Counsel: MS EF NELSON QC WITH MR RO WARD - Solicitors: DELLER & CO

Counsel: MR MD WALTER - Solicitors: CROWN SOLICITOR'S OFFICE

Counsel: MR MD WALTER - Solicitors: CROWN SOLICITOR'S OFFICE

Judgment No. [2000] SASC 194

[1999] SASC 194

2 The closure of Upper Spencer Gulf to net fishing and 3

promulgation of Government Policy regarding closure

3 The plaintiff's claim and the legislation giving rise to this 11

4 An overview of the evidence - including fishing methods 23

5 The history of the plaintiff's fishing in Area 11 and his 42

(b) The plaintiff's misunderstanding as to boundary of Area 21 46

6 The validity of the regulation - Schedule 1 - item 29 71

The plaintiff, Mr Dighton, is a commercial fisher who has worked out of Port Augusta for many years and holds a marine scalefish fishery licence pursuant to the Fisheries Act 1982 (SA) ("the Act"). He complains that the Act is being administered in a way which has undue regard to sectional interests, particularly those represented by the Council of the City of Port Augusta, and is in disregard of the Act's objectives. As such, Mr Dighton contends that contrary to the Act, the regulatory scheme of fishing is being promoted by the Minister for Primary Industries ("the Minister") to advance tourism and enhance recreational fishing in the Northern Spencer Gulf in a way which unfairly ignores, or discriminates against, the plaintiff's legitimate interests as a commercial licence holder.

Evidence in this case has been given by reference to the metric chart AUS778, Point Riley to Port Augusta ("the chart"). I have relied on the chart for geographical positions and measurement of distances expressed in nautical miles.

2. The closure of Upper Spencer Gulf to net fishing and promulgation of Government Policy regarding closure

By cl 3(e) of the Regulations under the Act, No.181 of 1995, made 31 August 1995 and expressed to come into operation on 1 September 1995, the Governor in Council ("the Governor") varied the Fisheries (General) Regulations 1984 (SA) ("the principal regulations"). This prohibited the taking of fish by any person using a fishing net in the waters of Spencer Gulf situated north of the parallel of latitude passing through the beacon on Douglas Bank, being latitude 32° 48.54'south. This unlit beacon is approximately nineteen miles south of Port Augusta. It marks a very shallow patch of water in mid channel.

Prior to 1 September 1995 the waters between the Douglas Bank geodesic and a line nearly 5 miles further north near Mount Grainger between No 5 Beacon and the Eastern shore, latitude 32° 43.7'S, were subject to seasonal closure to net fishing and there were further periodic restrictions as to fishing methods. This area was open for licensed net fishing using the "ringshot" method, or "for the purposes of bait fishing" during March, April and May each year and using the set-net method or a fish net to take fish for the purposes of bait only from March to October inclusive (see principal regulations 37 & 38 for the position prior to 1 September 1995). The plaintiff complains about the complete closure to net fishing of this section of water at all times. It is known administratively as Area 11 (Southern section). It contains a substantial garfish fishery but other scale fish species are prolific in the area. According to a report by a Netting Review Committee ("the Committee") in 1994 it supports a nursery for King George whiting. Immediately to the south, and abutting Area 11, is Area 21. The dividing line between the two areas is the Douglas Bank geodesic. Area 21 is not now, and at relevant times has not been, subject to any general closure to netting although fishing in that area is regulated.

At the Douglas Bank, Spencer Gulf waterway is nearly four miles wide and is bounded on the east by a sandbank. Subject to the seasonal closure, it has been the plaintiff's practice to fish at night in the easterly shallows in this vicinity, whether in Areas 11 or 21, using a hauling net over the bank and targeting garfish and whiting. He says that this has been done in accordance with the principal regulations. Based on his fishing returns he also takes other species such as tommy ruffs, squid and snook. In deeper water in the same area the plaintiff has been accustomed to fishing for snapper using a hand line. He fishes from a power boat and the fish are landed at Port Augusta.

The Minister, who is responsible for administration of the Act_,_ issued a press statement in May 1995 explaining the Government's policy in anticipation of the new regime which is reflected in Regulation No.181 of 1995. Extracts from the media advice entitled "Changes to SA's Fishing Industry" originating from the Minister's office read as follows:

"The Minister for Primary Industries Dale Baker today released the Government's decisions on a review of netting in the State's marine waters.

Mr Baker announced that the decisions were based on sustainable management of the State's marine scale fish resources and took into account extensive community and Local Government consultation on the issue.

A number of the State's important marine nursery areas for fish stocks will be closed to commercial nets.

Areas affected by the decision on commercial nets include a permanent extension of the Coffin Bay temporary closure, Franklin Harbour, the Northern Spencer Gulf, Port Lincoln bays, Encounter Bay, and Arno Bay. However, those fishers who can demonstrate financial hardship in that their income depends on net fishing in these specific areas will be permitted to continue to use nets under a Ministerial exemption." (emphasis added).

The Government policy was communicated to all marine scale fishery licence holders under cover of circular letters dated 25 and 30 May 1995. The more recent letter adopted a series of recommendations including one with respect to the relevant area that said "exemptions to these closures will be provided to local net fishers who can demonstrate fishing dependency on these areas and financial hardship as a result of the closure".

On 31 May 1995 the plaintiff wrote to the Minister seeking an exemption from the foreshadowed regulations. By letter dated 29 June 1995 the Minister invited the plaintiff to make an application to the "Fisheries Division of my Department for an exemption". The Minister established criteria for exemptions in September 1995.

To obtain an exemption authorising net fishing in Area 11 the Minister required an applicant to demonstrate fishing dependence on Area 11 and financial hardship as a result of the closure of the waters. The Minister adopted a test used in the Coffin Bay area based on a Committee recommendation.

It will be noted from the tenor of the correspondence that Mr Kerin, the Member for Frome, replaced Mr Baker as Minister. The declared interest of Mr Kerin, which also appears from the correspondence, is a fact relied on by the plaintiff in support of his present complaint.

3. The plaintiff's claim and the legislation giving rise to this action

2. That despite the plaintiff's request, the Minister has not exercised his power under the Act to exempt Mr Dighton from the general prohibition on net fishing north of the Douglas Bank. He contends that applying the published Ministerial policy he ought to qualify for an exemption by virtue of demonstrable financial hardship and fishing dependance historically in the closed area. Mr Dighton contends that the Minister's response to his exemption application is reviewable by the Court and should be quashed.

Mr Dighton contends that the Minister and others involved in the administration of the Act have failed to give effect to s20. The plaintiff submits that the regulations have been put in place in response to community pressure and to promote tourism and recreational interests rather than to conserve the fishery. He argues that the complete closure of the waters is an excessive action having regard to the purposes for which the enabling power was provided. Mr Dighton complains that as the only licence holder based in Port Augusta his interests were not consulted or properly considered before the regulations was introduced. These contentions are reflected in pars (a) and (b) below.

Mr Dighton also criticises the way in which his application for Ministerial exemption was handled. Four separate grounds can be distilled from counsel's argument as set out in pars (c) to (f) below.

The plaintiff contends that the regulation is ultra vires on the grounds that:

(a) the regulation is not reasonably proportionate to the pursuit of the enabling purpose;

(b) the regulation was not a real exercise of power

The plaintiff asserts that the Minister's decision on his application for exemption was reviewable as follows:

(c) The Minister's decision was made in error as to the historical facts relating to Mr Dighton's fishing. As such the Minister took into account irrelevant matters and did not take account of relevant matters;

(d) The Minister's decision was unjust and unreasonable. In particular, for the purposes of quantifying the impact of the regulation on an individual fisher, the Minister applied a test which had been used elsewhere (Coffin Bay). This was considered inappropriate given the substantial differences in the regulatory regimes which previously operated in the different areas. The "open" season for fishing in Upper Spencer Gulf had always been very restricted;

(e) The plaintiff was denied natural justice. He was not afforded an opportunity to comment on his incorrect fishing returns which the Minister had relied on in making his decision;

(f) The Minister failed to administer his declared policy fairly. He succumbed to extraneous political considerations to reflect the views being dictated by the councillors of the City of Port Augusta. This was also put forward as demonstrating "unreasonableness" in the exercise of a power.

There is also a claim for damages. There is an application that, if necessary, an order extending time for the commencement of proceedings be granted.

The question of damages was not canvassed at trial. With the consent of the parties that issue will be formally reserved for separate hearing as necessary.

In light of the way the plaintiff's claim has been expressed I make the following preliminary observations:

(1) The plaintiff claims declaratory relief or an order by way of judicial review in the nature of certiorari to quash a regulation made by the Governor. In my opinion, the appropriate relief, if any, would be by way of a declaration of invalidity. I do not consider that certiorari is available as a remedy in these circumstances. However, judicial review may be available with respect to the conduct of the Minister regarding the plaintiff's application for exemption.

