WC & AC Morin Pty Ltd -v- Queensland Fisheries Management Authority and Breen Shea and Martin -v- Queensland Fisheries Management Authority and Breen
[2000] QSC 169
•9 June 2000
IN THE SUPREME COURT
OF QUEENSLAND
CAIRNS No. S61 & S65-70 and 78 of 1999
Before the Hon. Justice Jones
[WC & AC Morin Pty Ltd -v- Queensland Fisheries Management Authority and Breen
Shea and Martin -v- Queensland Fisheries Management Authority and Breen] [2000] QSC 169
No. S61 & S65-70 of 1999
BETWEEN: W.C. & A.C. MORIN PTY LTD.
Applicant
AND: QUEENSLAND FISHERIES MANAGEMENT
AUTHORITY
First Respondent
AND: SIAN BREEN
Second Respondent
No. S78 of 1999
BETWEEN: REGINALD KEITH SHEA
First Applicant
AND: JACK ARTHUR MARTIN
Second Applicant
AND: QUEENSLAND FISHERIES MANAGEMENT
AUTHORITY
First Respondent
AND: SIAN BREEN
Second Respondent
JONES J
Judgment delivered 9th Day of June, 2000
Each of the applications is dismissed.
No order as to costs.
Catchwords: JUDICIAL REVIEW - ON GROUND OF BREACH OF NATURAL JUSTICE - STATUTES - INTERPRETATION - QFMA amended authority and permits - Quotas altered - Fisheries Tribunal not constituted at time - Whether show cause procedure or written notification was required - To what extent does natural justice apply - Question of statutory construction
Counsel:Mr P. Bickford for the Applicants Shea and Martin
Mr B. Morris for the Applicant WC & AC Morin Pty Ltd
Mr H. Fraser QC and with him Mr A. Duffy for the First and Second Respondents
Solicitors:MacDonnells for the Applicants Shea and Martin
Bottoms English for the Applicant WC & AC Morin Pty Ltd
Ebsworth & Ebsworth for the First and Second Respondents
Hearing date: 22nd March 2000
IN THE SUPREME COURT
OF QUEENSLAND
No. S61 & S65-70 of 1999
BETWEEN: W.C. & A.C. MORIN PTY LTD.
Applicant
AND: QUEENSLAND FISHERIES MANAGEMENT
AUTHORITY
First Respondent
AND: SIAN BREEN
Second Respondent
No. S78 of 1999
BETWEEN: REGINALD KEITH SHEA
First Applicant
AND: JACK ARTHUR MARTIN
Second Applicant
AND:QUEENSLAND FISHERIES MANAGEMENT
AUTHORITY
First Respondent
AND:SIAN BREEN
Second Respondent
REASONS FOR JUDGMENT
BEFORE THE HONOURABLE JUSTICE JONES
DELIVERED THE 9th DAY OF JUNE, 2000
On 20 September, 1999 by flying minute the Board members of the Queensland Fisheries Management Authority (“QFMA”) made a decision to amend the authority and permits which it had issued to various authority holders on 1 July, 1999 for the period ending 30 June, 2000.
That decision purported to alter the quotas and type of catch permitted by the various holders of authorities to take catch from the Beche-de-Mer Fishery (East Coast).
A number of authority holders and one processor, each of whom depend for their livelihood on the harvesting of varieties of teat fish which become beche-de-mer product, are affected by that decision.
Those authority holders have sought a judicial review of the QFMA decision on a number of grounds, seeking particularly the re-instatement of the terms of their original authorities. When the matter finally came on for hearing the parties had agreed that many of their grievances should be determined by the Fisheries Tribunal which is established pursuant to Part 9 of the Fisheries Act 1994 (“the Act”) and to which each of the applicants had a right of appeal. That left for determination in these proceedings only one question of statutory construction.
The question is whether the change to the original authority is one contemplated by s.63(4)(e) of the Act and therefore able to be on written notice contemplated by s.63(1) or whether it was a change in the authority (including its conditions) which requires the fisheries agency to give a show cause notice to an authority holder. This one question is common to both applications for judicial review and so each matter has been heard together.
