Musumeci and ors v NSW Department of Primary Industries [2008] NSWADT 129 (1 May 2008)

Last Updated: 1 May 2008

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Musumeci and ors v NSW Department of Primary Industries [2008] NSWADT 129


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Antonio Musumeci

APPLICANTS
Camillo Puglisi, Eleanora Puglisi, Frank Puglisi, Joyce Mary Puglisi, Dominic Joseph Puglisi, Susan Marie Puglisi, Bruno Mark Puglisi, Innocennza Puglisi

APPLICANT
The Director, Mueller Holdings Pty Ltd

APPLICANT
The Director, Alltuna Fisheries Pty Ltd

APPLICANT
Francesco Pirrello (Junior)

APPLICANTS
Francesco Pirrello, Maria Stella Pirrello, Michael Pirrello

RESPONDENT
NSW Department of Primary Industries



FILE NUMBERS:
073309
073311
073312
073313
073314
073315

HEARING DATES:
On the papers

SUBMISSIONS CLOSED:
12 March 2008



DATE OF DECISION:
1 May 2008

BEFORE:
Handley R - Judicial Member





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Fisheries Management (General) Regulation 2002
Fisheries Management Act 1994
Fisheries Management Legislation Amendment (Miscellaneous) Regulation 2006

CASES CITED:
Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245
Vanstone v Clark [2005] FCAFC 189

TEXTS CITED:


APPLICATION:
Jurisdiction

MATTER FOR DECISION:
Preliminary matter


REPRESENTATION:
APPLICANTS
M Gamble, solicitor
D Fitzpatrick, solicitor
M Kerin, agent
RESPONDENT
M Dalla - Pozza, solicitor


ORDERS:
The Tribunal has jurisdiction to hear the applications filed in these matters pursuant to section 126(1) of the Fisheries Management Act 1994.


Reasons for Decision:

REASONS FOR DECISION

1 These six matters involve applications for the review of decisions of the NSW Department of Primary Industries (‘the Department’) to cancel fishing authorities held by (1) Antonio Musumeci, (2) Camillo, Eleanora, Frank, Joyce Mary, Dominic Joseph, Susan Marie, Bruno Mark and Innocennza Puglisi, (3) The Director, Mueller Holdings Pty Ltd, (4) The Director, Alltuna Fisheries Pty Ltd, (5) Francesco Pirrello (Junior), and (6) Francesco, Maria Stella and Michael Pirrello (‘the Applicants’).

Background

2 On 22 June 2007, the Deputy Director-General of the NSW Department of Primary Industries, a delegate of the Minister, wrote to the Applicants advising them of her intention to cancel specified fishing authorities held by the Applicants at the expiration of 21 days from the date of the letter, and inviting them to provide a written statement showing cause as to why those fishing authorities should not be cancelled. The Applicants responded with submissions.

3 On 19 September 2007, the Deputy Director-General wrote to the Applicants notifying them that, having carefully considered the available information including the Applicants’ submissions, she had decided to proceed and cancel the specified fishing authorities. The Applicants sought a review of these decisions by the Tribunal.

4 At a Directions Hearing on 4 December 2007, the Department raised as a preliminary issue whether the Tribunal has jurisdiction to hear these applications. The parties were invited to make written submissions on this issue, there being agreement that the issue of jurisdiction should be dealt with as a preliminary matter on the papers. Submissions were received from the Department and on behalf on all applicants except Mr Musumeci, who did not lodge any submissions.

The Relevant Legislation

5 Pursuant to section 38(1) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’), the Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) "if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by an administrator". The word ‘enactment’ is defined in section 5 as an Act or statutory rule. The relevant enactments in the present case are the Fisheries Management Act 1994 (‘the FM Act’) and the Fisheries Management (General) Regulation 2002 (‘the FM Regulation’).

6 Part 4 of the FM Act provides for "Licensing and Other Commercial Fisheries Management". Division 6 of Part 4 provides for "Reviews by the Administrative Decisions Tribunal". The relevant provision in Division 6 is section 126, which states:

"126 Applications to Administrative Decisions Tribunal for reviews of certain decisions

(1) A person who is dissatisfied with any of the following decisions under this Part may apply to the Administrative Decisions Tribunal for a review of the decision concerned:

(a) the refusal to issue a relevant authority to the person or to renew the person’s relevant authority,

(b) the imposition of conditions on the person’s relevant authority (otherwise than by regulation),

(c) the suspension or cancellation of the person’s relevant authority.

(2) For the purposes of this section, an application for the issue or renewal of a relevant authority is taken to have been refused if the authority is not issued or renewed within 60 days after the application was duly made."

