[1990] HCA 57
Beaumont v Yeomans (1934) 34 SR (NSW) 562
Bird v John Sharp & Sons Pty Ltd (1942) 66 CLR 233
(1942) HCA 27
Bropho v Western Australia (1990) 171 CLR 1
[1990] HCA 24
Brunswick v Stewart (1941) 65 CLR 88
[1941] HCA 7
Campbell v Rofe [1933] AC 91
Clements Marshall Consolidated Ltd v ENT Ltd (1988) TASR(NC) N1
Source
Original judgment source is linked above.
Catchwords
[1990] HCA 57
Beaumont v Yeomans (1934) 34 SR (NSW) 562
Bird v John Sharp & Sons Pty Ltd (1942) 66 CLR 233(1942) HCA 27
Bropho v Western Australia (1990) 171 CLR 1[1990] HCA 24
Brunswick v Stewart (1941) 65 CLR 88[1941] HCA 7
Campbell v Rofe [1933] AC 91
Clements Marshall Consolidated Ltd v ENT Ltd (1988) TASR(NC) N113 ACLR 90
Coco v The Queen (1994) 179 CLR 427[1994] HCA 15.
Colonial Bank v Whinney (1885) 30 Ch D 261
Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309[2004] HCA 40
Georgiadis v Australian & Overseas Telecommunications Corporation (1994) 179 CLR 297[1994] HCA 6
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269[2003] HCA 33
Heatscape Pty Ltd v Mahoney [2017] NSWCCA 135
Kartinyeri v The Commonwealth (1998) 195 CLR 337[1998] HCA 22 ("the Hindmarsh Bridge Case")
Ku-Ring-Gai Municipal Council v Attorney-General (NSW) (1957) 99 CLR 251[1957] HCA 61
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355Ex Parte Federated Ship Painters' & Dockers' Union of Australia (1954) 92 CLR 526[2003] SASC 174
The City of Melbourne v Barry (1922) 31 CLR 174[1922] HCA 56
Williams v City of Melbourne (1933) 49 CLR 142
Judgment (6 paragraphs)
[1]
The Application
As earlier stated the plaintiff seeks judicial review. This is done by seeking orders in the nature of prohibition preventing the defendants from taking any steps to enforce their acts or decisions made pursuant to the State's commercial fishing industry forming part of the Business Adjustment Program. Alternatively, the plaintiff seeks injunctive relief restraining the defendants from giving effect to those acts and decisions.
Further in the alternative, the plaintiff seeks orders in the nature of certiorari quashing the acts and decisions that are sought to be impugned and a declaration that the Secretary of the Department of Industry was not an authorised person, or that the decision to make the allocation formula (which forms the kernel of the allocation of shares pursuant to the Business Adjustment Program) was not authorised.
The plaintiff also seeks a declaration that the Fisheries Management (Estuary General Share Management Plan) Regulation 2006 ("the Amended Regulation"), as it existed on 6 October 2017, is invalid as an impermissible exercise of the power to promulgate regulations or plans under the Fisheries Management Act 1994, as relevantly amended ("the Amended Act"), to promulgate regulations or plans.
Other regulations are sought to be invalidated or declared invalid together with other documents and conduct or the effect thereof. The plaintiff seeks declarations that the following are invalid and of no effect: the Fisheries Management Legislation Amendment (Quota Shares) Regulation 2017 ("the Quota Shares Regulation"), promulgated October 2017; the Fisheries Management (Issue of Quota Shares) Instrument 2017, promulgated 17 October 2017; the Director-General's allocation formula, published in the New South Wales Government Gazette on 11 October 2017; and the Participation Deed, dated 17 March 2017, between the plaintiff and the defendants or one of them.
Interlocutory relief was sought and, in slightly different terms, granted. The grounds asserted in the Amended Summons said to give rise to the relief sought are as follows:
"1 The decisions were tainted and adversely affected by jurisdictional error, in that each:
i asserted jurisdiction over and in respect of the removal of equity in and reduction in value and allocations of the fishing access licences of the Applicant without just terms or at all in breach of Fisheries Management Act 1994;
ii asserted jurisdiction over and in respect of the removal of equity in and reduction in value and allocations of the fishing access licences of the Applicant without just terms or at all in breach of Estuary General Share Management Plan;
iii officers who purported to act under Fisheries Management Act 1994 in establishing a commercial market in which the Director-General and others determined the price of fisheries assets of the Applicant did not have authority to do so;
iv the Fisheries Management (Estuary General Share Management Plan) Regulation 2007 current 6 October 2017 was an impermissible exercise of power;
v the Fisheries Management (Estuary General Share Management Plan) Regulation 2007 current 6 October 2017 was not authorised by Fisheries Management Act 1994;
vi Fisheries Management (Estuary General Share Management Plan) Regulation 2007 current 6 October 2017 had regard to irrelevant considerations namely objects and purposes not authorised by the Act;
vii Fisheries Management (Estuary General Share Management Plan) Regulation 2007 current 6 October 2017 is ultra vires the powers of the Minister to make the Plan in its amended form.
2 The decision specified herein forming part of the Business Adjustment Program were each tainted and adversely affected by jurisdictional error in that:
a procedures that were required by law to be observed in connection with the making of the decision were not observed;
b the person who purported to make the decision did not have jurisdiction to make the decision;
c the decision was not authorised by the enactment in pursuance of which it was purported to be made;
d the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
e the decision involved an error of law, whether or not the error appears on the record of the decision;
f the decision and exercise of regulation making power was otherwise ultra vires and contrary to law."
[2]
Background Facts
The Fisheries Management Act was first promulgated in 1994 and repealed and replaced the Oyster and Fisheries Act 1935. The Act continued and has been amended on a number of occasions. Prior to the last relevant amendment, the Act (hereinafter referred to in these reasons for judgment as "the Unamended Act" to indicate its status prior to the relevant amendments) operated uncontentiously for present purposes.
Prior to the implementation of the Business Adjustment Program, the plaintiff possessed 125 shares ("Access Shares"), which, together with other regulations, allowed the plaintiff to fish in Region 4 of New South Wales for mud crabs. Other regulations and limitations prescribed the number of mud crab traps that could be placed and set by the plaintiff. That limit was 10 traps. However, the plaintiff could catch as many mud crabs as were possible in those 10 traps and could catch as much weight of mud crabs as was physically possible.
The Business Adjustment Program implemented Quota Shares, which further limited the plaintiff's capacity to fish for mud crabs as they prescribed a maximum catch, on the basis of the number of Quota Shares allocated to him, that was significantly less than the catch that could have been obtained as a result of the unrestricted and unqualified access to the 10 traps set under the arrangements that existed previously.
Essentially, for a variety of reasons that mostly depend on the construction of the statute, the plaintiff says the diminution of the permissible catch size prescribed for the plaintiff is contrary to law. It is necessary to recite some parts of the legislation and to summarise other parts.
[3]
Some Legislative History
On 15 May 2006 the Fisheries Management (Estuary General Share Management Plan) Regulation 2006 was promulgated, as was the Fisheries Management (Supporting Plan) Regulation 2006. The Fisheries Management (Estuary General Share Management Plan) Regulation 2006 was relevantly amended in 2017 ("the Amended Regulation"). The Management Plan sought to be impugned in these proceedings, was purportedly made or amended by the Amended Regulation and commenced on 5 February 2017. The effect of the holding of 125 Access Shares, as earlier described, was, prior to the Amended Regulation, that the plaintiff fished for mud crabs, pursuant to the shares allocated to him, and caught 3,381.39 kg in 2014/2015 as a result of his commercial fishing.
Prior to the Amended Act taking effect, the State announced the impugned Business Adjustment Program. The announcement occurred in January 2014. Following that announcement, a review occurred of the Share Management Plan and the Business Adjustment Program was launched on 31 May 2016.
On 3 June 2016, the State informed a number of commercial fishing operations of the effect of the holding of shares and, in particular, notified the plaintiff that 125 Access Shares would be linked to a maximum catch of 673.8 kg.
On 1 July 2016, according to the plaintiff, the catch of mud crabs by the plaintiff for 2015/2016 was 2,960.44 kg.
