Re Secretary, Department of Primary Industries and Energy v James Colin Collins [1992] FCA 61; (1992) 106 ALR 351 (1992) 15 Aar 184 (1992) 34 FCR 340 (1992) 26 ALD 265 (25 February 1992)

FEDERAL COURT OF AUSTRALIA

Re: SECRETARY, DEPARTMENT OF PRIMARY INDUSTRIES and ENERGY
And: JAMES COLIN COLLINS
No. T G1 of 1992
FED No 82
Administrative Law
[1992] FCA 61; (1992) 106 ALR 351
(1992) 15 AAR 184
(1992) 34 FCR 340
(1992) 26 ALD 265

COURT

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
GENERAL DIVISION
Heerey J.(1)

CATCHWORDS

Administrative Law - appeal from decision of Administrative Appeals Tribunal - refusal to renew allocation of unit to fishing boat - Great Australian Bight Trawl Fishery Preliminary Management Plan - renewal conditional - condition that boat trawl in fishery for a minimum of 100 days each year - whether condition mandatory - whether plan has force of law - whether "residuary discretion" vested in Administrative Appeals Tribunal - Parts III and IV Fisheries Act 1958.

Fisheries Act 1958

Great Australian Bight Trawl Fisheries Preliminary Management Plan

HEARING

MMELBOURNE
25:2:1992

Counsel for the applicant: Mr R.J. McInnes

Solicitor for the applicant: Australian Government Solicitor

Counsel for the respondent: Mr G.A. Hay with Mr R. Manning

Solicitors for the respondent: Brown Ware and Hay

ORDER

The appeal be allowed.

The decision of the Administrative Appeals Tribunal dated 6 November 1991 be set aside.

The decision by the delegate of the applicant to confirm the decision not to renew the allocation of a unit to the respondent in respect of the "Saxon Ranger" under para.13 of the Great Australian Bight Trawl Fishery Preliminary Management Plan for the year 1991 be affirmed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

This appeal from the Administrative Appeals Tribunal ("AAT") concerns the Fisheries Act 1952 ("the Act") and the Great Australian Bight Trawl Fishery Preliminary Management Plan ("the Plan"), a management plan determined by the Minister under s.7B of the Act.

2. The Plan operated from 20 December 1989 until 31 December 1991. By para.7.1 it provided for the fishing capacity of the fishery to be measured in units of which a maximum of 12 were to be allocated for boats 40 metres or less in length.

3. For 1990 the respondent was allocated under paras.8.1 and 9.1 of the Plan one unit in respect of his boat "Barameda". His licence, granted under s.9 of the Act, was appropriately endorsed under para.21.2 of the Plan. By para.23 of the Plan, the endorsed licence was subject to a number of conditions, including a requirement that the boat or its authorised replacement should trawl in the fishery for a minimum of 100 fishing days during each year: para.23(a).

4. In January 1990 the respondent's entitlement was transferred to another boat, the "Saxon Ranger". Unfortunately the respondent encountered a disastrous series of mechanical and seaworthiness problems with this boat and it was able to trawl in the fishery for only 59 days in 1990.

5. On 11 January 1991 the Manager of the fishery refused to renew the allocation of a unit to the respondent for 1991 in respect of the "Saxon Ranger". In taking this decision the Manager acted under para.13 of the Plan which provided:
"13. The Manager shall not renew the allocation of a unit unless

the unit holder has complied with the conditions specified in
paragraph 23."

This decision was confirmed by subsequent Departmental review and the respondent exercised the right of appeal to the AAT conferred by s.16A of the Act.

6. On 6 November 1991 the AAT constituted by Deputy President R.C. Jennings QC and Members G.F. Brewer and E.E. O'Farrell ordered that the decision under review be set aside and directed that the respondent:

"...is and was at all material times eligible for renewal of the
allocation of a unit in respect of the boat "Saxon Ranger" to
operate in the Great Australian Bight Trawl Fishery in 1991 pursuant
to the provisions of the Preliminary Management Plan notwithstanding
the failure of the (respondent) to comply with a condition specified
therein, namely, that the boat "Saxon Ranger" did not trawl in the
fishery for a minimum of 100 fishing days during the year 1990."

The AAT further directed that the Manager renew the allocation of one unit to the respondent for the year 1991 and it noted that by reason of the decision to refuse to review the allocation of a unit in respect of the "Saxon Ranger" for 1991 the respondent had been unable to comply with the conditions in the Plan as to trawling in the fishery during that year.

