The Queen v the Minister for Sea Fisheries Ex Parte Rory Byrne and Gregory Norman Smith
[1987] TASSC 51
•15 September 1987
TASSC A47/1987
CITATION:The Queen v The Minister for Sea Fisheries ex parte Rory Byrne and Gregory Norman Smith [1987] TASSC 51; A47/1987
PARTIES: THE QUEEN
v
THE MINISTER FOR SEA FISHERIES ex parte
BYRNE, Rory and
SMITH, Gregory Norman
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M242/1987
DELIVERED ON: 15 September 1987
DELIVERED AT:
HEARING DATE:
JUDGMENT OF: Underwood J
CATCHWORDS:
REPRESENTATION:
Counsel:
Applicant:
Respondent:
Solicitors:
Applicant:
Respondent:
Judgment Number: TASSC A47/1987
Number of paragraphs: 28
Serial No A47/1987
File No M242/1987
THE QUEEN v THE MINISTER FOR SEA FISHERIES
ex parte RORY BYRNE AND GREGORY NORMAN SMITH
REASONS FOR JUDGMENT UNDERWOOD J
15 September 1987 NDERWOOD J.
This is the return of an order nisi calling upon the Minister for Sea Fisheries to show cause why an order absolute of mandamus or similar relief should not be made requiring him to deal with applications for a commercial abalone licence, made by each of the prosecutors on the 10 November 1986 and the 16 March 1987, in accordance with law.
Regulation 17A of the Sea Fisheries Regulations 1962 provides:
"17A(1)Subject to regulation 17AA, no person shall take any abalone in State fishing waters unless he is the holder of –
(a)a subsisting commercial abalone licence sold and issued for that purpose under this regulation; or
(b) …
(1A) The price at which a commercial abalone licence may be sold is a price calculated at $360 for each tonne of abalone that the holder of the licence is authorized to take while the licence is in force.
(2) An application for a commercial abalone licence –
(a) shall be in accordance with Form 1;
(b) shall be lodged with, or forwarded to, the Director; and
(c) …
(3) A commercial abalone licence –
(a) shall be in accordance with the form approved by the Minister;
(aa)authorizes the holder of the licence to take, while the licence is in force, not more than the quantity of abalone specified in the licence;
(b)subject to these regulations, continues in force from the date of issue thereof until 31st December then next ensuing; and
(c) is subject to the following terms and conditions:
…
(3AA) …
(3A) …
(4) …"
Both prosecutors first made application for the issue of a licence in accordance with the provisions of reg17A on the 31 October 1986. Those applications related to the period ending on the 31 December 1986. Neither of the prosecutors had previously held a commercial abalone licence.
On the 10 November 1986, before a decision had been made with respect to the first applications, each prosecutor lodged a second application for the issue of a commercial abalone licence, this time for the period ending on the 31 December 1987. By letters dated the 25 November 1986 the Minister advised each prosecutor that he had decided to refuse the application made on the 31 October 1986. This refusal was the subject of proceedings for an order absolute of mandamus or similar relief. On the 24 December 1986, the order nisi was discharged and a subsequent appeal to the Full Court was dismissed.
There appears to have been some confusion as to whether the Minister's letters of refusal dated the 25 November 1986 related to the applications made for the year ending the 31 December 1987 as well as the applications made for the year ending the 31 December 1986. The letter commences with a reference to both applications but the Minister claimed that he only intended to refer to the applications for the year ending the 31 December 1986.
At all events, on the 16 March 1987 each of the prosecutors made a further application for a commercial abalone licence for the year ending the 31 December 1987. By letters dated the l6 July 1987, the Minister invited both prosecutors to make submissions before he determined their applications for a licence for 1987. The prosecutors made submissions in writing on the 20 July 1987. By letters dated the 30 July 1987 the Minister advised each prosecutor that, on that day, he had considered the applications dated the 10 November 1986 and the 17 March 1987 and that he had decided to refuse to issue the requested licences.
In these proceedings, the prosecutors claim that the Minister did not consider the applications at all or, if he did, the exercise of his discretion was not in accordance with law and therefore, he should be ordered to consider the applications for the year ending the 31 December 1987 in accordance with the law as determined by this court.
Regulations 18 and 18A of the Sea Fisheries Regulations deal with the issue of licences generally, including commercial abalone licences. Regulation 18(1) provides that each licence shall be issued by the Minister. Regulation 18A provides:
"18A–(1) The Minister may refuse to issue a licence to an applicant –
(a) …
(aa) …
(ab) …
(b) …
(c) if, in the opinion of the Minister, the issue of the licence –
(i) would be contrary to the public interest;
(ii)would be detrimental to fish or the fishing industry; or
(iii)would be detrimental to the preservation of good order among persons engaged in fishing in State fishing waters.
(2)Where the Minister refuses to issue a licence pursuant to subregulation (1), he shall, within 30 days after refusing the application for the licence, notify the applicant in writing of the refusal and of his reasons for the refusal.
(3) …"
On behalf of the Minister it was contended that he had considered the applications and his refusal was the result of a proper exercise of his discretion in accordance with the provisions of reg 18A(1)(c).