On 26 July 2016, the State, through the Minister, announced three extra traps on endorsements for mud crab fishery. On 5 August 2016, the plaintiff applied to the Rural Assistance Authority for a loan of $80,000 to allow for the purchase of Quota Shares in the announced Plan. On 3 February 2017, the Rural Assistance Authority published a pro-forma Participation Deed relating to the purchase of Quota Shares in what the plaintiff referred to as a "subsidised market".
On 5 February 2017, at the expiry of the previous Plan, the plaintiff's 125 Access Shares under the Share Management Plan were renewed for a further 10 years.
Between March 2017 and June 2017, the Department of Primary Industry tested the bidding process for Quota Shares and in so doing seemed to provide an estimate of the Quota Share prices. A number of rounds of bidding occurred and the results of the market were published to the plaintiff on or about 28 June 2017.
[4]
Legislation and its effect
As previously stated, the Unamended Act, when first promulgated, repealed the Fisheries and Oyster Farms Act 1935 and, by its savings and transitional provisions saved and continued certain administrative acts and other circumstances established as a consequence of that Act. It is unnecessary to trace the history through to the Fisheries and Oyster Farms Act.
Prior to the promulgation of the Amended Act, the Unamended Act set out certain requirements and prescriptions for the management of commercial fishing operations in New South Wales. Between the Unamended and Amended Act, many of the provisions remain unaltered. Those changes that did occur are examined closely later in the judgment. It is unnecessary, in this analysis, to deal with any effect of the Unamended or Amended Act on the rights of first peoples to exercise native title, including fishing activities.
The Unamended Act contained prescribed objects which were "to conserve, develop and share the fishery resources of the State for the benefit of present and future generations": see s 3(1). Subsection 3(2) of the Unamended Act then particularised certain objects as included in the overarching objects prescribed by s 3(1). Those particulars included:
"(a) to conserve fish stocks and key fish habitats, and
(b) to conserve threatened species, populations and ecological communities of fish and marine vegetation, and
(c) to promote ecologically sustainable development, including the conservation of biological diversity,
and, consistently with those objects:
(d) to promote viable commercial fishing and aquaculture industries, and
(e) to promote quality recreational fishing opportunities, and
(f) to appropriately share fisheries resources between the users of those resources, and
(g) to provide social and economic benefits for the wider community of New South Wales, and
(h) to recognise the spiritual, social and customary significance to Aboriginal persons of fisheries resources and to protect, and promote the continuation of, Aboriginal cultural fishing."
Section 40 of the Unamended Act permitted regulations to be promulgated that make provision for or with respect "to any matter relating to the management of fishery resources". That general power is particularised in s 40(2) and, relevantly, included "the development of plans for the management of fishery resources and the establishment of planning committees for that purpose; and determining the priority between fishers engaged in fishing activities in the same area".
[5]
Submissions of the Plaintiff and Consideration
The plaintiff has, as has been recited, prayers for different relief in relation to, in effect, the same issues. The grounds upon which the plaintiff relies are, as previously recited: asserted jurisdictional error, which, in turn, relies upon a particular construction of the Act; the doctrine of "legality" (if that be different); and the consequential proposition that the amendment of the Management Plan by the issue of Quota Shares, restricting the previously existing capacity of a commercial fishing operation, was ultra vires.
The plaintiff relies upon his position as a commercial fisher with access to fishing in the relevant area for mud crabs, prior to the amendment to the Management Plan. At all relevant times, the plaintiff held 125 Access Shares, which, as has been earlier noted, prior to the issue of Quota Shares allowed him access to mud crab fishing in the relevant area.
The only relevant restriction on the plaintiff's capacity to fish for mud crab in the Region (prior to the Quota Shares operating) was the physical limits associated with the restriction that he was required to utilise no more than 10 traps. The first grant of Access Shares to the plaintiff occurred in 2007 and those shares were held for a duration of 10 years, with an automatic right of renewal for another 10 years from 2017. The plaintiff is a fifth-generation operator of commercial fishing, which is the sole means of his livelihood.
First, the plaintiff asserts that the 125 Access Shares are property and that the acquisition of them by the State Government, without compensation, would require the Court to construe the Act differently. Secondly, and further to the first mentioned proposition, the plaintiff submits that the doctrine of legality requires the Court to construe the Act narrowly against the proposition that the Act would allow the Minister or the Secretary, through regulations, either to render the property worthless or to affect its value adversely, without proper compensation.
As summarised by the plaintiff (at [12] of the Plaintiff's Written Submissions), there are essentially four grounds for the orders for which the plaintiff prays in his Summons:
1. The making of the 2017 Regulations (the Quota Shares and Quota Management Regulations) pays no attention to and disregards the principle of legality;
2. On the proper construction of s 71A(1) of the Act, Pt 3A of the 2017 Regulations amending the 2006 Share Management Fishery Plan and providing for the issue of Quota Shares in reliance upon that provision is not authorised by law;
3. The making of the 2017 Regulations fails, because no or insufficient attention was paid to due process of law;
4. The making of the 2017 Regulations and the linked Ministerial and Secretarial instruments were unreasonable, capricious and an abuse of power.
[6]
Amendments
19 February 2018 - [71], [75], [80], [131] - Typographical errors
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 19 February 2018
Parties
Applicant/Plaintiff:
Elliott
Respondent/Defendant:
Minister administering Fisheries Management Act 1994
Cases Cited (30)
(1933) 49 CLR 142; [1933] HCA 56
Category: Principal judgment
Parties: Dean Andrew Elliott (Plaintiff)
Minister administering Fisheries Management Act 1994 (First Defendant)
Secretary, Department of Industry (Second Defendant)
State of New South Wales (Third Defendant)
NSW Rural Assistance Authority (Fourth Defendant)
Representation: Counsel:
P McKell (Plaintiff)
J S Emmett (Defendants)
On 30 June 2017, the Minister promulgated the Fisheries Management Legislation Amendment (Quota Shares) Regulation 2017 which commenced, according to its terms, on the date of its publication.
On 1 July 2017, according to the plaintiff, the mud crab catch for 2016/2017 had been 3,210.3 kg.
The Business Adjustment Program that was implemented prescribed the date of eligible shareholding of 30 September 2017 and on 6 October 2017 the Fisheries Management Legislation Amendment (Quota Management) Regulation 2017 containing those aspects was promulgated, commencing on that date. That was also the date of the commencement of the transition period arising under the scheme which, according to the parties, granted the Secretary the power to make fishing determinations for seven years from that date and which is said by the plaintiff to be ultra vires.
On 11 October 2017, the Secretary of the Department of Industry (the second defendant) published the first notice in the Government Gazette of the allocation formula, and on 17 October 2017, the Ministerial Determination for same was promulgated. On 18 October 2017, the Transitional Fishing Determination for 1 December 2017 to 30 June 2018 provided for an overall catch of 206,300 kg and, on the same date, the determination certificate issued.
On 1 December 2017, interlocutory injunctions were issued by the Court and, the matter being urgent, the hearing was listed for 24 and 25 January 2018.
The transitional period concludes on 30 June 2024 and the Transitional Fishing Determination (the Interim Overall Total Fishing allowed by all operators combined) will, as stated, expire on 30 June 2018 (i.e. it subsists for 7 months).
The foregoing is taken, largely, and with some amendments, from the Chronology provided by the plaintiff for the purpose of these proceedings. It is sufficient, for present purposes, as earlier stated, to make clear that there were originally 125 Access Shares held by the plaintiff and, as a consequence of the Business Adjustment Program being implemented, those 125 Access Shares allowed access to the Region for the purpose of mud crab fishing, and that a further limitation was prescribed which limited the catch from the traps set by the plaintiff to a weight quota calculated on the basis of the number of Quota Shares possessed by the plaintiff.
In other words, by implementation of the Business Adjustment Program, the State diminished the capacity of the plaintiff to fish for mud crabs.
