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[2001] TASSC 97
plaintiff. The Court determined that the three permits were valid when issued, but made no determination about the validity of purported later variations.
Before the criminal trial began, the Court considered whether three 1993 fishing permits were invalid. It held that AFMA did not need to have approved standard forms for the permits to work. An attempted delegation made before AFMA existed was ineffective, but the Court found that a later delegation was valid. It also rejected the other challenges to the permits and found that one invalid record-keeping condition could be severed. The permits were valid when issued; the Court did not decide whether later changes to them were valid.
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In R v Turner & Ors (No 9) [2001] TASSC 97, Blow J of the Supreme Court of Tasmania considered a preliminary question in a criminal proceeding. Five accused had pleaded not guilty to one count alleging a conspiracy to defraud the Commonwealth and the Australian Fisheries Management Authority (AFMA). The Crown alleged that they conspired to cause false returns to be submitted about orange roughy catches in 1992 and 1993. The judgment did not decide whether the accused were guilty. No jury had yet been empanelled ([1]).
1 cited instrument linked from this judgment.
The preliminary question was whether fishing permits said to authorise orange roughy fishing in 1993 were invalid. The Court considered the issue before trial because defence counsel had foreshadowed submissions about dismissal of the charge, a permanent stay, evidence obtained under search warrants, and catch-record documents AFMA had required. The permits related to the vessels Lorna Dorn, Roza-S and Belinda ([1]-[2], [17]).
The accused challenged the permits on several grounds. They argued that no application or permit form had been approved, that the officer who signed the permits lacked a valid delegation, and that the permits contained defects in their quota and fishing conditions. They also argued that a defective catch-record condition invalidated each whole permit ([3], [18], [35]-[45]).
The Court resolved the challenges that had been argued and held that the permits were valid when issued ([46]). It did not decide whether later additions to the permits, apparently varying permitted species and quantities, were valid. Although s 32(8) gave AFMA power to vary permit conditions, the evidence before the Court did not enable it to determine whether these particular variations were valid, and that question was outside the preliminary determination ([47]).
The first issue was whether the absence of approved forms defeated the permit power. Section 32(1) contemplated applications in an approved form, and s 32(11) stated that a permit was to be in the approved form ([2]). The accused argued that approval was an essential prerequisite, so the permits were invalid if no forms had been approved ([3]).
Blow J treated this as a question of statutory construction, rather than assuming that every statutory reference to a form must be a condition of validity. The judgment discussed cases illustrating two possible approaches. In some, a statutory right or power could not operate until a required procedure had been prescribed; in others, the substantive right operated despite the absence of a prescribed procedure ([4]-[6]). The relevant question was what Parliament intended in this Act.
The text and statutory context led the Court to treat approved forms as a means of giving AFMA control and flexibility, not as a condition that prevented the permit power from operating. The Act did not expressly require AFMA to approve forms, or state that an application, permit or exercise of power would be ineffective without one ([12]-[14]). The Court also considered that making the permit power unavailable would seriously hamper AFMA's fisheries-management responsibilities, while the practical benefits of standard forms were less important than having s 32 available ([15]). It therefore rejected this ground of invalidity ([16]).
The delegation issue had a different result for the two instruments in evidence. Section 92(1) of the Fisheries Administration Act 1991 required an AFMA delegation to be made by writing under its common seal. Section 10(3) required courts to presume that the seal had been duly affixed, but Blow J held that this was a rebuttable presumption ([18]-[21]).
The first instrument was dated 4 February 1992. The legislation commenced on 3 February. The Board's relevant discussion had taken place on 23 and 24 January, before AFMA existed under the new legislation. Applying s 4(1) of the Acts Interpretation Act 1901, Blow J accepted that pre-commencement steps could not be taken by a statutory body that did not yet exist. The Board's January decision was therefore ineffective, and the seal on the February instrument had not been authorised by AFMA ([22]-[27]).
The later instrument was dated 17 December 1992. The Board had considered revised delegations at its October meeting and agreed to revised fisheries management delegations ([28]-[29]). The minutes did not record express authorisation to use the common seal. However, the Court inferred from the Board's agreement that it intended the formal steps necessary to bring the delegations into effect to be taken. It treated this as implied authorisation to use the seal ([30]-[31]).
The Court also rejected the argument that AFMA had to specify in advance exactly how documents under seal were to be signed. In Blow J's view, s 10(2), which required the seal not to be used except as authorised, restricted the occasions for using the seal, rather than prescribing a method of executing documents. A more restrictive interpretation could impede AFMA's administration and was not required by the statutory purpose ([32]-[33]). The Court concluded that Ms Melandri had been validly delegated the power to grant the permits ([34]).
The Court then dealt with the permits' wording. It construed each permit as a whole, rather than treating awkward phrases in isolation. The southern-sector orange roughy provision was intended to limit fishing to orange roughy taken from that sector, whose boundaries were specified elsewhere in the permit ([36]-[37]). Although the quota clauses referred both to units and to liveweight, evidence showed that AFMA used a system under which a unit represented a fixed weight. The Court therefore read the two columns as alternative ways to describe the same limit, not as cumulative allowances permitting twice as much catch ([38]-[40]).
The remaining objections to the permit areas and net conditions also failed. The Court found no logical reason why a permit for a single boat could not cover more than one fishery, and it considered each permit could be read as covering one defined area with different conditions applying to its parts ([41]). It read the net and mesh provisions as having workable applications across the relevant fishing circumstances ([42]-[43]).
Finally, the Court had already held in R v Turner & Ors (No 6) that paragraph 4.6, requiring catch records, was void for unreasonableness. In this decision, Blow J held that the condition was severable: removing it did not alter what fish, quantities, methods or areas the permit authorised ([44]). The invalidity of that paragraph therefore did not invalidate the whole permit.
The judgment's contribution is its application of existing statutory-interpretation reasoning to a statutory requirement for an approved form. Blow J noted that he had been unable to find reported cases dealing directly with legislation that provided for approved forms when no form had been approved ([4]). He therefore drew on authorities concerning provisions that required matters to be prescribed.