In addition to evidence by way of affidavit, oral evidence was given by the Minister and Mr AJ Harrison who was, at the time he gave his evidence, Acting Deputy Director of the Department of Sea Fisheries. There was little dispute with respect to much of the evidence. The present Government, in common with its predecessors, has adopted and maintained a limited entry policy to control and manage the abalone fishery. The years 1963 to 1969 saw a period of spectacular growth in the abalone fishing industry. Many of the participants worked as abalone divers on a part–time basis and had little long term interest in the management and preservation of the fishery. In 1969, in order to regulate and conserve the fishery, the Government decided to adopt a limited entry policy similar to that which applied to the rock lobster fishery. The policy was to require all licence holders to be engaged full time in the industry, to limit the number of licence holders to the number of people then engaged in diving for abalone on a full time basis and to increase the licence fees. Following the adoption of this policy, 125 commercial abalone licences were issued. The number has remained constant ever since. It was also policy to issue a licence each year to a person who had held a licence during the preceding year for so long as he or she wished to work full time in the industry.
In general terms, this policy has been maintained for the last 18 years. In 1974, the Government decided, also as a matter of policy, that, in the event of a licence holder wishing to retire from the industry, the Minister would, upon the cancellation of his licence, issue a new licence to a person nominated by the retiree, provided such person was otherwise qualified to be the holder of a commercial abalone licence.
About four years ago, in order to further conserve the resource, the Government's policy was amended to restrict the quantity of abalone a licence holder was authorised to take. This restriction is referred to as a quota, the quantity of which is expressed in "units".
Both the Minister and Mr Harrison made it clear that the object of the policy is to provide stability in the abalone fishing industry and to regulate and preserve the natural resource. The maintenance of the policy has created a monetary value on the holding of a commercial abalone licence. Existing licence holders who wish to retire from the industry ask for, and obtain, large sums of money from persons who wish to enter the industry, both of whom are confident that, upon cancellation of the retiree's licence, the Minister will issue a licence to the nominee, provided he is a fit and proper person to hold a licence. In result, it has become impossible to obtain a commercial abalone licence without the payment of money to an existing licence holder who is prepared to have his licence cancelled and nominate his replacement to the Minister. In evidence, this process was referred to as the transfer of an entitlement or, the transfer of a place in the industry.
Mr Harrison said that the attachment of a capital value to "a place in the industry" produced professionalism on the part of the fishermen, a substantial investment in valuable equipment and a genuine interest in ensuring that the fishery was properly managed and not depleted.
On behalf of the prosecutors, who had not purchased an entitlement, and whose applications were consequently unaccompanied by a nomination from a retiring holder, it was submitted:
1 The Minister had not considered the applications at all because:
(a) a routine application of a policy does not amount to a consideration,
(b)the existence of the policy pre–determined these and any other application that may be made; or,
(c)he had delegated to existing licence holders, the decision as to which applications should be refused.
2 If the Minister did consider the applications, his determination was tainted with illegality, in that the policy of issuing licences only to the nominees of retiring licence holders meant that in reality, the Minister was transferring commercial abalone licences and the transfer of such licences was contrary to the provisions of the Sea Fisheries Act 1959 and the Regulations.
The Minister said, and I accept, that the Government policy was a policy which he approved of and he considered its application as an appropriate method of managing the fishery. He applied it on the determination of the prosecutors' applications and consequently decided to refuse them. With respect to these applications the Minister said:
"After the application was formally made for eighty seven licences in the abalone industry, the Director of Sea Fisheries, the then Director, wrote to the applicants and asked them if they wished to comment on policy matters. That letter was dated the 7 April and then I wrote to the two applicants, by letter dated the 16 July pointing out policy issues and inviting comment. And my recollection is that the applicants wrote back to me, I think two separate letters, saying that in respect to the matters I had raised with them in my correspondence that I should refer to the Statement of Claim and I think the affidavits, which they had filed in respect of the matter which is now before the court. I considered advice from my Department. I did read the documents that had been filed in the court, which had been presented to me by counsel and read those and considered the circumstances and then advised the applicants of the decisions."
It is trite law to state that the function of this court is not to examine the correctness of the decision to refuse the applications but to ascertain whether the decision was made in accordance with law. Referring to the exercise of a power delegated to a local authority, Lord Greene said in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 234:
"The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them."
See also Nottinghamshire County Council v The Secretary of State [1986] 1 All ER 199; Wheeler v Leicestor City Council [1985] 2 All ER 151.
Regulation 18A gives the Minister a discretion to refuse an application for a licence upon any of the grounds set out in the regulation. Before that discretion can be exercised properly the Minister must consider the application. Can it be said that, because the decision was based upon the application of a pre–determined policy, the Minister did not really consider the applications at all?