Part 3, Div 5 of the Unamended Act deals with Management Plans for fisheries and by s 56 required the Minister to arrange for the "preparation of a draft management plan for a share management fishery as soon as practicable after the fishery becomes a limited access fishery". Further, the provisions of s 56(2) of the Unamended Act permitted the Minister to "arrange for the preparation of a new draft management plan for the fishery following a fishery review in accordance with" Pt 3.
By s 57 of the Unamended Act the content of a Management Plan for a share management fishery was prescribed. The Management Plan for such a fishery was permitted to make provisions for or with respect to: the objects of the plan; the classes of shares in the fishery and the provisions of the plan applicable to each such class; the rights of shareholders to take fish or nominate others to take fish in the fishery; the fish that may be taken in the fishery; the area for taking fish in the fishery; the times or periods for taking fish in the fishery; the use of boats and fishing gear in the fishery; the total allowable catch before the commercial fishing sector for the particular species or group of species taken from the fishery in that region; and any other matters relating to the management of the fishery that are consistent with the Unamended Act and its objects.
Further, a Management Plan was required to include performance indicators to monitor whether the objectives of the plan and ecologically sustainable development are being attained and to specify at what point a review of the Management Plan is required, when a performance indicator is not being satisfied.
The particular in s 57(1)(g), being the content of a plan that allows for the fishing gear that may be used, was the provision on which the restrictions imposed upon the plaintiff to utilise only 10 traps, prior to the Quota Shares being implemented, was based.
By s 60 of the Unamended Act, a Management Plan for a fishery, including any amendment or new plan, was required to be made by regulation. By s 61, the commencement of the Management Plan was on the date when the regulation making the plan commenced.
Further, the provisions of s 63 prohibited the replacement of a Management Plan by a new plan until at least five years after the existing plan was made, unless the existing plan otherwise provided. Section 64 of the Unamended Act prohibited the direct amendment of a Management Plan, unless the amendment is of a kind authorised by the plan. The Unamended Act also has provisions dealing with the transfer and other dealings in shares and allowing such shares to be transferred, assigned or transmitted.
Section 71A of the Unamended Act permitted a Management Plan to provide for the creation and issue of further classes of shares in the share management fishery and provided that any further classes of shares were to be allocated to shareholders on the basis of criteria that are provided for by the Management Plan: s 71A(2) of the Unamended Act. The Unamended Act provided that, for the purpose of allocating shares in the fishery, the catch history of the person is taken to be the catch history of the person who owns that fishing business when shares are allocated and the duration of a shareholding in a category 1 share management fishery is prescribed to be for a period of 10 years (from the commencement of the Management Plan) and the renewal period for a further 10 years.
There is a provision (s 75) in the Unamended Act for the forfeiture of shares for certain contraventions and a provision (s 74) allowing a shareholder to surrender shares.
As previously stated, with the commencement of the Amended Act, many of the provisions of the Unamended Act remained unaltered. The objects of the Amended Act remained the same, as did s 40. However, Pt 2A was inserted into the Amended Act, which dealt with fishing determinations and quotas.
Provision was made (s 40A of the Amended Act) for a determination of a total allowable catch of fish, which can be made in relation to one or more species and may relate to a specified fishery or class of shares in a share management fishery, class of persons or fishing method.
Section 40B of the Amended Act, inserted by the same amendment, required a fishing determination to be made if the regulations so required or if the Minister so required. The determination was permitted to be made either by a committee called the Total Allowable Fishing Committee ("TAF Committee") or by the Secretary of the Department and required the regulations, if the regulations required the making of a fishing determination, to specify which of the TAF Committee or Secretary were to make the determination: s 40C of the Act. If the regulations do not so specify, then the Minister may direct either the TAF Committee or the Secretary to make the fishing determination.
Section 40D of the Amended Act, again inserted by the relevant amendment, required the TAF Committee to make a fishing determination when so required in accordance with Div 2, which then set out a process. Part of that process (s 40l of the Act) involved the making of an Interim Fishing Determination for a period and, if an Interim Fishing Determination were made, then Div 3 did not apply to that process.
Division 3 dealt with fishing determinations otherwise made by the Secretary. The Interim Fishing Determination was made by the Secretary, if the regulations required the TAF Committee to make the fishing determination for a particular period and the TAF Committee had not made a fishing determination for that period or, more accurately, 30 days before the start of the period.
It is unnecessary to deal with Div 3, but Div 4 of Pt 2A of the Amended Act deals with the allocation of commercial fishing determinations or quotas. Section 40P of the Amended Act defines a commercial fishing authority holder as a shareholder in a share management fishery, or the owner of a fishing business the components of which include an endorsement in a restricted fishery, or a person declared to be a commercial fishing authority holder. Section 40P of the Amended Act also defines commercial fishing determination, but it is unnecessary to recite or summarise that definition.
The provisions of s 40Q and following relate, amongst other things, to the question of the authority of the Secretary to issue shares and are in the following terms:
"40Q ALLOCATION OF FISHING DETERMINATION TO COMMERCIAL FISHING AUTHORITY HOLDERS
(1) The Secretary may allocate a commercial fishing determination among commercial fishing authority holders.
(2) A commercial fishing determination is to be allocated only if:
(a) the regulations require the fishing determination to be allocated, or
(b) the Minister directs that the fishing determination be allocated.
(3) The regulations may provide for and, subject to the regulations, the Minister may direct:
(a) the extent to which a commercial fishing determination is to be allocated amongst commercial fishing authority holders (that is, whether the whole or part of a commercial fishing determination is to be allocated), and
(b) the commercial fishing authority holders, or class of commercial fishing authority holders, to whom an allocation is to be made, and
(c) the manner in which the commercial fishing determination (or any part of the fishing determination) is to be allocated.
Note: A power to make regulations includes a power to include provisions in a Management Plan for a share management fishery with respect to that matter. See section 57.
40R NOTICE OF ALLOCATION--QUOTA
(1) The Secretary is to notify a commercial fishing authority holder of any allocation of a commercial fishing determination that is made to that commercial fishing authority holder.
(2) The allocation is referred to in this Part as the commercial fishing authority holder's 'quota'.
(3) The notice of allocation is to specify particulars of the quota, including (to the extent relevant):
(a) the species of fish to which the quota applies, and
(b) the fishing method to which the quota applies, and
(c) the area to which the quota applies, and
(d) the period to which the quota applies (referred to in this Division as the 'fishing period').
(4) Notice of the allocation is to be given in writing."
A quota once allocated may be transferred between commercial fishing authority holders: s 40T of the Amended Act. A method is prescribed for that transfer: s 40T and s 40U of the Amended Act.
A process for the implementation of share management fisheries is prescribed and the implementation of share management fisheries is required to be in a staged implementation: see s 41 of the Amended Act and following. There is prescribed, also, a method of determining eligibility and entitlement to shares, which is required to be made in accordance with Pt 3, Div 3 of the Amended Act. It is appropriate to recite the terms of s 50 and following:
"50 METHOD OF DETERMINING ELIGIBILITY AND ENTITLEMENT TO SHARES
(1) The determination of the persons eligible to apply for shares in a share management fishery and their entitlement to shares is to be made in accordance with this Division and the criteria specified in the public notice inviting applications for shares.
(2) Shares in a fishery are (subject to this section) to be allocated to persons who are the holders of current commercial fishing licences or fishing boat licences and who lawfully took fish for sale in the fishery before it became a share management fishery. If the fish were taken as an employee of some other person, the allocation is to be made to that other person.
(3) Shares are (subject to this section) to be allocated to eligible persons in proportion to their catch history in the fishery. If more than one class of fish was caught in the fishery, the allocation is to take into account the value of each class of fish that was part of the catch history.
(4) If a restricted fishery becomes a share management fishery, the persons entitled to shares in the fishery are the persons who, immediately before it ceased to be a restricted fishery, were entitled to take fish for sale in the restricted fishery or, if a person is entitled to take fish for sale in the restricted fishery as the employee or nominee of some other person, that other person. The allocation of shares to any such persons may be made having regard to existing entitlements in the restricted fishery.
(5) However, if a restricted fishery is described as an exploratory or developmental fishery, the entitlement to shares in the fishery is to be determined in accordance with the regulations.