The judgment did not establish a rule that approved forms are always optional. Instead, it examined the particular text, scheme and consequences of the Fisheries Management Act. It contrasted statutory requirements that may be essential to completing a power with provisions whose function is to regulate the exercise of an otherwise available right or power ([4]-[6]). Its conclusion depended on the absence of express invalidating language, the Act's overall structure, and the practical importance of AFMA retaining the s 32 power ([12]-[16]).
On pre-commencement powers, the Court's interpretation of s 4(1) was that the provision could facilitate appointments and instruments before commencement, but only through persons or entities already in existence. The judgment reasoned that Parliament could arrange for a new authority to be established before substantive provisions began, rather than treating a not-yet-existing body as capable of acting ([24]-[27]).
For statutory corporations and common seals, the judgment accepted implied authorisation of the seal's use where the Board had approved the substance of delegations and intended the necessary formalities to be completed. It also read the statutory restriction on seal use as not requiring AFMA to adopt a single method for signing sealed documents ([30]-[34]). These conclusions arose from the particular legislation and Board records before the Court.
The source text does not provide a later history of the judgment or report subsequent decisions applying, limiting or questioning it. Accordingly, no claim about its later treatment can be grounded in this judgment alone.
At [16], Blow J concluded that the approved-form requirements were not essential to operating s 32. In plain English: the absence of an AFMA-approved template did not, by itself, prevent AFMA from receiving applications or issuing permits under the section.
At [26], the Court said it would be contrary to the ordinary meaning of s 4(1) for a body not yet in existence to exercise powers. In plain English: advance provisions can allow preparatory steps before commencement, but this judgment did not treat them as creating an authority capable of acting before it legally exists.
At [31], the Court found that Board approval of the revised delegations carried implied authority to take the steps needed to make them effective, including using the common seal. In plain English: the absence of a minute expressly authorising the seal was not decisive in the circumstances, because the Board had approved the delegations and intended their implementation.
At [38], the Court used evidence about AFMA's quota system to resolve wording that appeared to allow both a number of units and a separate liveweight amount. In plain English: the Court read the columns as two measurements of one cap, not two separate caps.
At [44], the Court held the catch-record condition severable because its removal did not change the permit's fishing authorisation. In plain English: one invalid condition did not necessarily destroy the whole document where the rest remained workable and independent.
At [47], the Court declined to decide whether later variations were valid. In plain English: the decision answers the question about the permits as issued, not the legal status of every later page or amendment.
The approved-form reasoning is relevant to a statutory scheme where a power refers to applications or instruments being in an approved form, but the responsible authority has not approved a form. The judgment indicates that the analysis should focus on the statutory language and context, including whether the legislation expressly makes approval a precondition and whether the substantive power can operate without a standard form ([4]-[16]). It does not establish that an absent form is immaterial under every statute.
The pre-commencement reasoning concerns a purported appointment, delegation or administrative instrument made before the relevant statutory body has come into existence. In this case, the Board's January 1992 action was ineffective because AFMA did not yet exist under the legislation ([22]-[27]). The judgment also distinguishes that situation from later Board action by an existing authority.
The common-seal reasoning is relevant where legislation requires a statutory corporation to use its seal for a delegation, and the record does not contain an express minute authorising the seal. The Court considered whether the body's approval of the substance of the transaction impliedly authorised the steps required to effect it ([28]-[34]). Its reasoning depended on the minutes and surrounding evidence in this case.
The permit-construction and severability reasoning may be relevant where an instrument contains awkward or apparently conflicting conditions. The Court considered the document as a whole, used evidence to understand the quota terminology, and asked whether removing an invalid condition altered the core authorisation ([37]-[44]). The judgment's findings depended on its particular permit text and evidentiary record.
The judgment provided here does not identify any later cases that considered or applied R v Turner & Ors (No 9). It is therefore not possible, from this source alone, to describe how later courts treated the decision, whether they followed it, or whether they confined its reasoning.
The authorities discussed in the reasons are earlier authorities, not later treatment of this judgment. Downey v Pryor and other cases are used to explain statutory provisions that depend on something being prescribed ([4]-[6], [13]). J W Broomhead and Magnacrete are discussed in relation to authorisation to use a corporate seal ([31]). They inform Blow J's reasoning, but they do not establish the later history of this Tasmanian decision.
For research purposes, the distinction matters: this judgment supplies its own reasoning and outcome, but the supplied text does not establish its subsequent precedential reception. Any account of later treatment would require sources beyond the judgment provided.
The most immediate question expressly left open is the validity of the later permit variations. The judgment records that additional pages appeared to change species and quantities, including changes to the Roza-S permit. Although s 32(8) allowed AFMA to vary conditions, the Court said it lacked evidence to decide whether the variations had been validly made ([47]).
The Court also identified a hypothetical issue concerning the defective description of the eastern sector. It found the defect immaterial because none of the permits as issued authorised orange roughy fishing in that sector. It did not decide whether a permit authorising fishing there would be void or whether the relevant condition would be meaningless ([45]).
The judgment's conclusions about approved forms, implied authorisation of a seal, and severability are based on the specific statutory provisions and evidence before Blow J. It does not resolve how those approaches would apply under different legislation, different Board records, or materially different permit terms. Nor does it determine the ultimate effect of the permit ruling on the anticipated trial applications described at [1].
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CITATION: R v Turner & Ors (No 9) [2001] TASSC 97
Statutes - Acts of Parliament - Interpretation - Particular words and phrases - Specific interpretations - Approved form - No form approved.
Downey v Pryor [1960] HCA 49; (1960) 103 CLR 353, referred to.
Statutes - Acts of Parliament - Operation and effect of statutes - General matters - Passing, commencement and duration of Act - Exercise of powers before commencement - Corporation established by Act yet to commence.
Acts Interpretation Act 1901 (Cth), s4(1).
Corporations - Practice and procedure - In relation to operations and management of corporation - Use of common seal - Mode of authorising - Statutory corporation.
