Ashton v Commonwealth of Australia (includes corrigendumdated 27 February 2003) [2003] FCA 92 (27 February 2003)

Last Updated: 27 February 2003

FEDERAL COURT OF AUSTRALIA

Ashton v Commonwealth of Australia [2003] FCA 92

CORRIGENDUM

GEOFFREY JOHN ASHTON v COMMONWEALTH OF AUSTRALIA

Q142/02

KIEFEL J

BRISBANE

21 FEBRUARY 2003 (CORRIGENDUM 27 FEBRUARY 2003)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 142 of 2002

BETWEEN:	GEOFFREY JOHN ASHTON APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT

JUDGE:	KIEFEL J
DATE:	21 FEBRUARY 2003
PLACE:	BRISBANE

CORRIGENDUM

In the Reasons of the Honourable Justice Kiefel delivered 21 February 2003 wherever the words "Commonwealth Government of Australia" appear delete and replace with the words "Commonwealth of Australia".

Associate

27 February 2003

FEDERAL COURT OF AUSTRALIA

Ashton v Commonwealth Government of Australia [2003] FCA 92

STATUTORY INTERPRETATION - whether regulations 40A and 22A of the Great Barrier Reef Marine Park Amendment Regulations 2002 (No. 1) ("the regulations") within field of operation of Great Barrier Reef Marine Park Act 1975 ("the Act") - whether regulations concern subject outside authority of the Act - whether regulations invalid for failure to follow procedure - whether regulations can be utilised where other procedures available - whether ulterior purpose disclosed

COSTS - whether litigation in public interest - whether applicant is same position as other litigants

STATUTES

Fisheries Act 1994 (Qld)

Fisheries Management Act 1991 (Cth) ss 4, 5

Great Barrier Reef Marine Park Act 1975 (Cth) s 66, 5(1), 30, 31, 7, 32, 38A, 39W, 38M, 38MC, 59B, 61A, 66(4), 66(5), 66(3)

Great Barrier Reef Marine Park Amendment Regulations 2002 (No. 1) Reg 40A, 22A, 4(1)

CASES

De L v Director-General, New South Wales Department of Community Services (No 2) [1997] HCA 14; (1997) 190 CLR 207 Cited

Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311 Cited

Morton v The Union Steamship Company of New Zealand Limited [1951] HCA 42; (1951) 83 CLR 402 Cited

Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Cited

Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245 Cited

GEOFFREY JOHN ASHTON v COMMONWEALTH OF AUSTRALIA

Q142/02

KIEFEL J

BRISBANE

21 FEBRUARY 2003

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 142 of 2002

BETWEEN:	GEOFFREY JOHN ASHTON APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT
JUDGE:	KIEFEL J
DATE OF ORDER:	21 FEBRUARY 2003
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 142 of 2002

BETWEEN:	GEOFFREY JOHN ASHTON APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT

JUDGE:	KIEFEL J
DATE:	21 FEBRUARY 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 Section 66 of the Great Barrier Reef Marine Park Act 1975 (Cth) ("the Marine Park Act") provides for the making of regulations prescribing matters required or permitted by the Act. Regulations 40A and 22A (Great Barrier Reef Marine Park Amendment Regulations 2002 (No 1)) commenced on 11 April 2002). Regulation 40A provides as follows:

"40A Trawling in the Mission Beach trawl closure area

(1) The master of a vessel, and the person who holds the licence for the East Coast Trawl Fishery (under the Fisheries Act 1994 (Qld)) for the vessel, are each guilty of an offence if the vessel engages in trawling in the Mission Beach trawl closure area, other than in accordance with a permission of the kind mentioned in sub regulation (2).

Penalty:   50 penalty units.

(2) For subregulation (1), the kind of permission is a relevant permission in force under regulation 22, or a permission in force under Division 5.2, granted to the person mentioned in subregulation (1) that allows the person to use or enter the Mission Beach trawl closure area for the purpose of collecting black tiger prawns for aquaculture operations.

(3) An offence against subregulation (1) is an offence of strict liability.

(4) For subregulation (1), a vessel is taken to be engaged in trawling if the vessel has its nets in the water."

2 Mission Beach is situated south of Cairns, in Queensland. Regulation 4(1) provides that the "Mission Beach trawl closure area" ("the closure area") means the area described in Schedule 1A to the regulations. Regulation 22A(1) prohibits the Great Barrier Reef Marine Park Authority ("the Authority") from granting permission to use or enter the closure area for the purpose of collecting black tiger prawns for the purpose of aquaculture operations if the grant would result in more than five persons being permitted to enter or use the area at the same time.

3 The closure area lies within two main sections of the Marine Park, the Cairns Section and the Central Section, each of which are the subject of a gazetted zoning plan. Three other areas, recently proclaimed as part of the Marine Park, are also included in the closure area - the Wet Tropics Section, the Clump Point Section and the Mission Beach Section. They are not the subject of any zoning plans.