7. Before examining the legal reasoning which led the AAT to this conclusion, it should be noted that there was detailed examination of the misfortunes which had resulted in the "Saxon Ranger" being unable to meet the 100 day requirement. The AAT, having found in substance that the 100 day requirement was not mandatory for renewal, went on to hold that there were circumstances which justified dispensation with that requirement in the respondent's case. It was not suggested in the hearing before me that there was no evidence to support such a conclusion. The applicant's case was simply that the 100 day requirement was mandatory and could not lawfully be waived or modified.

8. The first ground of the AAT's decision was based on s.7B(8) and (8A) of the Act. Those provisions are contained in Part III which is headed "Regulation of Fisheries". Under s.7 marine or tidal waters may become proclaimed waters for the purposes of the Act. Section 7B relevantly provides:

"7B(1) The Minister may, by instrument in writing,
determine a plan of management for a fishery in
proclaimed waters.
(2) A plan of management for a fishery shall set out-
(a) the objective of the plan of management; and
(b) measures by which the objective is to be attained.
(3) Without limiting the generality of sub-section
(2), the Minister may, in a plan of management
for a fishery -
(a) determine the manner in which the
fishing capacity of the fishery is
to be measured; and
(b) determine the fishing capacity, measured
in that manner, permitted for the fishery.
(4) Without limiting the generality of sub-section
(2), a plan of management for a fishery may make
provision for and in relation to -
(a) the granting of licences under sub-sections
9(2) and (3) in relation to the fishery;
(b) the conditions to which licences granted
under sub-section 9(2) and (3) in relation
to the fishery are to be subject; and
(c) the duration, transfer, renewal and
variation of licences granted under sub-sections
9(2) and (3) in relation to the fishery.
(5) Where, in a plan of management for a fishery,
the Minister determines the fishing capacity
permitted for the fishery, then, without
limiting the generality of sub-section (2), the
plan of management may make provision for and in
relation to -
(a) the division of the fishing capacity
permitted for the fishery into units (in
this section referred to as "units of
fishing capacity");
(b) the allocation to persons of units of
fishing capacity in the fishery;
(c) the assignment of units of fishing
capacity to boats, and the holding, and
cessation of holding, of units of fishing
capacity in relation to boats;
(d) requiring units of fishing capacity to be
held in relation to boats;
(e) the determination of the number of units
of fishing capacity to be held in relation
to boats;
(f) the holding of units of fishing capacity
that are not assigned to a boat, including
the number of such units of fishing
capacity that may be held by a person and
the period during which such units of
fishing capacity may be held;
(g) the duration, variation, re-assignment,
transfer, surrender, replacement, renewal
of allocation, suspension and cancellation
of units of fishing capacity;
(h) the recording of the allocation,
assignment, holding, cessation of holding,
variation, re-assignment, transfer,
surrender, replacement, renewal of
allocation, suspension and cancellation of
units of fishing capacity and the manner
in which such recording is to be
evidenced, including the issue, recall and
replacement of certificates and other
documents evidencing such recording; and
(j) the reconsideration of decisions made
under the plan of management.
(6) Such fees (if any) as are prescribed are payable
in respect of the allocation, assignment,
variation, re-assignment, transfer, replacement,
and renewal of allocation, of units of fishing
capacity and the issue and replacement of
certificates and other documents evidencing the
recording of the allocation, assignment,
holding, cessation of holding, variation,
re-assignment, transfer, replacement, and renewal
of allocation, of units of fishing capacity.
(7) Regulations made for the purposes of sub-section
(6) may specify different fees, or prescribe
different methods of calculating fees, in
respect of units of fishing capacity included in
different classes of units of fishing capacity.
(8) While a plan of management is in force for a
fishery, the Minister and the Secretary shall
perform their functions, and exercise their
powers, under this Act in relation to the
fishery in accordance with the plan of
management, and not otherwise.
(8A) The Minister and the Secretary shall, in the
performance of their functions and the exercise
of their powers generally under this Act, have
regard to the effects, either direct or
indirect, that the performance of the functions
and exercise of the powers may have in relation
to any plan or plans of management.
(9) In this section -
"decision" has the same meaning as the
Administrative Appeals Tribunal Act 1975;
"fishery" means a class of activities by way of
fishing, being a class of such activities that
is identified in a plan of management as a
fishery to which the plan of management applies.
(10) Without limiting the matters by reference to
which a fishery may be identified in a plan of
management, those matters include all or any of
the following:
(a) a species of fish;
(b) a description of fish by reference to sex or
any other characteristic;
(c) an area of waters or of seabed;
(d) a method of fishing;
(e) a class of boats;
(f) a class of persons;
(g) a purpose of activities."