(2) The two separate grounds relied on to support an argument based on the invalidity of the regulations reflects counsel's argument although the two tests in substance may be the same (see par 14 and Minister for Primary Industries & Ors v Lawrie (1995) 64 SASR 359 per Lander J at 376-7).

(3) There is a claim for a declaration that in all the circumstances the plaintiff has been denied natural justice. The plaintiff's affidavit sworn 20 April 1998 and his arguments at trial show that he is complaining about two quite separate matters. Mr Dighton is complaining about (i) a lack of consultation before the regulations were introduced and (ii) the Ministerial treatment of his application for an exemption from the regulations and associated procedure.

I do not consider that the regulation making procedure required any consultation process. However, it is arguable that a requirement for procedural fairness may be attached to an administrative step involving an exemption application.

(4) The grounds (c) to (f) above overlap in their application to the facts. As a result, in pt 7(b) of these reasons there is some repetition as I examine the different facets of natural justice in relation to the plaintiff's exemption application.

The facts supporting all grounds could probably be restated as a complaint of "unreasonableness" in one of its various forms. I note the cautionary remarks of the Full Court in Upham v The Grand Hotel (SA) Pty Ltd [1999] SASC 414. In Boddington v British Transport Police (1982) 2 All ER 203 Lord Irvine LC commented on the way in which the grounds for challenge of subordinate legislation and administrative decisions run together. The Lord Chancellor said at 208:

"Challenge to the lawfulness of subordinate legislation or administrative decisions and acts may take many forms, compendiously grouped by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6; [1984] 3 All ER 935, [1985] AC 374 under the headings of illegality, procedural impropriety and irrationality. Categorisation of types of challenge assists in an orderly exposition of the principles underlying our developing public law. But these are not watertight compartments because the various grounds for judicial review run together. The exercise of a power for an improper purpose may involve taking irrelevant considerations into account, or ignoring relevant considerations; and either may lead to an irrational result. The failure to grant a person affected by a decision a hearing, in breach of principles of procedural fairness, may result in a failure to take into account relevant considerations."

On 3 April 1996 regulations under the Act No 181 of 1995 were disallowed by the Legislative Council ("disallowed regulations") (see South Australian Government Gazette 24 April 1996 p 2039). On 4 April 1996 regulations under the Act No 53 of 1996 ("new regulations") were made and expressed as coming into force on that day. These regulations varied the principal regulations. Clause 36(e) of the new regulations is in the same terms as cl 3(e) of the disallowed regulations. I treat the plaintiff's attack on the disallowed regulations as applying also to the new regulations. The form of the amendment, whether in terms of the disallowed regulations or the new regulations, has been to vary Schedule 1 of the principal regulations, which prescribes classes of fishing activities, by striking out cl 29 and substituting the following clause:

"29. The taking of fish by any person by using a fish net-

(a) in the waters of Spencer Gulf situated northerly from the parallel of latitude passing through the beacon on Douglas Bank (being latitude 32°48.54'S)...."

The combined effect of s 41 of the Act and reg 5 of the principal regulations on the face of the legislation, when read with the variation to Schedule 1, is to put in place a prohibition in terms of clause 29.

"Pursuant to section 41 of the Act each class of fishing activity described in Schedule 1 is a fishing activity of a prescribed class."

"A person must not engage in a fishing activity of a prescribed class."

4. An overview of the evidence - including fishing methods

By consent the trial proceeded on the basis of a set of agreed documents, including formal admissions, supplemented by oral evidence from Mr Dighton to explain his fishing methods and record keeping. The plaintiff relies on three affidavits sworn by him on 20 April 1998, 9 September 1998 and 24 March 1999. The defendant has filed two affidavits sworn by Mr Donald Mackie, an officer of the Department for Primary Industries, ("the Department") on 29 July 1998 and 2 November 1998. All those documents are in evidence. The history leading to the making of the 1995 regulations appears from the affidavits. Submissions made to the Minister and the reports of the Committee established by the Minister in March 1994 are before me.

After closing addresses of counsel on 2 November 1999 I allowed the evidence to be re-opened when it became apparent that, on the face of the affidavit evidence, the plaintiff had not supplied information sought by the Department. I have dealt with that additional material and the supplementary submissions of counsel in pt 8 of these reasons.

The plaintiff made an application for an exemption from the new regulation by letter dated 4 July 1995. It restates the application made in the plaintiff's letter of 31 May 1995. The application was processed in terms of a minute dated 1 February 1996 to the Minister from the Director of Fisheries, also called the General Manager, in the Department. The Minister's decision to refuse an exemption, made on Departmental recommendation on about 12 February 1996 and his reasons, were communicated to the plaintiff in terms of a Departmental letter dated 21 February 1999 from the Manager Scalefish. That letter is reproduced in pt 5(b) of these reasons. The Minister considered that there was insufficient evidence to support the application particularly in light of the plaintiff's fishing records. After that there has been correspondence back and forth with the plaintiff trying to obtain a reversal of the Minister's decision. In subsequent correspondence the Minister's letters have centred on explaining that his reason for maintaining a firm stance was to reflect community expectations, rather than further addressing the difficulties outlined in the letter of 21 February 1996. By his submissions, the plaintiff sees the Ministerial correspondence, particularly the Minister's more recent letters, as evidence that the Minister was bending to the will of lobby groups rather than administering the Act and regulations in accordance with the intent of Parliament.

A more extensive summary of the chronology of events, including correspondence, is set out in pt 7 of these reasons. I have examined and brought into account the entire correspondence in evidence although I have only quoted selectively in order to make a point.

A critical letter for the plaintiff's present purposes is the letter dated 11 April 1996 from the then Minister, the Hon Rob Kerin MP, to Mr Dighton in response to his application to use a fish net in the closed waters:

"It is very apparent to me, in my present position as Minister and as the local member for the electorate of Frome, that hauling nets, in particular the power-haul method of net fishing, are not favoured by local communities as being an appropriate method of commercial fishing in some areas. The City Council of Port Augusta have, for many years, requested a complete prohibition on all methods of net fishing in the waters of upper Spencer Gulf. The remaining area in which net fishing was permitted was closed on 1 September 1995.

The provision of any exemption to the regulations is at the discretion of the Minister. Regardless of any previous indications from my predecessor or from the Director of Fisheries, a decision was made to not provide you with an exemption to use a fish net in the upper Spencer Gulf area. This judgement was influenced mainly from the strong position of the City Council of Port Augusta and from community attitudes in general.

I note your request for notification of any restructuring and relocation proposal that may be relevant to you. I have requested that a strategic plan for the marine scalefish fishery be developed as a matter of high priority."

I note that the Committee which reported to the Minister in December 1994 and March 1995 favoured the retention of the power haul technique in net fishing. It was the City of Port Augusta which vigorously opposed net fishing, particularly by itinerant fishers by reason of the effect on "the City's most important recreational asset".

On 20 February 1997 the Director of Fisheries wrote to Mr Dighton's representative Mr William Woerlee in the following terms:

"...The waters of upper Spencer Gulf, north of the geodesic of 32°48.54'S (Douglas Bank), were closed to net fishing as a resource protection measure to minimise the impact of net fishing on juvenile undersized fish stocks, and as a resource sharing measure to provide greater opportunity for recreational and commercial line fishing to enjoy satisfactory catches in this area. The Government has been subject to very strong lobbying, particularly by the City of Port Augusta, to permanently close these waters to net fishing without exception. It has been accepted that this view reflects the widespread community opposition to any commercial net fishing in the area.

In addition to this consideration, Mr Dighton's initial application for an exemption to use a fish net in upper Spencer Gulf was not supported because there was no evidence, from the statutory monthly fishing details that Mr Dighton is obliged to provide to Government, that he fished in the waters north of Douglas Bank. This was a principal criterion for consideration of eligibility for exemptions to the regulations introduced on 1 September 1995.

As I have indicated in earlier correspondence to you (16 September 1996), Mr Dighton's fishing licence allows him to fish for commercial gain in all waters of the State. It does not restrict him to any area, and the netting closure of upper Spencer Gulf has not removed his privilege to commercially fish. Mr Dighton can still fish in this area with his other permitted fishing gear, including handlines, longlines and a dab net."

The Director's letter refers to the plaintiff's monthly fishing returns. These show the number and type of fish caught in each fishing area, day by day, and the method of fishing (see s 68 of the Act).

These records show that historically all relevant net fishing by the plaintiff prior to September 1995 was done in Area 21 not Area 11 and by the power hauling method not the ringshot method. A summary of the plaintiff's fishing returns is set out in par 5 of Mr Mackie's affidavit of 2 November 1998. According to the plaintiff's oral evidence at trial he was accustomed to fishing in the southern part of Area 11 using the ringshot method which was allowed for three months of the year. As part of his case Mr Dighton gave oral evidence to explain the discrepancies between the facts recorded in his fishing returns and what he says actually occurred.