4 Mr Ashton is a commercial fisher. He has operated a prawn trawler in the closure area in the past. He says that he is adversely effected by the closure, as are over five hundred persons who would otherwise fish in the area. Mr Ashton seeks an order that:

"The Great Barrier Reef Marine Park Amendment Regulations 2002 (No 1) (Statutory Rule 2002 No 72 and Statutory Rule 2002 No 73 are invalid."

5 Mr Ashton's principal argument is that the Marine Park Act does not concern the management of fisheries and that regulations of that kind cannot be made under it. The argument concerns the authority provided by the Marine Park Act to make regulations and is said to involve an interpretation of the Act. Mr Ashton did not suggest that the Commonwealth could not legislate with respect to the subject of fisheries and their management. His point was that it had not done so under the Marine Park Act. It did not need to do so because it had left management of the fisheries to the State of Queensland. Mr Ashton did not contend that there was any inconsistency between Commonwealth and State legislation.

6 Many of the points made by Mr Ashton were put forward to support his primary contention that the Commonwealth had not intended to deal with the regulation and management of fisheries when the Marine Park Act was enacted. The other substantive argument put forward by Mr Ashton is that the closure of an area, or the prohibition of an activity in it, which are sought to be effected by the regulations, are properly the subjects of a zoning plan. It follows that the regulations are invalid for failing to follow the procedures necessary for such a plan. Mr Ashton also submits that the closure area has effectively been rendered a reserve. Again the statutory procedures necessary for a reservation have not been followed. He submits that, if there is power to make regulations connected with commercial fishing, the regulations must allow a reasonable use of the Marine Park and commercial fishing is a reasonable use. Further, Reg 40A(4), by requiring fishing vessels to raise their nets in the closure area, prescribes an unsafe practice. This is said to involve Australia in a breach of its international obligations regarding the safety of fishing vessels and their crew.

7 Mr Ashton also points to Australia's international obligations to reinforce his argument that the Authority was never intended to regulate fishing. Section 65 of the Marine Park Act recognises Australia's international obligations. One of them, Mr Ashton submits, is freedom of fishing. This argument was not clearly developed. It is, in any event, difficult to see that any such obligation could restrict the Commonwealth's ability to regulate and manage the Marine Park, assuming, for present purposes, that this is what has been done in connexion with the regulations. The international obligations referred to in the Marine Park Act would include those with respect to world-heritage listed areas, of which the Great Barrier Reef is one. It would seem that the validity of the regulations in question is properly to be tested by reference to the objects of the Act and its scope.

8 Mr Ashton submits that it may be concluded that the regulation-making power under the Act was not intended to be extended to the regulation of fisheries by reference to the arrangements in place as between the Commonwealth and the State of Queensland. Pursuant to these arrangements it is said that Queensland is permitted to undertake that role. Mr Ashton also referred to Commonwealth and State legislation. Under the Fisheries Management Act 1991 (Cth) the Commonwealth exercises powers relating to fisheries in the "Australian Fishing Zone", namely the waters adjacent to Australia and adjacent to each external territory within the outer limits of the exclusive economic zone, but does not include coastal waters or waters within the limits of a State: see ss 4 and 5 of the Fisheries Management Act 1991 (Cth). The State of Queensland exercises powers of management over fisheries in its waters pursuant to the Fisheries Act 1994 (Qld). Fishing and trawling in parts of the Marine Park may then be subject to two regulatory regimes, the State Fisheries Act and the Marine Park Act. Mr Ashton's point was that if the Authority had been intended to be a fisheries manager, one would expect to see provision for procedures and consultations akin to those found in the Queensland legislation. The Authority's activities under the Marine Park Act, especially those having a connexion with fishing, are more properly to be seen as associated with tourism, he submits.

9 The question raised by Mr Ashton's principal argument is whether regulations 40A and 22A are within the field of operation of the Act, or whether they introduce a new subject.

10 Section 66(1) of the Marine Park Act provides that:

"The Governor-General may make regulations, not inconsistent with this Act or with a zoning plan, prescribing all matters required or permitted by this Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Act."

11 Sub-section (2) of s 66 then lists the regulations which may be made. They include the regulation and prohibition of acts which may be harmful to animals and plants in the Marine Park; regulations providing for the protection and preservation of the Marine Park; regulation of the use of vessels in and through the Marine Park; regulation or prohibition of the use of nets, fishing apparatus and other devices in the Marine Park; and provision for the grant of permissions. The list in sub-section (2) is said to be made "without limiting the generality of sub-section (1)".

