Primary Industry - Fish - Other cases - Establishment of fishery - Catch records and returns.

Fisheries Management Act 1991, ss4(1), 32(1), 42.

Crown: M Rozenes QC, K E Read, J Read and I M Arendt

Second Accused: A G Melick SC and B R McTaggart

Fourth Accused: B J Powell QC and I C Robertson

Crown: Commonwealth Director of Public Prosecutions

First Accused: Jennings Elliott as agents for: Iles Selley

Third Accused: Jennings Elliott as agents for: John Lister

Fourth Accused: Jennings Elliott as agents for: Coates PL

Fifth Accused: Jennings Elliott as agents for: Lynch & Meyer

Judgment Number: [2001] TASSC 89

(Edited version of reasons given orally) 31 July 2001

1 On 23 July 2001 I decided to determine before the empanelment of a jury, pursuant to the Criminal Code, s361A(d), whether the Crown must fail in this prosecution unless it establishes that there was an exercise of statutory power by the Australian Fisheries Management Authority ("AFMA") whereby a fishery known as the "South-East Fishery" was created. It is common ground that neither AFMA nor a delegate of AFMA took any formal step pursuant to the Fisheries Management Act 1991 that could be regarded as the creation of a fishery known as the South-East Fishery. The Crown contend that neither the Fisheries Act 1952 nor The Fisheries Management Act 1991 provided for the creation of fisheries and that the alleged crime as particularised does not depend upon any creation of the South-East Fishery. It is contended on behalf of the accused that, since there was no step taken by way of AFMA or a delegate by way of creating a South-East Fishery:

(a) AFMA had no duties in respect of any such fishery.

(b) There could not have been any likelihood of any public officer being deflected from performing any duty in respect of the South-East Fishery.

(c) No licences or permits purporting to authorise fishing in the South-East Fishery in 1992 or 1993 were valid.

(d) No requirements for the keeping of log-books or lodging of returns in respect of the South-East Fishery in 1992 or 1993 were valid.

(e) No warrant predicated on the existence of the South-East Fishery or of valid licences or permits in respect thereof was valid.

(f) No prosecution founded on the particularisation of any alleged deflection from duty referable to a non existent South-East Fishery can succeed.

The word "fishery" is defined in the Macquarie Dictionary as having the following meanings:

"1 the occupation or industry of catching fish or taking other products of the sea or streams from the water. 2 a place where such an industry is regularly carried on. 3 a fishing establishment. 4 law - the right of fishing in certain waters."

"Fishery" is defined in the Shorter Oxford dictionary as follows:

"1 The business, occupation, or industry of catching fish or other products from the sea, rivers, etc. 2 (An establishment in) a place or district where fish are caught. 3 Law. The right of fishing in certain waters."

2 In the law, the word "fishery" has long been understood to relate to activities rather than waters: Bonser v La Macchia [1969] HCA 31; (1969) 122 CLR, 177, per Windeyer J at 211 - 212. The better view appears to be that the Commonwealth Parliament's power to make laws with respect to fisheries conferred by s51(x) of the Constitution relates to activities rather than waters: Bonser v La Macchia (supra) per Kitto J at 201 and Windeyer J at 211 - 212, cf Menzies J at 210.

3 The 1952 Act avoided the use of the words "fishery" and "fisheries" until its amendment by the Fisheries Legislation Amendment Act 1985 which introduced a system of management plans governed by a new s7B. Section 7B(1) provided:

"The Minister may, by instrument in writing determine a plan of management for a fishery in proclaimed waters".

'fishery' means a class of activities by way of fishing, being a class of such activities that is identified in a plan of management as a fishery to which the plan of management applies."

"(10) Without limiting the matters by reference to which a fishery may be identified in a plan of management, those matters include all or any of the following:

(b) a description of fish by reference to sex or any other characteristic;

4 Section 4 was amended by inserting in subs(1) thereof a new definition, as follows:

"'managed fishery' means a class of activities by way of fishing, being a class of such activities that is identified in a plan of management as a fishery to which that plan of management applies".