The relevant netting practices were described in a report to the Minister by the Committee in November 1994, which is in evidence as follows:

"Power hauling of nets is undertaken by hauling the net through the water with the aid of the engine power of the net boat. First, the bunt end of the net is anchored in water less than 5 metres deep, with the remainder of the net being set in semicircle. The wing end of the net is then slowly towed by the vessel until the net is closed to a circle. This operation takes about 45 minutes during which time fish caught in a previous net shot are washed, graded and packed in ice. During the towing operation approximately half of the net (nearest the towing vessel) is clear of the seafloor.

Once the net has been closed to a circle, the bunt end of the net is then secured to the bow of the vessel, and the vessel goes astern with the bunt end following. The wing end of the net is then retrieved either by hand or through a hydraulic power block or onto a powered net drum. As the area inside the circle of the net diminishes, the fish are herded until they swim into the pocket at the bunt end, in the case of a 3cm, or are meshed when the shot is being completed, in the case of a 5cm mesh net. The total shot takes about 2½ hours to complete.

Ring shooting, on the other hand completely surrounds a sighted school of fish and the method of retrieving the net is similar to the power-haul shot. The area covered by the ring shot is usually about one third that of a power-hauled shot. As a ring shot takes less time to complete than a power-haul shot, a greater number of shots per day is often possible. Ring shots are generally used for sighted schooling fish whereas power-hauled shots are normally "blind" shots conducted in conditions when fish are not easily sighted."

The Committee obtained some field experience and reported on their observations of the use of a small mesh-hauling net at depths of 2-3 metres.

"All observed shots were classed as power-haul shots, whereby the full length of the nets were shot in a half circle and then closed up under power of the motor. Once the two ends of the net had been "joined", the vessel was put into reverse gear, and the net retrieved by hand or by net reel onto the vessel. The diminishing area of the net shot then assisted in herding the fish until they eventually were either retained in the pocket or enmeshed in the larger mesh net. The ring shots contrast to the power-haul shots, where the full length of the net is shot in a circle, and then retrieved, under power in the same way as the power-haul shot."

The Legislative Review Committee of the South Australian Parliament ("the Review Committee") reported in December 1995 regarding the operation of the disallowed regulations. Paragraph 10.1 of that report identifies these fishing practices as follows:

"The netting technique known as "power hauling" is undertaken by hauling a 600m net through the water with the aid of the engine power of the boat. One end of the net is anchored in less than 5 metres of water and the remainder is set in a semi-circle. The other end of the net is then slowly towed by the vessel until the net is closed to a circle.

Power hauling may be contrasted with "ring-shooting" in which the net completely surrounds a sighted school of fish and the method of retrieving the net is similar to the power haul shot. Ring shots are generally conducted for sighted schools of fish whereas power hauled shots are normally "blind" shots conducted where fish are not easily sighted. Both methods are only employed by commercial netters." (emphasis added).

The principal regulations as amended from time to time contain the relevant definitions.

By regulations under the Act No 146 of 1985 the power hauling method of taking fish was generally regulated in terms of item 136 to the 1st schedule. The definition of power hauling contained in that regulation was slightly altered by Regulations under the Act, No 108 of 1991 to read:

""power hauling method of fishing**"** means a fishing activity involving the use of a fish net where-

(a) the net is hauled through the water by means other than by hand;

(b) not more than one boat is used to haul the net;

(c) one end of the net is anchored so as to secure that end to the sea bed while-

(ii) one end of the net is being hauled back to the other end:"

Regulations under the Act No 108 of 1991 came into operation on 27 June 1991 and contain the relevant definition of power hauling for the purposes of assessing the plaintiff's fishing returns which are in evidence from July 1991 onwards until the closure effected by the impugned regulation.

By Regulations under the Act No 120 of 1984, items 37 and 38 of the 1st schedule to the regulations, the ringshot method of fishing was approved for use in Northern Spencer Gulf between the latitudes of the Douglas Bank and No.5 Beacon on a seasonal basis.

Item 37 par 3 of the 1st schedule to the regulations defines the ringshot method as follows:

"In this paragraph the 'ring-shot method of fishing' means a fishing activity involving the use of a fish net:

(ii) having a mesh of not less than 3 centimetres; and

(iii) to which is attached at the top of the net, rope of up to 100 metres in length,

and in which the fish net is run out into the water and set in a circular manner which may be done by using the engine power of a boat provided that;

(i) such power is not used to tow the fish net or to tow the rope;

(ii) the top of the fish net with the floats attached thereto known as the 'corkline' is floating on the surface of the water;

(iii) the rope attached to the top of the fish net is floating on the surface of the water; and

(iv) the end of the fish net nearer the pocket, bunt or bag is jointed to an anchoring device stationary on the sea-bed."

To understand the evidence I also set out the following definitions taken from the regulations in their present form-

"ring net" means a mesh net with floats on the head line and leads on the bottom line being a net designed and constructed to encircle a school of fish;"

'"set-net method of fishing" means a fishing activity involving the use of a fish net:

(ii) having a mesh of at least 5 centimetres and less than 15 centimetres;

and in which the fish net is run out into the water and set, the ends of the fish net not meeting or being joined;"

On my reading of the regulations the crucial difference between the two methods of netting is that the power haul method, as its name implies, requires the net to be hauled through the water "by a means other than by hand" whereas the ringshot method requires the net to be run out and set in a circular manner in which engine power "is not used to tow the fish net". There are other differences in practice as the statements of practice demonstrate. It is relevant to have an appreciation of these descriptions in order to understand the plaintiff's evidence as an experienced fisher. However, his obligation is only to comply with the terms of the regulations in force from time to time.

5. The history of the plaintiff's fishing in Area 11 and his explanation of fishing records

In his oral evidence the plaintiff explained his netting methods using a 3cm net, 450 metres in length, from his 6m Gilcraft boat fitted with an inboard engine which gives him a speed of about 28kph. Mr Dighton acknowledged that his fishing records are inaccurate. It was part of his case to explain (a) why there was reference to power hauling but no reference to ringshot netting in his fishing returns if he netted northwards of the Douglas Bank and (b) why the returns did not show successful fishing activity in Area 11 if he fished northwards of the Douglas Bank. Mr Dighton argues that in light of his explanation he should be regarded as having satisfied the criteria adopted by the Minister for determining whether an exemption should be granted.

The plaintiff's fishing returns showed that prior to September 1995 he had been using the power hauling method exclusively although he claimed in oral evidence to have used the ringshot method. He explained in evidence that as he drifted on the tide across the line running east from the Douglas Bank beacon he modified his procedures to conform with the legal exigencies as he understood them. However, he did not separately account for fish which were caught north of the Douglas Bank geodesic from those which were taken south of that line. In any event he did not know that the area to the north of Douglas Bank was known as Area 11. The plaintiff however did know of his obligations as a commercial net fisher by reference to geographic features in the vicinity of the Douglas Bank where the eastern sandbank uncovers at low water.

I accept that Mr Dighton endeavoured to comply with his obligations as he understood them. In preparing his returns he treated all his netting as power hauling and did not separately show the result of any ringshot netting on the return. Industry practice, in terms of the respective reports of the Committee and Review Committee shows a considerable blurring in the differences between the essential functions of power hauling and ringshooting. According to the reports "the method of net retrieval in each case is similar". Nevertheless the regulations emphasise the dissimilarity in the two methods based on use of engine power or otherwise.

However, on his evidence the plaintiff should be treated as a very experienced fisher who was capable of modifying his operations so as not to put himself in jeopardy of breaching the regulations.

(b) The plaintiff's misunderstanding as to boundary of Area 21

The reason for the plaintiff's misunderstanding regarding the Area 21 boundary appears from his letter of 19 April 1996 to the Ombudsman. It is necessary to put that letter in context in terms of the preceding correspondence and by reference to the chart and some explanatory diagrams published by the Fisheries administration.

On 21 February 1996 the Manager Scalefish in the Department wrote to Mr Dighton and referred to the lack of evidence disclosed by the plaintiff's fishing returns of any relevant fishing in Area 11. The letter states:

"As I had informed you last year, I could not support your application as there was no evidence in your fishing returns submitted to the South Australian Research and Development Institute of you having fished in the waters of upper Spencer Gulf north of a line drawn east-west through Douglas Beacon (Marine Fishing Area 11). Subsequent correspondence from yourself (31 August 1995, 8 September 1995) and the more recent letters of reference from Messrs Davies and Tomalin delivered to this office, claimed that you were dependent on the fishing activity in the area in question for about thirty to forty percent of your income. You also requested that your application and correspondence be submitted to the Minister for Primary Industries for his consideration.

The Minister has not approved your application for an exemption to use a fish net in the closed waters of upper Spencer Gulf.