Statutory provisions and background facts
Among the objectives of the Act as set out in s.3(1) are:-
“(a)Ensuring fisheries resources are used in an ecologically sustainable way; and
(b)Achieving the optimum community, economic and other benefits obtainable from fisheries resources; and
(c) Ensuring access to the resources is fair.
These objectives are to be achieved, inter alia, by :-
(a)establishing the Queensland Fisheries Management Authority to manage and protect fisheries resources with the Chief Executive Officer of the Department;
...
(d)providing for the management of commercial, recreational and indigenous fishing;
...”
The QFMA is a body corporate with wide powers and it may delegate certain of those powers as prescribed. For convenience I will refer to either of both respondents as QFMA except where it becomes necessary to distinguish between them. It may prepare and promulgate a fish management plan for a particular fishery, make declarations as to such things as closing fishery areas or on the quota of fish to be taken from a fishery area.
In pursuit of these objectives the QFMA may, through the Chief Executive Officer, issue an authority to take fish for trade or commerce. See ss.49 and 50. Such an authority is for a fixed term and an application may be made for its renewal.
The issue or renewal of an authority may be subject to the imposition of conditions pursuant to s.61 of the Act which contains the following relevant provisions:-
“61.(1) When a fisheries agency issues or renews an authority, it may impose reasonable and relevant conditions, including, for example –
(a)if the authority is not itself a quota – a condition fixing a quota for the authority; and
(b)a condition requiring payment of a bond to ensure the holder will comply with the conditions of the authority; and
...
(2) The conditions must be stated in the authority.
(3) In fixing a quota for an authority, the fisheries agency must comply with any relevant regulation, management plan or quota declaration.
...
(7) To remove any doubt, a condition may be imposed by a fisheries agency even though the effect is to stop the holder or someone else taking fisheries resources, or using a boat or fishing apparatus that could, apart from the condition, be lawfully taken or used under the authority.
(8) Compensation is not payable if conditions are imposed on an authority, or anything previously permitted is prohibited or regulated under the authority.”
The authorities issued to the applicants here were each for the period 1 July, 1999 to 30 June, 2000. The form of the authority was divided into sections, the last two of which detailed the following:-
“Quota
not applicable
Conditions1.All species of beche-de-mer with a minimum size of 15 cm (live specimens) may be taken.
2.The authority holder must keep and give to the Authority logbook returns as outlined in the Queensland Beche-de-mer and Trochus Fisheries logbook.
“Nil” returns are to be lodged for periods where no project is taken. Returns are to be forwarded to Chief Executive Officer, Queensland Fisheries Management Authority, PO Box 344, Fortitude Valley Q 4006.
3.Collection during the term of this authority is restricted to 25 tonne (wet weight) of beche-de-mer.
4.Up to 10 people may be engaged as divers for the collection operation. A record of divers employed is to be kept and made available for inspection if required.
5.The authority holder is only authorised to use the boat “Marie J” with the boat mark “GBF-M”. Any change of boat must be advised of in writing to the Executive Officer, Queensland Fisheries Management Authority, PO Box 344, Fortitude Valley Qld 4006 for approval before any collecting operations take place on that boat and pay the required fee to amend the authority.” [1]
[1] These are the conditions applicable to an authority issued to Mr. Ronald Shea and are typical of, but not identical with, conditions attached to the other authorities. The precise terms of the conditions do not impinge on the question to be determined.
On 23 September, 1999 notice was given of an amendment to those conditions as follows:-
1.Deleting condition (3) and inserting the following: “The holder may take zero quota of black teatfish from 1 October 1999 to 30 June 2000.”
2.Renumber existing conditions (4) and (5) to (6) and (7).
3.Insert the following condition: “(4) The holder may take a quota of 8.3 tonnes (wet weight) of white teatfish.”
4.Insert the following condition: “(5) The holder may take a quota of 16.7 tonnes (wet weight) of any other species of beche-de-mer.”
