Conclusion
149 Heerey J in Secretary, Department of Primary Industries and Energy v Collins (1992) 34 FCR 340 was concerned with the Great Australian Bight Trawl Fishery Preliminary Management Plan, determined by the Minutes under s 7B of the Fisheries Act 1958 (Cth). His Honour said, at 345:
The starting point is the proposition that the Plan has the force of law.
…
Parliament clearly intended that a plan of management …. should create detailed rights and obligations in relation to a fishery … The provisions of the Acts Interpretation Act concerning tabling before and disallowing by Parliament are to apply.
Thus a plan of management stands on quite a different legal footing from policy statements or guidelines. The Minister and the Secretary, like all other citizens, are bound by the law contained in a plan of management just as they are by the law in the Act itself.
150 It is now accepted that the Management Plan is a legislative instrument, and is amenable to challenge only under the Judiciary Act.
151 It was suggested that item 5 of the s 32 table of the Management Plan was not "reasonably appropriate and adapted to obtain the objectives" of maximising economic efficiency set out in s 3 of the FM Act.
152 Branson J observed in P W Adams v Australian Fisheries Management Authority (1998) 49 ALD 68, at 76-77:
Plainly, there is a difference between "maximising economic efficiency in the exploitation of fisheries resources"and maximising the economic efficiency of individual participants in the fishing industry. The objectives of the AFMA are objectives intended to be pursued in the public interest; they are not intended to require AFMA to pursue, assuming that it would be possible for it to do so, the separate interests of individual participants in the fishing industry. Of course, in many circumstances, the respective interests of individual participants in the fishing industry and the public interests which AFMA is required by its objectives to pursue in the performance of its functions will be consistent. In some circumstances they will not be consistent.
153 A case not dissimilar in principle to the present was Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10.
154 In that case, the Minister had made a Water Sharing Plan for the Lower Murrumbidgee Groundwater Sources 2003, which was a legislative instrument under the Water Management Act 2000 (NSW). The appellant, who was an association of primary producers, unsuccessfully challenged the validity of the Plan in the Land and Environment Court and appealed to the Court of Appeal on a number of grounds, including one based on irrationality.
155 Spigelman CJ (with whom Beazley and Tobias JJA agreed) said, at [111]:
The Appellant's case on irrationality has its factual foundation in the limited interconnectivity within the aquifers the subject of the Plan. Although it is accepted that each aquifer is a single geological formation, it is submitted that the absence of interconnectivity is such that it is not rational to treat this formation as a single body of water for the purposes of a plan under the Act.
156 At [121], his Honour summarised the contentions by the appellant:
[Under this plan] the transferor will receive a windfall by obtaining consideration for an asset, being the entitlement which they may never have used and which in the future could not use. The transfer of entitlements provides no environmental benefit, it could never have been utilised, but the holder of the licence receives financial consideration (which may be quite substantial) from the transferee who can utilise the licence.
157 Continuing:
The effect is that the transferee suffers a financial detriment which is to the benefit of the transferor. In these circumstances, although there may be windfall gains and losses, there is no net benefit for the acquifer or the environment.
…
… the absurdity of the Plan is emphasised by the fact that many of those who will acquire water will have expended considerable sums in developing their properties, in some cases with the active encouragement of the government, only to now pay money for water rights without which part of their capital investment in infrastructure may be lost.
…
… the applicants submit that the consequences of the Plan is to give a windfall to some and inflict financial hardship on others.
158 And at [122]:
… the limited degree of interconnectivity which is accepted by all experts leads to a level of unfairness that indicates irrationality or illogicality.
159 Where there is a challenge to the exercise of a statutory power on the basis of irrationality or unreasonableness, Spigelman CJ said, at [129]:
… Perhaps the most appropriate formulation is whether the decision is "illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds": Minister for Immigration and Multicultural Affairs Ex Parte Applicant S 20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [52] and [37], [173] ….