(6) If a share management fishery is redefined, the entitlement to shares is to be determined in such manner as the Minister considers equitable having regard to the proportion of shares held in an existing fishery being redefined, the proportion of the redefined fishery to which the old shares applied, the catch history of shareholders and any other factor the Minister considers relevant.
(8) For the purpose of allocating shares in a share management fishery, if the catch history of a person is a component of a fishing business, the catch history of the person is taken to be the catch history of the person (or persons) who own that fishing business when shares are allocated.
51 CATCH HISTORY
(1) The catch history of a person is (subject to the regulations) to be determined under and in accordance with the criteria specified by the Minister in the public notice inviting eligible persons to apply for shares.
(2) The criteria are to specify the period before the fishery becomes a share management fishery during which the catch history of a person is to be determined. The criteria may allow persons to choose their best catch history for a specified part of the relevant period.
(4) The catch history of a person is, subject to any appeal under this Part, to be determined by the Minister having regard to the records, kept by the Secretary, of fish taken by the person or such other documents as are prescribed by the regulations.
(5) The Minister may increase the catch history of a person for any period during which the person was unable to engage in the person's usual fishing activities because of the person's duties as a representative of the commercial fishing industry.
52 FINAL ISSUE OF SHARES
(1) After all appeals to the Share Management Fisheries Appeal Panel have been disposed of in connection with a share management fishery, the Minister is to make the final issue of shares to eligible persons with effect from the commencement of the Management Plan for the fishery.
(2) For that purpose, the Minister may redetermine the provisional issue of shares and cancel shares so issued or issue new shares.
(3) The Minister must, as soon as practicable:
(a) notify each applicant for shares of the final result of the application, and
(b) give to each applicant a statement in writing of the names of the persons who were finally issued with shares and of the number of shares issued to each such person.
(4) The Minister must also, as soon as practicable, publish in the Gazette the names of all the persons who were finally issued with shares and the number of shares issued to each such person.
(5) A person who was the holder of provisional shares in a fishery is not entitled to compensation because of a redetermination of the provisional issue of shares (whether under this section or as a result of any legal proceedings).
(6) Shares are to be in such form as the Minister approves.
52A SHARES SUBJECT TO APPEAL
(1) Despite section 52, the Minister may cancel provisional shares or issue final shares in a share management fishery, and the Management Plan for that fishery may be made, even if any appeal relating to the issue of provisional shares is still outstanding.
(2) If the Minister considers that a person's entitlement to shares may be affected by any such appeal, the Minister may issue shares in the fishery as 'shares subject to appeal'.
(3) Shares subject to appeal are subject to the following special conditions:
(a) the transfer of, or any other registrable dealing in, the shares is only permitted with the consent of the Minister,
(b) no compensation is payable by or on behalf of the State for cancellation of the shares for any reason, including:
(i) cancellation by the Minister resulting from a determination in relation to the appeal, or
(ii) cancellation due to the termination of the fishery as a share management fishery,
(c) any other conditions prescribed by the regulations.
(4) On completion of the relevant appeal:
(a) the Minister must cancel the shares subject to appeal, and
(b) the Minister may, if appropriate, issue a person with shares in accordance with this Act."
The Amended Act, by s 56, requires the Minister to arrange for the preparation of a draft Management Plan for a share management fishery and, by s 57 of the Amended Act, allows certain matters to be contained within a Management Plan and those contents may include: the objectives of the plan; the classes of shares and the provisions of the plan applicable to each such class; the rights of shareholders to take fish; the fish that may be taken; the area covered by the plan; the times or periods during which fish may be taken; the use of fishing gear; the conduct of fishery reviews; the protection of habitats; matters expressly authorised by the Act; and "any other matters relating to the management of the fishery that are consistent with [the] Act and its objects".
Further, there is a general provision (s 57(1A) of the Amended Act) to the effect that a provision in the Act "that confers power to make regulations" in respect to a matter "also confers power to include … in a management plan for a share management fishery" provisions for or with respect to that matter: see also s 57(1B) of the Amended Act. It is not abundantly clear why this last mentioned provision is necessary, because a Management Plan is promulgated as part of the Regulations (see below). A Management Plan is required to include performance indicators and to specify when a review of the Management Plan will be required: s 57(2) of the Amended Act.
As above, a Management Plan, including any amendment or new plan, must be made by regulation: s 60(1) of the Amended Act, and commences when the regulation commences: s 61(1) of the Amended Act. Further, somewhat counter-intuitively, a Management Plan for a fishery, that has been regulated pursuant to the provisions of s 60 and s 61 of the Amended Act, prevails over any other regulation with which it is inconsistent: s 62(1) of the Amended Act.
Similarly, and as also was required by the Unamended Act, a Management Plan for a fishery may not be replaced "by a new plan" before the original plan has been in existence for five years, unless the existing plan otherwise provides: s 63 of the Amended Act. Similarly, a Management Plan for a fishery may not be directly amended, unless the amendment is of a kind authorised by the plan: s 64 of the Amended Act. The contravention of a plan is rendered an offence by s 65 of the Amended Act.
It is also appropriate for the Court to note that Div 6 of Pt 3 of the Amended Act provides that only a person who is the holder of shares at a minimum shareholding may have access to the area to which a Management Plan relates for the purpose of commercial fishing: ss 66 and 67 of the Amended Act. The foregoing applies to share management fisheries to which the current proceedings before the Court relate.
Of significance in the amendments effected to the Amended Act is that the provisions in s 71A(3) and s 71A(4) were repealed. From the foregoing recitation of the Unamended Act, it will be noted that those repealed subsections are the provisions that required the catch history of commercial fishing operations to be both recognised and, to the extent that the catch history is relevant, prescribed as the criteria for the allocation of shares. Moreover by the addition of s 71A(6) the requirements of Div 3 do not apply to the issue of further classes of shares under a Management Plan.
Otherwise, to the extent relevant to these proceedings, the Amended Act reflects the provisions of the Unamended Act. One further aspect ought to be noted. Schedule 1 to the Amended Act deals with "share management fisheries". Further Schedule 1A deals with designated fishing activities for, amongst other things, mud crabs.
As earlier stated, the Business Adjustment Program, which was to introduce Quota Shares, was announced in January 2014. Following the announcement, a review occurred of the previously operating Share Management Fishery Plan and the Business Adjustment Program was launched on 31 May 2016.
On 3 June 2016, the plaintiff was informed that the Access Shares that he possessed would allow him a maximum catch of 673.8 kg. At that time (or at least in the year ending 30 June 2016) the catch of mud crabs that the plaintiff obtained was 2,960.44 kg. In the year prior, to 30 June 2015, the catch had been 3,381.39 kg.
On 5 February 2017, the plaintiff's Access Shares were renewed for a further 10 years, in accordance with the Amended Act. On 30 June 2017, the Minister promulgated the Quota Shares Regulation, commencing on that date. At the time of the promulgation of the Quota Shares Regulation and for the year prior, the plaintiff had caught 3,210.3 kg of mud crab.
Commercial fishing operations were required to bid for and pay for Quota Shares, the possession of which would allow the commercial fishing operation to obtain a weight quota above the maximum allocated to the 125 Access Shares. The quota share arrangement was introduced by the making of a Transitional Fishing Determination, promulgated on 18 October 2017 and operating from 1 December 2017 to 30 June 2018, which had an overall catch (TAF) of 206,300 kg. The transitional period for which the Management Plan, as amended, operates concludes on 30 June 2024.
As a consequence of the limitations imposed upon the plaintiff, the plaintiff has an interest in the validity of the scheme or arrangement whereby such limitations are said to be imposed. There can be little doubt, whatever the ultimate calculation, that the Quota Shares arrangement, coupled with the allocation to the plaintiff, has reduced the plaintiff's capacity to catch mud crabs.
As earlier stated, the Region in question, for which the Management Plan has been promulgated and purportedly amended, is Region 4 which was the subject of the Amended Regulation. Regulation 6(1)(f) allowed for endorsement of mud crab trapping in Region 4 and reg 6A(1)(a) provided for that which is described as new classes of shares being available, being mud crab Quota Shares. By reg 6A(2) the mud crab Quota Shares are said to have been "created as further classes of shares under s 71A of the Act and are referred to in this Plan as 'Quota Shares'".