The reason for the dispute in this case becomes apparent once reference is made to the section of the Act which deals with amendment. Section 63 relevantly provides:-
“63.(1) If the fisheries agency that issued an authority considers the authority (including the conditions stated in it) should be amended, the fisheries agency must give the holder of the authority a written notice (the “show cause notice”) that –
(a) states the proposed amendment; and
(b) states the reasons for the proposed amendment; and(c)outlines the facts and circumstances forming the basis of the reasons; and
(d)invites the holder to show, within a stated time of at least 38 days, why the authority should not be amended.
(2)the fisheries agency may amend the authority if, after considering all representations made within the stated time, the fisheries agency still considers the authority should be amended –
(a) in the way mentioned in the show cause notice; or
(b) in another way, having regard to the representations.
(3)If the fisheries agency decides to amend the authority, the fisheries agency must give the holder of the authority a written notice stating –
(a) how the authority has been amended; and
(b)that the holder may appeal against the amendment to the Fisheries Tribunal within 28 days.
(4) Subsections (1) to (3) do not apply if the authority is amended only –
(a)by omitting a condition if the omission does not adversely affect the holder’s interests; or
(b) for a formal or clerical reason; or
(c)in another way that does not adversely affect the holder’s interests; or
(d) at the holder’s request; or
(e) by changing a quota for the authority.
(5)The fisheries agency may make an amendment of a type mentioned in subsection (4) by written notice given to the holder.
(6)To remove any doubt, any condition that may be imposed on an authority when it is issued may be imposed on the authority by amendment.
(7)Compensation is not payable if an authority is amended, or anything previously permitted under the authority is prohibited or regulated.
(8)However, subsection (7) does not prevent a regulation or management plan providing for payment of compensation.”
The issue
The question is whether the notification amending the conditions falls within subsection (1) requiring a show cause procedure or subsection (4) requiring only written notification.
The respondents argue that all that was being done by the notification was the changing of a quota for the authority. They contend that the key to the construction of the section is the meaning to be given to the words “quota” which is defined by s.9 of the Act in the following terms:-
“9. “Quota” includes a restriction on activities by way of fishing, including, for example, a restriction specified by reference to all or any of the following –
(a) a quantity of fish;
(b) a percentage of a quantity of fish;
(c) a period of time;
(d) an area;
(e) the length or another reference to the size of a boat;
(f) a quantity or type of fishing apparatus or aquaculture furniture;(g)an activity affecting a fish habitat, whether or not the activity involves fishing;
(h) anything else prescribed under a regulation.”
The definition is in a sense counter intuitive. It is characterised as a restriction rather than having its more common meaning of “part or share of the total” [2] or “the proportional share or part of a whole, that is due from, due to, or allocated to a person or group” [3]. The statutory definition by reference to such matters as the length or size of the boat or to activities in a fish habitat not including fishing, gives an indication of the non-conventional nature of the use of the word “quota”.
[2] Standard Oxford Dictionary second ed.
[3] Collins English Dictionary
Prima facie s.63 requires that any amendment to the authority (including the conditions) must be preceded by a show cause process. Subsection (4) is effectively an exception to that requirement. In all but one of the matters the undertaking of a show cause procedure would be seen as unnecessary and superfluous – such as a change requested by the holder, correction of a clerical error or change in an inconsequential condition.
But the one matter in subsection (4) which is unlike the others is paragraph (e) – “By changing a quota for the authority”. A change in a quota one expects would not usually be inconsequential to the authority holder.
In the form of the specific authority granted to the applicants there is provision for the identification of “Quota”. It bears the notation “not applicable”. There is no evidence before me as to the type of quota for which this provision is made in the prescribed form of the authority.
The terms of s.61 make reference to the fact that the authority itself may be a quota which probably explains the provision in the form of a place where the quota could be expressed. If this is not done then a condition may fix “a quota for the authority”. The original condition 3. in the authority therefore is clearly a “quota for the authority”.