160 Spigelman CJ said, at [130]:
With respect to a power to make a plan of the character under consideration in the present case, I find particularly helpful the formulation of Sir Owen Dixon in Williams v Melbourne Corporation (1933) 49 CLR 142 at 155:
To determine whether the bylaw is an exercise of a power, it is not always enough to ascertain the subject matter of the power and consider whether the bylaw appears on its face to relate to that subject. The true nature and purpose of the power must be determined and it must often be necessary to examine the operation of the bylaw in the local circumstances to which it is intended to apply. Notwithstanding that ex facie there seemed a sufficient connection between the subject of the power and that of the bylaw, the true character of the bylaw may then appear to be such that it could not reasonably have been adopted as a means of attaining the ends of the power. In such a case the bylaw will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of the power.
161 Spigelman CJ adopted the words of Dixon J, as he then was, in Williams v Melbourne Corporation,which involved a power to regulate traffic. Dixon J said, at 156:
… The ultimate question in the present case appears to me to be whether, when applied to the conditions of Melbourne, the bylaw involves such an actual suppression of the use of the streets for the purposes of the necessary transit of an important and ordinary commodity as to go beyond any restraint which could be reasonably adopted for the purpose of preserving the safety, convenience and proper facility of traffic in general.
162 Spigelman CJ referred, at [133] to the observations of Lockhart J in Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 at 384:
Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended in authorising the subordinate legislative authority to enact law.
163 And to the observation of Gummow J in Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151, at 166:
… Great caution must be shown in judicial review … of determinations resting upon factual matters where (i) the determinations in question were made after prolonged public debate and (ii) being legislative in character, the determinations were subject to disallowance by either House of Parliament and (iii) the disputed matters of fact turn upon expert knowledge and opinion, there is dispute between the experts, and there was no cross examination upon that conflict.
164 Spigelman CJ made the important observation, at [139]:
It is always necessary to commence with the identification of the particular statutory power, understood in its context, and to assess the exercise of that power against the high standard of unreasonableness or of irrationality which the outcome must reach before the Court can legitimately infer that the legal limits to the exercise of the power have not been observed so that, to adopt the formulation from Williams v Melbourne Corporation quoted above, the Plan "could not reasonably have been adopted as a means of attaining the ends of the power" and, therefore, "is not a real exercise of the power".
165 Spigelman CJ said, at [144]:
Inevitably, when significant changes are made to an established regulatory regimes, there will be winners and losers. Considerations of equity are quintessentially matters for political decision-making. I am not satisfied that anything in the nature, scope and purpose of the Act prevents the Minister from implementing a scheme which operates to the detriment of some persons and to the advantage of others, in a manner not determined by availability of water but by broader considerations of what the Minister regards as equitable.
166 And, at [152]:
… What is fair or unfair in such a context is a matter on which reasonable minds can differ. In view of the conflicting interests involved, a broad brush approach of general application is not, in my opinion, irrational.
167 In the present case, the determination of the Relative Price Factor for a B plus E permit was reached after a very extensive public consultation and intensive lobbying, in particular by Mr Rowley and Mr Lamason, as to the value of such a package. Their contentions were based on the proposition that, for both an A plus E package and a B plus E package, the Area E component of the package was where the value of the package was to be found, and therefore, a B plus E package should be valued as the same as an A plus E package, though it was accepted that an A permit by itself was more valuable than a B permit by itself.
168 The AAP was of the view that an A plus E package was more valuable than a B plus E package and reached its conclusion about relative values on the basis of its inquiries into the values of various packages, as detailed above.
169 There is some evidence in these proceedings which puts in question the premise on which the contentions of Mr Rowley and Mr Lamason is based, namely that the value in an A plus E package or a B plus E package is to be found in the value of the right to fish in Area E.
170 On 12 January 2007 (which is, it has to be noted, subsequent to the determination of the Management Plan) Robert L Lamason sold to Riataworth Pty Ltd fishing permits number 402218B and C, and fishing permits 458772A and B. Both packages were an A plus E package. Mr Lamason, in cross-examination by Ms D Mortimer SC, senior counsel for the Authority, admitted that Mr Taylor, the principal of Riataworth Pty Ltd, did not actively fish in Area E on those permits, but was actively fishing on those permits off Mooloolaba, which, according to Mr Lamason, is "probably in Area C".