J W Broomhead (Vic) Pty Ltd v J W Broomhead Pty Ltd [1985] VicRp 88; [1985] VR 891; Magnacrete Ltd v Douglas-Hill (1988) 48 SASR 565, referred to.
Crown: M Rozenes QC, K E Read, J Read & I M Arendt
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 97
1 The five accused have been charged with a single count of conspiracy to defraud the Commonwealth and the Australian Fisheries Management Authority ("AFMA"), an authority under the Commonwealth, contrary to the Crimes Act 1914 (Cth), s86A. The Crown alleges that they conspired to cause and permit false returns to be submitted to AFMA as to orange roughy catches in 1992 and 1993, and that the submission of such false returns was likely to deflect public officers from the performance of public duties that they had pursuant to fisheries legislation. The accused have all pleaded not guilty, but a jury has not yet been empanelled. I have been asked to determine prior to the empanelment of the jury, pursuant to the Criminal Code, s361A, whether certain fishing permits, which purported to authorise fishing for orange roughy in 1993, were invalid. I have decided to determine this question prior to the empanelment of the jury, since it is a question that is likely to have to be determined for the purpose of one or more of some preliminary submissions that have been foreshadowed by defence counsel, namely (a) a submission that I should dismiss the charge pursuant to the Crimes Act, s86(7); (b) a submission that I should grant a permanent stay of these proceedings on the basis that there would otherwise be an abuse of process; (c) a submission that evidence illegally obtained as the result of the execution of eight invalid search warrants should not be admitted; and (d) a submission that a large number of forms recording or purporting to record information as to orange roughy catches should not be admitted into evidence on the ground that AFMA commanded their completion and submission when it had no right to do so. If this trial proceeds, it may well be unnecessary for the jury to know or consider whether the 1993 permits were invalid, but the nature of the foreshadowed preliminary submissions makes the determination of that question by me appropriate at this stage.
2 In 1993 the management of fisheries by the Commonwealth was governed by the Fisheries Management Act 1991 (Cth) ("the Act"). Under s95(1)(a)(i) thereof, it was an offence for a person to engage in commercial fishing anywhere in the Australian fishing zone unless that person was, or was acting on behalf of, the holder of a fishing concession or scientific permit that authorised commercial fishing at that place and was in force. The Act provided for three different types of fishing concessions - statutory fishing rights, fishing permits, and foreign fishing licences. AFMA sought to authorise orange roughy fishing by the operators of the vessels Lorna Dorn, Roza-S and Belinda by means of fishing permits, which it was authorised to grant under s32. That section contemplated that applications for fishing permits would be made in an approved form, and that fishing permits would be in an approved form. The relevant subsections read as follows:
"(1) AFMA may, upon application made in the aproved form, grant to a person a fishing permit authorising the use of a specified Australian boat by that person, or a person acting on that person's behalf, for fishing in a specified area of the AFZ [Australian fishing zone] or a specified fishery."
"(11) A fishing permit is to be in the approved form."
3 The word "approved" is defined in s4(1) as meaning, unless the contrary intention appears, "approved by AFMA or, in relation to a Joint Authority fishery, by the Joint Authority". There is no suggestion that the references to a Joint Authority and a Joint Authority fishery are relevant to this case. It has been submitted on behalf of the accused that neither AFMA nor any delegate of AFMA ever approved a form of application for a fishing permit, nor a form of fishing permit; that Parliament intended the approving of such forms to be an essential prerequisite to the operation of s32; and that the purported permits under consideration were therefore all invalid.
4 I have been unable to find any reported cases as to the situation where legislation provides for approved forms and no forms are approved. However, there is a substantial body of authority as to situations where Parliament has provided for matters, particularly procedural matters, to be prescribed and nothing has been prescribed. In Downey v Pryor [1960] HCA 49; (1960) 103 CLR 353, the High Court considered a provision in a local government statute which provided "Any elector may at the council's office inspect the books of account and the report of the auditor or of the inspector of local government accounts without fee as prescribed ... ". No method of inspection had been prescribed. By majority, it was held that the prescription of a method of inspection was not necessary to complete the right to inspect granted by the statute, and that that right could be exercised in any appropriate manner until such a method was prescribed. Windeyer J said the following at 364:
"This is not, it seems to me, a case where a prescription of something pursuant to a statute is necessary to complete a statutory right. It is rather a case of the statute recognizing that a right given by it may be further defined, or its exercise regulated, by ordinance. The distinction between the two classes of cases is clear. But sometimes, as here, a question can arise as to which result the language of a particular enactment produces. Where it is said that something is to be done in a prescribed manner, and there are several ways in which that very thing can be done, then, prima facie, the enactment is ineffectual until one of those ways be prescribed (Browne v Commissioner for Railways (1935) 36 SR (NSW) 21; 53 WN 1; Cameron v Deputy Federal Commissioner of Taxation (Tas) [1924] HCA 12; (1924) 34 CLR 8). In such cases life and vigour is only given to the statute when what is to be prescribed has been prescribed - for example, a prohibition against travelling at a speed greater than the prescribed maximum could not be contravened until a maximum had been prescribed."
5 Browne v Commissioner for Railways (supra) concerned a statutory provision empowering the officer at the head of any branch of the railway service to dismiss or suspend an officer guilty of misconduct "in the prescribed manner". No manner of dismissing or suspending had been prescribed. Jordan CJ, with whom Stephen and Bavin JJ concurred, concluded (at 29) that the prescription of a manner of dismissal or suspension was to be regarded as intended by the legislature to be an essential condition of such action. In Cameron v Deputy Federal Commissioner of Taxation (Tas) (supra), an income tax statute referred to "the value of all live-stock", and "value" was defined as meaning the "value as prescribed". No method of valuation had been prescribed. The High Court held, by majority, that the stock could not be valued, and that no sum could be brought into account for assessment purposes as the increase in value of a taxpayer's stock during the relevant year of income.