7 The term ‘relevant authority’ is defined in section 125 to include commercial fishing licences.

8 The cancellation of the licenses in the matters that are the subject of these proceedings was stated to have been made pursuant to clause 133E(3)(a) of the FM Regulation. Clause 133E states relevantly:

133E Transfer of external fishing authorities by dual operator fishing businesses

(1) An external fishing authority that is a component of a dual operator fishing business is not to be transferred (other than by surrender of the authority) to a person unless:

(a) all components of the fishing business (other than NSW fishing authorities) are transferred to that same person, and

(b) all NSW fishing authorities that are a component of the fishing business are transferred to that same person or surrendered to the Minister for cancellation.

(2) An external fishing authority that is a component of a dual operator fishing business is not to be transferred by surrender of the authority unless all NSW fishing authorities that are components of the fishing business are surrendered to the Minister for cancellation.

(3) If an external fishing authority that is a component of a dual operator fishing business is transferred in contravention of sub-clause (1) or (2) or clause 133DA, the Minister may take one or more of the following actions:

(a) cancel or refuse to renew any NSW fishing authority that is a component of the fishing business,

(b) refuse to transfer a NSW fishing authority that is a component of the dual operator fishing business, or refuse to issue a new NSW fishing authority, to any person to whom a component of the dual operator fishing business is transferred,

(c) refuse to issue a new NSW fishing authority if eligibility for that fishing authority is determined on the basis of catch history that is a component of the dual operator fishing business,

(d) impose (in accordance with the Act) conditions on any NSW fishing authority that is a component of the fishing business, so as to restrict the fishing activities of the fishing business, or exercise any other powers conferred on the Minister by the Act so as to restrict the fishing activities of the fishing business.

(4) ...

(5) ..."

The Department’s Submissions

9 The Department submits that the Tribunal does not have jurisdiction to review the relevant decisions made to cancel the Applicants’ fishing authorities. It submits that:

"5. Only section 126 of the FM Act could conceivably operate to confer jurisdiction on the Tribunal to conduct a merits review of the present decisions. Therefore, for the Tribunal to have jurisdiction, the present decisions would need to have been made under Pt 4 of the FM Act."

10 The Department points to the decisions having been made pursuant to clause 133E(3)(a) of the FM Regulation, which is within Part 5A of the Regulation, entitled "Fishing Business Transfer Rules". The Department submits:

"the fact that the decision was purportedly made under cl 133E means that the decision could not have been made under Pt 4 of the FM Act for the purposes of section 126. Instead, it was made under Pt 5A of the FM Regulation. Therefore, the Tribunal has not been given jurisdiction to review the present decision."

11 Further, the Department submits that Pt 5A of the FM Regulation was not enacted under a delegation in Pt 4 of the FM Act. Thus, it cannot be argued that section 133E was made for the purposes of section 126 of the FM Act. Rather, Pt 5A was made pursuant to the delegation under section 34T of the FM Act, which states relevantly:

34T Fishing business transfer rules

(1) The regulations or the management plan for a fishery (or both) may make provision for or with respect to the transfer of a fishing business (or components of a fishing business) and provide for the recognition, or restriction, of fishing rights following any such transfer. Such provisions are referred to as "fishing business transfer rules".

(2) ...

(3) The fishing business transfer rules may authorise the Minister to cancel a NSW fishing authority that is a component of a fishing business if any other component of the fishing business is transferred in contravention of the fishing business transfer rules.

(4) ..."

12 The Department notes that clause 133E of the FM Regulation was inserted by the Fisheries Management Legislation Amendment (Miscellaneous) Regulation 2006 (‘the Amending Regulation’), the Explanatory Note for which provides: "This Regulation is made under the Fisheries Management Act 1994, including sections 20, 34T, 45, 76 and 289 (the general regulation making power)." Section 34T appears in Part 2 of the FM Act and none of the other regulation making powers appears in Part 4. Thus, the Department submits a decision made under clause 133E cannot be considered to be a decision made for the purposes of section 126 which appears in Part 4.

13 The Department concludes that the Tribunal does not have jurisdiction conferred on it to review the present decisions for the purposes of section 38 of the ADT Act.

The Applicants’ Submissions

14 The Applicants submit that section 104(4) of the FM Act is the source of the authority to make the decision to cancel the specified fishing authorities. Section 104(4) states relevantly:

"(4) A commercial fishing licence:

(a) ...

(b) ...

(c) ...

(d) ...

(e) may be cancelled or suspended by the Minister in the circumstances authorised by the regulations."