5 A great many of the provisions of the 1952 Act continued to operate independently of any management plans after the introduction of the 1985 amendments, at least until they were replaced by the Fisheries Management Act 1991. The words "fishery" and "fisheries" appear to have been used in the 1952 Act, as amended in and after 1985, only in relation to managed fisheries, that is, fisheries that were the subject of s7B management plans.

6 During 1992 there were no licences under the 1952 Act relevant to this case that were valid, for the reasons explained by the Full Court of the Federal Court in Coleman v Gray (1994) 55 FCR 412. The relevant provisions of the 1952 Act were repealed with effect from 3 February 1992. The purported amendments to the 1991 management plan in October 1992 were of no effect because that plan was a nullity. The Fisheries Management Act 1991 replaced the relevant provisions of the 1952 Act with effect from 3 February 1992. Although no valid licences or permits for what the invalid plan had called the "South-East Fishery" were in existence, AFMA had duties in respect of the Australian Fishing Zone generally, including the waters of what the invalid plan had called the "South-East Fishery". It had the objectives referred to in s3(1) of the 1991 Act, and the duties listed in s3(2) thereof. Those provisions read as follows:

"3(1) The following objectives must be pursued by the Minister in the administration of this Act and by AFMA in the performance of its functions:

(a) implementing efficient and cost-effective fisheries management on behalf of the Commonwealth; and

(b) ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development and the exercise of the precautionary principle, in particular the need to have regard to the impact of fishing activities on non-target species and the long term sustainability of the marine environment; and

(c) maximising economic efficiency in the exploitation of fisheries resources; and

(d) ensuring accountability to the fishing industry and to the Australian community in AFMA's management of fisheries resources; and

(e) achieving government targets in relation to the recovery of the costs of AFMA.

(2) In addition to the objectives mentioned in subsection (1), or in section 78 of this Act, the Minister, AFMA and Joint Authorities are to have regard to the objectives of:

(a) ensuring, through proper conservation and management measures, that the living resources of the AFZ are not endangered by over-exploitation; and

(b) achieving the optimum utilisation of the living resources of the AFZ;

but must ensure, as far as practicable, that measures adopted in pursuit of those objectives must not be inconsistent with the preservation, conservation and protection of all species of whales."

7 The question of whether there was any likelihood of a deflection from any of AFMA's duties under the 1991 Act is not one for me to decide now. Subject to any submission that may be made to the contrary, I think it is a question for a jury to decide.

8 The Fisheries Management Act 1991 included a definition of "fishery" that was not found in the 1952 Act. In s4(1) of the 1991 Act, "fishery" was defined as follows:

"fishery means a class of activities by way of fishing, including activities identified by reference to all or any of the following:

(b) a description of fish by reference to sex or any other characteristic;

9 This prosecution, of course, concerns a charge of conspiring to defraud the Commonwealth and AFMA involving an alleged agreement to engage in conduct that is alleged to have been likely to deflect public officers from the performance of their public duties. In particularising the duties that it relies on, the Crown has adopted the words of s3(1)(a), (b) and (d), which appear above. Identical provisions are found in s6 of the Fisheries Administration Act 1991, and they are also relied upon by the Crown. In s3(1) of the Fisheries Management Act and in s6 of the Fisheries Administration Act, the word "fisheries" is used as an adjective. In context it must be referring to activities by way of fishing.

10 The Fisheries Management Act 1991 makes no provision for the creation or establishment of fisheries. It contains detailed provisions as to regulations, proclamations, determinations, certificates, registrations, notices, agreements to be tabled before the Houses of Parliament, and the publication of instruments in the Gazette. If Parliament had intended AFMA to have no power or no duty in relation to a particular fishery, in the sense in which that term is defined in s4(1) without taking some step by way of creating or establishing such a fishery, it would no doubt have made some provision as to the mechanism for a fishery to be created. It did not. The result must be that, for the purposes of the 1991 Act, any type or class of fishing activity that falls within the definition of "fishery" constitutes a fishery without any formal step having been taken by anyone.