The reasons for the closure were twofold: as a resource protection measure to minimise the impact of net fish on juvenile and undersize fish stocks; and as a resource sharing measure to provide greater opportunity for recreational and commercial line fishers to enjoy staisfactory(sic) catches in this area. The Minister considered that there was insufficient evidence to support your application, particularly the absence of any evidence in your fishing returns of fishing activity in the area, and the restrictive access arrangements that previously applied in the waters of upper Spencer Gulf.

As you are aware, the City of Port Augusta have, for many years, been lobbying to remove all commercial net fishing from the waters of upper Spencer Gulf. It would be contrary to their well established position, which would reflect the opinions of the local community, to provide any exemption to use a fish net in the closed waters."

On 19 April 1996, in a letter to the State Ombudsman, Mr Dighton explained the alleged discrepancy between his fishing returns and the contents of his submission for an exemption:

"In 1992 Port Augusta was included in an area which I took to be from a line drawn from no 4 Beacon across to Yatala Harbour and I was of the opinion that this was Area 11. This was in fact not the case as the line actually ran across from Douglas Bank. The area between these two points (attachments 1 & 2) I mistook for Area 21 and endorsed my fish returns accordingly, consequently fish caught in Area 11 have been shown as caught in Area 21 but the principle (sic) place of landing catch shown as Port Augusta.

Also I have included as attachment 4 a copy of Fisheries Department map defining the areas and as you can see it is not very clear or to scale."

Number 4 channel beacon, referred to in the letter above is at Latitude 32° 45'S, 3.5 miles north of the Douglas Bank, and marks the approach to the Flinders Channel in the vicinity of South Hummock and South Hummock Point on the west and Yatala Harbour on the east. It is 1.3 miles south of the Mount Grainger geodesic Latitude 32° 43.7'S, running east from No 5 beacon. The Channel marking system commences with No 1 beacon at the seaward or southern end of the shipping channel about one mile to the north east of the Douglas Bank beacon and finishes with No 55 navigation beacon near Port Augusta wharf.

Mr Dighton's error in mistaking the boundary between Areas 11 and 21 is understandable in view of his apparent reliance on an extremely small scale representation of the area which certainly shows the boundary line as passing through a prominent feature forming a point of land which could only be Two Hummock Point. The western shore of the Gulf, as viewed on a working chart, has no such distinct corresponding protrusion in the vicinity of the Douglas Bank.

The two departmental diagrams, attached to the letter of 19 April 1996 show the overall grid of the 58 marine fishing areas of the State and the designated numbered fishing areas in and adjacent to Spencer Gulf. I am confident that the two diagrams were never intended in their detail for the use to which they were put by Mr Dighton. However, I have had the advantage of assessing the plaintiff in the witness box. After seeing and hearing him, I believe his evidence. I have made due allowance in my assessment of Mr Dighton for the way in which he has acquired his fishing knowledge, from word of mouth rather than by formal education. It is understandable in light of his fishing records that the Departmental response to the plaintiff of 21 February 1996 states that "[t]he Minister considered that there was insufficient evidence to support your application [for an exemption]".

It is relevant to note that Mr Dighton was not entirely reliant on fishing for his livelihood. When unable to fish he relied on work as a carpenter to supplement his income.

Owing to the plaintiff's error as to the northern boundary of fishing Area 21 his returns cannot be relied on to assess the extent of his dependence on the southern part of Area 11. For the purposes of the case, the Crown Solicitor, Mr Walter, has produced a table which shows the maximum time, based on the plaintiff's evidence, that he might have spent in each of three years in Area 11. The table contains the following summary:

Dighton could on his evidence have been fishing in Area 11

The plaintiff's counsel, Ms Nelson QC, made a calculation based on the weights shown in his fishing returns which revealed the following:

Neither party challenged the accuracy of the calculation made by the other although there was opportunity to do so. I accept the arithmetic.

On all the evidence, Mr Dighton makes out a case that his circumstances and manner of fishing were such that he was likely to be detrimentally affected by the complete closure to net fishing of the Southern section of Area 11. It would be unlikely that a commercial fisher operating out of Port Augusta as his home port would consistently pass through Area 11 without successfully taking advantage of his lawful fishing opportunities in that fishery and proceed instead to the more distant waters of Area 21. In par 8.2 of his affidavit sworn 24 March 1999 the plaintiff does accept that his returns should have shown entries for Area 11.

6. The Validity of the regulation - Schedule 1 - item 29

"A person must not engage in a fishing activity of a prescribed class."

"Prescribed" in this instance means prescribed by regulation (see Acts Interpretation Act 1901 (Cth) s 4).

"(1) The Governor may make such regulations as are contemplated by this Act or as are necessary or expedient for the purposes of this Act."

This provision complements s 46 of the Act which authorises regulations "for the conservation, enhancement and management of the living resources of the waters to which this Act applies, the regulation of fishing and the protection of certain fish...." and further authorises regulations upon specific topics.

Regulation 5 of the principal regulations provides that "[p]ursuant to s 41 of the Act each class of fishing activity described in Schedule 1 is a fishing activity of a prescribed class".

Amendments made, whether by virtue of the disallowed or new regulations have varied Schedule 1 to the principal regulations in terms of cl 29 ("the regulation").

The plaintiff contends that the sole or substantial purpose of the netting closure in Area 11 was to enhance tourism or recreational fishing and satisfy a particular lobby. On this basis he asserts that there has not been a real exercise of the regulation making power contained in the Act (see Williams v Melbourne Corporation [1933] HCA 56; (1933) 49 CLR 142 at 155). The plaintiff contends that the regulatory measures taken in this instance are not reasonably proportionate to the pursuit of the enabling purpose (see The State of South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 and Edwards v Olsen [1996] SASC 5703; (1996) 67 SASR 266 at 276). Counsel for the plaintiff referred to the principles which provide tests of validity of delegated legislation as discussed in Minister of the State for Resources v Dover Fisheries Pty Ltd [1993] FCA 366; (1993) 43 FCR 565, especially per Gummow J at 576-7 and Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567 by the Full Court of the Federal Court at 578.

Mr Dighton claims that the impugned regulation fails to establish a balance between conflicting interests and is unjust and unreasonable bearing in mind his position as a professional fisher operating out of Port Augusta.

Whether the regulation is invalid depends on whether it appropriately reflects Parliamentary intention as distilled from an examination of the enabling statute. The extracts from the Act which I have quoted provide authority for a regulation which prohibits net fishing. On its face the regulation is within power and the only question is whether it is so lacking in reasonable proportionality as not to be a real exercise of power (see Tanner's case at 168 and 176).

The closure of a particular limited area to net fishers is authorised by the Act. The Governor has power to prohibit a class of fishing activity. The establishment of such a class by reference to the method of fishing in specified waters is specifically authorised by s 5(2) of the Act. I cannot identify manifest arbitrariness, injustice or partiality in the regulation as discussed by Lockhart J in Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd [1993] FCA 45; (1993) 40 FCR 381 at 384. One cannot look behind the decision of the Governor as to the motivation of those who were involved in the regulation making process.

As the plaintiffs' counsel acknowledges, the fact that the regulation operates particularly to the detriment of individuals does not in itself give rise to invalidity. The situation in the present case is not the gross unreasonableness of the kind discussed by Jenkinson J in Octet Nominees Pty Ltd v Grimes (1986) 68 ALR 571 at 583. Some nineteen miles of waterway southwards from Port Augusta is closed to a particular type of fishing. The plaintiff must go a little further afield if he wishes to engage in net fishing. He can otherwise share the resource with recreational fishers. The regulation forms part of a management scheme for particular resources within the waters of Northern Spencer Gulf. The end towards which this regulation is directed is within the purview of the Parliament and the means adopted is appropriate and reasonably proportionate to the achievement or pursuit of that end, the enabling purpose (see Tanner's case at 165). The regulation in question does not stand alone. It appears that a comprehensive scheme has been put in place throughout South Australia which has regard to type of fishing gear and the status of the fisher.

The plaintiff bases an argument upon s 20 of the Act which reads:

"In the administration of this Act, the Minister, the Director and management committees have as their principal objectives:

(a) ensuring, through proper conservation, preservation and fisheries management measures, that the living resources of the waters to which this Act applies are not endangered or overexploited; and

(b) achieving the optimum utilisation and equitable distribution of those resources."

The statement of principal objectives does not exclude other objectives and, in any event, does not bind the Governor nor limit the empowering provisions of s 46 (see Minister for Primary Industries v Lawrie per Lander J at 378). I reject the plaintiff's argument based on s 20.

The plaintiff complains that he was not represented in the consultative process leading to the variation and making of the regulations. The validity of the regulation is in no way dependent on any such process nor on principles of natural justice. The regulation making power in question is of a strictly legislative nature affecting all members of the public in the same way. The valid exercise of this power is not conditional on hearing the representations of particular interests. In my opinion the regulation is valid (see Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 620; Bread Manufacturers of New South Wales v Evans (1981)180 CLR 404 at 416-417).