6 There are a number of reported cases that have gone the other way. I will refer to a few of them to illustrate the point made by Windeyer J. In Commissioners of Inland Revenue v Joicey (No 1) [1913] 1 KB 445, a fiscal statute provided that any person aggrieved by the decision of a statutory referee might appeal to the High Court "within the time and in the manner and on the conditions directed by Rules of Court". No applicable rules had been made. The English Court of Appeal held that the right of appeal was absolute, and not affected by any omission from the rules. In Moate v Dartnell (1947) 65 WN (NSW) 9, Herron J considered the situation where legislation providing for the recovery of contribution or indemnity by one tortfeasor from another had been introduced, including a provision authorising rules of court to be made prescribing matters necessary or convenient for carrying out the substantive provisions, and no such rules had been made. Not surprisingly, he rejected a submission that no contribution or indemnity could be sought from a third party unless and until rules were made in relation to such claims. In Randwick Municipal Council v Valuer-General (1959) 5 LGRA 185, Sugerman J considered a provision in a valuation statute that provided for a rating authority to object to a valuation "within the prescribed time". No time had been prescribed. His Honour rejected a submission that the prescription of a time was a condition of the right to object.
7 Mr Abbott QC relied on a number of provisions in the Act which, he argued, supported the view that Parliament intended the approval of forms to be necessary or essential for permit applications to be made, and for s32 permits to be granted. He drew my attention to s32(2), which provides:
"An application made for the grant of a fishing permit must provide AFMA with such information as it reasonably requires for a proper consideration of the application."
It is significant that this subsection refers not to an applicant, but to an application. It seems that Parliament intended that, once a fishing permit had been applied for, AFMA or its officers were to have the right not to seek supplementary information, and the right to determine the application on the basis of the information initially provided. This would promote efficiency and full disclosure of relevant information at the earliest possible stage. However, I do not think the presence of s32(2) supports the argument that the approval of a form of application was an essential prerequisite to the making of any application for a fishing permit. AFMA, or a delegate of AFMA, could make known the extent of the information required in support of an application without a standard form of application being required or approved.
8 Mr Abbott QC also drew my attention to s107, which makes it an offence for a person knowingly to "present a document, make a statement or give a return or information, that is false or misleading in a material particular, to AFMA or another person performing duties under this Act or the regulations." However, the presence of this section in no way strengthens the argument that the approval of a form of application was an essential prerequisite to the making of any application for a fishing permit. The intention underlying s107 was obviously to deter people from giving AFMA false or misleading information. That objective might be advanced by approving a form of application that requires a thorough disclosure of relevant information, but I do not think a false importance should be given to a provision that simply contemplates the using of standard application forms.
9 Mr Abbott QC also drew my attention to s84(1), which conferred a wide range of powers on "officers". The word "officer" is defined in s4(1) to include a person appointed as such under s83 for the purposes of the Act, a member or special member of the Australian Federal Police or a police force of a State or Territory, or a member of the Defence Force. Under s84(1)(n), an officer may require a master of a boat to produce any permit, or evidence of the grant of any permit, in respect of the boat. Under s84(1)(o), an officer may take copies of, or extracts from, any permit or other document that is produced pursuant to s84(1)(n). When a permit is in force in relation to a boat, s84(1)(p) permits an officer to require the master of the boat to give information concerning the boat, its crew, and any person on board; and s84(1)(r) permits an officer to require any person on board to state his or her name and address. The use by AFMA of a standard form of s32 permit would no doubt facilitate the exercise of the powers that I have referred to, since officers would be able to recognise such permits, and readily check their authenticity.
10 Mr Read referred me to a number of provisions in the Act concerning approved forms. In its original form, the Act contained a number of references to approved forms in relation to statutory instruments, and applications for them, similar to those in relation to fishing permits in s32(1) and (11), as follows:
Section 40(1) and (7) - foreign master fishing licences.
11 In addition, s26(1) provided for applications to AFMA "in the approved form" for registration as eligible persons for grants of fishing rights; and s46(3)(a) provided for applications "in the form approved by AFMA" for the registration of dealings in fishing rights to be lodged with AFMA.
12 There is a stark difference between the wording of ss32, 33, 34, 40, 46(3)(a), 53(5), 91 and 94, which seem to reflect an assumption by Parliament that forms will be approved by AFMA, and the wording of s17, which relates to the creation of plans of management for particular fisheries. Under s17(2), before determining a plan of management for a fishery, "AFMA must prepare a draft of the plan". In s17(7) it is provided that, if a plan of management makes provision for management of a fishery by means of a system of statutory fishing rights, it "must" provide for registration of persons who are to be eligible for the grant of fishing rights, and specify the conditions relevant to such registration, and contain a statement of any right of review available to such person. Parliament made it crystal clear that compliance with s17(7) was essential to the validity of a plan of management, since s17(9) provides "a plan of management has no effect to the extent that it is inconsistent with a provision of this Act." By contrast, the Act did not expressly require AFMA to approve any forms, nor was there any provision that anything would be ineffective if approved forms were not used.
13 In s53, which provided inter alia that the Register of Statutory Fishing Rights was prima facie evidence of any particulars registered in it, and made provision for the obtaining of extracts from the register, subs(5) provided that AFMA was to supply reproductions of particulars kept in the register by computer, signed copies of register entries, signed extracts from register entries, and so forth, "upon application made in the form approved by AFMA". So far as that subsection is concerned, I think the situation is somewhat analogous to that in Downey v Pryor. I do not think that Parliament could possibly have intended that the approval of an application form was an essential prerequisite to members of the public being able to obtain documents evidencing the contents of the register. This tends to suggest that Parliament did not intend the approval of application forms to be essential to the making of any application, or the exercise of any statutory power, under ss32, 33, 34, 40, 91 and 94.
14 I think it is significant that, had the Act not made provision for forms to be approved by AFMA , the prescribing of forms for the matters covered by the provisions I have referred to would have been within the scope of the general regulation-making power conferred on the Governor-General by s168(1). What Parliament did by enacting the provisions as to approved forms was to give AFMA direct control over the forms of applications, permits and so forth, and thereby increase its flexibility.
