6) of the new Queensland Regulation expressly provided that this replacement certificate was valid for the purpose of the new Queensland Act and Regulation and that it remained valid for one year after the regulations had come into force (i.e. from 1 January 1996). If this was the case then it must equally have been valid for the same period for the purpose of cl.301 and 302 of the 2002 Regulation. The question is did its validity extend beyond this period. In my opinion, on the basis of what is stated in the letter from the Queensland Department of Transport when the certificate was issued, it remained valid under the new Queensland Act so long as the vessel had not been altered in any way. There is no evidence before the Tribunal to indicate that either boat was altered during the relevant years. Accordingly, in my opinion, the 1996 replacement certificates of survey satisfy the requirements of cl. 301.

66 Finally, I briefly wish to address the submissions made by Dr O’Connor in respect of this aspect of Southport Fishing’s application.

67 His first contention was that the Waterways Authority had no jurisdiction beyond 12 nautical miles from the New South Wales coast line, which he argued meant that under the laws of New South Wales there was no requirement for Sea Probe II and Sea Probe III to be the subject of a survey. In this regard he has relied on an email between two officers of the Department dated 17 May 2001 and other correspondence of the Department. The email and the correspondence recites what officers of the Department had been told by an officer of the Waterways Authority as to the scope of the jurisdiction of the Authority. It would appear that as a result of this information the Minister issued the original transferable licences to Southport Fishing.

68 In this regard I agree with the submissions of Dr Thompson to the effect that the contents of the email and the correspondence are of no assistance to the matters in issue. Furthermore, for the reasons stated above, in my opinion, the jurisdiction of the Waterways Authority is of no relevance to this application. The relevant matter was whether the 1996 replacement certificates of survey applied for the purposes of the 2002 Regulation and how long they applied for.

69 For the same reasons, I find that Dr O’Connor’s arguments based on the Administrative Protocol for Mutual Recognition of Vessel Certificates of Survey, which provide for the recognition of a certificate of survey issued in one State or Territory in every other State or Territory, were not relevant as the 2002 Regulation does not in any way relate to such a recognition. That is, the question was not whether a Queensland certificate of survey was a survey under the laws of New South Wales.

70 Finally, in his oral submissions Dr O’Connor argued that the Minister having accepted the 1996 replacement certificates of survey in 2001 when issuing the original licences was estopped from rejecting them in a renewal application. In my opinion the authorities cited by Dr O’Connor are not supportive of his argument. In any event, if cl.301(1) and 302(1) of the 2002 Regulation do apply to a renewal application, the Minister is at liberty to consider these matters afresh each time a renewal application is made. However, when considering the matter afresh he is required to afford the applicant procedural fairness if he proposes to make a finding that is adverse to the applicant, in particular where he resiles from previous findings (see: FAI Insurance Limited v Winneke (1981-1982) 151 CLR 343). In this case there can be no argument that Southport Fishing has been denied procedural fairness and on the basis of my findings in respect of this aspect of the application it is unnecessary for me to consider whether the Minister is bound by his previous decision, if any, relating to the 1996 replacement survey.

g) Discretion

71 In light of my findings above there is no need for me to address this issue other than to state that cl. 308 of the 2002 Regulation gives the Minister a discretion to refuse a renewal application if he is satisfied that one of the grounds specified in that section have been satisfied.

Conclusion

72 For the reasons set out above I find that the decision of the Minister to refuse Southport Fishing’s application for a renewal of the transferable licences for Sea Probe II and Sea Probe III is not the correct and preferred decision and should be set aside.

Orders

73 The Tribunal orders:

i) The time for making this application is extended to 7 October 2003.

ii) That the Minister’s decision is set aside and in substitution thereof a decision is made to grant the applicant’s application for a renewal of the transferable charter fishing boat licences for Sea Probe II and Sea Probe III.