Examples can be found where the Court has been prepared to impose on the Governor obligations to observe natural justice principles. In FAI Insurances Ltd v Winneke & Ors (1983) 151 CLR 342 the Executive Council, for the purposes of the administration of an insurance scheme, was required to give an applicant for renewal of a licence an opportunity to be heard. In State of South Australia v O'Shea [1987] HCA 39; (1987) 73 ALR 1 this issue was further discussed. The Court was prepared to recognise an obligation of procedural fairness when government power or authority is being exercised to individual disadvantage or where the policy was clearly related to the circumstances of an individual (see particularly per Mason CJ at 7). That is not the present case.

"(1) The Minister may, by notice published in the Gazette, exempt any person or class of persons from any specified provisions of this Act.

(2) An exemption under this section may be made subject to such conditions as the Minister thinks fit and specifies in the notice.

(3) The Minister may, if he or she thinks fit, by notice published in the Gazette, vary or revoke an exemption or a condition of an exemption under this section or impose a further condition.

(4) A person to whom an exemption under this section applies must not contravene, or fail to comply with, a condition of the exemption."

The Act imposes no conditions or restrictions on the exercise of power. Importantly, it contains no guidelines as to the circumstances in which an exemption might be granted. The Act gives no specific right to an individual to make an application for exemption. I am unable to find anything contained in the Act which, as now relevant, would fetter the Minister in his administration of s 59. I can see nothing on its face which would lead to the conclusion that a refusal of an exemption is reviewable. The regulation itself, with the support of s 41 of the Act, is expressed in absolute terms of prohibition.

In Chiropractors Association & Perry v Workcover Corporation ([1999] SASC 470) Bleby J, on behalf of the Full Court, examined many of the decisions which were mentioned in the course of argument before me as to whether procedural fairness was required in respect of an administrative refusal of a licence. His Honour reviews and compares the statements of principle to be derived from Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, Haoucher v Minister for Immigration and Ethnic Affairs ("Haoucher's case) [1990] HCA 22; (1990) 169 CLR 648, Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 and FAI Insurance Ltd v Winneke (1983) 151 CLR 342, all of which were cited to me. I adopt His Honour's analysis.

The present case is not one in which there is anything at all in the legislation to which the plaintiff can get a foothold for an argument that natural justice is required by s 59. The starting point may be as McHugh J put the position in Haoucher's case at 680:

"Prospective, as well as existing, rights, interests, privileges and benefits are now within the domain of natural justice. Just as the common law has traditionally given a person a right to be heard before the exercise of a statutory power prejudices any of his or her existing rights or interests, so the common law now gives a person the right to be heard before the exercise of a statutory power prejudices some right, interest, privilege or benefit which that person can legitimately expect to obtain or enjoy in the future. The common law right to be heard may, of course, be excluded by statute. But an intention to exclude it 'is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations': Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383, at p396."

The Parliamentary intention is expressed in simple and absolute terms. There is nothing in s 59 which suggests that there was any benefit which the plaintiff could legitimately or reasonably expect to obtain. The regulatory regime changed when the area was closed to net fishing. No-one could legitimately expect to receive any special treatment.

As McHugh J said in Haoucher's case at 681-2:

"A legitimate expectation that a person will obtain or continue to enjoy a benefit or privilege must be distinguished, however, from a mere hope that he or she will obtain or continue to enjoy a benefit or privilege. A hope that a statutory power will be exercised so as to confer a benefit or privilege does not give rise to a legitimate expectation sufficient to attract the rules of natural justice: South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378, at p.402. To attract the operation of the rules of procedural fairness, there must be some undertaking or course of conduct acquiesced in by the decision-maker or something about the nature of the benefit or privilege which suggests that, in the absence of some special or unusual circumstance, the person concerned will obtain or continue to enjoy a benefit or privilege."

On the face of the Act one could not conclude that the rules of natural justice have any general application to the Minister's administration of s 59. The Minister does not need to be satisfied of any fact, to make any enquiry or to take any step as a precursor to the exercise of power. There is nothing in the Act from which any such obligation could be implied (see Kioa v West per Gibbs CJ at 564).

Limiting myself to an evaluation of the requirements of the Act itself, there is no basis on which the Court could be asked to exercise a jurisdiction to review the Minister's refusal of an exemption.

If, contrary to my view, there was some requirement for procedural fairness imposed on the Minister in exercise of power under s 59, by reason of the special position of the plaintiff as a former licence holder affected in his livelihood, then the Minister has discharged that obligation. Although I do not consider that s 59 itself gives rise to any requirement of procedural fairness, the publication of the Minister's policy statement creates a different and special situation.

(b) The effect of Government policy on the administration of s 59

Having announced a policy whereby Ministerial exemptions would be considered in cases of demonstrated financial hardship coupled with historical fishing dependency on Area 11, the Minister was obliged to administer that policy fairly in a procedural sense. The Minister's written communications to licence holders generally and to the plaintiff, although creating no legal right, created a legitimate or reasonable expectation in the plaintiff that his application for an exemption would attract the rules of natural justice.

"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: Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 at p109; Salemi [No.2] (1977) 137 CLR at p419; Ratu (1977) 137 CLR at p476; Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487 at pp498-9_; FAI Insurances Ltd v Winneke_ (1982) 151 CLR 342 at pp360, 376-7_; Annamunthodo v Oilfields Workers' Trade Union_ [1961] AC 945. The reference to "right of interest" in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.

The reference to "legitimate expectation" makes it clear that the doctrine applies in circumstances where the order will not result in the deprivation of a legal right or interest. Take, for example, an application for a renewal of a licence where the applicant, though he has no legal right or interest, may nevertheless have a legitimate expectation which will attract the rules of natural justice. In Salemi [No.2] Barwick CJ expressed the view that the expression "legitimate expectation" adds little, if anything, to the concept of a right. However, later decisions demonstrate that the concept of "legitimate expectation" extends to expectations which go beyond enforceable legal rights provided that they are reasonably based: Heatley; FAI; Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629 at p636. The expectation may be based on some statement or undertaking on the part of the authority that makes the relevant decision. In the view of some members of the Court in Salemi [No.2] the "amnesty" constituted an example of such an undertaking. Alternatively, the expectation may arise from the very nature of the application, as it did in the case of the application for a renewal of a licence in FAI or from the existence of a regular practice which the person affected can reasonably expect to continue: Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 at p401. The expectation may be that a right, interest or privilege will be granted or renewed or that it will not be denied without an opportunity being given to the person affected to put his case.

It has been said on many occasions that natural justice and fairness are to be equated: see eg, Wiseman v Borneman [1971] AC 297 at pp308, 309, 320_; Bushell v Secretary of State for the Environment_ [1980] UKHL 1; [1981] AC 75. And it has been recognized that in the context of administrative decision-making it is more appropriate to speak of a duty to act fairly or to accord procedural fairness."

In Salemi v MacKellar [No.2] [1977] HCA 26; (1977) 137 CLR 396 Stephen J, in dissent, at 439 said:

"In the present case the plaintiff's expectation does not arise in connexion with any unexpected revocation or non-renewal of a licence or permit. His position is a fortiori. His expectation is not founded upon some implication as to non-revocation or as to renewal. Instead, as in the Liverpool Corporation Case, it is upon an express assurance that the expectation is based: an assurance given by a Minister of the Crown as to the way in which the discretionary power conferred upon him by statute would be exercised. Any fair reading of the news releases leads to the inference that that assurance was given so as to induce this very expectation in the minds of prohibited immigrants such as the plaintiff, so that they might come forward and reveal to the authorities their whereabouts and the details of their continued presence in Australia, a presence which did not in itself involve the commission of any offence....."

Having determined that the plaintiff was entitled to procedural fair play, it is necessary to consider each of the plaintiff's four particular complaints (as identified in par 3(c) to (f) of these reasons) as to his treatment in terms of minimum procedural standards. In O'Shea's case [1987] HCA 39; (1987) 73 ALR 1 at 28 Deane J said:

"The common law rules of natural justice or procedural fair play are not susceptible of being expressed in terms of logical syllogism or precise comprehensive formula. They reflect the minimum standards of basic fairness which the common law requires to be observed in the exercise of government (and, in some circumstances, non-government) authority or power. They may be excluded or modified by the express provision or clear intendment of the legislative provisions creating, conferring, or regulating the exercise of, the relevant authority or power. If not so excluded or modified, such legislative provisions are to be construed as impliedly requiring that those common law rules of procedural fair play be observed."

On the face of the correspondence the plaintiff has been given the opportunity to put his case but has been unsuccessful in satisfying the Minister as to the merits of his position. By reason of his mistake as to the identity of the fishing area and a lack of appreciation as to the need for accuracy in the detail of his fishing returns, the plaintiff has created a situation of difficulty for himself in terms of demonstrating that he falls within the Minister's published criteria. There appears to have been consultation between the plaintiff on the one hand and the Minister and his officers on the other.