Regulation 6B of the Amended Regulation provides for a person being eligible to be issued with Quota Shares if the person is an eligible shareholder in relation to those shares. Relevantly (as the table attached to reg 6B makes clear), every person who held the minimum number of Access Shares for commercial mud crab fishing was a person eligible to hold mud crab Quota Shares. By reg 6B(3), the Minister was required to determine the number of Quota Shares to be issued to each eligible shareholder on the basis of an allocation formula set out in a notice published by the Secretary (reg 6B(4) of the Amended Regulation), which allocation formula is to be made available on the Department's website.
Once the calculation under reg 6B is performed, the Minister is required to issue Quota Shares to eligible shareholders in accordance with that determination: reg 6C of the Amended Regulation. Regulation 7 provides that 125 Access Shares are the minimum shareholding for access to Region 4 for mud crab trapping on a commercial basis.
The aforesaid regulations, by reg 50, provided that, during the transition period, the Minister could give directions to the Secretary as to the matters to which the Secretary is to have regard in making a fishing determination, which direction may exempt the Secretary from any requirement to have regard to the scientific assessment, notwithstanding the terms of s 40M(1) of the Act. Prior to the last relevant amendments to the Regulations, the Regulations provided for a share management scheme for mud crab trapping in this area and, pursuant to Pt 8, cl 47, provided that: "For the purposes of section 64 of the Act, any amendment to this Plan is authorised".
Further (at [13] of the Plaintiff's Written Submissions), the plaintiff submits that there are two additional bases on which the Ministerial Decision of 17 October 2017, issuing certain Quota Shares to the plaintiff, and the Allocation Formula Notice of the Secretary of 11 October 2017, purporting to set out the basis of the criteria for allocating Quota Shares, should be quashed, being:
1. The determination and the issuing of the Notice paid no or insufficient regard to the mandatory relevant consideration of the principles of ecologically sustainable development;
2. Neither the Minister nor the Secretary was authorised by the Act, nor the 2006 Share Management Fishery Plan, for the further reasons relating to the Ministerial Decision and the Secretary's Notice, referred to in the immediately preceding paragraph.
The Court has already recited the relevant legislation. The plaintiff relies upon dicta of Lord Hoffmann in R v Secretary of State for the Home Department Ex Parte Simms [2000] 12 AC 115 at 131, in which his Lordship observed that even where Parliament has the power to legislate contrary to fundamental principles of human rights, "the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost". Similar expressions were made by the High Court in The City of Melbourne v Barry (1922) 31 CLR 174; [1922] HCA 56 and Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15.
In Coco, citing with approval the joint judgment in Bropho v Western Australia (1990) 171 CLR 1; [1990] HCA 24 at 18, the High Court made it clear that the legality doctrine (as it has been called at least in the United Kingdom) required an express authorisation of an abrogation or curtailment of fundamental rights, freedoms or immunities and that the insistence by the courts on that doctrine requires some manifestation or indication that the legislature has not only directed its attention to the question of those basic rights, but has also determined upon their abrogation or curtailment.
Having made those comments strongly, the High Court, in the same joint judgment, made it clear that the need for clear expression of an unmistakable and unambiguous intention to abrogate or to curtail fundamental rights did not exclude such abrogation being effected by implication. The implication would be one of necessary intendment (see Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57 in relation to the displacement of the rules of natural justice), but each of these statements discloses that the test is "a very stringent one", and, ultimately, it is a test that is referrable to the clear and plain language of the statute.
The statements in Coco, supra, summarised above, were the subject of comment by Gleeson CJ in Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309; [2004] HCA 40. In Electrolux, supra, the Chief Justice made clear that, whatever gloss may be given to the doctrine of legality, it is ultimately a question of statutory construction. Of course, Electrolux, supra, was dealing, somewhat inversely, with legislation that directly curtailed rights of action at common law and the High Court was construing the degree to which immunity from suit would be construed.
Nevertheless, Gleeson CJ, after reciting the general proposition, made clear that the assertion that where a statute takes away or interferes with common law rights, it should be given a narrow interpretation, required qualification. The Chief Justice referred to the comments of McHugh J in Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; [2003] HCA 33 in which McHugh J pointed out that modern legislatures regularly enact laws that take away or modify common law rights.
The Chief Justice, after referring and citing Coco, supra, at 437 with approval, and referring to the judgment of Lord Steyn in R v Secretary of State for the Home Department, Ex Parte Pierson [1998] AC 539, referred to the canon as a "working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law." (Electrolux, supra, at [21]).
In his reasons for judgment in Electrolux, supra, Gleeson CJ also noted that the rights in question were rights "of a kind frequently modified by statute" and remarked that there is "no uncertainty in the meaning of the statute that is not capable of being resolved by an examination of the legislative text and purpose". (Electrolux, supra, at [22] and [23])
The foregoing principle is that which will be applied by the Court, as presently constituted. The Court will consider the legislation on the basis that, unless the statute deals with a subject matter in which the legislature has already disclosed an intention to modify common law rights, or unless the legislature abrogates or curtails rights by an express provision or provisions of necessary intendment, the Court, as presently constituted, ought not utilise general language to abrogate or qualify existing common law rights or fundamental principles.
It should, however, be recalled that where, as here, the rights possessed by a person are rights conferred by the legislature, the legislature has the capacity, ordinarily, to qualify or curtail those rights or, indeed, to repeal the legislation conferring them: see by analogy Kartinyeri v The Commonwealth (1998) 195 CLR 337; [1998] HCA 22 ("the Hindmarsh Bridge Case").
As the Act notes, at common law, the public has a right to fish in the sea, the arms of the sea and in the tidal reaches of all rivers and estuaries. The public has no common law right to fish in non-tidal waters - the right to fish in those waters belongs to the owner of the soil under those waters. However, the public may fish in non-tidal waters if the soil under those waters is Crown land.
In the case of non-tidal waters in rivers and creeks, s 38 of the Amended Act and the Unamended Act declares the right of the public to fish, if the person fishing is in a boat on those waters or is on the bed of the river or creek. That right to fish in tidal or non-tidal waters is subject to the restrictions imposed by the Amended Act and its predecessors.
In other words, well before the latest amendments to the Management Plan and the allocation of Quota Shares, the Amended Act (and its predecessors, at least since 1935) restricted the right of commercial fishing operations to extract species of fish in a number of ways. Relevantly, in relation to the plaintiff, that restriction involved the purchase of Access Shares (to a minimum of 125) and a restriction on the number of traps that could be utilised.
It is undisputed that the allocation of Quota Shares in the manner they were allocated, namely not to the plaintiff in the amount needed, resulted in a further restriction on the plaintiff's capacity to operate a commercial fishing business.
As is clear from the affidavit evidence (even that upon which the plaintiff relies), Quota Shares may be bought and sold. The Quota Shares cannot be utilised to operate a commercial fishing operation, unless the holder of the Quota Shares is also the holder of the minimum number of Access Shares necessary to allow access to the fishing sites.
The evidence before the Court does not establish that the issue of Quota Shares has devalued the Access Shares, even though the evidence establishes that the issue of the Quota Shares (or more accurately the prohibition on a commercial fishing operation from trapping more than the weight allowed pursuant to those Quota Shares) has restricted the business that the plaintiff operated.
That is not synonymous with denying access to the Region for the purpose of trapping mud crabs. Nor is it synonymous with compulsorily acquiring the Access Shares or rendering them valueless. Further, on the evidence before the Court, it is not proved that the Access Shares are worth less now than they were prior to the issuing of Quota Shares and the allocation of such shares to commercial fishing operations.
Moreover, the plaintiff could, even now, purchase Quota Shares on the market. The plaintiff maintains that they are not worth what the State charged for them and borrowing to support the purchase of Quota Shares at that price would not be "commercial".