11 Such fisheries could overlap. The catching of orange roughy between five and ten miles from the Tasmanian coast would constitute a fishery. Trawling for orange roughy and/or gemfish between eight and fifteen miles from the Tasmanian coast would constitute a fishery. In fact there exist, for the purposes of the 1991 Act, as many different fisheries as human ingenuity can describe in relation to fishing activities in the Australian Fishing Zone. The Act enabled AFMA to discharge its functions by reference to such fisheries, as defined, as it chose. Provisions for plans of management were made in ss17 - 20 of the 1991 Act. AFMA was empowered to make plans of management for whatever fisheries it chose.

"managed fishery means a fishery to which a plan of management relates.

plan of management means a plan of management determined under section 17".

13 Clearly not all fisheries were managed fisheries. Some were. Some were not. Section 32(1) conferred a power to grant fishing permits. It read as follows:

"AFMA may, upon application made in the approved form, grant to a person a fishing permit authorising the use of a specified Australian boat by that person, or by a person acting on that person's behalf for fishing in a specified area of the AFZ or a specified fishery."

14 "Specified fishery" is not defined. Those words must simply mean a fishery specified in the permit. They refer to a class of activities, not an area of waters. But, consistently with par(c) of the definition of "fishery", such a class of activities could be identified by reference to an area of waters.

15 Further, a s32(1) permit could be granted in respect of a managed fishery or in respect of one that was not the subject of a plan of management. That is to say, a s32 permit authorising a particular class of fishing activities in a particular area of waters to which the Act applied could be valid without there having been any step taken by AFMA to constitute or recognise those activities in that area as a fishery. AFMA officers no doubt believed that the South-East Fishery (Individual Transferable Quota) Management Plan 1991 created a managed fishery as defined in the 1952 Act, and a fishery within the meaning of s7B thereof. They were wrong about that, since the plan was void: Coleman v Gray (supra). However, the issue of valid permits in 1993 in reliance upon s32 did not depend on the validity of the 1991 management plan. Indeed, even the mistaken view that the 1991 plan had been valid could not properly lead to a conclusion that it remained in force after the expiry of the purported licences for 1992 at the end of that year. ( I should point out that it is common ground that licences for the calendar year 1992 had been issued for the taking of orange roughy in the South-East Fishery as described, in accordance with the invalid 1991 management plan, but those licences were invalid.) It follows from what I have said that, contrary to Mr Abbott QC's submission, the fact that no South-East Fishery was created by any exercise of statutory power would not automatically result in any requirements as to log-books and log-book returns being invalid, nor in any warrants being invalid. Similarly, it would not automatically result in any s32 permits being invalid.

16 I turn to the particulars. Particulars of the Crown's allegations as to the likelihood of deflection from public duties have been delivered, first on 31 January 2001 (document MFI K), secondly on 9 March 2001 (document MFI S), and thirdly on 19 April 2001 (document MFI 10). These particulars were not premised on the existence of a fishery created by an exercise of statutory power. They contained a few references, but only a few references, to the South-East Fishery, the South-East Trawl Fishery, and, in MFI 10, the Southern Fisheries and the South Eastern Fisheries. I am inclined to think that the Crown should be ordered to provide particulars of what it meant by these expressions, but I should hear from the Crown before deciding whether to order further particulars.

17 I reject the submission that the Crown cannot obtain convictions in respect of the alleged crime as particularised as a result of no South-East Fishery having been created by an exercise of statutory power. Pursuant to the Criminal Code, s361A(d), I determine that, if the Crown does not establish that there was an exercise of statutory power by the Australian Fisheries Management Authority whereby a fishery known as the South-East Fishery was created, it will not follow that the prosecution must fail.