171 The two permit packages the subject of the sale of 12 January 2007 were in respect of the packages numbered 7 and 9 on the determination table in [33]. Each of those packages had, (with the exception of the allocation to one freezer boat, which had a special allocation of 1.6), the highest allocation of SFRs, namely 19766 for each package.
172 Mr Taylor has chosen not to exploit the E part of the package, but to fish using the A part of the package, in each case.
173 In Director of Animal and Plant Quarantine v Australian Pork Ltd and Others (2005) 146 FCR 368, the Full Court of the Federal Court was concerned with the review of an administrative decision to grant a Permit to import pig meat, pursuant to the ADJR Act. It was contended that the recommendation of the Import Risk Analysis Report was infected by Wednesbury unreasonableness.
174 The nature of the decision making function in that case was described by Heerey and Lander JJ at 382, [61]:
The legislation does not suggest that quarantine decisions are to be made on an assumption that every scientific fact is known about every conceivable disease or pest that might be introduced into Australia, or that such decision are to be delayed until all such facts are discovered and accepted. On the contrary, quarantine decisions have to be made in the existing state of knowledge. Imponderables have to be weighed and value judgements made. No specific criteria are laid down, other than the condition to be established must limit the level of quarantine risk to one which is "acceptably low" - which necessarily assumes there will be some risk.
175 At [63], Heerey and Lander JJ said:
… If in some steps, or sub-steps, of the process in relation to PMWS the Panel used estimate, or analogy, or indeed speculation, the Panel might be guilty of unscientific procedures. However APL had to show that the ultimate decision was not just unreasonable, but so unreasonable that no other similarly qualified decision-maker would have made it. That test necessarily allows for some degree of unreasonableness. Even if error in reasoning is disclosed, a conclusion of Wednesbury unreasonableness requires a major step further.
(Emphasis added).
176 In the case of a legislative instrument, such as the present, the matter has to go even further than Wednesbury unreasonableness.
177 The observations of their Honours at 371, [4] have a resonance to the present proceedings:
… That process involved fact finding and the making of value judgments and risk assessments in a complex scientific setting. The good faith and scientific competence of those engaged in the task is not in question. While there is room for debate as to some aspects of the IRA Report, the Panel did not carry out its task irrationally or unreasonably. The Court is not empowered to adjudicate on the factual correctness or otherwise of the IRA Report.
178 In Bienke, Gummow J was concerned with a challenge by the owners of prawn trawlers to a management plan for the Northern Prawn Fishery promulgated in 1989. The applicants argued, amongst other things, that a number of determinations by the relevant Minister relating to the plan and changes to it were ultra vires and unreasonable. It was also said that the plan was invalid, on the basis that it deprived the applicants of the ability to fish, which was, in effect, the indirect acquisition of property without providing for just terms as required by the Constitution. A "just terms" compensation claim was pleaded in the present case, but abandoned by the applicants.
179 Gummow J noted, at 155, that the common law right or liberty to fish in the sea and in tidal navigable rivers is a public not a proprietary right, and as such, is amendable to abrogation or regulation by legislation, citing Minister for Primary Industry and Energy v Davey (1993) 47 FCR 151 at 160, 168-9.
180 In the context of the present case it is helpful to recall that par 7 of the Northern Fisheries Plan then under challenge set out the objectives and measures for obtaining them. Subparagraphs 7.1 and 7.2 stated:
7.1 For the purposes of subsection 7B(2) of the Act, the objectives of this plan are:
(a) to conserve the stocks of prawns in the area of the fishery;
(b) to reduce the fishing pressure on the stocks of prawns in the area of the fishery; and
(c) to promote the economic efficiency of the fishery.
7.2 The measures for attaining the objectives specified in paragraph 7.1 shall include:
(a) the determination of the fishing capacity of the fishery;
(b) the determination of the number of units of fishing capacity for the fishery available to a unit holder for allocation and assignment, which shall be renewable and transferable; and
(c) the facilitation of the withdrawal of units and boats from the fishery.
[Emphasis supplied.]