Section 7C provides for the gazettal of determinations under s.7B(1), and s.7C(3) incorporates Part XII of the Acts Interpretation Act 1901 relating to the tabling and disallowance of regulations so that those provisions apply to determinations as if they were regulations.

9. Section 8 empowers the Minister to publish notices relating to numerous fishing matters. By way of example, s.8(1)(a) and (b) provide:

"8(1) The Minister may, by notice published in the Gazette -
(a) prohibit the taking, processing or carrying of
fish, or fish included in a class of fish
specified in the notice;
(b) prohibit the taking of fish included in a class
of fish specified in the notice that -
(i) are less than a size so specified;
(ii) are not greater than a size so specified;
(iii) have a dimension less than a dimension so
specified; or
(iv) have a part with a dimension less than a
dimension so specified in relation to that
part;"

By s.8A Part XII of the Acts Interpretation Act 1901 is made applicable to notices under s.8. Section 9 provides for the granting of fishermen's licences. The remainder of Part III contains provisions dealing with suspension and cancellation of licences, agreements to grant licences, levies, fisheries agreements, treaty licences, powers of officers and the release of seized property.

10. Part IV of the Act is headed "Research and Development". Under s.11 the Minister may cause to be carried out operations for ascertaining whether fishing in an area of proclaimed waters can be engaged in on a commercial basis and for the development of fisheries in proclaimed waters. Under s.12 the Minister may cause investigations to be made into economic matters relating to fisheries in proclaimed waters.

11. In its reasons for decision the AAT referred to the objectives of the Great Australian Bight Trawl Fishery as set forth in para.5 of the Plan. These included the promotion of the discovery and development of fish resources within the fishery and the obtaining of information to assist in the development of a long term management regime and (in this regard incorporating the objectives contained in s.5B of the Act) ensuring, through proper conservation and management measures, that the living resources of the Australian fishing zone are not endangered by over-exploitation and achieving the optimum utilisation of the living resources of the Australian fishing zone. The AAT then went on to say (at 17):

"Thus when exercising powers under the Act to review a
decision of the Manager under the Plan, the Secretary or his
delegate (and ultimately this Tribunal) regard must be had
for the effects whether direct or indirect that the exercise
of those powers may have in relation to any Plan. The mere
existence of powers of reconsideration and review is itself
a recognition that Plans are created with specific
objectives. They necessarily contain rules which are
intended as guidelines for the implementation of the Plans.
But it would be self defeating if mandatory adherence to
those rules became so strict that the ultimate objective of
the Plan could not be attained because the rules were too
strict to allow for any compliance at all.
"There is a requirement of 100 days fishing per annum to
qualify for a second year licence. There could be no
further discovery of resources in a subsequent year if no
vessel achieved the minimum period due for example to
persistently bad weather during a particular period. The
general powers of review are so widely expressed that it
must be inferred in our opinion that the law-makers intended
to leave room for the reasonable achievement of broad
objectives.
"It is therefore our conclusion that failure to comply with
the requirement of condition (a) of paragraph 23 of the PMP
is no absolute bar to the renewal of the allocation of a
unit to the applicant in respect of the year 1991. Whether
the allocation of that unit should be renewed is therefore a
matter of discretion."

In reference to s.7B(8A), the AAT adopted a statement in an earlier Tribunal decision, Wisby and Taylor v Secretary, Department of Primary Industry and Energy (7 April 1989) to the effect that there was an "inescapable conclusion" that the amendment to the Act by the introduction of s.7B(8A) in 1987:

"... was regarded as necessary in order to make it clear
that the Plan was not intended to be an overriding
consideration, but rather that the Minister should consider
the potential effects of the exercise of his powers in those
fisheries for which a Plan of Management was in force."

The second basis of the AAT's decision was founded on passages contained in judgments of members of the Full Court in Drake v Minister for Immigration [1979] AATA 179; (1979) 24 ALR 577 which were said to support a conclusion that there was a "residuary discretion" in the Tribunal to consider what was the correct or preferable decision in relation to the respondent's claim for renewal of his allocation of a unit under the Plan for the "Saxon Ranger" in 1991.

12. It will be convenient to deal first with the second ground on which the AAT relied.

13. The starting point is the proposition that the Plan has the force of law. So much was conceded by counsel for the respondent, although their argument sought, unsuccessfully to my mind, to avoid the consequences which necessarily follow.