The upshot is that the Minister remains unconvinced that this is a case where the discretion should be exercised in favour of Mr Dighton in light of community opposition. I am unable to identify any unfairness in the way in which the plaintiff's application has been handled in terms of an opportunity to put his case and to have it properly considered. Moreover, he has been supplied with reasons. He has had the opportunity to answer the case that his records do not support his contentions. His application has been re-examined in light of all that he has put forward. Eventually, as appears below in this part and in pt 8 of these reasons, the Department has reassessed the plaintiff's case and has not been satisfied that the published guidelines have been met. The conclusion in my view was not unreasonable. However, I have also observed that the plaintiff was "significantly affected" by the closure of the fishery to netting. I cannot be more specific.

A summary of the history of Mr Dighton's application procedurally is as follows:

Circular letter to licence holders adopting, in particular, recommendation 10 as Government policy. In effect, this confirms press statement of 17 May 1995 and provides a basis for seeking an exemption.

Minister's letter to the plaintiff regarding anticipated closure of waters and stating:

"...you are invited to submit your application to the Fisheries Division of my department for an exemption to use a fish net in the closed areas".

Plaintiff's application for ministerial exemption disclosing that he "...fished this area for the last 12 years..."

Minister approves Director's guidelines for issue of exemptions (Minutes dated 30 August 1995).

Director by memorandum informs Minister of plaintiff's application dated 4 July 1995 and reports upon evidence including:

"Consequently is (sic) was a simple exercise to assess the applicant's fishing dependency on this particular area by determining his proportion of total fishing days and total fish caught that were recorded in area 11.

An assessment of his records revealed that Mr Colin Dighton had no statistics recorded for area 11 and was advised that his application of 4 July 1995 could not be supported.

Subsequent correspondence from Mr Dighton claimed that he depended on the fishing activity in the area in question for about thirty to forty percent of his income, and he has presented letters of reference to support his claim that he does fish in area 11 despite having not recorded this in his statutory returns. Mr Dighton has requested that his application is submitted to you for your decision. I enclosed correspondence received from Mr Dighton for your information.

I consider there is insufficient evidence to support Mr Dighton's application considering the information that he has submitted in his fishing returns and the previous restricted access arrangements that applied to the use of fish nets in upper Spencer Gulf. Further, the City of Port Augusta has campaigned for well over ten years to prohibit the use of net fishing in waters in upper Spencer Gulf and it would be contrary to their well established position, which would reflect the opinions of the local community, if any exemption is provided."

Department informs plaintiff of Minister's decision and gives reasons.

Plaintiff by letter disputing evidence and continues to rely upon his fishing returns.

Minister by letter to plaintiff states that he cannot support any application for an exemption.

Plaintiff's letter to Minister questioning reasons for refusal of exemption.

Minister by letter to plaintiff states that judgment not to provide exemption "influenced mainly" by community attitudes.

Mr Dighton by letter to State Ombudsman ventilated the matter and explained the reason for his mistake as regards fishing areas. He did not refer to the discrepancy thus arising as to his fishing methods in Area 11.

Letter from plaintiff to Minister asserting that closure of net fishing has had a "huge impact on my livelihood, well above 30 percent to 40 percent required to be granted an exemption."

Letter from Minister to plaintiff referring to the fact that "public perceptions and attitudes to net fishing must also be taken into account."

Vervoorn Woerlee Consulting (Business Consultants) on behalf of the plaintiff wrote to the Director of Fisheries.

Letter Director of Fisheries to Vervoorn Woerlee Consulting in the following terms:

"You refer to the principle of "natural justice" and claim that Mr Dighton has not been afforded this obligation. I refute this claim and suggest that Mr Dighton, along with all licence holders in the marine scalefish fishery were notified of the Government's intentions to amend regulations through a notice, dated 30 May 1996, that was posted to all licence holders. Further, both the Minister for Primary Industries and I have considered and responded to correspondence from Mr Dighton including his application for an exemption to use a fish net in the closed waters."

"As you are aware, Mr John Presser, Manager Scalefish - Primary Industries SA, agreed with Mr Nippress to reassess your application for an exemption with respect to the "No Netting" Policy in Zone 11 of South Australian Marine Fishing Areas. Mr Presser has indicated that in forwarding a further application for an exemption it is essential that you provide references in the form of Statutory Declarations signed by those who could attest to you fishing in Zone 11 in the years 1991-1994 inclusive. Further, it is important that you show reliance on (net) fishing in the restricted area, in attempting to demonstrate financial hardship as a result of the "No Netting" Policy. On receipt of this information, it is my understanding that Mr Presser will reconsider your application and recommend that the Minister make a new determination with regard to your application and recommend that the Minister make a new determination with regard to your application for an exemption. Naturally, neither Mr Presser nor myself can guarantee that the outcome will be different to the Minister's current determination in this matter.

In Mr Nippress' discussion with your solicitor, it became apparent that you may be pursuing separate legal action against the City of Port Augusta regarding the process they used to determine their policy of "No Netting" in the upper Spencer Gulf Zone. In the absence of any further particulars with respect to this aspect of your complaint, I will take no action.

As a decision made by the Minister for Primary Industries is one which would be outside of my jurisdiction, and through the efforts of my Office you have been successful in getting Primary Industries SA to reconsider your application for an exemption, I believe that I have taken the appropriate action in resolving this matter. However, should you have any concerns in the future with respect to the matters of which you have complained, then please contact the Office and I will assess the matter".

A letter from Vervoorn Woerlee Consulting to the Fisheries Manager, Department for Primary Industries discloses a conference between the plaintiff and the Manager on 5 December 1996.

This is explained further in the affidavit of Mr Presser sworn 25 February 2000, quoted in pt 8 of these reasons together with a recitation of the steps taken in February 1997 in an endeavour to accommodate the plaintiff.

An application for commercial net reinstatement, in all 32 pages with unsigned statutory declarations, was prepared by Vervoorn Woerlee Consulting and submitted to the Department. The affidavit of Mr Mackie, Manager of Legislation and Policies, Fisheries, within the Department sworn 2 November 1998 deals with this particular matter as follows:

"1. I crave leave to refer to paragraph 15 of the affidavit of the plaintiff sworn 9th September 1998. The eligibility criteria for an exemption from the netting closures in Block 11 were to local net fishers who could demonstrate a fishing dependency and financial hardship as a result of the closure. It was determined that fishing dependency was to be calculated by ascertaining whether 40% of the applicant's total catch of marine scalefish species and recorded boat days for the 3 years 1991-1994 were registered for the closed waters for which they are applying.

2. As stated in paragraph 22 of my affidavit sworn 29th July 1998 the plaintiff had no statistics recorded for Block 11. I am advised and verily believe that Jon Presser following a conversation with the Ombudsman for South Australia's Office in September 1996 decided to reassess the plaintiff's application and requested that statutory declarations be provided which attested to the plaintiff's fishing dependency in Block 11.

3. The unsigned statutory declarations provided by the plaintiff were annexures attached to a report prepared by Vervoorn Woerlee on the plaintiff's behalf. All of the statutory declarations attested that the applicant "earned a substantial proportion of his income from marine fishing in area 11" however they did not demonstrate the criteria referred in paragraph 1 above...."

The plaintiff has been afforded an opportunity to put forward his case and have it considered.

Counsel for the plaintiff provided me with a written chronology of events as relevant to the plaintiff's case. I have compared that document with my own summary as set out above. The plaintiff seeks to give particular emphasis to the Minister's letters dated 13 March 1996, 11 April 1996 and 1 July 1996. Undoubtedly Mr Dighton was seeking to keep up the pressure on the Minister who, in turn, was responding to the correspondence. However, I do not consider that the three letters should be classified as refusals to reconsider the application, as the plaintiff seeks to do. A fair summary is that the Minister, on the evidence before him in February 1996, was not satisfied that the plaintiff's position justified an exemption. Eventually, there was a Departmental reappraisal of the file and Mr Dighton was invited to submit statutory declarations to support his assertions. The Department remained unmoved in the face of the further material submitted by Mr Woerlee. The matter has not been advanced further until Mr Dighton gave evidence before me although the two affidavits of the plaintiff, sworn 9 September 1998 and 24 March 1999 in these proceedings, do give some clue to what his evidence would be.

In all the circumstances I do not consider that Mr Dighton can make out a case that he has been denied an opportunity to be heard. I cannot identify anything unfair in the treatment meted out to him. He was certainly substantially affected by the total closure of Area 11 to net fishing but his case did not meet the guidelines in the view of the decision maker. In these circumstances it is not unreasonable that the views of the local community should be brought into account in deciding whether the plaintiff's case merited any special consideration. If this is what has happened I do not consider that Mr Dighton has any basis for complaint in terms of fair treatment.

