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[1996] SASC 5703
Supreme Court of SA
1996-09-25
Olsson J
Original judgment source is linked above.
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON(1), PERRY(2) AND DUGGAN(3) JJ: CASE STATED
CWDS Statutes - acts of parliament - interpretation - Case stated to Full Court - action in which damages are claimed for alleged misfeasance, negligence and negligent misrepresentation - whether "owner-operator" policy adopted by Department was a valid administrative policy within the meaning of Fisheries Act 1971 (FA) or pursuant to a prerogative power - various internal documents existed outlining this intention - on 3 March 1975 the Minister rescinded all policies approved pursuant to s.34(2)(6)FA 1971 - no evidence that the policy ever approved or promulgated after that date - Director arrogated to himself the prerogative of establishing a practice in the absence of any statutory warrant - where legislation exists dealing with same subject matter as a prerogative, the legislation excludes the prerogative - no "owner-operator" policy existed in relation to abalone permits - no general regulation power to permit abrogation of statutory rights - Preservation of Abalone Resource Regulations (PARR) 1968 and 1971 invalid - no valid administrative policy in existence. Whether policy controlling number of fishing units was a valid policy pursuant to s.34(2)FA or a prerogative power - no valid policy ever promulgated under statute and there was no scope for a relevant prerogative power to operate. Whether it was valid to direct the plaintiffs not to employ a person to take abalone for sale - none of the regulations modified the effect of s.32 FA 1971 - therefore such a direction was invalid. Whether licences, registrations, authorities or permits were transferable
Whether could delegate the power to grant or refuse an authority or permit under Reg 11 or the power to transfer a proprietary interest pursuant to Reg 17 to a committee
Counsel for plaintiffs : Mr S Tilmouth QC with Mr J Danvers
Counsel for defendants : Mr B Selway QC with Mr M Penhale
Solicitors for defendants : Crown Solicitor (SA)
JUDGE1 OLSSON J
The factual and legal issues arising on the pleadings are many and varied. The present case stated seeks to isolate out and have determined a series of what are said to be core fundamental legal issues, going to the heart of the contentions between the parties. They focus on the provisions, from time to time, of successive Fisheries Acts passed by the South Australian legislature and of regulations enacted and policies implemented pursuant or in relation to them.
It is, of course, trite to say that this Court must respond to the questions posed to it on the basis of the facts, or alleged facts, set out in the case stated, (The Queen v Rigby [1956] HCA 38; (1956) 100 CLR 146 at 151), given that it is open to it to draw proper inferences of fact from documentary material adverted to in the case stated and placed before the court (SCR 72.06).
In essence the matters in contention arise in relation to regulatory regimes sought, by the defendants, to be enforced by the defendants against the plaintiffs, at relevant times, in respect of proposed activities of the latter concerning the taking of abalone and prawns in South Australian waters. Broadly speaking the plaintiffs assert that actions of various defendants were unlawful or wrongful and/or they or some of them negligently misrepresented the true legal position to the plaintiffs. The plaintiffs also seek to impugn the validity of certain regulations or the construction sought to be placed on them by the defendants.
Before addressing the detailed issues arising on the case stated, it is necessary to summarise some aspects of the relevant background.
At all relevant times between 1968 and 1980 the personal plaintiff ("Edwards") carried on business as a professional fisherman. He was also a director and the sole beneficial shareholder of the corporate plaintiff ("Deep Sea Ark"), which was incorporated in or about August 1979.
Initially, Edwards conducted his business pursuant to fishing and employment licences, permits and certificates issued to him for fee pursuant to the Fisheries Act, 1917 ("FA 1917") and the Preservation of Abalone Resources Regulations made pursuant to it in 1968 ("PARR 1968").
His activities were also, at relevant times, governed by the regulations made under the FA 1917 on 6 December 1962 ("FAR 1962"), the Fisheries (Statistics) Regulations, 1969 ("FSR 1969"), the Fisheries Act, 1971 ("FA 1971"), the Managed Fisheries Regulations, 1971, as amended from time to time, ("MFR 1971") and the Fisheries (General) Regulations, 1971 ("FGR 1971").
These legislative provisions and the administrative policies involved in relation to them fall to be viewed against a developing scenario revealed by the documentation placed before the Court.
It is fair to say that the scheme of the FA 1917 was, generally speaking, twofold. On the one hand it authorised the placing of restrictions on the types and sizes of fish to be taken commercially and the permissible locations and periods of commercial fishing. On the other it erected a licensing system (applicable to personal and corporate commercial operators), which restricted fishing to natural born or naturalised British subjects (or other persons approved by the Minister) and non 'foreign' corporations. It also required registration of fishing vessels. The statute further authorised the issue of so-called "employee's licences". Licences issued were required to be renewed annually and the Minister was authorised to grant exclusive licences to licencees, in relation to specific fishing locations. Except in relation to oyster beds, the statute was silent as to revocation of licences.
A perusal of the FA 1917 and the FAR 1962 reveals that, generally speaking, there was no apparent power to restrict the number of licences issued. The essential thrust was merely to provide a means of identification of commercial fishermen and to control their activities as to times, locations and fish taken.
Section 14 of the FA 1917 expressly stipulated that, in the case of personal licensees, the licence issued was to "be sufficient for the person named therein ..., and also for his wife or for one member of his family under the age of twenty-one years whilst his wife or such member is working with the same plant as such licensee". Section 14a provided that every employee's licence "shall be deemed a sufficient licence to take fish and oysters for any one person employed as aforesaid by the person to whom the licence is issued".
The statute enacted (in section 59) that the Governor was empowered to make regulations "which may be necessary or convenient for carrying out any of the provisions of ... [the Act] ..., or for better effecting the objects of ... [the Act]". It specifically referred to a series of particular authorised topics "(without limiting the effect of this section)". Those topics, relevantly, included - "(c) providing for the more effectual protection and improvement of fish or oysters, and the management of any waters in which fishing or oyster fishing may be carried on, including the complete or partial closing of any waters against fishing or oyster fishing, and limiting the use which may be made of any waters."
Unlike section 36 of the FA 1971, to which I shall come in due course, the FA 1917 did not expressly stipulate that the general nature of or privileges attaching to a licence could be limited by the provisions of any regulation made, inter alia, pursuant to the power above cited.
During the 1960's concern arose in relation to the taking of abalone, particularly as a consequence of initial experience in New South Wales and Victoria, where, it was said, irresponsible and uncontrolled takings had endangered abalone stocks. In South Australia the number of resident divers had dramatically escalated from 20 in late 1967 to 150 by late February 1965. The enactment of PARR 1968, on 22 February 1968, was a direct response to that development. Those regulations imposed strict limitations on sizes and quantities of abalone taken.
They also purported to prescribe the taking of abalone from all South Australian coastal waters unless the taking was effected pursuant to an abalone permit granted under the regulations and in accordance with the conditions attached to it. Moreover, they prohibited the taking of abalone, on a commercial basis, by means of operations from other than a boat registered and marked as a fishing boat in accordance with section 16 of the FA 1917.