Requirements as to log-books and returns in 1993

18 Next I will give my ruling in relation to SEF1 and SEF2 forms in 1993. There are two possible bases that have been suggested for the existence of a legal obligation to submit to AFMA forms detailing orange roughy catches in 1993. The first relies upon notices published in the Gazette on 22 December 1992 known as "Log-book Notices Nos SEF1 and SEF2". Those notices are found in exhibit VD24 as documents 18 and 19 therein. The notices were purportedly published pursuant to the Fisheries Management Regulations, reg32(1), and the regulation making powers conferred by the Fisheries Management Act 1991, ss42(1) and 168(1)

19 The second suggested basis depends upon permits issued pursuant, or purportedly pursuant, to that Act, s32(1). It is common ground that there were four permits, or purported permits, relevant to this case which contained conditions as to the completion and lodgment of SEF 1 and SEF 2 forms. The power to specify conditions in s32(1) permits was conferred by s32(6)(a)(i) of the Fisheries Management Act 1991. Paragraph 4.6 of Schedule 4 to a sample permit reads as follows:

"4.6 The holder of the Fishing Permit must ensure that each of:

(a) the Daily Catch Log for the South East Fishery (SEF 1); and

(b) the Catch Disposal Record for the South East Fishery (SEF 2); and

(c) the Transit Form for the South East Fishery (SEF 3), from 14 days after the last date of publication in a newspaper and the Commonwealth of Australia Gazette, of notice that the Chairperson of the Australian Fisheries Management Authority has determined requirements to use that form;

are completed and lodged in accordance with the instructions contained within each of them."

20 The sample permit appears as document 14 in exhibit VD24. I am not concerned in this ruling with SEF 3 forms. Schedule 4 of each relevant permit also included two definitions, as follows:

"'Catch Disposal Record for the South East Fishery (SEF 2)' means the form of logbook SEF 2 (the full title of which is 'SEF 2 Form, Catch Disposal Record For South East Fishery, Fisheries Management Act 1991 and Fisheries Management Regulations') or, if that form of logbook has not been obtained by the holder of the Fishing Permit (or any person acting on the holders behalf), then it means the form of logbook SEF 2 (the full title of which is 'SEF 2 Form, Catch Disposal Record For South East Fishery, Fisheries Act 1952and Fisheries Regulations');

'Daily Catch Log for the South East Fishery (SEF 1)' means the form of logbook SEF 1 (the full title of which is 'SEF 1 Form, Daily Catch Log For South East Fishery, Fisheries Management Regulations') or, if that form of logbook has not been obtained by the holder of the Fishing Permit (or any person acting on the holders behalf), then it means the form of logbook SEF 1 (the full title of which is 'SEF 1 Form, Daily Catch Log For South East Fishery, Commonwealth of Australia Fisheries Regulations 16(1)'".

"32(1) The Chairperson [of AFMA] may determine that a form of log book must be used in relation to:

22 However, the Act conferred the relevant regulation-making power on the Governor-General, and not anyone else. I refer to ss168(1) and 42(1). There is nothing to suggest that the Governor-General was authorised to delegate the legislative power to require the recording of information and the furnishing of returns in the circumstances specified. Parliament's intention is made clearer by s42(2) which read as follows:

"(2) It is a condition of a fishing concession that the holder of the fishing concession will comply with the requirements of any regulations made by virtue of subsection (1)."

23 A fisherman could not comply with any requirement of a regulation that merely confers legislative power on a public officer. This is a plain example of the infringement of the rule against sub-delegation: Delegatus non potest delegare. I therefore hold that reg32(1) is ultra vires the Fisheries Management Act 1991, and that as a result the notices in the Gazette on 22 December 1992 were of no effect.

24 If I am wrong about that, then there are a number of bases for holding that the notices were of no effect, and were void, because they did not themselves comply with reg32. First, the notices did not specify a kind of fish, as required by reg32(1)(a). It might have been sufficient if they had specified a number of kinds of fish, but they purported to refer to all fish, subject to a curious exception as to one family of prawns.