QFMA argues that despite its juxtaposition with inconsequential matters s.63(4)(e) provides for a distinct legislative power for it to change an authority without any show cause proceeding. QFMA identifies the rationale for this power as the need to act quickly in certain circumstances and certainly in a lesser time than the 28 days permitted for the show cause procedure. Experience in this case has shown that a high proportion of an authorities holder’s quota could be gathered in a short time. QFMA contend that the legislative policy underlying the inclusion of the power to amend quotas in subsection (4) was to avoid QFMA being ham strung in the exercise of that power. Without this specific power to change quotas the only alternative would be to have a blanket reduction which would have a wider impact, such as the closure of the fishery pursuant to s.43 or a declaration of quotas pursuant to s.44 of the Act.
The resolution of QFMA obtained by flying minute on 20 September, 1999 effectively closed the blackteat fishery from 1 October 1999 and introduced a total allowable catch with whiteteat fish and other species. But the area covered by each authority was the whole beche-de-mer fishery (east coast). [4] So the power to change quotas for the authority is quite a different mechanism to the amendment to a management plan (s.39) or a change by a fisheries declaration both of which are subordinate legislation or by emergency fisheries declaration which, whilst not subordinate legislation, has a limited period of operation. Had any such steps been taken then the terms of the authorities would have had to have been altered in any event so as to comply with the new provision. See s.62 of the Act [5].
[4] Fisheries Regulation 1995 Schedule 15
[5] S.62(1) an authority is also subject to the conditions prescribed under a regulational management plan.
With this rationale understood, QFMA argues the express terms of using the s.9 definition for “quota” makes it clear that the legislature intended to exclude rights of the authority holder to be heard in relation to a decision to change the quota.
For the applicants it is argued that having regard to the terms of s.63 read as a whole it shows that the alteration to a holder’s rights under the authority will only be done after being given an opportunity to be heard. That requirement need not be observed when, for example, a condition is omitted where the omission does not adversely affect the holder’s interest. Here it is contended the omission of condition 3 and its replacement provisions clearly does affect interest and therefore cannot be imposed without the show cause process or the application of the rules of natural justice. [6]
[6] See Annetts v McCann (1990) 170 CLR 596 at 598.
The applicants argue that by reason of its juxtaposition with inconsequential matters the changing of quota referred to in s.63(4)(e) must refer to quota in a sense other than as defined in s.9. It could be construed as a reference only to the Quota provision in the authority document itself. In the circumstances of this case where there is no such quota then this paragraph of subsection (4) had no applicability and the amendment of the condition being one which adversely affects interest, would have to be preceded by a show cause procedure.
In my view there is no warrant for such a limitation. Quota as defined by s.9 is used consistently throughout the Act. This is demonstrated by reference to ss.38, 42, 44, 48 and 61. Moreover, such an argument is defeated by the terms of s.61(1)(a) where a condition takes on the status of “a quota for the authority”. In those circumstances I must conclude that the terms “quota for the authority” as it appears in s.63(4)(e) refers to the same matter as referred to in s.61 and it is to be interpreted in accordance with the definition of s.9.
Having come to this view, I accept the argument of QFMA that the power to amend an authority by changing a quota is one that may be exercised without prior show cause process. I should however observe that the legislative intent on this matter with such significant ramifications ought to have been more directly expressed.
To what extent do rules of natural justice apply?
The principle defining the applicability of the rules of natural justice is set out in the joint judgment of Mason CJ, Deane and McHugh JJ in Annetts case at p.598 as follows:-
“It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment:”
It is clear enough that the financial effects of the amendment to these particular authorities have been quite severe for the holders, permittees and the processor. This fact is understood by QFMA and no challenge is made to this assertion. What is challenged however, is the scope of the application of the rules of natural justice.