14. Parliament clearly intended that a plan of management determined by the Minister under s.7B should create detailed rights and obligations in relation to a fishery. Particular reference in this regard might be made to sub-sections (4), (5), (6) and (7). The provisions of the Acts Interpretation Act 1901 concerning tabling before and disallowing by Parliament are to apply.

15. Thus a plan of management stands on quite a different legal footing from policy statements or guidelines. The Minister and the Secretary, like all other citizens, are bound by the law contained in a plan of management just as they are by the law in the Act itself. The AAT when reviewing a decision of the Minister and Secretary is in no different position.

16. The present situation is to be contrasted with that dealt with in Drake. The decision there being considered by the AAT was a deportation order under s.12 of the Migration Act 1958. That section gave the Minister a discretion to deport an alien who had been convicted of crimes of various kinds, including a crime for which the person has been sentenced to imprisonment for one year or longer. The Minister had issued a policy statement which included a list of matters to be taken into account in considering whether a deportation order would be made. Bowen C.J. and Deane J pointed out (at 590) that:

"...the Tribunal is not, in the absence of specific
statutory provision, entitled to abdicate its function of
determining whether the decision made was, on the material
before the Tribunal, the correct or preferable one in favour
of a function of merely determining whether the decision
made conformed with whatever the relevant general government
policy might be."

Their Honours held (at 591) that on an analysis of the AAT's decision it appeared the Tribunal had:

"...failed to make such an independent assessment and
independent determination and that, in the result, it failed
properly to perform its function of reviewing the Minister's
decision that a deportation order could be made in respect
of the plaintiff."

It is clear that in Drake the policy statement did not have the force of law.

17. In the present case, the Plan was part of the law which the AAT had to apply in considering whether the decision made was, on the material before the Tribunal, the correct or preferable one. Either that law provided for a discretionary power to dispense with the 100 day requirement or it did not. If not, there was no "residuary discretion" vested in the AAT.

18. Section 16A of the Act did not, as the AAT thought, assist in conferring such a "residuary discretion". That section does not create substantive rights. It merely provides a machinery for internal reconsideration of certain decisions under the Act and for review of such decisions under the Administrative Appeals Tribunal Act 1975. Under para.26 the Plan, a decision of the Manager is reviewable by the Secretary in accordance with the procedures described in s.16A of the Act, and a decision on such review is in turn reviewable by the AAT.

19. Turning to the first ground on which the AAT relied, it seems to me that as a matter of ordinary language s.7B(8A) does not override the mandate of s.7B(8) that functions and powers are to be exercised in accordance with a plan of management, and not otherwise.

20. There is ample room for sub-section (8A) to operate without having the contradictory effect that the respondent's argument would suggest. To take one example, s.8(1) confers power on the Minister to make notifications in relation to many detailed matters. Section 7(8A) has the effect of requiring the Minister to have regard to the effects any proposed notification under s.8(1) might have in relation to any plan of management. Functions or powers of the kind conferred by s.8(1) are not in terms subject to any express limitation or qualification. The introduction of s.7(8A) merely had the effect of requiring that regard be had to the effect of their exercise on a plan of management.

21. Looked at another way, the present case concerns the particular function or power of the Secretary to reconsider the decision of the Manager not to renew the allocation of the respondent's unit for the "Saxon Ranger" for 1991. On that reconsideration the Secretary is exercising the same function and power as the Manager. When faced with a breach of a condition imposed by para.23, the facts constituting the breach being undisputed, there is only one function or power that the law prescribes, viz refusal of the renewal.

22. While the respondent's misfortunes with the "Saxon Ranger" excite understandable sympathy, the construction of the Act and the Plan which I hold to be correct is not totally Draconian. The particular condition of 100 days' trawling can be satisfied by a boat or its authorised replacement, so the Plan itself provided a possible means of coping with unexpected loss of use of a boat. It may be that commercial considerations made this course not feasible for the respondent, but to the extent that the respondent relies on inconvenient or unjust results as pointing towards the construction of the Act and the Plan which the AAT adopted, the force of such an argument is reduced.

23. In my opinion the appeal should be allowed and the decision of the AAT dated 6 November 1991 set aside. In the circumstances there does not appear to be any point in remitting the matter to the AAT since no further questions of fact or law remain to be determined. There will be an order that the decision by the delegate of the applicant to confirm the decision not to renew the allocation of a unit to the respondent in respect of the "Saxon Ranger" under para. 13 of the Great Australian Bight Trawl Fishery Preliminary Management Plan for the year 1991 be affirmed.

24. I do not think in all the circumstances I should make any order as to costs. There were conflicting decisions of the AAT on the point raised in this appeal and there was a public interest in having it clarified.