15 The Applicants submit the Department’s contention that clause 133E of the FM Regulation is the source of the power to cancel should be rejected. While clause 133E(3) specifies circumstances in which the power to cancel may be exercised, it is the FM Act, in section 126 (presumably, the reference to section 126 was an error and the reference should have been to section 104) which provides the statutory authority to cancel:

"9. In approaching the construction of reg 133E and the scope of the powers in Pt 4 of the FM Act it is necessary to read the two together but with the Act as providing the controlling provisions; a regulation must not be inconsistent with or repugnant to the Act: Vanstone v Clark [2005] FCAFC 189, at [120]."

16 The Applicants refer to the High Court decision in Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245 (‘Shanahan’) at 250, where the majority of the Court (Dixon CJ, Williams, Webb and Fullagar JJ) held that the power to make regulations:

"does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends."

17 Thus, the Applicants submit that regulations must accord with and not depart from the statutory scheme, and regulations should not be read in a way that qualifies or reduces rights, including rights of review, conferred by an Act. In the case of the FM Act, it is clear that Parliament intended that there should be merits review of decisions to cancel fishing authorities, reflecting the legislative purpose of providing safeguards in relation to powers that have the potential to severely affect livelihood.

18 By reading clause 133E as regulating the circumstances in which the statutory power can be exercised gives effect to this intent and allows for review by the Tribunal. Moreover, this is consistent with the important statutory objective of ensuring independent review of Departmental decisions.

Discussion

19 The preliminary issue to be determined is whether the Tribunal has jurisdiction to review the decisions made to cancel the Applicants’ fishing authorities.

20 The power to make regulations is set out in section 289(1) of the FM Act, as follows:

"289(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act."

21 Sections 20, 34T, and 45 outline what may be contained in the regulations. (Section 76, also referred to by the Department, empowers the Minister to determine the management charges payable by holders of shares in a share management fishery.) For example, section 34T(1) states:

"34T(1) The regulations or the management plan for a fishery (or both) may make provision for or with respect to the transfer of a fishing business (or components of a fishing business) and provide for the recognition, or restriction, of fishing rights following any such transfer. Such provisions are referred to as "fishing business transfer rules".

22 A review of the structure of the FM Act, reveals that Part 4, "Licensing and Other Commercial Fisheries Management", focuses on the licensing of commercial fishers, commercial fishing boats, fisheries and fish receivers, as well as imposing fish record keeping obligations. Section 104(1) provides for any eligible person to apply to the Minister for a commercial fishing licence, on an approved form (section 104(2)), and states that the Minister must issue the licence unless authorised by the regulations to refuse the application (section 104(3)). Section 104(4) empowers the Minister to cancel fishing authorities in the circumstances authorised by the regulations.

23 Clause 133E of the FM Regulation, which is within Part 5A entitled "Fishing Business Transfer Rules", empowers the Minister to, amongst other actions, cancel a fishing authority "[i]f an external fishing authority that is a component of a dual operator fishing business is transferred in contravention of sub-clause (1) or (2) or clause 133DA". Thus, clause 133E is describing circumstances in which the power to cancel may be exercised.

24 In my view, a distinction needs to be drawn between the source of the power to take some action, for example, relevantly, to make regulations or to cancel a fishing authority – which is contained in the Act in sections 289 and 104(4) respectively, and the circumstances in which the power may be exercised. An outline of these circumstances may be set out elsewhere in the Act, for example as in sections 20, 34T and 45, with the detailed circumstances being set out in the regulations, for example, as in clause 133E of the FM Regulation. This is consistent with decisions such as that in Shanahan, emphasising the ancillary nature of regulations.

25 In my view, since the source of the Minister’s power to cancel a fishing authority resides in section 104(4), with the specific circumstances relevant to these matters being set out in clause 133E, then because section 104(4) is within Part 4 of the Act, Division 6 of Part 4 applies to such a decision and a person who is dissatisfied by such a decision may apply to the Tribunal for a review pursuant to section 126(1)(c). Thus, the Tribunal has jurisdiction in these matters.

26 I agree with the Applicants’ submission that such an interpretation is consistent with the apparent intent of the FM Act to provide a statutory right of review by the Tribunal for those affected by such a decision. I also note that the Deputy Director-General’s letters to the Applicants dated 19 September 2007, notifying them of the cancellation of their fishing authorities, stated that if the Applicants were dissatisfied with the decision, they could apply to the Tribunal for a review of the decision.

27 Having so decided, it will be necessary to hold a Directions Hearing in the course of the next few weeks following publication of this decision to determine a timetable for the exchange of documents.

Orders

The Tribunal has jurisdiction to hear the applications filed in these matters pursuant to section 126(1) of the Fisheries Management Act 1994.