Regulations 5 and 6 of the regulations were expressed as under - "5. An abalone permit shall, subject to the Act, entitle the holder, or one person authorized from time to time by him (but not both at any one time) by diving, to take abalone, in abalone waters, but only so long as all conditions subject to which the permit has effect are complied with.
It will therefore be seen that these provisions purported to be imposed were limitations on what were the general privileges attaching to a statutory licence to take fish.
The PARR 1968 also purported to authorise a restriction upon the number of permits used. Inter alia, Regulation 7 stipulated that - "(d) The Chief Inspector of Fisheries may grant or refuse the permit applied for (which, if granted, shall be in the form of schedule two) and for the purpose of reaching a decision upon the application shall, in addition to any other matters indicated by the scope and purpose of the Act and these regulations as being relevant, take into account the following matters namely, whether, in his opinion - (i) the applicant is a fit and proper person to hold a permit; and (ii) the abalone resources of the abalone waters are such that, in all the circumstances, they will not be adversely affected by the taking of abalone in pursuance of the permit."
By virtue of the licensing and associated permit system so created, the number of diving permits was progressively reduced to 42 by 1978. Individual permits were regarded as personal and not transferable.
Regulation 5 was, in practice, interpreted to mean that a substitute diver could only lawfully operate if the permit holder was physically in the boat at the time - it being said that the intention was merely to cater for some temporary inability of the permit holder to dive - eg due to some transient, minor physical indisposition.
At the time the Chief Inspector sought to derive support from section 53 of the FA 1917, which, inter alia, stated - "Every person shall be guilty of an offence against this Act who- ... (r) Lets out, lends, or hires any licence, or uses or has in his control or possession any licence not issued to him, or represents himself to be the person mentioned in any such licence."
It is conceded by the Solicitor-General that this was an ill- founded assertion, although he contended that the relevant sanction was to be found in the general section creating it an offence to breach the regulations.
Notwithstanding the expression of Regulation 5, above cited, the defendant Olsen, by circular dated 2 January 1969, having referred to abuses of the system of relief divers, purported to state "In future, when any diver cannot dive himself, no one else may dive on his permit".
The documentation before the Court indicates that a similar policy of denying any right of Edwards to exercise fishing rights pursuant to any licence to take fish through an employee, in lieu of himself personally, was consistently applied by Olsen during the continuance in operation of the FA 1917.
On 15 July 1971 a new set of regulations, which remained in place for approximately six months, was substituted for the PARR 1968. These continued the concept of the earlier regulations, but also contained some significant variations. The most notable of these were to the effect that - - the Chief Inspector was granted a virtual absolute right to grant or refuse any application for a permit and was entitled, in any event to have regard to whether an applicant was a fit and proper person, whether the grant of a permit would adversely affect abalone stocks in the relevant zone or zones and whether the applicant was adequately equipped to handle abalone taken.
The FA 1971, having been duly enacted, came into operation on 1 December 1971.
The broad scheme of that enactment was as follows:- - a commercial fisherman was required to hold either a Class A or a Class B licence. The former was applicable as a person carrying on fishing for profit as his principal business. The latter related to persons who carried on the business of fishing on a seasonal or part-time basis.
corporate bodies, subject to some restrictions.the holder of a fishing licence was only entitled to employ other persons to take fish as authorised by that licence.
Act applicable to his application, shall be entitled to be granted such a licence unless there are grounds for refusing
it in accordance with this Act. (2) The Director may refuse an application for a licence - (a) if the applicant does not comply with any relevant requirement of this Act or is not a fit and proper person to exercise the rights which would be granted by the licence; or (b) if the refusal is necessary for the purpose of giving effect to any administrative policy approved by the Minister for the conservation of any species of fish or the proper management of any fishery. ..."
The section contained a mechanism for review of the Director's decision. - the statute contained comprehensive provisions which permitted wide ranging controls to be exercised over the sizes and types of fish permitted to be taken and the locations and times at which fishing activities were to be lawful. Controls were also authorised in relation to methods of fishing. By definition 'fish' included marine life such as abalone.
purpose of regulating, managing and restricting the taking of any species of fish prescribed. Section 36 expressly stipulated that such regulations may, inter alia, require any person to hold a permit in addition to a fishing licence.
The provisions contained in the FA 1971 were supplemented by a variety of regulations made pursuant to that statute. These included the FGR 1971 and the MFR 1971. The MFR 1971 came into force on 30 November 1971. They provided a comprehensive code, from that time, related to management of fishing for abalone, prawns and crayfish. They conferred on the Director wide ranging powers as to the issue and cancellation of licences and permits, the control of fishing devices and mechanisms and the zones for which licences and permits were valid, as well as a variety of other matters.
Over time a significant number of administrative policy decisions related to the mode of implementation of the various regulations and the relevant statutory provisions were evolved, promulgated and applied. It will be necessary to dilate upon these and how they were formulated in relation to specific issues raised in the case stated. Various amendments were made to the MFR 1971 on 9 November 1972 and 22 August 1980.
On the former occasion a new Regulation 21A was inserted. This provided that no person could be the holder of more than one of four listed authorities or permits, namely abalone permits, inland waters permits, prawn authorities or rock lobster authorities.
Many of the latter amendments are not directly relevant to the issues arising on the case stated and I will only advert to them, as necessary, in the context in which they arise.
It is to be noted that, as of 27 June 1977, section 34 of the FA 1971, was amended in a manner which omitted any reference to an "administrative policy approved by the Minister".
Against that background I now turn to matters raised for the consideration of the Full Court.
The first question in the case stated is expressed in these terms:- "9.1 Was the 'owner operator' policy pleaded in the defence a valid administrative policy approved by the Minister for the conservation of any species of fish or for the proper management of any fishery within the meaning of s.34(2) of the Fisheries Act 1971 or otherwise a lawful policy pursuant to prerogative powers retained by the Crown with respect to Fisheries?"
There is no doubt that, over a lengthy period of time the Director, with the concurrence of the Minister of the day, sought to maintain and enforce what was known as an "owner/operator" policy. However, a difficulty which arises is that such policy was never formally documented and generally promulgated. At best, the concept sought to be applied is to be extracted from a variety of references in the documents placed before the court.
An appropriate commencement point is a minute dated 28 February 1980 written by the Assistant Director to the Minister. Inter alia the comment was made -
"There has always been an 'owner/operator' policy in South Australian Fisheries but I have not been able to find a specific definition of it. It has generally been interpreted as requiring the owner of the vessel to be on board at all times when the vessel is fishing. In the Prawn fishery sufficient profit was generated for that owner to be able to stay ashore drawing a good income while being able to pay a skipper to run the vessel. Under earlier policies this required approval from the Department and some grounds for that exemption. Over a number of years the Prawn fishermen stretched each precedent to the point where many vessel owners did not work on their vessels. This is not possible in most other fisheries simply because there is insufficient profitability."