Over and above all of the foregoing, it is clear that property and rights created by legislation are always capable of regulatory change which may have the effect of lessening the value of the property so conferred or altering the rights that attached to it: see Georgiadis v Australian & Overseas Telecommunications Corporation (1994) 179 CLR 297 at 305-306; [1994] HCA 6. It may be very different, if the business reverts to the State who granted it or if there had not previously been a regime by which, pursuant to statutory rights, the right to operate a commercial fishing business was granted by the State and subject, always, to statutory restrictions. That may depend on constitutional or statutory restrictions.
The legislation, recited above, makes clear that the legislature directly and expressly turned its mind to the issue of Quota Shares and the reorganisation of Management Plans. Earlier, the Court has recited or summarised ss 40A, 40B and 40C of the Amended Act (inserted by the relevant amendment).
Those provisions disclose that the legislature allowed for the making of determinations which provided for a Total Allowable Catch ("TAC") in relation to one or more species of fish in a particular area. Further, such a determination must be made when the regulations require them to be made or when the Minister requires such a determination to be made and may be made either by the TAF Committee or by the Secretary.
As earlier stated, in circumstances where the TAF Committee has not made a fishing determination for a period that is required, the Secretary may make such a determination, as an Interim Fishing Determination: see s 40I of the Act (also inserted in the same amendment). Division 3 of Pt 2A of the Act does not apply to such Interim Fishing Determinations.
As a consequence, the legislature has directly and expressly allowed the Secretary, in certain circumstances, to issue an Interim Fishing Determination that restricts the total allowable fishing allowed in a particular region.
Division 4 of Pt 2A of the Act deals with the allocation of quotas, which are formally described as "commercial fishing determinations". A commercial fishing determination is, as earlier stated, defined as a fishing determination that relates to: commercial fishing authority holders; the taking of fish for sale; a share management fishery or restricted fishery; the method that is used to take fish for sale; or any other commercial fishing activity for which a licence or authority is required.
By the provisions of s 40Q of the Amended Act, the Act specifically and expressly allows the Secretary to allocate a commercial fishing determination (i.e. a quota) among commercial fishing authority holders if, and only if, the regulations require the fishing determination to be allocated or the Minister directs that the fishing determination be allocated. Further, the regulations may provide for the Minister to direct the extent to which a quota is to be allocated amongst commercial fishing operators; the commercial fishing operators to whom an allocation is to be made; and the manner in which the commercial fishing determination is to be allocated.
These are statutory empowerments, contained in the legislation. The legislature has expressly determined that quotas may be established and parts of those quotas may be allocated to particular commercial fishing operators.
In those circumstances, the doctrine of legality cannot constrain the express statutory authority provided by the Amended Act. There is, of course, a requirement for the allocation to be performed by a process established by the Act, but that process is minimalist.
It requires the Secretary to notify commercial fishing operators of any allocation to that operator (quota) and the particulars of the quota, including the species of fish to which it applies, the fishing method that may be utilised, the area to which it applies and the period to which the quota applies. Further, by the provisions of s 40S of the Amended Act (also implemented as a result of the relevant amendment) such a commercial fishing operator may not take fish in contravention of the quota allocated to the operator. Quotas may be transferred: s 40T of the Amended Act.
The plaintiff submits that the Quota Shares Regulation is void because the legislature by the Amended Act (and the proper construction of the Act as a whole) does not allow for the issue of Quota Shares as additional shares. This submission is in addition to or in the alternative to the submission relating to legality. It depends upon whether Quota Shares are "an additional or further class of shares".
Again, as earlier recited, s 71A of the Act expressly provides that a Management Plan for a share management fishery may provide for the creation and issue of further classes of shares in the share management fishery. They are to be allocated to shareholders on the basis of criteria provided for by the Management Plan.
There can be no doubt that the legislature has turned its mind to the creation and issue of further classes of shares and allowed for a Management Plan, which must be implemented by regulations, to provide for the creation and issue of such classes. Are the Quota Shares a different class of share to that which already existed and was the issue of such a class of share provided for in the Management Plan?
As earlier stated, or as should be clear from that which has already been stated, the Access Shares continue to be held by the plaintiff (and, for that matter, all other persons who held Access Shares prior to the issue of Quota Shares). The Access Shares allowed a commercial fishing operation to gain access to the Region to which they relate for the purpose of catching fish of the species identified. That situation continues.
The Quota Shares were issued together with the setting of a total allowable fishing limit and allocated limits that were dependent on the number of Quota Shares held. In that respect, the Quota Shares were a method by which the fishery resources of the State were shared between commercial fishing operators.
Complaint is made about the fixing of the total allowable fishing figure, which will be considered later in these reasons. For present purposes, that which is important is that the Quota Shares serve a different purpose and are allocated, allegedly on a market basis, only to those who already hold the minimum level of Access Shares that permits an operator to conduct a commercial fishing business.
As a consequence, if shares are to be considered as the right to receive certain benefits (usually from a Corporation), then the Quota Shares are a different class of share, entitling the holder to different benefits from those benefits obtained by the possession of Access Shares: Colonial Bank v Whinney (1885) 30 Ch D 261; Clements Marshall Consolidated Ltd v ENT Ltd (1988) TASR(NC) N1; 13 ACLR 90; Re Brighton & Dyke Railway (1890) 44 Ch D 28 at 38; Campbell v Rofe [1933] AC 91. In relation to the distinction between Access Shares and Quota Shares, the rights and obligations relating to each category of share is sufficiently distinguishable from the other and, therefore, can properly be described as an "additional class" or "further class" of shares in the share management fishery.
The Court gains comfort in relation to the foregoing conclusion from the terms of Pt 3A of the Amended Regulation (particularly, reg 6A), but the Amended Regulation does not define the powers under the Amended Act. Rather, the Act must be construed independently so as to determine the power to issue the Quota Shares. Otherwise, there would be no purpose in promulgating s 71A of the Amended Act.
A remaining question is whether the Management Plan allowed for the issue of Quota Shares. If the Management Plan consisted of the Plan promulgated under the Amended Regulation, then the Plan expressly provided for the issue of Quota Shares and the provision of new classes of shares: ibid. Whether the foregoing Amended Regulation established the Management Plan depends upon whether the amendment to the Management Plan and the allocation of shares thereunder is valid.
One of the issues upon which that last-mentioned question depends is whether the previously existing and unamended Management Plan allowed for an amendment of the kind implemented by the Management Plan promulgated in the foregoing regulations. The Unamended Regulation that existed prior to 29 June 2017 (or, more accurately, prior to the promulgation of the "Amended Plan") contained a provision in Pt 8, General, being reg 37, "Authorised Amendments to Plan", in the following terms:
"For the purposes of s 64 of the Act, any amendment to this Plan is authorised."
As earlier recited, s 64 of the Unamended Act (and the Amended Act) relevantly prohibits the amendment of a Management Plan for a fishery "unless the amendment is of a kind authorised by the plan". The pre-existing Management Plan expressly authorised, for the purpose of s 64 of the Act as it then existed, any and all amendments to the Management Plan.
It is submitted that the provisions of reg 37 do not specify the "kind" of amendment authorised and, therefore, do not allow for an amendment pursuant to the terms of s 64 of the Amended Act. Such a reading is highly technical, but is based upon what is said to be a purpose of the Amended Act, being the transparency of operation and the certainty of rights associated with the promulgation of Management Plans.
The Interpretation Act 1987 (and otherwise the principles of construction) require that, unless a contrary intention is clear from the instrument, a reference to the singular form includes a reference to the plural form: s 8(b) of the Interpretation Act 1987. As a consequence the reference to an amendment "of a kind" includes, unless the contrary intention is indicated, a reference to more than one kind. In those circumstances, the plaintiff's submission on this question amounts to the difference between "any amendment … is authorised" and "all amendments … are authorised".
The expression in reg 37 is one which allows all amendments of all kinds and authorises them for the purposes of s 64 of the Amended Act. The expression used in reg 37 is clear and unambiguous and expressly refers to authorisation pursuant to the terms of s 64 of the Amended Act. Further, the authorisation in those terms does not affect adversely either transparency or the certainty of rights.