There is no doubt that the QFMA decision would be vitiated if it was tainted by bias or corruption on the part of the decision makers. But QFMA contends that the scheme of the Act suggests that the legislature intended there be no hearing prior to the decision to amend. Mr. Fraser Q.C., on behalf of the QFMA argued that this intent is evident from the terms of s.63 itself which provide for a hearing in respect of amendment in certain cases but expressly excludes it in respect of a change in quota. He points to the policy reasons to which I have earlier referred. He points also to the fact that there is an appeal provision in s.196 which would allow some further consideration of these adverse effects. Counsel on behalf of QFMA relied on remarks of Justice Aickin (in which Stephen and Mason JJ concurred) in Heatley v Tasmanian Racing and Gaming Commission [7]. That case concerned the giving of a “warning off” direction to a person preventing his entry to racecourses in Tasmanian. No prior notice was given to him nor were the reasons for the direction given prior to its being made. It was held by the majority in that case the rules of natural justice required the giving of notice and an opportunity to be heard. However, that does not mean that those specific requirements have to be met in all cases to comply with natural justice. At p.510 Aickin J said:-
“I do not think that this is a case in which one can properly say that the legislature has in fact so dealt with the manner in which this particular power is to be exercised as to exclude the requirements of natural justice. In relation to bookmakers, e.g., there is a series of express provisions dealing with the manner in which statutory powers of suspension, cancellation and renewal of registration may be exercised adversely. However, in relation, e.g. to initial registration of bookmakers, it would not be possible to say that it could not be refused save in accordance with the principles of natural justice. One would there have an express selection of some powers concerning bookmakers in respect of which detailed requirements were made and other powers in respect of which no procedural requirements were provided. That is the kind of situation which might warrant a conclusion that the legislature had expressly adverted to the matter and provided for the adherence of the principles of natural justice in some circumstances though not in others.”
[7] (1997) 137 CLR 487
Counsel for the applicants referred, in addition to Annetts case (supra), to a number of cases wherein circumstances required the application of the rules of natural justice. They included particularly Commissioner for Police v Tannos [8] where Dixon CJ referred to the need for any exclusion of the rules of natural justice to be clearly spelt out. In Baba v Parole Board of New South Wales [9] the Court of Appeal of New South Wales was concerned with the application of the rules of natural justice to a power to rescind a parole order under the Probation Act. The Act set out provisions for the making and reviewing of parole orders but not for rescission. The Court held in the circumstances of that case, even though a later review according to procedure was intended, the power to rescind required a hearing. Hope JA did however (at p.347E) refer to the situation where a power had to be exercised urgently as an important factor in deciding whether the principles of natural justice apply.
[8] (1957-8) 98 CLR 383 at p.396
[9] (1986) 5 NSWLR 338
In Kioa v West [10] Mason J said:-
[10] (1985) 159 CLR 550 at p.582
“It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it:”
Later (at p.584) his Honour said:-
“Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute...
In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considers....
The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect ...
However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned.”
Ultimately it is a question whether the terms of s.63 do show an intention to exclude changes in quota being the subject of a notice which gives an opportunity to be heard. In determining this legislative intent it is proper to take into account the policy considerations which might lead to a distinction being made in respect of an inquiry into that type of change.
The policy considerations which are likely to arise are exemplified in this particular case by the documents which were tendered as an agreed bundle of documents. They show a history of concern about the threat of over-fishing in the beche-de-mer fishery. Exhibits to the affidavit of Sian Breen also indicate a dramatic increase in the catch of black teatfish and the prospect of a significant increase in the catch of white teatfish. The documentation placed before board members upon which the resolution by flying minute was based indicates concern on the part of the advisers to QFMA and the need to take urgent action. The action that was taken resulted in across the board adverse effects for authority holders rather than against a specific individual although some individuals no doubt were more directly affected than others.
My review of the whole exercise and the purpose for which the increased restrictions were imposed by QFMA leads me to the view that there were sound policy reasons for not subjecting changes in quotas in the authority to prior show cause proceedings. The requirement to act fairly in the circumstances of a broad based review of quotas did not require individual authority holders to be heard. The flow on effect to the individual holders of the broad based change can be readily dealt with in the appeal process provided by the statute.
I find therefore that there has been no breach in the application of the rules of natural justice in the particular circumstance of this case.
This being my decision there is no basis for judicial review of the decision of QFMA and I would therefore dismiss each of the applications.
I make no order as to costs.
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