By memorandum dated 15 March 1972 the Minister issued a formal written policy for the purposes of Section 34(2)(b) of the FA 1971, the express aim of which was to achieve the maximum sustainable yield from each of the several fisheries resources of the State, having regard to the need for their proper management and conservation.
This adverted to various criteria for the issue of licences, but contained no reference to any 'owner/operator' policy.
In a minute to the Minister dated 2 August 1973 the Director recommended, in relation to the prawning industry - "The use of the same discretionary power to insist that owners of vessels holding managed fisheries authorities serve on board the vessel as skipper, or crewman where he does not have sufficient service to obtain the required certificate of competency to skipper the vessel" However, that minute was merely referred to Cabinet by the Minister and not approved at the time.
Other documents contained scattered references to an owner/operator policy in various contexts.
"Administrative Policy for the Conservation
of Certain Species of Fish and the Proper Management of Certain Fisheries for the Approval of the Minister pursuant to the Provisions of Section 34(2)(b) of the Fisheries Act, 1971
All prior policies approved by me pursuant to the provisions
of Section 34(2)(b) of the Fisheries Act, 1971 whether oral or written are hereby rescinded.
Whereas it is necessary for the conservation of the species of fish specified in the Schedule hereto and the proper management of their related Fisheries, to limit the number of fishermen licensed to take fish for sale the following considerations are to be taken into account by the Director in the exercise of his discretion to grant such fishing licences; (a) the experience of the applicant in the fishing industry, (b) the resource of the applicant, (c) the equipment proposed to be used by the applicant in
the conduct of his fishing operations, (d) the fish resources of the Fishery, (e) the numbers of fishermen operating in the Fishery, (f) the needs of recreational fishermen with respect to the Fishery, (g) the economic returns to existing Class 'A' and Class 'B' fishermen operating in the Fishery."
That was unequivocal in its terms. It rescinded all prior policies and made no mention of any future owner/operator policy.
There are some passing references in subsequent Departmental documents concerning its application of some forms of owner/operator policy, but it is fair to say that there is no suasive evidence that any developed policy of that type was approved by the Minister, pursuant to section 34(2)(b) of the FA 1971, subsequently to 3 March 1975.
It is to be noted that, in the defence, the alleged policy is said to have been formulated thus - "Control of the number of units of fishing effort and their capacity to exploit the resource was necessary for the economic management of the fishery. In regard to abalone fishing, the diver was the unit of fishing effort."
The plaintiffs argue that there is simply no satisfactory evidence that such a policy was ever approved and promulgated by the Minister, either before or after 3 March 1975; and that, at best, the Director merely arrogated unto himself the prerogative of developing and applying a practice based upon an owner/operator concept, absent any statutory warrant for so doing.
The Solicitor-General did not dispute the validity of the first proposition, but he did dispute the contention that the Director had no legal basis for the stance which he adopted. He emphasised that, in any event, section 34 related only to fishing licences and licences to employ; and did not touch on abalone permits.
It is to be observed that the defendants, in their submissions, eschew any reliance upon Crown prerogative powers to sustain the policy applied by the Director. Whatever Crown prerogative may have existed in respect of certain types of fish (as to which, see Parker v Lord Advocate (1904) AC 364. Compare Harper v Minister for Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314), it is clear that, where there is legislation in place dealing with the same subject matter, this will exclude the prerogative (Barton v The Commonwealth [1974] HCA 20; (1974) 131 CLR 477). That, undoubtedly, is the situation in the instant case.
There is no question that, over a long period of time, the Department responsible for fisheries applied an owner/operator policy in respect of Class B licences generally and also in respect of prawn and rock lobster fishing. The authorised person was required to be on board at all times during fishing. So far as abalone fishing was concerned only the authorised person was permitted to dive, except when specific approval was given for a relief diver - although, even then, the authorised person had to be on board. So much is clearly portrayed on the Departmental summary sheets dated 19 April 1977, reproduced at pp112-117 of Appeal Book 2. This was said to have been done deliberately, to contain the fishing effort and thereby avoid undue depletion of fish stocks.
Although not actually raised in paragraph 9.1 of the case stated the real issue is, therefore, whether, under the legislation as it stood from time to time, the Director was entitled to adopt such a stance, absent a specific policy to that effect - formally approved by the Minister pursuant to s34(2)(b) of the FA 1971.
It follows that, in the terms in which it is posed, the question posed in paragraph 9.1 of the case stated must be answered in the negative. That question does not bear on any possible source of authority for the policy related to abalone permits.
As I understand the submissions of the Solicitor-General, the Chief Inspector and (later) the Director for the time being was entitled to maintain and enforce the owner/operator policy in respect of abalone permits by virtue of validly enacted regulations, as they existed from time to time. These need, necessarily, to be viewed in relation to the sequential time frames to which they related.
During the period from 22 February 1968 to 15 July 1971 the policy was sought to be justified by Regulation 5 of the PARR 1968, read in light of sections 13 and 14a of the FA 1968.
All that need be said about that is that, even if Regulation 5 was within power, it simply did not, in terms, demand the presence of the permit holder on the boat at all times. It merely stipulated that both the permit holder and the person authorised by him could not dive simultaneously. To the extent that the Department sought to take any policy beyond that point it manifestly had no power to do so.
Given that situation the question arises as to whether, in any event, Regulation 5 was within power.
I have already made the point that, unlike the FA 1971, the FA 1917 did not confer on the Governor any express power, by regulation, to restrict privileges otherwise conferred by the Act on licence holders by implementation of a permit system, inconsistent with them.
True it is that express power was given to the Governor to make regulations for carrying out and giving effect to the objects of the statute and that these could specifically extend to the management of fishing waters, including the complete or partial closing of waters, limiting the use of waters, fixing fishing periods and like management matters. Elsewhere in the statute reference is also made to prescribing minimum sizes of fish to be taken and other specific matters.
All of these provisions were plainly intended to be read as a cohesive, comprehensive code. General provisions were clearly modified to the extent that express regulation making power was reserved in that regard. However, the very specific regulation making and prescriptive powers reserved spelt out quite clearly the boundaries within which these powers could be exercised.
It is trite to say that, if a regulation is to be valid it must fall within the regulation making power conferred by the specific statute and it must be reasonably proportionate to the end to be achieved, as envisaged by that power (The State of South Australia v Tanner [1989] HCA 3; (1988-1989) 166 CLR 161. See also other authorities adverted to in Lawrie v Minister for Primary Industries, The State of South Australia, John Jeffersen and Terry Janus Moran (1995) 180 LSJS 327).
On a fair reading of the statute it seems to me that there was no warrant for concluding that the general regulation making power was intended to permit a significant whittling down (let alone a virtual abrogation) of statutory rights expressly conferred elsewhere in the enactment, save to the extent that the statute itself, in express terms envisaged that that would be the case. Parliament rendered it abundantly clear, in section 59 and other relevant sections, that this could be done in certain, clearly articulated, respects. To suggest that, quite apart from those aspects, the general fishing rights stemming from a commercial fishing licence could seriously be emasculated by the imposition of an additional permit (or secondary licensing system) is not logical and leads to a lack of cohesiveness in the statutory scheme itself. A more general right to anchor regulations necessary and convenient for the proper management of fisheries cannot, in my opinion, reasonably be construed as denying that which is expressly authorised by other specific licensing provisions in the statute.