An operator who utilised Access Shares to fish for mud crabs (and other species) would, by virtue of the terms of reg 37, be aware that the "rights" afforded to the operator by virtue of the Management Plan could be altered by the amendment of the Management Plan and, in particular, the issue of further restrictions (or the removal of restrictions). In short, the terms of reg 37 of the relevant Regulations are sufficient to authorise an amendment to the Management Plan that was in operation and promulgated by virtue of the then existing Regulations.
A remaining question is whether that which was promulgated was an amendment to the Management Plan or a "new Plan". The importance of this question was a matter raised by the Court with the parties during the course of the proceedings. The issue was not raised by the plaintiff, initially.
The Act, as it existed both prior to the latest relevant amendments and after the amendments, differentiates between an amendment to a Management Plan and the promulgation of a new Management Plan. Both an amendment and a new plan are to be made by Regulation: s 60 of the Amended Act.
A Management Plan for a fishery commences when the Regulation making the Management Plan commences: s 61(1) of the Amended Act. However, a Management Plan for a fishery is "not to be replaced by a new plan" until at least five years after the existing plan was made, unless the existing plan otherwise provides": s 63(1) of the Amended Act. Further, the Management Plan may not be amended "directly" (whatever that may mean), unless the amendment is of a kind authorised by the Management Plan: s 64 of the Amended Act.
The provisions of s 73, taken together with s 63, of the Amended Act suggest that shares in a management fishery have a duration of 10 years and are automatically renewed at the conclusion of that 10-year period or on the making of a new Management Plan, whichever occurs sooner. Otherwise, shares may be traded and, for certain contraventions or voluntarily, may be forfeited, but otherwise are held by the "shareholder".
As can be seen from the provisions of the Act, a distinction is drawn by the legislature between the "amendment" of a plan and the "replacement" of a plan by a "new plan". According to the provisions of s 63(1) of the Amended Act, the minimum duration of a Management Plan, before being replaced by a new plan is at least five years from the time that the existing plan was made, unless the existing plan otherwise provides.
Nothing in the previously existing Management Plan allowed for its replacement prior to the statutory minimum period to which s 63(1) of the Amended Act refers. There is also a requirement on the Minister for the preparation of a draft Management Plan for a share management fishery (of which mud crabbing in Region 4 is an example) and the Minister may arrange for the preparation of a new draft Management Plan following a fishery review: s 56 of the Amended Act.
Both the Unamended and Amended Act, require that the Secretary arrange a review into each share management fishery at times provided by the Management Plan or, subject to that Management Plan, at such other times as the Minister may determine. A review "must be held before the term of the shares in the fisheries is due to expire": s 63(2) of the Amended Act.
The duration or term of the Access Shares in the relevant fishery was due to expire in February 2017. As a consequence, pursuant to the terms of s 63(2) of the Amended Act the Secretary was required to hold a review of the fishery Management Plan prior to that date.
A reading of the Amended Act as a whole, and in particular Div 5 of Pt 3 of the Act discloses that there are two distinct circumstances. The first is an amendment of a plan of a kind authorised by the plan itself. The second circumstance is the creation of a new plan following a review that is to be conducted prior to the expiry of the term of the shares in the fishery under the plan as it exists.
The Minister and/or the Secretary have conducted a review of the Management Plan as it existed prior to 2017. That review resulted in the recommendation that Quota Shares be issued, and which implemented a quota for fishing for all commercial operations, which permitted the catching of fish by weight (in the case of mud crabbing) corresponding with the number of Quota Shares held by the commercial fishing operation.
Prior to the issue of Quota Shares and the implementation of a plan that restricted fishing in that way, no quotas existed relating to the weight or amount of fish that could be caught. Is a scheme the effect of which is to issue and allocate a new class of shares (Quota Shares) and restrict the catch of any particular commercial fishing operation to the amount corresponding to the Quota Shares the amendment of an existing plan or a new plan?
As earlier stated, the foregoing question was not one upon which the plaintiff relied in its grounds or in its original submissions. It was a question raised by the Court of the parties and on which the parties filed and served separate written submissions after the conclusion of the oral hearing. At the time the Court disclosed to the parties a vague recollection of the High Court dealing with the meaning of the term "vary" or "amend" and referred to the judgment of the High Court in R v Tonkin; Ex Parte Federated Ship Painters' & Dockers' Union of Australia (1954) 92 CLR 526; [1954] HCA 38.
The issue before the High Court in those proceedings was very different to that with which the Court must now deal. The defendants relied upon the judgment as authority for the proposition that the additional terms in a document is a variation or amendment of the document. The issue with which the High Court was concerned in the aforementioned judgment was a jurisdictional issue that depended upon the construction of a provision in the then Conciliation and Arbitration Act 1904-1952 (Cth) that allowed a Commissioner to "vary any of the terms of an award".
Because the order of the Commission purportedly inserted a whole new provision dealing with the subject matter that had not previously been the subject of regulation, the argument was that the addition of that clause was not a variation of "the terms of an award". The High Court determined that the "terms of an award" means more than "clauses" and refers to the whole contents of the award as those contents prescribed the rights and obligations of persons governed by it.
The word "vary" or "amend" (giving the term amendment its cognate meaning when used as a verb) will, necessarily, depend upon the context and may have very different meanings. The difficulty from the position of the defendants is that, assuming the content of the Management Plan were different, the making of a new Management Plan would amend the operation of the existing Management Plan.
One may amend a document (especially legislation or subordinate legislation) by replacing it. To paraphrase Sir Frederick Jordan CJ in Beaumont v Yeomans (1934) 34 SR (NSW) 562, whether a statute has been repealed or amended is not a matter of form, but a matter of substance. One can amend the statute by repealing part of it; or amend it by adding a phrase to a provision or repealing the former phrase and substituting a whole new phrase, which was repetitive of the former phrase with the words added.
The distinction may be difficult: see the different judgements in Bird v John Sharp & Sons Pty Ltd (1942) 66 CLR 233; (1942) HCA 27. The High Court in Ku-Ring-Gai Municipal Council v Attorney-General (NSW) (1957) 99 CLR 251; [1957] HCA 61 discussed the amendment of the Public Works Act 1912 to the effect that the rate of interest of 4%, previously applying, would apply only for a period of 12 months and thereafter at a rate equal to the rate of interest payable by a bank on a fixed deposit. The majority (Dixon CJ, McTiernan and Taylor JJ) referred to the amending statute in a way that made clear that the form of the amendment was to repeal the words and, in lieu thereof, insert words with a different or an amended effect.
The Court (at 265) made clear that it is not the form of the amending statute that is decisive, but that there is an "abrogation of an old provision and the introduction of a new one". The effect was that s 8 of the Interpretation Act 1897 applied (s 8 of the Interpretation Act 1897 dealt with similar subject matter to s 30 of the Interpretation Act 1987). In many ways the issues with which the High Court was concerned in Ku-Ring-Gai Municipal Council v Attorney-General (NSW), supra, are similar to the issues now before the Court.
Relevant to the current issue, s 30 of the Interpretation Act provides that the amendment or repeal of any statutory rule does not "affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule": s 30(1)(c) of the Interpretation Act. In Ku-Ring-Gai Municipal Council v Attorney-General (NSW), supra, the majority made clear that if there be any manifestation of an intention by the amending enactment that the amendment should apply to rights already accrued, then the application of the then equivalent of s 30 of the Interpretation Act, would not arise.
Fundamentally, the difficulty with the submission (that the Share Management Plan is new and is, therefore, not authorised in a way that would abrogate the rights arising from the Access Shares previously, and continuing to be, owned by the plaintiff) is that the Amended Act expressly confers the right to issue Quota Shares for this Region.
Thus, the provisions of Pt 2A, Div 1, inserted into the Amended Act requires a fishing determination to be made if the regulation so requires and, in particular, Div 2 of Pt 2A of the Amended Act (also inserted) allows the Secretary to make an Interim Fishing Determination in the then existing circumstances.
The provisions of s 40I(5) and the amended s 71A(6) of the Amended Act make clear that Div 3 of the Act does not apply either to the act of the Secretary in fixing a Total Allowable Fishing level or in the creation and issue of further classes of shares. Ultimately, the Amended Act, expressly entitles the Secretary and the regulations to do that which the Secretary and the regulations have done.