Closely allied with this complaint are further allegations as to whether the Minister's policy of administration was reasonable and whether the Minister was mistaken. I will deal with these questions separately although to some extent I am traversing ground already covered.

(iii) Minister's compliance with wishes of Local Government

Mr Dighton complains that, in making his decision, the Minister has acquiesced to the wishes of an electorate neighbouring his own without properly considering the plaintiff's case. The Minister's letter of 11 April 1996 when read alone is susceptible of that conclusion. It says:

"This judgment was influenced mainly from the strong position of the City Council of Port Augusta and from community attitudes in general."

The Minister's letter of 1 July 1996 is in similar vein when it refers to public perceptions. The Minister's earlier statement in his letter of 13 March 1996 that he "...cannot support any application for an exemption..." seems to be quite absolute in its terms. However, these statements must be put in context.

On 21 February 1996 the Minister's reasons were supplied to Mr Dighton based on an investigation of the plaintiff's fishing records. After that, the Minister has treated the matter as closed and his subsequent statements reiterate general policy. The plaintiff continued to keep up the pressure and attempts to have the application reopened. Eventually, after the Ombudsman intervened, the Department was persuaded to look at the matter again in view of the plaintiff's explanations. Not unreasonably, as I have already observed, the plaintiff was asked to supply signed statutory declarations by those who have knowledge of the plaintiff's fishing history.

The plaintiff's procedural right at least is to put his case. I am prepared to assume that the plaintiff has a right to be heard and to be dealt with in light of his submission. If his right goes this far I consider that procedural requirements appear to have been met. The Minister's correspondence is a response to the manner in which the plaintiff has sought to advance his application after being told of the Minister's decision. It is true that the Minister, as a matter of general policy, has been heavily influenced by local opinion. However, I see no evidence that the Minister has done otherwise than bring into account the evidence which has been available to him. The Minister has set a policy criterion and his officers have evaluated Mr Dighton's case against the criterion. In the absence of satisfactory evidence of hardship and a sufficient history of fishing in the area the Minister has treated public opinion as paramount. In my view the Minister is not abrogating his responsibilities by adopting this approach.

If Mr Dighton's expectations have again been raised after the initial publication of policy it is only on the basis of an intimation by the Department that the matter was being looked at again and that statutory declarations were sought. As appears below the matter has been re-examined in the light of Mr Dighton's response via Mr Woerlee.

Based on the principle in Minister for Aboriginal Affairs v Peko Wallsend Ltd & Ors ("Peko Wallsend") [1986] HCA 40; (1986) 162 CLR 24 at 39 the plaintiff argues that the Minister asked himself the wrong question or took into account irrelevant considerations and failed to have regard to relevant matters. Under this heading it may be argued that the Minister had a mistaken view of the plaintiff's fishing history. It may also be argued that the Minister brought into account extraneous matters namely the views of the local community. In my opinion the Minister made no error.

In terms of the Departmental letter of 21 February 1996 the Minister proceeded on the basis of insufficient evidence in view of the material disclosed in the fishing returns. I do not consider that the views of the local community have to be ignored. They reflect a need to protect fishing resources for recreational use, a topic properly within the ambit of the administration of the Act. If, hypothetically speaking, an extraneous matter such as the religious or political views of the plaintiff or the colour of his hair were at the root of the Minister's decision then the position would be different.

In Upham v The Grand Hotel the Full Court examined the ground for judicial review which was discussed by Mason J in Peko Wallsend. At pars 153-160, the Full Court discussed the different ways in which a particular situation might be approached in terms of the expression of grounds for judicial review, that is, whether that be on the basis of "relevance" or "manifestly unreasonable". The Court also compared these bases for review with "Wednesbury unreasonableness".

Relying on the principle in Associated Provincial Picture Houses v Wednesbury Corporation ("Wednesbury's case") [1947] EWCA Civ 1; [1948] 1 KB 223 the plaintiff claims that the decision was unjust and unreasonable. On the facts of this case that argument needs to be assessed in light of the plaintiff's complaint as to the criteria adopted by the Minister when making his decision in this instance.

As the basis for an exemption, the Minister and his officers have applied criteria which were established for dealing with the situation in the Coffin Bay area, which the Minister apparently considers to be analogous. The basic eligibility test adapted is explained by Mr Mackie, in par 19 of his affidavit of 29 July 1998 as follows:

"...that [at least] 40% of the applicant's total catch of marine scalefish species and recorded boat days for the three years 1991-94 were to have been registered for the closed waters for which they are applying."

The uncontested calculations put before me by the Crown Solicitor demonstrate that the "boat days" requirement has not been satisfied.

In a letter dated 4 September 1995 sent by the Department of Primary Industries to Ms Gill, on behalf of scalefish licence holders, the following explanation of the policy appears:

"David Hall has sought clarification from the Minister for Primary Industries on a number of issues related to the new net fishing regulations. The following summary reflects the Minister's answers.

2. Port Lincoln bays - exemptions will be provided according to the criteria of fishing dependency and financial hardship established in 1994 for the assessments of the Coffin Bay applications.

4. Upper Spencer Gulf - as for Port Lincoln, exemptions will be provided with restrictions consistent with the regulations applying before 1 September 1995."

This explanation is expanded in a letter dated 5 September 1995.

In terms of par 10 of his affidavit sworn 24 March 1999 Mr Dighton complains that the Coffin Bay precedent is inappropriate for application to Upper Spencer Gulf because the open season in Coffin Bay was seven months compared with three months in the case of Area 11. The plaintiff asserts that

"...The Coffin Bay fishers were accordingly in a position to more easily demonstrate that forty (40) percentum of their income overall came from the seasonally restricted area. The application of the Coffin Bay criteria to Area 11 effectively discriminated against fishers operating in Area 11."

The Minister was entitled to adopt the test which he did and to apply the precedent from Coffin Bay to Upper Spencer Gulf. I do not consider that the rules or the manner of their application are so absurd that no sensible person could treat them as being relevant to the decision making (see generally Wednesbury's case at 229-30). The condition which had to be satisfied in terms of the test is not unreasonable.

Insofar as it is suggested that the Minister's decision is illogical or unreasonable by reason of his failure to give weight to the plaintiff's explanation I do not consider that the facts support such an argument. The Minister does not regard the material supplied by Mr Dighton as sufficient to demonstrate that his published criteria have been met. There was a substratum of fact to support the Minister's conclusion. "The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion....vested in the administrator" (see Peko Wallsend per Mason J at 40).

Mr Mackie's affidavit of 2 November 1998, pars 2 and 3, refer to a request for signed statutory declarations which, according to Departmental records, were not forthcoming. Arguably, if the departmental requisition had not been answered by Mr Dighton he could hardly be heard to complain.

I invited counsel to investigate the matter and further affidavits were filed by Mr Woerlee (sworn 27 January 2000), Mr Zacharin (now Principal Fisheries Manager of the Department sworn 16 February 2000), Mr Presser (sworn 25 February 2000), Mr and Ms Gill (each sworn 4 April 2000) and Mr Hall, (former Director sworn 26 May 2000). On the face of the affidavits there was an issue as to whether signed documents had been provided.

On 30 May 2000 I held a supplementary hearing when counsel informed me that I should proceed on an agreed basis.

The parties are content that I make my decision on the basis that on 5 December 1995 the signed declarations were taken to a meeting with Departmental officers Mr Presser and Mr Hall (his superior). The plaintiff's witnesses claim to have seen the documents being handed to Mr Hall. However, the Department can find no record of the originals on file. The parties do not consider that this matters. Mr Presser used the unsigned copy declarations as if they were originals and it was irrelevant to his purpose that he was using copies.

In his affidavit sworn 25 February 2000 Mr Presser says:

"2 I was employed within the Department of Primary Industries ("the Department") from January 1980 until May 1998. I held the position of Principal Manager (Scalefish) from February 1994 until May 1998 when I resigned from my employment with the Department.

3. Whilst I held the position of Principal Manager (Scalefish) I can recall considering the application by Mr Dighton for an exemption from the netting closures in Area 11. I can also recall having discussions with Mr Woerlee who represented Mr Dighton.

4. I recall that following a conversation with the Ombudsman for the State of South Australia in September 1996, I decided, in my position as Principal Manager (Scalefish), to reassess the plaintiff's application and requested that statutory declarations be provided which attested to the plaintiff's fishing dependency in Block 11. I thought that such declarations might assist the plaintiff in his application for an exemption. This was not a process which was instigated by the Minister for Primary Industries.

8. Having read the unexecuted copies of the statutory declarations referred in paragraph 2 of the affidavit of Mr Woerlee I can say that those declarations, were considered by me and I attached significant weight to those statements. The statements would have been considered by me regardless of whether they were signed or unsigned. The unexecuted copies of the statutory declarations were considered by me as part of my re-assessment of the plaintiff's application for an exemption from the netting closures in Area 11. I conducted that reconsideration in consultation with the then Director of Fisheries, Mr David Hall.