In this regard, it is not without significance that the FA 1917 was successively amended in 1967 and 1969 to erect a separate permit system related to crayfish - amendments which would not have been required had the existing regulation making power been as wide as is now contended for by the Solicitor-General.
In my view it is beyond question that the erection of the abalone permit system by means of the PARR 1968 was beyond power.
It follows, then, that the PARR 1971, enacted on 15 July 1971, in replacement of the PARR 1968 were also invalid, for the same reason.
65. The MFR 1971, which came into effect on 30 November 1971, of course, stood on a quite different footing. It is beyond doubt that, in express terms, section 36(2)(a), authorised the erection of a relevant permit system by regulation, notwithstanding the otherwise general scope of a Class A fishing licence.
(d) the applicant has adequate equipment to ensure that all catches of fish are capable of being kept in a thoroughly
wholesome condition until such time as the catch is landed; (e) in the case of an application for a permit to take fish in inland waters whether there is any other permit already in force in respect of that area in respect of which the application is made."
(f) any other relevant matter, fact or thing which, when considered jointly with one or more of the matters hereinbefore referred to, will enable the Director to justly and equitably assign the holder of an authority or permit to any particular zone or zones, provided however, that the need to preserve and improve the fish resources of the State, shall, at all times, be regarded as the paramount consideration."
71. The MFR 1971 elsewhere contained separate, specific provisions bearing on abalone fishing, which, in essence, focused upon a requirement of the medical fitness of the permit holder and certain aspects of diving operations. However, Regulation 35 provided that - "35.(1) Where the Director is satisfied, by production of a medical certificate, that a permit holder is ill or incapacitated, he may authorize a person nominated by the permit holder to take abalone during the period of the permit holder's illness or incapacity.
(2) Any person so authorized shall, for the period of such authorization, be deemed to be the holder of the permit held by the permit holder who is ill or incapacitated."
It was not until 28 August 1980 that Regulation 5 was extended, in its operation, to abalone fishing.
I have dwelt upon this later scheme in some detail because, given the obvious tension which arises between Regulation 35 and section 52 of the FA 1971 (dealing with the issue of licences to employees), there is nowhere to be seen any requirement that the permit holder must be in the boat at all times - nor was there any warrant for the Director seeking to impose such a policy. Not even Regulation 35 purports to impose or sanction that stance.
It is therefore apparent that the policy propounded by the Department was, at all relevant times, beyond power on any view. It is not necessary to attempt to resolve the apparent tension between Regulation 35 and section 32 in relation to Question 9.1. In all of the circumstances the appropriate response to Question 9.1 is: "Insofar as such a policy may have been implemented it was not a valid administrative policy approved by the Minister, or otherwise a lawful policy".
The next question raised by the case stated is - "9.2 Was the policy that control of the number of units of fishing effort pleaded in the defence a policy within the meaning of section 34(2) of the Fisheries Act 1971, or otherwise a lawful policy pursuant to prerogative powers retained by the Crown with respect to Fisheries?"
This, also, must be answered in the negative, because, as appears from the recital of facts pertinent to paragraph 9.1, the asserted policy was never promulgated by the Minister, for the purposes of the relevant section; and there was no scope, in the circumstances, for any prerogative power to operate. Moreover, my reasoning applicable to the period prior to the making of the MFR 1971, is no less relevant to this question.
However, this question does, indirectly, make it desirable to reflect further upon the interaction of Regulation 35 of MFR 1971 and section 32 of the FA 1971.
All that need be said in this regard is that, upon closer consideration, the two provisions can stand comfortably together.
Section 32 envisaged the grant, to a holder of a fishing licence, of a second licence authorising that person to employ another person (or persons) to take fish. It is common ground that, at all material times Edwards held such a licence to employ one other person. Prima facie, this entitled him both to exercise his fishing privileges and also employ one other person to assist in that enterprise.
As Edwards also held an abalone permit, he was entitled to take abalone. Regulation 35 provided a means whereby, in the event of Edwards' illness, another person (who need not necessarily be his employee) could be authorised to take abalone in his stead during his incapacity. The question remained as towhether, quite apart from that situation, the section 32 licence authorised the use by Edwards of his employee to take abalone on his behalf, in addition to him personally. The Solicitor-General argued that the prohibition in Regulation 7 that no person, being the holder of a fishing licence, shall take abalone without a permit, rendered such an activity illegal. In my view that argument cannot be sustained. It overlooks the fundamental scheme of the statute itself.
Section 32 does not operate so as to confer a fishing licence of any description on the authorised employee. The relevant fishing licence is at all times held by the employer and it is the employer who also obtains, as an adjunct to that licence, the permit to take abalone.
As I have said, the scheme of section 32 is simply to authorise the licence/permit holder to employ one or more persons to assist in the relevant fishing enterprise. At no stage is the employee the holder of a fishing licence - that person is merely assisting in the exploitation of the primary privilege enjoyed by the employer.
It is instantly apparent that, in such circumstances, Regulation 7 can have no operation in relation to the employee. That regulation, by its very terms, is only applicable to the license holder. When any employee of Edwards acts within the section 32 licence, the fishing is, in law, done by Edwards pursuant to his licence and permit. In concept then, the regulations, read in the context of the Act, in no sense conflicted with the statute conceptually and the net result was that both Edwards and one employee were entitled, at any time, to exploit the permit - either diving together or separately.
The formal answer to Question 9.2 should be - "In so far as such a policy was sought to be implemented, No".
Having regard to the answers attracted by paragraphs 9.1 and 9.2 it becomes unnecessary to answer the question set out in paragraph 9.3, because this presupposes an affirmative response to at least paragraph 9.1 or 9.2.
In my view of the reasons above expressed it is also unnecessary, to respond to paragraph 9.4 of the case stated.
Paragraph 9.5, in the form in which it was re-phrased at the hearing, posed the short question -
"9.5 Was it valid for the defendants to direct that the first plaintiff should not and/or could not employ a person to take abalone for sale?"
The answer to this question already emerges from my reasoning expressed above.
There was simply nothing in the PARR 1971 which, in terms, modified the effect of Section 32; and it may well be that Section 36(2)(a) did not authorise any such modification in any event.
Any reliance upon Regulation 5 to support the Director's stance was patently ill-founded. The requirement for an authorised boat, which was to be under the immediate control of a person holding a Certificate of Competency was simply not relevant. On the ordinary meaning of the language employed, the person controlling the boat (in the technical sense) did not need any licence at all and Regulation 5 did not have any relevance to abalone fishing until 28 August 1980. The sole requirement, in relation to abalone, was to possess a current permit issued under Regulation 7, the grant of which attracted the considerations articulated in Regulations 11 and 12, none of which purported to qualify the licence granted pursuant to Section 32 of the Statute.