Further, the regulations promulgated for the purpose of implementing the quota management system were promulgated as part of a scheme, which saw the Amended Act and the regulations, including those sections dealing with Quota Shares, promulgated at or about the same time. Further, notice of each of those changes was given to the participants in the industry well before the promulgation and in accordance with the process defined by the Amended Act itself.
Returning to the analysis of the High Court in Ku-Ring-Gai Municipal Council v Attorney-General (NSW), supra, the provisions promulgated did not abrogate any provision of the pre-existing Share Management Scheme. The Access Shares remained and their possession was unaffected.
The addition of the new provisions created and allocated different rights and obligations without impacting on the other provisions. The disadvantage and loss suffered by the plaintiff was not as a result of any existing provision of the Management Plan being repealed or not operating, but as a result of the insertion of additional restrictions on the plaintiff's ability to operate his commercial enterprise to its fullest capacity.
As a consequence, the "new" provisions are an amendment to the existing Management Plan and not a new Management Plan.
Largely, the issues agitated by the plaintiff initially cannot succeed and, in my view, should be rejected. Nevertheless, the issue associated with whether the plan is a new Management Plan or the amendment of an existing Management Plan (in circumstances where they are two distinct concepts) is troubling. Were it not for the amendment to the statute, the submission that the new Management Plan implements a review and could not be made otherwise than at the time specified for a new plan, has merit.
The task of the Court is to examine the intention of the legislature as objectively determined. This involves a construction of the statute and the subordinate legislation on the words used in each to ascertain the purpose of the legislation and the objective intention of the legislature, bearing in mind that the legislation is to be construed on the basis of achieving harmonious goals: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; Heatscape Pty Ltd v Mahoney [2017] NSWCCA 135 at [34]-[39].
Given the suite of amendments promulgated both to the Amended Act and the Regulations, it is, in my view, clear that the legislature intended the issue of Quota Shares in a Management Plan to be an amendment to that Management Plan and not, in and of itself, the promulgation of a new Management Plan.
Other submissions have been made by the plaintiff in support of its prayers for relief. They require little attention.
The establishment of a Total Allowable Fishing Level at a level significantly higher than the total amount of fishing that had previously been implemented does not expose the determination to attack on the basis of a breach of the objects of the Amended Act or on the basis of unreasonableness or capriciousness. The interim level determined by the Secretary in accordance with the Amended Act seems to have been set at that level for the purpose of ensuring that at least the amount of fishing that previously occurred could continue to occur. The level in the Interim Determination is established for a limited period and thereafter the utilisation of the fishing and its resources can be more scientifically assessed.
As to the objects of the Amended Act, the plaintiff, at one level, submits there is no issue of sustainability in the process that has occurred, but suggests that the determinations of the Secretary and the promulgation of the regulations are inconsistent with the object to conserve fishery resources in the State, in part at least, on account of the significant increase in the potential resources that may be caught. The difficulty with such a submission is that the objects of the Amended Act are not only to conserve the fishery resources of the State but also to share the fishery resources of the State.
The implementation of a Quota Management system implements expressly and directly the sharing of fishery resources amongst commercial fishing operations in the Region to which it applies. The implementation of a Quota System and the rules of the Quota System implemented are not inconsistent with the objects of the Amended Act. Nor are any of the amendments to the Act or the Regulations.
To the extent that the foregoing may imply that the Court would accept the proposition that a provision of an Act of Parliament could be qualified, solely on the basis of the objects of the Act, it ought not be taken to that effect. It is permissible, in seeking to construe a statute to achieve harmonious goals, to take a construction of the statute that is consistent with its objects. It is quite another thing to limit the plain and ordinary meaning of a provision because it seems, on the view that may be accepted by the Court, to be inconsistent with the stated objects of the Act.
The foregoing brings me to the last matter that requires attention. The plaintiff submits that the determinations by either the Minister or the Secretary or both and the Quota Shares Regulation should be declared invalid because each of the instruments and the making of the Regulations was "unreasonable, capricious and an abuse of power".
It is trite to suggest that the method by which one determines the validity of regulations is first to construe the statute and that which it allows in the making of regulations and thereafter to interpret the regulations, bearing in mind the limits contained in the regulation making power in the statute and the ambit of the statute. To the extent that authority is required it is sufficient to rely upon Brunswick v Stewart (1941) 65 CLR 88; [1941] HCA 7. There are many authorities to like effect.
Where, however, one is dealing with an allegation of unreasonableness, capriciousness or an abuse of power in terms of the making of regulations, which are subordinate legislation, there are significant hurdles over which one must climb. In a constitutional democracy of the kind operating in Australia and, necessarily, in New South Wales, there is a significant distinction between the role of the courts and the role of the legislature and or the executive.
It is not for the Court to determine whether Regulations are reasonable or the purpose of an Act or Regulations could have been better achieved by a different scheme. The courts scrutinise the administrative conduct of Ministers and Government officials exercising statutory powers, on application by plaintiffs, for the purpose of ensuring that their conduct is lawful; not to ensure it is the best possible outcome.
The latter is the role of voters in a democracy. It is the role of Parliament, and in the case of subordinate legislation, the relevant Minister, to exercise the powers that are granted to it and, in so doing, they have the capacity to disadvantage individuals and to change policy. That the Court, or a particular judicial officer, would have exercised the power differently does not render the exercise of the power unlawful, unreasonable, capricious or an abuse of process.
It seems clear, from the pre-existing Management Plan, that the intention of the legislature and the intention of the Minister and/or Secretary was that the licensing system and the Management Plan was not to be permanent and could be changed on notice. Notice was given.
The legislation and subordinate legislation was implemented pursuant to that notice and, in particular, the subordinate legislation was implemented under an appropriate authority created by the statute. It is not for the Court to determine whether the Regulations are reasonable, as a matter of fact, or as a matter of politics.
The function of the Court is confined to determining whether the Regulations are authorised (namely, they have a sufficient connection to the available head of power and the regulation making power) and, otherwise, and if it be different from the first-mentioned issue, whether the subordinate legislation "could not reasonably have been adopted as a means of attaining the ends of the power": Williams v City of Melbourne (1933) 49 CLR 142; [1933] HCA 56; South Australian River Fishery Association Inc & Warrick v South Australia (2003) 85 SASR 373 at [118]; [2003] SASC 174.
Further, like Doyle CJ in South Australian River Fishery Association Inc & Warrick v South Australia, supra, at [122], I am unaware of any authority holding that delegated legislation or regulations of a State, if made pursuant to a power conferred by the legislation, is capable of being invalidated because it terminates rights or privileges previously available pursuant to a statutory licensing scheme, without providing adequate compensation. Further, I am unaware of subordinate legislation of a State being invalidated on the basis of its unreasonableness or capriciousness, in circumstances where the subordinate legislation is expressly contemplated and authorised by the governing legislation.
It must be said, as the State has submitted, that the plaintiff can, even now, purchase Quota Shares. The plaintiff, I assume correctly, submits that the cost of these Quota Shares render commercial fishing uncommercial. If that be so, the market may soon react by a diminution of the number of commercial fishing operations. That is not a matter for the Court. Nor does it render the scheme unreasonable, capricious or an abuse of process.
While it seems the quota could have been allocated more equitably, allowing current operators a quota that matched their catch history, without cost, that was not the process chosen by the State. One suspects, given there is no reduction in Total Allowable Fishing, that the process chosen by the State effects a desire for it to benefit from the process. It certainly imposes an impost on commercial fishing operations merely to continue operating as they have been. Again, that, in this circumstance, may render the scheme unfair, but not unreasonable, capricious or an abuse. The Court adds that "fairness" (as distinct from unreasonableness or capriciousness) has not been, and could not be, an issue in these proceedings and, if it were, the evidence would no doubt have been very different.
For all of the foregoing reasons the Summons for relief must be dismissed.
The Court makes the following orders:
1. Summons dismissed;
2. Interlocutory orders made in relation to these matters on 1 December 2017 vacated;
3. The plaintiff shall pay the defendants' costs of and incidental to the proceedings.