15 The Act gave AFMA two mechanisms for managing commercial fishing using Australian boats. The more complicated mechanism involved determining plans of management under s17, and granting statutory fishing rights in accordance with ss21 - 31. The less complicated involved the issue of fishing permits under s32. Any impediment to the issuing of fishing permits under s32 would seriously have hampered AFMA's ability to discharge its duties in relation to the management of Australian fisheries. The advantages that the use of standard forms of application and permit would have are of much less significance than the advantage to AFMA of having s32 available to it.
16 Having regard to all these matters, I do not think Parliament can have intended the requirements of s32(1) and (11) as to approved forms to have been essential to the operation of s32. I therefore reject the submission that the 1993 permits were invalid as a result of the applications for them not having been in a form approved by AFMA, and as a result of the permits themselves not having been in a form approved by AFMA.
17 Each of the relevant permits was signed by an AFMA officer named Lyn Melandri, and contained an operative part in the following form:
"Pursuant to Sub-section 32(1) of the Fisheries Management Act 1991 I, as an authorised officer of the Australian Fisheries Management Authority, hereby:
a grant a Fishing Permit to the holder described above authorising the use of the boat described in Schedule 3 for the activity described in Schedule 1 in the waters/fishery described in Schedule 2.
b state that the Fishing Permit shall have effect for the period specified in Schedule 1 and shall be subject to the condition specified in Schedule 4 and any variations to the conditions as notified in writing to the Fishing Permit holder."
18 It has been submitted on behalf of the accused that Ms Melandri was not validly appointed as a delegate of AFMA. The Crown contends that she was validly appointed as a delegate pursuant to the Fisheries Administration Act 1991 (Cth), s92(1), which provides as follows:
"92 (1) The Authority may, by writing under its common seal, delegate to:
(b) a committee established by the Authority under section 54; or
(d) a person engaged by the Authority under a contract;
19 The Crown tendered on the voir dire copies of extracts from a number of instruments of delegation bearing the common seal of AFMA and the signature of its chairperson. Two of them, dated 4 February 1992 and 17 December 1992, expressly purported to delegate to "L Melandri" the power to grant a fishing permit pursuant to the Act, s32(1).
20 The use of AFMA's common seal, and the status of documents bearing its imprint, are dealt with by the Fisheries Administration Act, s10, which provides as follows:
(a) is a body corporate with perpetual succession; and
(2) The common seal of the Authority must be kept in such custody as the Authority directs and must not be used except as authorised by the Authority.
(3) All courts, judges and persons acting judicially must take judicial notice of the imprint of the common seal of the Authority appearing on a document and must presume that it was duly affixed."
21 In my view, s10(3) goes no further than creating a rebuttable presumption. If Parliament had intended that the imprint of the common seal was to be treated as conclusive evidence that it was duly affixed, that would have been plainly stated. Mr Abbott QC tendered on the voir dire copies of the minutes of all the meetings of the AFMA Board that were held in 1992 with a view to rebutting the presumption that the common seal was duly affixed to the two instruments of delegation.
22 The Fisheries Management Act and the Fisheries Administration Act both commenced on 3 February 1992, one day before the date of the first instrument of delegation. The AFMA Board had apparently been appointed before the commencement of the new legislation. That was possible under the Acts Interpretation Act 1901 (Cth), s4(1). The members of the Board met on 23 and 24 January 1992. The minutes of that meeting record the following:
"The Board discussed the delegations sought for AFMA operations. It was agreed that with the exception of fisheries management delegations (which were acceptable) the Board agreed to the suggested delegations to facilitate the smooth transition from AFS [Australian Fisheries Service] to AFMA."
23 A copy of the papers that had been circulated to the Board members in relation to the relevant agenda item was tendered on the voir dire. It appears that the "suggested delegations" referred to in the minutes included a delegation of the power to grant a fishing permit under s32(1) to persons holding the offices of "Manager Fishing Operations, Registrar and ASO6 Fishing Operations". I infer that Ms Melandri was one of those officers. The members of the Board did not meet for a second time until after the date of the first instrument of delegation. There is nothing in the Board's minutes to suggest that, between the meeting I have mentioned and the signing of the instrument, the members of the Board held a meeting by telephone or some other means of communication pursuant to the Acts Interpretation Act, s33B, nor that five or more of them signed copies of a document setting out a resolution in accordance with the Fisheries Administration Act, s24. I therefore infer that the affixing of the common seal to the first instrument of delegation could not have been authorised otherwise than at the meeting of 23 and 24 January 1992.
24 Mr Abbott QC submitted that AFMA did not exist prior to the commencement of the Fisheries Administration Act on 3 February 1992, and that any resolution as to the delegation of its powers and functions prior to that date was invalid. He submitted that any such resolution was outside the scope of the Acts Interpretation Act, s4(1), which provides as follows:
"(1) Where an Act (in this section referred to as the Act concerned), being:
(a) an Act enacted on or after the date of commencement of this section that is not to come into operation immediately upon its enactment; or
(b) an Act enacted before the date of commencement of this section that did not come into operation on or before that date;
is expressed to confer power, or to amend another Act in such a manner that the other Act, as amended, will confer power, to make an appointment or to make an instrument of a legislative or administrative character (including rules, regulations or by-laws), then, unless the contrary intention appears, the power may be exercised, and anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment or instrument into effect, before the Act concerned comes into operation as if it had come into operation."
25 Mr Abbott QC relied upon the following passage in Pearce and Geddes Statutory Interpretation in Australia, 4 ed, at 153, par 6.6:
"An interesting question that arises but on which there seems to be no authority is whether a power can be exercised pursuant to the Interpretation Act provision by a body that will itself not come into existence before the Act comes into operation. It would seem that, in such a case, the Interpretation Act provisions could not apply as the body exercising the power must surely first have to be in existence itself."
26 I agree. I think s4(1) should be interpreted as enabling the making of appointments, legislative instruments, and administrative instruments, and the doing of incidental acts, only by persons or entities already in existence. If Parliament had intended to empower new statutory bodies to act before they existed, it would have said so. It is possible for different provisions in a statute to be proclaimed to commence on different dates. It is thus possible to create a new statutory authority, and to proclaim at an early date provisions bringing it into existence and covering such things as delegations, with a view to appropriate administrative arrangements being made prior to the commencement of the substantive provisions of a new legislative regime. The interpretation suggested by the learned authors therefore need not create administrative difficulties. It would be contrary to the ordinary meaning of the words of s4(1) for powers to be exercisable by a body not in existence.