Although the statutory and regulatory regimes differed, to some extent, prior to the FA 1971, those differences did not throw up a situation which provided any other foundation for the policy which was applied.
In my opinion the answer to Question 9.5 is plainly "No".
Questions 9.6 and 9.13 are most conveniently discussed together.
They raise these questions - "9.6 Was a fishing licence, a permit, a licence to employ, and/or a boat certificate of authorisation or registration, capable of being transferred or alienated at law or in equity or otherwise held in trust or by a body corporate and/or by a partnership and if yes did such transfer or alienation require the approval of the Director of Fisheries?
9.13 Was an abalone permit or authority capable of being transferred except pursuant to the procedure established by Regulation 35AA?"
It is at once apparent that, collectively, these questions raise three issues, namely - (a) whether licences, registrations, authorities or permits were transferable, with or without the approval of the Director; (b) whether they were capable of being held in trust for the benefit of a third party; and (c) whether they were each capable of being granted to or held by a corporate body and/or partnership.
It is common ground that, prior to 28 August 1980, the defendants represented to Edwards that the abalone permit (which later became an abalone authority) was personal to him and could not be transferred. When, on that date, a new Regulation 35AA was introduced into the MFR 1971, this, in effect, formalised the introduction (apropos abalone permits) of what had been a de facto procedure which, since at least about December 1973, had been implemented in relation to sales of lobster and prawning vessels. This involved, by arrangement with the Director, as an act of discretion on his part, the simultaneous surrender of an authority by the proposed transferor and the issue of a fresh authority to the proposed transferee - provided that the Director approved of the latter.
Although, prior to 28 August 1980, there were, over time, variable situations concerning a 'right' to a renewal of an abalone permit, there was certainly no right to transfer such a permit conferred either by the relevant statute or any of the regulations. Even when Regulation 35AA was ultimately amended so as to recognise the previous de facto procedure evolved by the Director, this did not constitute a true right to transfer in the legal sense.
The transfer of boat registrations was, by way of contrast, expressly recognised by provisions contained in both the FA 1917 and the FA 1971. The MFR 1971 reflected that type of policy in Regulation 17, which, in effect permitted transfer of authorised boats, subject to the approval of the Director.
However, the inescapable conclusion is that, at all material times, licences, authorities and permits were personal and not transferable and the questions must, in my opinion, be responded to accordingly. The fact that, in practice, the Director agreed, in some cases, to a surrender and re-issue procedure, in his discretion, did not confer any general, legal right to transfer.
On the other hand, the statutes and regulations were quite silent as to whether licences, registrations, authorities or permits could have been held in trust for the benefit of a partnership, or other beneficiary. Indeed the involvement of partnerships in fishing businesses seems to have been not uncommon.
There does not appear to have been any policy consideration under the statutes or regulations which would found a prohibition against the vesting of beneficial interests in licences, registrations, authorities or permits in parties other than the actual holder, because this would have had no impact on the proper management of relevant fisheries or the due discharge of the legal and practical responsibilities of the legal holder, which would remain unaltered. Licences, registrations, authorities and permits are clearly 'property', the beneficial ownership of which can form the subject matter of legal relationships, absent some express statutory provision to the contrary (see Pennington v McGovern (1987) 45 SASR 27, Kelly v Kelly (1990) 64 ALJR 234). I would therefore hold that this was the situation. There is no perceivable basis on which it could be asserted that any such transaction required the approval of the Director, because it nevertheless remained the legal responsibility of the person in whom the licence, authority or permit was vested, actually to exercise the relevant rights and discharge all legal obligations under the applicable statute and regulations. Whether or not, on a licence, registration, authority or permit coming up for renewal, the Director could, legitimately, take into consideration any beneficial divesting of interest is a matter for debate, but it does not arise for consideration on the questions as posed.
The capacity of corporations to hold licences, registrations, authorities or permits raises some issues which are not readily resolved. Prima facie, the regulations under both relevant statutes appear to contemplate that authorities and permits are to be held by natural persons. Particularly in the case of abalone permits, they impose certain obligations which can only be discharged by a natural person. It is, however, difficult to see why, except in the case of an abalone permit, a licence, registration or authority could not be held jointly by several persons who were in fact in partnership, as seems to have been recognised by the Department over the years. By virtue of the Acts Interpretation Act the singular word 'person' is to be taken to include the plural. In the situation postulated the holding would be by the several partners, but not in the name of the partnership, as such, because such a body is not a separate legal entity.
In the case of the FA 1917, not only is the word 'person' defined to include a body corporate, but the sections dealing with the issue of licences manifestly contemplate that a body corporate may, with certain exclusions, as to type of body, be issued with and hold a fishing and related employee licence. A similar concept is carried through into section 31 of the FA 1971. The question posed ought to be answered accordingly.
On the other hand, those provisions are certainly not pertinent to registrations, authorities and permits and, in terms, do not extend to them. There is, in my view, simply no warrant for asserting rights related to corporate bodies beyond those which were erected by the statutes themselves.
I next come to Question 9.7. This asks - "9.7 Was it lawful for the first defendant to cancel or refuse to renew the first plaintiff's licences, permits or boat certificates issued under the Fisheries Act 1917 or Fisheries Act 1971 on the ground that he contemporaneously held a licence to take fish including abalone in Western
A factual issue arises between the parties as to whether, at any relevant time, the defendants, or any of them told Edwards that he would have to surrender his Western Australian licence (which entitled him to take abalone in that State) if he desired to continue an abalone permit in this State. It is at least conceded that Edwards was informed that dividing the fishing effort between the two States was contrary to the efficient and effective management of abalone fishing of each State.
It must at once be said that there is no provision in any relevant statute of regulation which expressly renders such a consideration pertinent either to a grant or renewal of a licence or permit. Once an abalone permit was issued it was not open to the Director, capriciously, to refuse to renew. Certainly, prior to 1971, a renewal was a discretionary matter, but it is clear that a refusal to renew which was not based on some positive ground such as misconduct or a valid policy decision to reduce the overall fishing effort to give effect to a management policy would have attracted some form of review. It would have been quite improper for a refusal to renew to be based on a consideration extraneous to the statute and regulations.
From December 1971 there was, by virtue of Regulation 16 of the MFR 1971, a positive duty on the Director to grant a renewal if, having regard to the requirements of Regulation 11, there was no reason why the application should not be granted. Those requirements, as has already been noted, focus on the fitness of the person concerned to hold a permit, considerations related to the proper management of the relevant zone or zones and the equipment possessed by the permit holder.
The Solicitor-General strove to support the alleged stance of the defendants by reference to the asserted policy under the Act, inter alia, to maintain the highest sustainable yield from relevant fisheries. He said that a splitting of fishing effort between two States was not consistent with such a policy and could properly be taken into account, even within Regulation 11.