25 The second respect, in which reg32(1) was not complied with is that the Chairperson, in the notices, purported to prescribe two forms of log-book. I will call them the old form and the new form. Further, he required each user of these forms to use the old form until receiving the new form, and thereafter to use only the new form. The regulation did not provide for more than one form of log-book to be prescribed. The Acts Interpretation Act 1901 (Cth), s23(b), does not apply, in my view, because it appears it was intended that only one form of log-book could be prescribed. I refer to reg32(2) which referred to "the form of log-book". It reads as follows:

"(2) For the purposes of this Part, if the Chairperson makes a determination, the form of the logbook must be used in relation to a boat that is:

(b) engaging in the activity to take the kind of fish in the area."

There is nothing also to suggest that the Chairperson was intended to have power to require different classes of people carrying out the same kind of activity in relation to the same kind of fish in the same area of waters to use different forms of log-book.

26 The third basis for saying that reg32 was not complied with is that the period specified in the notices, 1January 1993 to 31 December 1995, did not comply with regs32(8) and (9). So far as reg32(8) was concerned, the notice was published in the Gazette on 22 December and the period specified commenced on 1 January, less than the required period of 14 days thereafter. So far as reg32(9) is concerned, the notice was published in the Gazette on 22 December 1992, but the specified period was set to end on 31 December 1995 , more than the specified period of three years thereafter. The intention of the regulations was that compliance with the time requirements would be essential to the validity of the notice, in my view. Significantly, sub-regulations (8) and (9) use the word "must" rather than the word "may". It is true that the Chairperson was not required to make any determination as to when a reg32(1) requirement was to start or finish. Regulation 32(3) gave a discretion but, once the Chairperson did make a determination under reg32(3), that determination was not severable from the reg32(1) determination so as to produce a result that the notice really applied from the date of its making until such time as it was revoked.

27 A fourth problem is that s42 only authorised regulations applying to the holders of fishing concessions. As there was nothing in reg32 as to whom it applied to, it should be interpreted as applying to the same people as s42. But the forms of log-book referred to in the December 1992 notices purported to require persons other than the holders of fishing concessions, namely fishermen and processors, to complete forms. By implication, the December 1992 notices purported to impose such obligations on persons outside the scope of s42 and reg32(1). In my view the general regulation-making power in s168 did not authorise subordinate legislation as to matters dealt with by s42 outside the scope of s42. Generalia specialibus non derogant. See Pearce & Geddes, "Statutory Interpretation in Australia", 4th ed, par4.24.

28 I turn to consider par4.6 of the permits. That paragraph purported to require the permit holder to ensure the completion and lodgment of SEF1 and SEF2 forms in accordance with instructions on each of them. The instructions on SEF1 forms were directed to fishermen. Those on the SEF2 forms were directed to processors. Processors were beyond the control of permit holders and beyond the scope of s42. Fishermen were likely to be employees or independent contractors owing contractual duties to permit holders, but they were also beyond the scope of s42. The consequences of non-compliance with a condition imposed pursuant to s32(6) could include suspension or cancellation of a permit, and thus could be likely to involve severe financial losses. The definition of the terms used in par4.6 was such that it required the use of the old forms issued in purported pursuance of the 1952 Act by users who had not received the new forms, but the old forms contained misleading warnings as to penalties and obsolete instructions as to mailing. In Coleman v Gray (supra), at 416, Davies J took the view that the imposition of the quota conditions under discussion there, by a licensing officer, was unreasonable and ultra vires. Similarly, I have come to the conclusion that, because of the matters I have referred to, the inclusion of par4.6 in the permits issued for 1993 was so unreasonable as to be beyond the scope of the power conferred by s32(6)(a)(i). I therefore determine that there was no obligation on anyone to complete or lodge SEF 1 or SEF 2 forms in 1993.