The authority often cited on this issue is The King v Port of London Authority ex parte Kynoch Ltd [1919] 1 KB 176. Bankes LJ said at 184:
"There are on the one hand cases where a tribunal in the honest exercise of its discretion has adopted a policy, and, without refusing to hear an applicant, intimates to him what its policy is, and after hearing him it will in accordance with its policy decide against him, unless there is something exceptional in his case. I think counsel for the applicants would admit that, if the policy has been adopted for reasons which the tribunal may legitimately entertain, no objection could be taken to such a course. On the other hand there are cases where a tribunal has passed a rule, or come to a determination, not to hear any application of a particular character by whomsoever made. There is a wide distinction to be drawn between these two classes."
That passage was cited with approval by Lord Reid in British Oxygen Co Ltd. v Minister of Technology [1971] AC 6l0, and, with reference to it, his Lordship said at 625:
"I see nothing wrong with that. But the circumstances in which discretions are exercised vary enormously and that passage cannot be applied literally in every case. The general rule is that anyone who has to exercise a statutory discretion must not 'shut his ears to an application' (to adapt from Banks LJ on p183). I do not think there is any great difference between a policy and a rule. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all. But a ministry or large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say – of course I do not mean to say that there need be an oral hearing."
In the present case, the Minister was perfectly entitled to adopt and pursue the policy of his predecessors. The Fisheries Act, s8, vests the responsibility for the control of sea fisheries in the Minister. Regulation. 18A(1)(c) entitles the Minister to refuse a licence if, in his opinion, its issue would be contrary to public interest, detrimental to fish or the fishing industry or detrimental to the preservation of good order among persons engaged in State fishing waters. I am satisfied that the Minister was and is of the bona fide opinion that, to grant any commercial abalone licence, including the prosecutors' other than in accordance with the policy, would be contrary to the public interest, detrimental to the abalone fishing industry and detrimental to the preservation of good order among persons engaged in the State fishing waters.
The Director of the Department of Sea Fisheries wrote to the prosecutors and advised each of them of the existence of the policy of limiting the number of licences issued in any one year and the reasons for that policy. The letter went on to say that "applications by the previous year's licence holders are considered before other applications". This letter advised the prosecutors that it was expected that the policy would be applied to their applications and they were invited to make submissions as to why this policy should not be so applied. The letter did not refer to the policy of issuing licences to nominees of retiring licence holders. The prosecutors responded to the Director's letter by writing to the Minister on the 27 April 1987, with a list of questions they wanted answered. That letter makes it clear that the prosecutors were well aware of the policy of restricting the issue of licences to those who had been licensed in the preceding year and to those who were nominated by a licence holder who wished to retire.
By letter dated the 16 July 1987, the Minister responded to the prosecutors' letter of the 27 April 1987, although not all the questions were answered. The letter concluded with an invitation to make submissions before a decision was made. The prosecutors made written submissions and, as the passage from the Minister's evidence set out above discloses, he considered those submissions and refused the applications.
As learned counsel for the prosecutors pointed out, none of the correspondence from the Minister or the Director referred to the policy of restricting the issue of new licences to nominees of retiring licence holders. However, part of the material submitted to the Minister constituted an attack on the validity of this policy, arguing that it amounted to an unlawful transfer of a commercial abalone licence.
Thus, it cannot be said that the prosecutors have not been heard by the Minister upon the determination of their applications. See Ridge v Baldwin [1964] AC 40; Twist v Randwick Municipal Council (1976) 136 CLR 106; Heately v Tasmanian Racing & Gaming Commission (1977) 137 CLR 487.
The existence of the policy, and its application by the Minister upon the determination of the present applications does not amount to a delegation of Ministerial discretion to existing licence holders. There was no matter of law which required the Minister to apply the policy in the present cases. There is nothing to suggest the Minister ever considered himself bound to apply the policy and reject the applications. It is clear that for the time being at least, the Minister believes that the maintenance of the policy is in the best interests of the fishery and those engaged in it. He is entitled to hold that view and apply it upon a determination of an application for a commercial abalone licence, provided, he does not "shut his ears" to an argument that the policy should not be applied in any given case.
In the present cases I am satisfied that the prosecutors were given and took advantage, of an opportunity to make relevant submissions to the Minister. I am satisfied that the Minister considered those submissions but reached the conclusion that there was no good reason for not applying the policy to the applications and accordingly he determined to refuse to issue the requested licences. I am also satisfied that such refusal was in accordance with the criteria laid down by reg18A(1)(c).
The contention that the exercise of the Minister's discretion was tainted with illegality must fail. Neither the Act, nor the regulations, permit the transfer of a commercial abalone licence from one holder to another. However, the evidence established that the maintenance of the policy is achieved by the cancellation of a retiring licence holder's licence before the issue of a new licence to his nominee, provided such nominee is qualified by the regulations to hold a licence. There is nothing in the Act or Regulations which makes this practice unlawful. Provided the Minister properly considers an application and exercises his discretion in accordance with the fetters imposed on him by the regulations, it is immaterial if the principal factor governing the exercise of that discretion is the application of a policy that achieves the same result as would be achieved if a licence was transferred. The Act and Regulations do not operate to constrain the Minister from exercising his discretion so as to avoid that result being achieved.
The order nisi will be discharged.
0
2
0