This is an ingenious argument, but it cannot carry the day. It seems to me that the approach adopted by the defendants was quite arbitrary and derived no substantial support from the statutes or regulations, particularly bearing in mind my earlier expressed conclusions relevant to exploiting the privileges of abalone permits. The fact is that the principal statutory emphasis was upon conservation of fisheries and not their maximum possible exploitation.
I consider that Regulation 11 of the MFR 1971 really articulated what were always the pertinent areas of concern and that these did not embrace consideration of whether other interstate licences or permits were held. Had this been intended to be a legitimate matter for concern one would have expected the statute or relevant regulations to have said so. They did not.
At the end of the day the inevitable conclusion must be that Question 9.7 must be answered in the negative. The plain fact was that, if the Director considered that a permit was significantly under utilised he could have either called upon the holder to show cause why it should not be renewed or could have issued an additional permit. However, that is a quite different approach from refusing to renew of cancelling a licence or permit merely because an interstate licence was also held.
I move on to Question 9.8. This asks - "9.8 Were regulations 5, 17 and/or 21A of the Managed
Fisheries Regulations 1971 either before or after amendment on 28.8.80 valid under the Fisheries Act 1971? If yes to the whole or part thereof, according to the proper construction thereof, did they lawfully prohibit the holder of a permit or authorisation certificate from: (a) being other than a single natural person; (b) owning a proprietary interest in a permit, authorisation certificate, or authorised boat, held in the name of another; (c) having an interest, or occupying an office, in a company or partnership which was a permit or authorisation certificate holder; or (d) having a beneficial interest in the proceeds of exploitation of licences, permits, or boat certificates of registration or authorisation held by another."
I have already expressed my views as to various aspects of this question, on a basis which does not turn on the validity of the regulations referred to.
Regulation 5 (the terms of which have earlier been recited) does not direct its attention to the question of conditions of issue of either licences or authorities or permits. It purports to limit the use of boats to those in respect of which an authority has been granted (ie one in respect of which an authorisation certificate has been granted under Regulation 9). The authorisation process appears to be directly linked to Regulation 13, which reads as follows:- "13. An authority shall have effect subject to the following conditions:- (a) a condition that the boat may be used for the taking of the species specified in the authority in the boat's assigned zone (if any), but shall not be so used in any other zone; (b) in the case of an authority to take lobsters a condition limiting the number of pots that may be used from the boat at any one time in taking lobsters; (c) in the case of an authority to take prawns a condition that the type, size or number of trawl nets therein specified and no other may be used on the boat for the taking of prawns."
This renders it apparent that the purpose of the regulation is to facilitate the regulation and management and control of fishing activities within zones of fisheries. I see no reason to question its validity, given that such a purpose is clearly envisaged by section 36 of the FA 1971 and the regulation is, on the face of it, reasonably proportionate to the pursuit of the enabling power. (Minister for Primary Industries and Others v Lawrie (1995) 64 SASR 359). Moreover, section 36(2)(b) of the FA 1971 expressly envisages the making of regulations to regulate the use of boats for taking fish and to require persons using boats for that purpose to hold authorisation certificates in respect of boats so used.
Mr Tilmouth QC, of senior counsel for the plaintiffs, submitted that Regulation 5 is objectionable because it goes beyond mere regulation and constitutes a complete preclusion which is beyond power (The Shire of Swan Hill v Bradbury [1937] HCA 15; (1937) 56 CLR 746). As such it is not reasonably proportionate to the end of managing and restricting the taking of any species. With respect, this seems to me to be an unrealistic view. The statute specifically envisages the need for boat certification and the prohibition must, as I have pointed out, be seen as an adjunct to Regulation 11. It must also be accepted that it is a positive means of regulating and inspecting fishing activities for the wider purposes of the statute and regulations generally. On the question of proportionality it must not be considered in isolation. Rather, the test is whether or not it is a proper link in the overall chain of regulation and management. Undoubtedly it is.
Regulation 17 is couched in these terms - "17.(1) Where the owner of an authorized boat without first obtaining the consent, in writing, of the Director, grants or conveys a proprietary interest of any kind, (whether legal or equitable), in that boat, to another person or to himself and another person the authority in respect of that boat shall, immediately the grant or conveyance becomes effective in law or equity, lapse. The Director may grant
or refuse an application for consent under this regulation, and when considering an application, shall take into account
all relevant matters, including those set out in regulation 12 to the granting or refusal of an authority.
(2) Where an authorized boat ceases to be used by a fisherman for the purposes of his trade or calling of a fisherman, the owner of that boat shall, forthwith upon that cessation, inform the Director that the boat has ceased to be used in the trade or calling of a fisherman."
The plaintiffs seek to impugn this regulation on the basis that it is said to be totally divorced from the heads of power set out in section 36. Mr Tilmouth QC contended that, on the face of it, the mere ownership of an authorised boat could not properly be the concern of the Director, because, that did not, in any relevant sense bear on the regulation and management of fisheries. The critical question (except in the case of a boat to which an abalone authority attached) was not who owned the authorised boat, but who held and exercised the privileges attaching to the requisite licences and fishing authorisations and permits. Such a party need not necessarily have owned the boat but could, perhaps, have leased it. He further pointed out that the regulation went far beyond the requirement of the statute itself which, by section 19, merely required notification to the Director of any transfer of ownership.
On any reasonable assessment, he said, the regulation was patently beyond power or, alternatively, was not proportionate to the enabling powers conferred by section 36.
In my opinion these contentions are unanswerable and the regulation was invalid. The Solicitor-General sought to defend it upon the basis that it was a necessary and reasonable integral administrative segment of a total scheme of regulation, but it seems to me, with respect, that his response simply did not meet the points above identified. Had the regulation been limited in its application to situations related to boats to which abalone authorities were attached, then it may well have been valid.
There remains for consideration the vexed Regulation 21A, which was inserted by amendment made on 9 November 1972. It provides that - "21A. No person shall be the holder of more than one of the authorities or permits listed hereunder: Abalone Permit Inland Waters Permit Prawn Authority Rock Lobster Authority".
The Solicitor-General sought to uphold the validity of that regulation on the basis that it promoted the concept of ensuring the highest sustainable yield from fisheries, in conformity with legitimate Government policy in that regard. The aim of the regulation was to ensure that permit and authority holders devoted their individual, undivided attention to relevant fishing exploitation, within any specific limitations placed on them. If they did not then additional permits or authorities might have to be issued.
As to this, a somewhat flippant, but obvious, riposte might well be 'So What?'.
What this contention ignores is that the policy adverted to by him is nowhere articulated in the relevant legislation. On the contrary the essential thrust of the statute is towards efficient management to ensure proper conservation of fishing stocks. So much emerges both from its long title and subsection (1) of section 36, which speaks of making regulations for the purpose of regulating, managing and restricting the taking of any prescribed species of fish.
The essential scheme of the statute is based upon the view of fishing licences of unqualified type, upon which there may be grafted specific limitations, by way of a need for authorities and permits, to ensure proper control and conservation of specific fish stocks.