27 It follows that the resolutions of the AFMA Board members in January 1992 as to delegations were invalid and of no effect; that as at 4 February 1992 none of AFMA's powers and functions had been delegated; and that AFMA's common seal was not duly affixed to the instrument of that date, AFMA not having authorised its use. The first instrument of delegation therefore is a nullity, and was always a nullity.
28 The AFMA Board considered some suggested delegations at a meeting held on 28 and 29 October 1992. Its minutes of that meeting record the following:
"The Board considered revised Fisheries Management and Human Resource Management delegations ...
The Board agreed to the revised fisheries management and human resource management delegations subject to the latter being reworked, eliminating unnecessary provisions and lifting the level of delegation as appropriate."
29 As there was no evidence to suggest otherwise, I infer that the delegations set out in the instrument dated 17 December 1992 must have been those approved by the Board at that meeting. There were only two other meetings of the Board between that meeting and the date of the instrument, and nothing appears in those meetings' minutes as to delegations. There is no suggestion in the minutes of the Board that any resolutions as to delegations were passed otherwise than at face-to-face meetings at any material time.
30 There is nothing in the minutes of the October 1992 meeting to suggest that the Board expressly authorised the affixing of AFMA's common seal to an instrument of delegation. The minutes of the Board meetings appear to me to be so thorough that I think any express authorisation of the use of the seal would have been minuted. I therefore infer that the Board did not expressly authorise the affixing of the common seal to the instrument of delegation. Plainly the Board was not alert to the desirability of such practices as the minuting of the precise terms of delegations, and the passing and recording of resolutions authorising the use of the common seal. However, I think it is clear from the passage in the minutes recording that the Board agreed to the revised fisheries management delegations that it was the will of the directors attending the meeting that all formalities necessary to effect the delegations that they agreed to were to be completed. Although it may be that none of the directors had any idea that s92(1) made the use of the common seal essential to any valid delegation of any of AFMA's powers or functions, I think the affixing of the common seal to one or more appropriate instruments of delegation was in accordance with the will of the directors who attended the October meeting.
31 In J W Broomhead (Vic) Pty Ltd v J W Broomhead Pty Ltd [1985] VicRp 88; [1985] VR 891 at 915, McGarvie J held that the use of the common seal of a company was sufficiently authorised if each of the directors had authorised its use, even if they had not passed a formal resolution or held a meeting. His Honour was considering a provision in the company's articles requiring the seal to be used only "by the authority of the directors or of a committee of the directors authorised by the directors in that behalf". Following Holmes v Keyes [1959] 1 Ch 199, he adopted a construction that would give the articles reasonable business efficacy. A similar conclusion was reached by Perry J in Magnacrete Ltd v Douglas-Hill (1988) 48 SASR 565 at 605. AFMA is a statutory corporation, rather than a company, but the Acts Interpretation Act, s15AA, requires preference to be given to a construction of the relevant section that would promote the purpose or object underlying the Act. In my view a construction of the Fisheries Administration Act, s10(2) that would facilitate AFMA's functioning and thereby give administrative efficacy rather than requiring pettifogging attention to formal details, is therefore to be preferred. I therefore take the view that, in agreeing to the fisheries management delegations proposed at its 1992 meeting, AFMA impliedly authorised the taking of whatever steps were necessary to bring such delegations into existence, and that it thereby impliedly authorised the use of its common seal.
32 But that is not the end of the matter. Mr Abbott QC submitted that the AFMA Board had never resolved how the common seal was to be used. There is nothing in the Fisheries Administration Act or the regulations made under it requiring or authorising any particular combination of AFMA directors, or anyone else, to sign a document to which the common seal is affixed. Mr Abbott QC submitted that the requirement of s10(2) that the common seal "must not be used except as authorised by the Authority" should be interpreted as conferring on AFMA the power to determine the manner in which documents were to be executed under its common seal, and as prohibiting the execution of any documents under that common seal until such time as a manner of execution was determined.
33 In my view, such an interpretation is unnecessarily restrictive. The words "must not be used except as authorised by the Authority" should be interpreted only as restricting the occasions on which the common seal must be used, and not as relating to the manner of executing documents. Parliament left AFMA with complete flexibility as to who should sign a document that is executed under the common seal. The presumption created by s10(3) as to the seal having been duly affixed operates regardless of whose signature or signatures, if any, appear, or purport to appear, on a document. An interpretation whereby AFMA would be required to determine a manner of executing documents under its common seal, and not to depart therefrom without a resolution of the Board, could create difficulties in the performance of AFMA's functions and duties. I therefore think the interpretation suggested by Mr Abbott QC is not one that would promote the purpose or object underlying the Fisheries Administration Act, and that an interpretation not involving the manner of affixing the seal is required by the Acts Interpretation Act, s15AA to be preferred.
34 I therefore hold that, by the instrument dated 17 December 1992, AFMA delegated to Lyn Melandri the power to grant a fishing permit pursuant to the Act, s32(1). As there is no evidence to suggest otherwise, I infer that she retained that power when she signed the relevant permits on 15 January 1993.
35 Every permit under s32 is subject to certain conditions listed in s32(5), none of which is presently relevant. Further, by virtue of s32(6)(a)(i), a fishing permit is subject to such other conditions as are specified in the permit. The author of the permits under consideration drafted several pages of conditions but did so extremely badly. The central conditions governing the quantities of fish that each relevant permit permitted to be taken were pars 4.2 and 4.3 in Schedule 4 to the permit. Those paragraphs read as follows:
"4.2 The Fishing Permit allows the taking, by use of the boat, of the amounts of fish referred to in paragraph 4.3 from the areas referred to in paragraph 4.4, by the methods known as otter trawl and danish seine, if a net complying with paragraph 4.5 is used.