12 As the closing words to s 66(1) make plain, regulations made under an Act are to fulfil the plan or purpose which the provisions of the Act have laid down: Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245, 254. They cannot go outside the field which the Act marks out and may not vary or depart from the provisions of the Act: Morton v The Union Steamship Company of New Zealand Limited [1951] HCA 42; (1951) 83 CLR 402, 410 (see also De L v Director-General, New South Wales Department of Community Services (No 2) [1997] HCA 14; (1997) 190 CLR 207, 211; Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311, 324-325; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 372-373 [34]-[35], 380 [61]). The ambit of the power is to be ascertained from the character of the statute and the nature and content of its provisions: Morton v Union Steamship Co, 410.

13 Section 5(1) of the Act provides that it is the object of the Act "to make provision for and in relation to the establishment, control, care and development of a marine park in the Great Barrier Reef Region ...". The subsection goes on to list the particular heads of Commonwealth power to which the Act has regard. They include Commonwealth legislative powers in connexion with the Australian coastal sea and fisheries in Australian waters beyond territorial limits. Mr Ashton submitted that the failure to include a reference to fisheries in other areas was indicative of them not being a subject with which the Act was concerned. The list of Commonwealth powers, which in any event is not exclusive, does not however, answer the question as to the scope and objects of the Marine Park Act.

14 It is clear from s 5(1) that the focus of the legislation, after the establishment of the Marine Park, is its care, control and development. This would include steps taken to preserve the Marine Park and what is contained within it including, but not limited to, the reef. This is confirmed by the functions given to the Authority which include the making of recommendations for the care and development of the Marine Park, and areas that should be declared as parts of the Marine Park, and the preparation of plans connected with its management and control, such as zoning plans and plans of management: s 7(1)(a), (b) and (caa). For those purposes a matter is to be taken to relate to the Marine Park if it relates to the use or management of an area which would or might affect the Marine Park: s 7(1A). This clearly comprehends activities in areas which might have an impact upon the Marine Park.

15 When an area is declared, by proclamation, to be a part of the Marine Park, the waters of any sea in the area, the sea-bed, the sub-soil beneath the seabed and other parts specified in the Proclamation area are taken to be in the Marine Park: ss 30 and 31. It is those areas, and what they contain, to which a zoning plan relates: s 32(6). Further reference is made, in s 32(7), to the object of conservation of the Great Barrier Reef, to the regulation and use of the Marine Park to aid its protection, and the regulation of activities to minimise their effects on it. Paragraph (b) of the subsection provides that in the preparation of a zoning plan, regard is to be had to the object of "the regulation of the use of the Marine Park so as to protect the Great Barrier Reef while allowing the reasonable use of the Great Barrier Reef Region". Mr Ashton places reliance upon this provision in connexion with other aspects of his argument concerning the limits placed by the Statute upon regulations which might be made.

16 The use of, or entry into, a zone for a purpose other than one permitted under the zoning plan is prohibited: s 38A. A purpose contemplated by the Act as one which may not be permitted under a zoning plan is fishing, it being an offence to undertake fishing if it is not so permitted: s 38(A(1)).

17 The Authority may also prepare plans of management: s 39W. They have as their object management of areas with particular values, or species which are conservation dependant or otherwise at risk. They extend to managing the uses of a particular area which may conflict with other issues in, or values of, the area, and the management of other activities. Plans of Management would not appear to be of particular relevance in the circumstances of this case.

18 Other provisions are also directed to the protection of the Marine Park. They include those concerning the passage of vessels through it and the need for pilots (see ss 38M, 38MC, 59B). Powers are provided to take steps to remove structures, vessels or things or otherwise to prevent, mitigate or repair damage within the Marine Park (see s 61A).

19 The regulations in question prohibit an activity in specified areas within the Marine Park. The purposes of the Marine Park Act include the protection of the Marine Park in the Great Barrier Reef Marine Park Region. The waters in question are within the Marine Park Act. The Act itself contemplates the need to manage, regulate and, if necessary, prohibit activities in certain areas within the Marine Park. Regulations which do just that could not, in my view, be said to be inconsistent with the general plan of the Act or not authorised by it.

20 Mr Ashton is correct in his observation that the Act does not have as its focus the management of fisheries. The fact that a prohibition upon an activity in an area or areas may have an impact upon fishing does not however convert the regulation to one made with the object of regulating or managing commercial fishing. That cannot be discerned from the terms of reg 40A. Its intention is clearly to prevent a particular activity within a part of the Marine Park. While it does not state what it seeks to achieve, one cannot infer that its purpose is unconnected with the general objects of preservation and protection of the Marine Park.