181 Gummow J, at 161, said that certain determinations by the Minister were said to be invalid "(a), because they were made ultra vires, and (b), because the determinations were unreasonable and irrational in the Wednesbury sense, or "disproportionate".
182 At 163, Gummow J said:
… when the issue concerns not the exercise of discretion by the validity of delegated legislation, the question is … whether there is a "real connection" between the delegated legislation and the purpose for which the Parliament conferred the authority to make the law under challenge.
183 Adapting the words of Gummow J, the question of validity in the present case is whether the determination of the Management Plan goes beyond what could reasonably be adopted for the purpose of allocating statutory fishing rights in the Fishery and promoting the economic efficiency of the Fishery, it not being enough that the Court itself might think that the Plan as amended inexpedient or misguided: see South Australia v Tanner (1989) 166 CLR 161 at 168.
184 At 165 - 166, Gummow J said:
In Broadbridge v Stammers (1987) 16 FCR 296 at 301; 76 ALR 339, the Full Court, when considering a challenge to decision making involving evaluation of factual matters, relied upon the following passage from the speech of Lord Brightman in Puhlhofer v Hillingdon London Borough Council [1986] AC 484 at 518:
Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.
185 At 167, Gummow J said:
… it would not be enough for the applicants to persuade the court that the plan as amended was inexpedient or misguided. Even if that were a course that was open, the position which is disclosed upon the expert evidence in the state in which it was left would not, upon a judicial review application, entitle the court to reach any such conclusion, or to stamp what was done as manifesting "irrationality".
186 In this case, the applicants made no submissions concerning the statutory power which underpins the Management Plan. There is no attack on the method adopted for the allocation of statutory fishing rights which is contained in s 32 of the Management Plan, namely the allocation of statutory fishing rights according to the relative values of the permit packages. The only challenge is to the correctness of a single item, item 5, which relates to the relative permit value of a particular fishing permit package.
187 While the applicants take exception to the correctness of the relative permit value in item 5, the evidence here merely underlines the fact that the determination of the Management Plan, including, in particular, item 5 of s 32, was made after a prolonged public debate, was legislative in character, turned on matters of fact and judgment, which involved expert knowledge and opinion. In my judgment, the AAP did not carry out its task irrationally or unreasonably, nor did the Authority.
188 The fact is that the Panel confronted the contentions of Mr Rowley and Mr Lamason, and for considered reasons rejected them. Whether the Panel was right or wrong in that regard is immaterial to the question of the validity of the Management Plan.
189 It is impossible to conclude that there was no real connection between the Management Plan and the purpose for which Parliament conferred power on the Authority to determine the Management Plan.
190 The application for a declaration that item 5 of s 32 of the Management Plan is invalid is refused.
191 There is a final matter to which reference must be made. Objections were taken to pieces of evidence at the start of the trial, but the objections were left on the basis that I should rule on them in my reasons for judgment after the conclusion of evidence and submissions in the matter. This is a most unsatisfactory course which has nothing to commend it.
192 The objections to admissibility were based on relevance. Evidence is admissible if it is relevant to a matter in issue. The fact that at the end of the day it is found not to bear on any such matter does not determine the admissibility of the evidence.
193 In all the circumstances, I think it is sufficient to indicate that evidence as to matters which were not before either the Panel or the Authority is not relevant to the question of the validity of s 32 of the Management Plan, and thus not admissible.
194 The evidence from Mr Lamason as to the effect on his income post-Management Plan, or evidence of value of fishing permit packages which might have been obtained and put before either the Panel or the Authority but was not, such as evidence in professional fishing magazines concerning the sale of permits, is not admissible.
195 On the other hand, the evidence of Dr Julian Morrison concerning the methodology adopted by the Panel in determining relative permit values is, in my view, admissible. I was impressed by Dr Morrison, and for his appropriate concessions and admissions in the course of his oral evidence.
196 It is unnecessary in my opinion to make any further ex post facto rulings on evidence other than those I have indicated above.
197 I will hear the parties on costs.
I certify that the preceding one hundred and ninety-seven (197) numbered paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.