4.3 For the purposes of paragraph 4.2, the amounts of fish which are allowed to be taken are:
(a) a number of units of each of the species of fish specified in Columns 1 and 2 of Table 1 of Attachment 1 that does not exceed the total number of units specified in Column 3 of Table 1 of Attachment 1 in relation to each of those species of fish; and
(b) a liveweight of each of the species of fish specified in Columns 1 and 2 of Table 1 of Attachment 1 that does not exceed the total weight specified in Column 5 of Table 1 of Attachment 1 in relation to each of those species of fish; and
36 Clearly, by virtue of par 4.3(c), the permit holder was authorised to catch, in the areas referred to in par 4.4, an unrestricted amount of every species of fish, save for those species that were referred to in Table 1 of Attachment 1. In each of the relevant permits, as originally granted, the only species mentioned in Table 1 to Attachment 1 was described as "ORANGE ROUGHY - SOUTHERN SECTOR HOPLOSTETHUS ATLANTICUS". Table 1 had a series of numbered notes at the bottom. Note 1 read as follows:
"The species of Orange Roughy (Hoplostethus atlanticus) and Gemfish (Rexea solandri) are described by reference to sectors. These descriptions refer to fish of those species taken from those sectors; see paragraph 4.4 of Schedule 4 for further details. Full descriptions of the sectors are set out in Schedule 2."
37 The "sectors" were defined areas of water, though the description of one sector was defective. Reading each document as a whole, the only sensible interpretation is that the permit holder was permitted to take no more than the specified quantity of orange roughy, and not to take any orange roughy except from the "southern sector" as described in Schedule 2. Mr Abbott QC submitted that there was no such species as "orange roughy southern sector", and that various consequences flowed from the non-existence of such a species. I reject the submissions based on that proposition since, despite its extraordinarily clumsy wording, the permit does make clear its intention that it authorised the taking of orange roughy only from the southern sector, which was defined with great precision in par 2.4 of Schedule 2.
38 Mr Abbott QC drew attention to the wording of par 4.3(a) and (b) which, taken at face value, purported to authorise the taking of both a number of units, as referred to in par 4.3(a) and Column 3 of Table 3 to Attachment 1, and a "liveweight" as referred to in par 4.3(b) and specified in Column 5 of Table 1 of Attachment 1. It is apparent that the number of units specified in Column 3 was the equivalent of the liveweight specified in Column 5. Read literally, par 4.3 permitted the taking of double the quantity of orange roughy specified in either column. Evidence as to the quota unit system that AFMA sought to operate has been given before me by an AFMA officer, Mr Ryan, on a Basha enquiry. See Basha v R (1989) 39 A Crim R 337 at 339. Counsel have agreed that I should have regard to Mr Ryan's evidence, as if it had been given on the voir dire, for the purpose of determining the validity of the 1993 permits. It is apparent from Mr Ryan's evidence that during 1992, in the course of administering a management plan that happened to be invalid, AFMA officers allocated a number of quota units to various operators in relation to orange roughy. For their purposes, a unit was equal to a kilogram of live fish in 1992. For 1993, AFMA officers decided to allocate quota units to operators again, and decided to employ a system of "conversion factors" so that, for example, a unit of orange roughy in the southern sector was equal to 1.38 kilograms. I infer that the references to units and conversion factors in the 1993 permits were to the system of units and conversion factors described by Mr Ryan. I think it must follow that the intention of the author of the permits was not that each permit holder was authorised to catch the number of kilograms of fish specified in Column 5 of Table 1 of Attachment 1 in addition to the number of units specified in Column 3 of that table, but that, contrary to what the wording of par 4.3 would suggest, Columns 3 and 5 were only ever intended to be different ways of describing the same maximum quantity. I think this is a case where the permit was so badly worded that it is appropriate to have regard to extrinsic evidence to determine its true meaning.
39 Mr Abbott QC submitted that par 4.3 was ultra vires. His argument was based on s32(7), which reads as follows:
"(7) Without limiting the operation of paragraph (6)(a), the conditions that may be specified in a permit include conditions relating to:
(d) the methods or equipment that may be used to take fish; or
(e) the methods or equipment that may be used to process or carry fish."
40 He submitted that s32(7)(b) permitted only a condition specifying a quantity, and that units were not a measure of quantity but a "measure of levy". It appears that a number of regulations have been made pursuant to the Fishing Levy Act 1991 prescribing levies that are required to be calculated by reference to the number of units specified in fishing concessions granted pursuant to the Fisheries Management Act. I think it is a complete answer to this argument that the unchallenged evidence of Mr Ryan establishes that, for each calendar year, a unit of each species was equal to a fixed weight of that species. A unit of each species was thus a measure of a quantity of fish. A condition limiting the quantity of fish that might be taken to a specified number of units thus fell within s32(7)(b). Further, the opening words of s32(7) make it clear that conditions relating to matters not specified in that subsection could still be imposed pursuant to s32(6)(a)(i). The latter provision conferred an unfettered power to impose conditions. There is no reason to think that a condition allowing only a specified number of units of fish to be taken each year was outside its scope.
41 Mr Abbott QC submitted that s32(1) only empowered AFMA to issue a permit with respect to one area or one fishery and that the permits in question were ultra vires as they referred to numerous areas or numerous fisheries. It is true that s32(1) provided for the grant of a permit for fishing "in a specified area of the AFZ or a specified fishery". The words "area" and "fishery" are in the singular. Of course the Acts Interpretation Act, s23(b), provides that, unless the contrary intention appears, "words in the singular number include the plural". Mr Abbott QC submitted that the wording of the Act indicated such a contrary intention. He submitted that ss17 and 21, which relate to plans of management, spoke of fisheries in the singular, and that it was plainly Parliament's intention that each plan of management would deal with only one fishery. He argued that it followed "by a parity of reasoning" that s32 was not intended to authorise a permit for more than one area of waters, nor for more than one fishery. I do not think that follows at all. There is no logical reason why a permit granted in respect of a single boat should not authorise fishing in two or more distinct fisheries, however such fisheries were defined or identified. But I think there is a second answer to the argument that s32(1) does not authorise a permit in respect of more than one area of the Australian fishing zone. Each of the relevant permits can legitimately be regarded as a permit that authorises fishing within a single area, and imposes different conditions in respect of different parts of that single area. The single area is that described in par 2.2 of each permit under the heading "Area of South East Fishery". It covers the waters of the Australian fishing zone adjacent to the coast of South Australia and east of longitude 138° 08' E, adjacent to the coastlines of Victoria and Tasmania, and adjacent to the coastline of New South Wales south of 33° 35' S.