21 It did not seem to me that Mr Ashton was contending that there was some ulterior purpose in the making of the regulations, beyond suggesting that they were foreign to the Marine Park Act because they amounted to the regulation of fishing. I have dealt with that contention. If some other purpose, not contemplated by the Marine Park Act and unconnected with its objects, lay behind the making of the regulations there may be a basis for the orders sought. No such purpose has been established. Mr Ashton referred to the purpose stated in the Explanatory Statement with respect to Statutory Rule No 72 of 2002. The closure area was proposed, it says, as a response to the dead fish slicks in the Mission Beach area. The statement goes on to say that "such extensive fish kills impact adversely on the World Heritage values of the Marine Park". Mr Ashton also referred, at various points in the course of argument, to a lack of consultation prior to the making of the regulations and to persons having a conflict of interest. He suggested that there may have been a desire to prefer the aquaculture industry or tourism over commercial fishing. He referred to newspaper articles concerning a local authority's future consideration of a development in the area. He has not however put forward a comprehensive case based upon lack of good faith or ulterior motive and no relief was sought on that basis. So far as he is able to point to considerations which might be inappropriate, in connexion with the making of regulations under the Marine Park Act, he has not established that those matters were in fact influential.

22 In my view, the regulation-making power provided by the Act extends to prohibiting activities in the Marine Park. The regulations are within power. They do not appear to attempt to extend the operation of the Act to the regulation, generally, of commercial fishing.

23 Mr Ashton's next contention is that, if there is a power to make the regulations, s 32(7)(b) requires that they must allow for a reasonable use of the Marine Park. It will be recalled that this requirement is connected with the preparation of a zoning plan. The regulation of the use of the Marine Park, whilst allowing for its reasonable use, is expressed as one of the objects to be achieved under a zoning plan. The prohibition of an activity in an area is a matter for which regulations may provide, even if they are considered by those undertaking the activity to be unreasonable. It is not here suggested that the regulations were made in the absence of some facts or evidence which might form the basis of an opinion as to what activities should be regulated or prohibited.

24 In connexion with Mr Ashton's argument about the necessity for the zoning plan procedure to be undertaken, he also submits that the areas which are already the subject of zoning plans, have effectively been amended. The Act requires in such a case that a new rezoning plan be undertaken, it is submitted. If that be the case, it would seem to me that s 66(4) provides the answer. It provides that a regulation which further regulates or prohibits an activity, that is otherwise allowed or permitted by a zoning plan is not to be taken as inconsistent with the zoning plan. That is to say, the Marine Park Act would have zoning plans read as subject to the regulations.

25 There is a point where regulations will not apply to an area and when a zoning plan should be undertaken. Section 66(5) provides that regulations shall not apply to an area within the Marine Park in respect of which no zoning plan is in force, if more than five years has elapsed since that area became part of the Marine Park. Section 32(1) requires a plan to be prepared as soon as possible after an area is made part of the Marine Park. It is not suggested that the point referred to in s 66(5) has been reached.

26 Section 32(6) contemplates that a zoning plan is to provide for the purposes of which the zone in question is to be entered or used. It is therefore possible that the plans with respect to those parts of the closure area which are zoned could have excluded trawling in the zone. The fact that the statute provides for such a course does not however mean that a prohibition upon a particular activity in an area cannot be effected by regulation. The statute contemplates the prospect of regulations dealing with the same matter as a zoning plan. A regulation, moreover, is one which may apply to a number of areas and even to areas which do not have a zoning plan (see s 66(3)), as reg 40A does in the present case.

27 It was not made clear whether Mr Ashton contended that the power to create a reserve was provided by the Marine Park Act or some other Act. Assuming however, that such a power is provided by a statute, it would not follow that the procedure, and not the making of regulations under this Act, had to be utilised, even if the effect is much the same.

28 Mr Ashton's contention, that it is unsafe for a vessel to travel with its nets raised, as the regulations require, was raised late and is not the subject of independent expert evidence. Assuming his contention to be correct, it may be that vessels are effectively excluded from the closure area if they are not the holder of one of the limited licences contemplated by reg 22A. This would not seem to me to be inconsistent with the powers given by the Marine Park Act.

29 No basis has been shown for the declaration of invalidity sought. Subsequent to the hearing Mr Ashton sought to place before me some further material. It was intended, I take it, to reinforce the principal argument by identifying agreements between the Commonwealth and the State of Queensland as to Queensland's role with respect to fisheries. It does not however further advance the argument.

30 The application must be dismissed. In these circumstances Mr Ashton submitted that he should not be ordered to pay the Commonwealth's costs, because he undertook litigation which was in the public interest. It is not apparent to me what benefit was thought to be achieved by a resolution of this matter which did not accept Mr Ashton's arguments. In my view he is in the same position as other litigants who seek to have something which affects their interest declared invalid. Mr Ashton should pay the Commonwealth's costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated: 21 February 2003

Solicitor for the Applicant:	In Person
Counsel for the Respondent:	Mr M Swan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 December 2002
Date of Judgment:	21 February 2003