Donohue v Australian Fisheries Management Authority

REASONS FOR JUDGMENT 1 The applicants are members of the East Coast Tuna Boat Owners Association (the Association). They fish in the Eastern Tuna and Billfish fishery (ETBF). They do not target southern bluefin tuna (SBT) although on occasions that species is taken as "by-catch". SBT is the subject of a separate fishery (SBTF). The SBTF pursuant to s 3 of the SBT Management Plan 1995 (the SBT Management Plan) incorporates the whole of the Australian fishing zone (AFZ) and certain areas of the high seas as defined in the plan. The SBTF and EBTF have a large geographical area in common off the east coast of Australia. 2 The applicants challenge the validity of an order made on 31 May 2000 (the order) by the second respondent Mr Frank Meere as delegate of the first respondent the Australian Fisheries Management Authority (AFMA) under s 43 of the Fisheries Management Act 1991 (Cth) (the Act). The order was confined to the period 1 June to 31 August 2000. Relevantly for present purposes, it prohibited fishing by method of pelagic longlining in the SBTF in an area defined by specified co-ordinates of latitude and longitude unless prior to leaving port for the trip the person was the owner or lessee of Statutory Fishing Rights (SFRs) granted under the SBT Management Plan for 500 kg assigned to a nominated boat. "Pelagic" refers to fish which live in the ocean at mid or surface levels. "Longlining" is a fishing method in which a very long line is trailed behind a boat with attached hooked lines at intervals. The order also directed that a person who fished in the SBTF by pelagic longlining must, during the period of the order, have on board the boat a Vessel Monitoring System (VMS) of either of two specified types. A VMS transmits information enabling the location, direction and speed of a vessel to be monitored at an onshore location. 3 Section 43 provides as follows: "(1) The purpose of this section is to enable quick action to be taken: (a) to deal with: (i) emergencies; or (ii) other circumstances where urgent action is required for purposes related to the management of a fishery; or (b) to correct errors or anomalies in a plan of management. (2) If AFMA is satisfied that: (a) it is necessary to take action for the purpose of this section; and (b) the action contemplated is consistent with AFMA's objectives; and (c) no other action is appropriate; AFMA may make an order, consistent with this Act and the regulations, with respect to: (d) any matter directly or indirectly connected with fishing: (i) in a managed fishery; or (ii) in the AFZ but not in a managed fishery; or (e) any other matter relating to a managed fishery, being a matter that may be provided for by a plan of management; or (f) any incidental matter. (3) AFMA may at any time make an order cancelling a previous order. (4) An order ceases to have effect: (a) on a day specified in the order; or (b) on being cancelled by another order; or (c) at the end of 3 months after the order is made; whichever is soonest. (5) Subject to subsections (6) and (7), AFMA must not make an order the same in substance as a previous order within 6 months after the previous order has ceased to have effect. (6) While an order is in force, AFMA may make one, and only one, further order the same in substance as the first-mentioned order. (7) Nothing in subsections (5) and (6) prevents AFMA from making a further order the same in substance as a previous order to deal with a different emergency. (8) AFMA may, by writing under its common seal, delegate its powers under this section to the Managing Director of AFMA, but to no other person. (9) If an order is inconsistent with a provision of: (a) a plan of management; or (b) a fishing concession, scientific permit, foreign master fishing licence or fish receiver permit; the order overrides the provision and, to that extent, the provision has no effect. (10) When an order ceases to have effect, any provision overridden by the order revives, subject to this Act, unless the regulations provide otherwise. (11) An order is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901." 4 The order recited that Mr Meere was satisfied that it was necessary to take action under s 43 as circumstances existed where urgent action was required for purposes related to the management of the SBTF, the order was consistent with AFMA's objectives and no other action was appropriate. 5 By their amended application the applicants sought review of the order under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), prohibition and an injunction under s 39B of the Judiciary Act 1903 (Cth), and a declaration under s 21 of Federal Court of Australia Act 1976 (Cth) that the order was void, invalid and of no legal effect. At the final hearing, senior counsel for the applicants relied primarily on the lastmentioned basis. In the meantime I had, on 8 June 2000, granted a stay of the order pending the hearing and determination of the application.