Nowhere is there any suggestion of an intention on the part of the legislature to require those entering the fishing industry to devote their whole effort to only a single line of endeavour. Moreover that has no bearing whatsoever on conservation of relevant fish stocks. Ample control mechanisms either exist elsewhere, or can lawfully be erected, to ensure that fish stocks are not unduly depleted in any fishery.
No doubt, if a specific authority or permit is under utilised to a gross degree that may be a matter for consideration in relation to authority or permit renewals, but that is for another day.
I am inexorably driven to the conclusion that Regulation 21A is not reasonably proportionate to the purposes of the regulation making power and, in any event, is offensive to the general concept discussed in The Shire of Swan Hill v Bradbury (supra). I would declare it invalid.
I now turn to Question 9.9 which asks - "9.9 Was it lawful in dealing with an application under Regulation 17(1) of the Managed Fisheries Regulations 1971 to impose as a condition of approval thereof that the applicant agree to forfeit all other licences, certificates or permits previously issued to that applicant under the said Fisheries Act 1971?"
The short riposte to that question is that in view of my conclusion as to the invalidity of Regulation 17 it is unnecessary to respond to it.
Question 9.10 is to this effect - "9.10 Was it lawful for the defendants to refuse to register for each of the plaintiffs at the same time one or more boats to take fish for sale?"
This question arises in relation to section 17 of the FA 1971 and (presumably) the earlier section 16 of the FA 1917.
As to the latter all that need be said is that, in terms, the statute conferred an absolute right of registration, on appropriate application. The obvious purpose of the legislation was to ensure that boats used for fishing were appropriately marked and readily identifiable.
Section 17 of the FA 1971 was expressed as under - "17.(1) Every application to register a fishing boat shall- (a) be made to the Director; (b) be in a form fixed by the Minister or prescribed by
regulations and contain the information indicated in the form; and (c) be dealt with by the Director.
(2) If the Director is satisfied that the application is properly made and the prescribed fee paid he shall register the boat, grant the applicant a certificate of registration in the form fixed by the Minister, and allot to the boat a distinguishing mark.
(3) The fee for registration shall be as prescribed by regulation or in accordance with a scale so prescribed."
This is complemented by the provisions of Part II of the FGR 1971, which is preoccupied with the prescription of technical aspects and the marking or designation of boats sought to be registered. In essence, the concepts enshrined in the 1971 statute have been carried forward into the 1971 enactment.
As to this I reiterate a point made earlier. It is clear that mere registration of a boat does not carry with it any right to fish on a commercial basis. Such a right is governed by other requirements.
Neither section 17 nor the FGR 1971 qualifies the right to seek registration and neither even infers any discretion to refuse registration of any boat, provided that it meets the requisite technical requirements.
It is said that, over some period of time, the defendants sought to erect and apply a policy whereby boats owned by corporate owners would not be registered and registration would not be granted to more than one boat per owner.
In my opinion the Crown Solicitor was plainly correct when, in effect, he advised, on 11 October 1973, that there was no lawful basis for the policy sought to be applied. The Solicitor-General did not seek to resile from that opinion.
This question must be answered in the negative.
Question 9.11 is formulated in these terms - "9.11 According to the proper construction of regulations 7(1)(c) and 35(5) of the Managed Fisheries Regulations 1971 was it lawful, either before or after 28.8.80 for the first
plaintiff as holder of an 'A' class fishing licence and/or a person employed by him pursuant to a licence to employ, to
It is clear that, under the PARR 1968, there was a complete prohibition on taking abalone, by any method whatsoever, without a permit; save that a person could take five abalone per day operating from shore. A maximum of ten per boat per day was also stipulated, in relation to boat operators.
Section 29 of the FA 1971 required possession of a relevant licence to take any fish, save for the exceptions set out in subsection (2), none of which related to abalone. The PARR 1971 contained concessions (granted by Regulation 32) similar to those granted by the PARR 1968, given that Regulation 7 contained a prima facie blanket prohibition against taking abalone without a permit. During the continuance of such a regime, it was irrelevant as to whether abalone fishing was shore based or boat based. Both a licence and a permit were prerequisites to any taking of abalone. However, the very mode of expression of Regulation 32 implied that the concessional number of abalone could be taken either from a boat or from the shore.
Mr Tilmouth QC sought to contend that, insofar as it established a blanket prohibition, Regulation 7(1)(c) was "prohibitive rather than merely regulatory and was, accordingly, invalid". I consider that such an argument is misconceived. Whilst the prohibition was all embracing in its operation, it was not absolute in the sense required to categorise it as impermissibly prohibitive. The requirement to hold a permit before taking any abalone was not only within the scope of section 36 of the FA 1971, but it was also, on the face of it, a legitimate mechanism for regulating fishing for abalone and ensuring the due conservation of abalone stocks - as contemplated by the regulation making power. I see no basis for impugning its validity.
The amendments made to the PARR 1971 made on 28 August 1980 wrought significant changes to the system of regulation of abalone fishing.
It remained the situation that an initial prerequisite to taking abalone was the possession of a Section 29 fishing licence. The concept of an abalone permit was abandoned. The secondary prerequisite to taking abalone on a commercial basis was the possession of an abalone authority, as provided for in a new regulation 35(5), which read:- "5 Except as provided for by this regulation:- (a) no person shall be entitled to take abalone in accordance with an abalone authority or to dive from an authorised boat except the holder of the abalone authority; and (b) the holder of an abalone authority shall not cause, suffer or permit any person to take abalone or to dive from the boat in respect of which his authority is granted."
As I see the situation the practical result thereby achieved was no different from that which preceded the amendment, so far as Question 9.11 is concerned. Whether abalone were taken from a boat or the shore, the maximum permissible number of abalone which could be taken without an abalone authority was that prescribed by Regulation 32. The answer to the question must therefore be that possession of a Class A fishing licence alone did not sanction the taking of abalone from shore in excess of the numbers authorised by Regulation 32.
Question 9.12 raises the issue - "9.12 Was it competent for the first defendant to delegate to the Prawn Fishing Industry Advisory Committee and/or the Minister of Fisheries the power to grant or refuse an authority or permit under Regulation 11 or the power to consent to or refuse the transfer of a proprietary interest (legal or equitable) in an authorised boat under Regulation
An issue arises on the pleadings as to whether, in early 1974, the relevant defendant in fact delegated the decision making process, as to whether or not Edward's application for a prawn boat authority should be granted, to a body known as the Prawn Fishing Industry Advisory Committee ("the Committee") or, at the very least, impermissibly requested and acted upon its recommendation in that regard. That issue will, if course, have to be resolved at trial on the merits.
Section 7 of the FA 1971, inter alia, authorises the Director to delegate by writing "to any person" any of his powers or functions under the statute. It is common ground that, whilst the Director could have delegated any of his functions to the Minister (who was undoubtedly "a person" within the meaning of section 7), he certainly could not make any delegation to an amorphous body such as the Committee.