9. I can say that the result of the re-assessment conducted by me was that the plaintiff had produced insufficient evidence to satisfy the eligibility criteria for an exemption from the netting closure in Area 11. I can say that that result would not have differed had I been considering executed statutory declarations.

10. As the result of the re-assessment was that the plaintiff had produced insufficient evidence to satisfy the eligibility criteria for an exemption from the netting closure in Area 11, the further matters raised by the statutory declarations were not then referred to the Minister for Primary Industries.

11. At or around the time that that reassessment was being conducted David Hall and I were meeting with Mr Woerlee to consider the options available to Mr Dighton, and in particular to look at any assistance that could be provided to Mr Dighton. Various meetings were conducted with Mr Woerlee including meetings which occurred on 5 December 1996, 10 February 1997 ane 21 February 1997. As a result of a meeting with Mr Woerlee of 5 December 1996 various options were suggested by Mr Woerlee. Those options are contained in the correspondence from Mr Woerlee dated 9 December 1996, which forms exhibit "DM27" to the affidavit of Donald Mackie sworn on 29 July 1998; and correspondence from Mr Woerlee dated 10 December 1996, which forms exhibit "DM28" to the affidavit of Donald Mackie sworn on 29 July 1998.

13. I can recall that it was clearly communicated to Mr Woerlee at or around 20 February 1997 that Mr Dighton's application for an exemption from netting closures in Area 11 was rejected, as I recall indicating to Mr Woerlee at or around that time that further negotiations would only be offered by the Department at that stage if the plaintiff or his representative considered becoming involved in a parallel process that was occurring between the Government and other fishers from Coffin Bay. I refer to paragraph 35 of the affidavit of Donald Mackie which refers to the process involving fishers from Coffin Bay."

It seems to me that the Departmental officers went out of their way in an endeavour to assist Mr Dighton. Perhaps the intervention of the Ombudsman was to Mr Dighton's advantage. However, at the end of the day, I do not consider that Mr Dighton is able to demonstrate that he is aggrieved in law.

The plaintiff now argues that there was an obligation on the Departmental officers to put the matter before the Minister again. It was submitted by the plaintiff's counsel that Mr Presser was not entitled to exercise power. I disagree. The principle which enables a Departmental officer to exercise power in such circumstances is set out in Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 per Lord Greene MR at 563.

"In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministries. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament. The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them."

It is not in every situation that a Departmental officer is enabled to act as the delegate of the Minister. The particular legislation may require a particular person to exercise the statutory power (cf O'Reilly v Commissioner of the State Bank of Victoria [1983] HCA 47; (1983) 153 CLR 1 and Din v Minister for Immigration and Multicultural Affairs (1997) 147 ALR 673 at 678-682). In my view, on the face of the Act there is nothing to prevent the Carltona principle from operating. The plaintiff contends that the application of the Carltona principle is dependant on the nature of the power and all other circumstances (see reference under Ombudsman Act (1979) 2 ALD 86 at 93 per Brennan J). In the present case the Minister put the policy in place and its application to the circumstances of an individual case, particularly by way of review, is a matter which I consider to be properly capable of being dealt with by Departmental officers.

I reject the plaintiff's submission that Mr Presser's actions in considering the plaintiff's material was insufficient to satisfy the plaintiff's entitlement to have the matter properly considered. Moreover, I do not consider that the manner of application of the Coffin Bay precedent was unreasonable. Mr Dighton has been given an opportunity properly to advance his case and it has been dealt with according to law.

Although I would not grant relief to the plaintiff I note the intimation of the Crown Solicitor that in the event that I saw fit to grant a declaration I could anticipate that the Minister would respect its import. I make this observation because if I am wrong in my conclusion then the appropriate relief will be limited to a declaration. Nothing further by way of relief could be justified. Nevertheless I do not consider that the plaintiff has been able to make out a case.

The argument for the plaintiff has been advanced in many different ways and I have been concerned in these reasons to follow through each of these approaches. This has led me along a somewhat torturous route in which I have crossed and recrossed my own path in endeavouring to deal directly with the various submissions. However, I consider that an unanswerable case can be advanced quite shortly against Mr Dighton as follows:

(a) The Governor was entitled to close Upper Spencer Gulf to net fishing generally. There was no requirement in the Act for consultation with the plaintiff or his interests before effecting the closure. The regulation making power authorised the prohibition of the relevant class of fishing. The method of conservation of the fishery was within power even if it were effected largely in the interests of recreational anglers. The plaintiff's status as a professional fisher did not entitle him to any special treatment in terms of the content of the regulation or as regards the procedure which led to its introduction.

(b) On closing of the net fishery no one thereby acquired at law any right to an exemption from the regulation. The power of exemption is discretionary and at large.

(c) If the Minister chose, as he did, to invite applications for exemption then he was entitled to nominate the associated policy criteria. The fact that the chosen criteria operated more harshly when applied to Spencer Gulf than Coffin Bay did not give rise to any cause for complaint. The Minister was entitled to set stringent conditions. However, having published these conditions certain requirements of natural justice attached to the ensuing administration. The plaintiff was not entitled to insist on a more liberal policy better suited to his own situation.

(d) The plaintiff was unable to bring himself within the policy criteria for exemption. He did not keep proper records to enable his situation to be assessed. Even if an assumption could be made in Mr Dighton's favour to allow for his mistake in record keeping, on the best possible view, the fishing time spent in Area 11 was insufficient to satisfy the policy criteria. The lack of appropriate evidence was explained to Mr Dighton in response to his successive approaches to the Department.

(e) In absence of the policy criteria being satisfied, the Minister was entitled to have regard to the interests and attitudes of the local community. In this instance the Departmental officers were entitled to administer policy on the Minister's behalf.

Mr Dighton's affidavit of 24 March 1999 addresses the possibility that, in terms of the Rules of Court, an extension of time may be needed if the plaintiff is to successfully pursue an application for judicial review (see r 98.06 of the Supreme Court Rules (Civil) ("SCR"). The proceedings were commenced on 22 April 1998. Arguably, on the plaintiff's case, his rights to seek an order for certiorari arose on about 21 February 1996 or at some time thereafter. The rules require that the application for judicial review be brought within six months, from the date when the grounds of review first arose, unless an extension of time be granted.

By application dated 14 March 1996 the plaintiff made application to the Commonwealth Administrative Appeals Tribunal in respect of a decision which was identified as dated 21 February 1996. The Tribunal's Registrar, by letter dated 10 April 1996, returned the application to the plaintiff on the basis that the Tribunal had no jurisdiction. In the meantime, by letter dated 17 February 1996, the plaintiff had approached the State Ombudsman for help. This approach was made, according to the correspondence, by reason of information which the plaintiff received on 16 February 1996 as to the outcome of his application for exemption. I note that by letter dated 30 September 1996 the Ombudsman informed the plaintiff of the willingness of the Department to reassess the matter on receipt of signed statutory declarations showing reliance on Area 11.

This is an ongoing saga where the plaintiff has come to court only after seeking to exhaust other avenues for redress. Until December 1997 Mr Woerlee who had been engaged by the plaintiff in about August 1996, was active in negotiations on the plaintiff's behalf. It was only on the breakdown in negotiations that the plaintiff then instructed solicitors. In these circumstances, if the plaintiff would otherwise be entitled to relief I consider that an extension of time should be granted for the purposes of SCR 98.06.

The regulations are valid insofar as they effect a general closure of Upper Spencer Gulf to net fishing. Furthermore, the Ministerial power of exemption from the regulations contained in s 59 of the Act does not in itself, as now relevant, contain any requirement which would enable the Court to review the exercise of Ministerial discretion. However, in view of the Minister's intimation to licence holders of the policy adoption regarding exemptions for disadvantaged commercial fishers, his consequential action is reviewable. His action gave rise to a requirement that certain principles of fairness be observed in the Minister's administration. In my opinion that requirement was sufficiently observed. It has not been demonstrated that, on the material before him, the Minister was procedurally in error. The plaintiff was unable to satisfy the policy criteria. The policy and decisions made thereon by the Minister, or in his name, were not irrational.

In a letter dated 7 June 1995 to Mr Gill, as Chairman of the Scale Fisheries Committee, the then Minister, Mr Baker wrote:

"I note your concerns that the advice of the Scalefish Management Committee and the Netting Review Committee may have been totally ignored in the deliberations by myself and Cabinet. As you are well aware, I do consider the advice and opinions provided to me from all interested parties in the debate. The conflict over net fishing is very complex and difficult, and it is apparent to me that the views within the fishing industry and communities are quite polarised.

As difficult as it is to accept sometimes, the weight of community attitudes that are reflected through local council actions and submissions do have a big influence in political decision making...."

Notwithstanding this statement, which reflects the democratic process, I consider that the Minister and his Departmental officers have properly discharged any administrative responsibility which may have existed with regard to the plaintiff.