42 Mr Abbott QC attacked the validity of the permits on the basis that the conditions relating to nets were bad. The relevant conditions are not simple, but there is nothing about them that would invalidate the permits in any way. Unfortunately I need to give a somewhat tedious explanation as to why this is so. The starting point is par 4.1, which restricts the methods of fishing pursuant to the permit. It allows fishing "by the methods known as otter trawl and danish seine, if a net complying with paragraph 4.5 is used." Similarly, par 4.2 restricts fishing pursuant to the permit, using exactly the same words. One would expect to find specifications as to a net in par 4.5, but one does not. Instead, it reads as follows:
"For the purposes of paragraphs 4.1 and 4.2, a net complies with this paragraph if the net is of a type and has a mesh size which complies with the provisions of Attachment 2."
Unfortunately Attachment 2 runs for several pages. It does not give one set of specifications for a net type and a mesh size, but several. It specifies the situation in which each requirement, or group of requirements, applies. First, there is paragraph 4.2.1(a). It applies if the fishing is not for prawns, and if the fishing is not for any of the species listed in a table at the end of Attachment 2, and if the fishing is in an area of waters described in par 4.2.5, and if a danish seine net is used. Secondly, there is par 4.2.1(b). It applies if the fishing is not for prawns, and if the fishing is not for any of the species listed in the table at the end of Attachment 2, and if the fishing is in the waters described in par 4.2.5, and if an otter trawl net is used. Thirdly, there is par 4.2.2. It applies if an otter trawl net is used, and if the fishing is for one or more of the species listed in the table to Attachment 2, and if the fishing is in the area of waters described in par 4.2.5. Fourthly, there is par 4.2.3. It applies if an otter trawl net is used, and if the fishing is not for prawns, and if the fishing is not in the waters described in par 4.2.5. Fifthly, there is par 4.2.3A. It applies if a danish seine net is used, and if par 4.2.1(a) does not apply. These provisions cover every possible situation involving the use of otter trawl nets and danish seine nets other than fishing for prawns. I think it must follow that it was not intended that there be any restriction on mesh size if the relevant boat was being used to fish for prawns.
43 Paragraph 4.2.5 makes the matter a little more complicated. It describes an area of waters which appears to be partly inside and partly outside the area within which the permit authorises fishing. I think it must follow that the conditions as to net types and mesh sizes contained in pars 4.2.1(a), 4.2.1(b) and 4.2.2 apply in relation to fishing within such of the waters described in par 4.2.5 as are in the area described in par 2.2 ("Area of South East Fishery"), and that nothing in the permit authorises fishing in the balance of the waters described in par 4.2.5. There is simply nothing meaningless or unreasonable about the permit conditions concerning net types and mesh sizes. I therefore reject Mr Abbott QC's submissions in relation to those matters.
44 Paragraph 4.6 of each relevant permit purported to require the holder thereof to ensure that certain catch records were kept and lodged in accordance with instructions contained within them. I have held that that paragraph was void on the basis of unreasonableness: R v Turner & Ors (No 6) [2001] TASSC 89 at par 28. Mr Abbott QC submitted that par 4.6 was not severable from the rest of the permit, and that it followed that the whole permit was invalid. I reject that submission. The principal purpose that would be served by requiring figures as to catches to be compiled and submitted to AFMA or some other authority is the monitoring of quota restrictions on fish catches. AFMA might possibly also have been interested in statistical information for the purpose of fisheries management. Such requirements might facilitate the administration of a quota system, and might facilitate the management of fisheries, but they are by no means essential or central to either activity. The permit is a document that authorises the catching of fish. The absence of par 4.6 would make no difference to what it authorises, nor to the quantities permitted to be taken, the methods permitted to be used, or anything of that nature. I therefore hold that par 4.6 is severable from the rest of the document, and that its invalidity does not have any impact on the rest of the document.
45 I referred earlier to a defective description of a particular sector forming part of the waters to which the permit relates. Paragraph 2.3 attempts to describe the "Orange roughy - Eastern sector" by reference to a series of boundaries. It does not succeed, because the boundaries do not join up. They begin at a point in the middle of Bass Strait, and end at an unspecified point on the Tasmanian shore. When they were granted on 15 January 1993, none of the three permits authorised the taking of any orange roughy in the eastern sector. Had any of them done so, the condition authorising the taking of orange roughy in such a sector would have been meaningless, and it would have been necessary to decide whether the permit was void as a result. As none of them purported to authorise the taking of orange roughy in such a sector, the failure of par 2.3 to describe an area of waters is of no effect.
46 The permits were not attacked on any basis other than those that I have referred to. For the reasons stated above, I determine that they were all valid when issued.
47 But it is not as simple as that. It appears that additional pages were added to the permits after they were issued, varying the specifications in Table 1 to Attachment 1 as to the species and quantities allowed to be taken. For example, the permit in respect of the Roza-S initially allowed only the taking of 69,000 Kg of orange roughy in the southern sector, but as at 26 July 1993 it allowed the taking of 42,121 Kg in the eastern sector, 504,538 Kg in the southern sector, and 62,220 Kg in the western sector. Under the Act, s32(8), AFMA has the power to vary a condition of a permit. I do not have any evidence that would enable me to determine whether any of these permits was validly varied. The question that I have decided to determine pursuant to the Criminal Code, s361A, does not involve any question as to the validity of variations to permits. I will therefore not comment further as to the purported variations.
R
Turner & Ors
(1960) 103 CLR 353
(1988) 48 SASR 565
(1924) 34 CLR 8
The Court determined that the three permits were valid when issued, but made no determination about the validity of purported later variations.