That is not to say that, in arriving at his own independent decision, the Director was not entitled to have regard to properly evolved Government policies and recommendations of the Committee. Plainly he was (The Queen v Anderson; ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177 ("Ipec-Air"), Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth of Australia and Others [1977] HCA 71; (1977) 139 CLR 54). On the other hand what he was not entitled to do was, as Kitto J, stressed in Ipec-Air, to abdicate his personal duty of forming a judgment in light of all relevant considerations and merely rubber stamp a policy or recommendation emanating from other sources, so that, in truth, his decision was that of others and not the decision of the person required by the statute to make it. Whether that occurred in the instant case must abide the outcome of the trial.
Question 9.12 must be answered to the above effects.
I have already dealt with Question 9.13 and therefore move on to that which follows it.
Question 9.14 asks - "9.14 Was it lawful for the fifth defendant, in considering an application for the transfer of an abalone, prawn or rock lobster authority, and/or an authorised or registered boat with respect thereto to consider the amount of the proposed consideration? If yes, was it lawful for the fifth defendant to refuse any such application on the basis of such consideration alone?"
When the MFR 1971 was amended on 28 August 1980, a new Regulation 35AA was inserted. This was to the following effect -
"35AA The holder of an abalone authority who is required by the provisions of any contract to apply to the Director for
the cancellation of the abalone authority or to refrain from making an application to the Director for the issue of a further abalone authority and any person who makes an application to the Director for the issue of an abalone authority in reliance upon, or as a consequence of, a holder of an abalone authority making application to the Director for the cancellation of his abalone authority or refraining from making an application for the issue of a further abalone authority in compliance with the provisions of any contract shall lodge with the Director within 28 days of the date of any such contract or at the time of making any such application (whichever shall be the sooner) a statutory declaration having annexed to it true and full copies of any note or memorandum in writing evidencing the contract and specifying separate amounts in respect of:- (a) the value of the obligation on the part of the holder of the abalone authority under the contract to apply to the
Director for the cancellation of the abalone authority or to refrain from making an application to the Director for the
issue of a further abalone authority; (b) the value of any vessel transferable under the contract; and (c) the value of any equipment transferable under the contract."
This, for the first time, purported to vest in the Director a power to require disclosure to him of the consideration being paid by a proposed transferee to a proposed transferor in relation to a contractual dealing with an abalone authority. In a sense it is a curious provision, because it impliedly lends respectability to what had emerged as the informal, administratively accepted 'transfer' mechanism that had no statutory or other legal foundation. It was a mechanism which entirely relied on the general exercise of the Director's discretion to grant licences. It was a procedure which he was not bound to adopt, either generally or in a particular case. Moreover, in granting any new licence, he was specifically enjoined to do so by reference to the considerations set out in Regulations 11 and 12.
Even if it be considered that the general substance of Regulation 35AA was within power (an issue which is by no means free from doubt bearing in mind the ambit of its content) it is manifest that the consideration passing between the outgoing authority holder and the proposed incoming new grantee is an entirely irrelevant consideration, other than for purely statistical purposes. The fact that the Director was seeking to facilitate some makeshift 'transfer' system does not alter the fact that, to the extent that it involved an application for and potential grant of a new authority, then that application fell to be determined in accordance with the normal processes and criteria envisaged by the regulatory provisions pertinent to that application; and not otherwise.
There is simply no basis for concluding that any consideration was or could be a relevant or determinant consideration in the processing of a 'transfer' request. I would answer the first part of the question in the negative. There is no need to respond to the second. That is not, of course, to say that the requirement to provide the information was not a valid requirement for statistical purposes.
Question 9.15 raises the simple issue - "9.15 Was it lawful for the defendants to refuse to register a corporation as the owner of a boat to be used for the purpose of taking abalone?"
This issue has largely been canvassed earlier in these reasons. An application of section 26 of the Acts Interpretation Act to Division II of Part II of the FA 1971 carries forward the effect of the original definition of "person" contained in section 4 of its legislative precursor. This is consistent with the express recognition, in section 31 of the FA 1971, of a scheme whereby a corporate body can be granted a fishing licence; and gives colour to regulation 17 (1) of the MFR, which also uses the expression �person� in the same sense. It is clear that a corporate body was entitled to own and register any boat used for fishing, save one to which an abalone authority attached because of the obligations which could only be discharged by a natural person. The question as posed must be answered in the negative.
"9.16 Was it lawful for the defendants to refuse to issue
boat authorisation certificates to a corporation?
This also has been the subject of earlier discussion. As I have already pointed out the content of the relevant regulations renders it apparent that it is contemplated that only natural persons may hold authorisations to take abalone and a corporate body, as such, cannot meet the established criteria.
I would therefore answer this question in the affirmative.
In my opinion the case stated should be returned to the trial court with the following answers - Point of Law 9.1: Was the "owner operator" policy pleaded in the defence a valid administrative policy approved by the Minister for the conservation of any species of fish or for the proper management of any fishery within the meaning of s34(2) of the Fisheries Act 1971 or otherwise a lawful policy pursuant to prerogative powers retained by the Crown with respect to Fisheries? Answer: Insofar as such a policy may have been formulated, it was not a valid administrative policy approved by the Minister, or otherwise a lawful policy.
Point of Law 9.2: Was the policy that control of the number of units of fishing effort pleaded in the defence a policy within the meaning of s34(2) of the Fisheries Act 1971, or otherwise a lawful policy pursuant to prerogative powers retained by the Crown with respect to Fishers? Answer; Insofar as such a policy was sought to be implemented, no.
Point of Law 9.3; If yes to questions 9.1 and 9.2 or either of them, when did the respective policies referred to therein begin and for what period or periods were they or either of them lawfully operative? Answer: Unnecessary to answer.
Point of Law 9.4: Were any such policy or policies limited to applications and/or refusals of fishing licences and/or licences to employ within the meaning of s34(1) and (2) of the Fisheries Act 1971 or otherwise a lawful policy pursuant to prerogative powers retained by the Crown with respect to Fisheries? Answer: Unnecessary to answer.
Point of Law 9.5: Was it valid for the defendants to direct that the first plaintiff should not and/or could not employ a person to take abalone for sale? Answer: No.
Point of Law 9.6: Was a fishing licence, a permit, a licence to employ, and/or a boat certificate of authorisation or registration, capable of being transferred or alienated at law or in equity or otherwise held in trust or by a body corporate and/or by a partnership and if yes did such transfer or alienation require the approval of the Director of Fisheries? Answer: Under both the 1917 and 1971 Fisheries Acts, the ownership of a registered boat might be transferred or alienated at law or in equity without the registration of the boat being affected by the transfer or alienation.A corporation could be the owner of a registered boat, but a corporation could not be the owner of a boat for which an abalone authority had been granted under the Managed Fisheries Regulations 1971.An authorisation certificate granted in respect of a boat pursuant to the Managed Fisheries Regulations 1971, remained effective following the grant by the owner of a "proprietary interest of any kind (whether legal or equitable)" in the boat, which expression must be taken to include transfer or alienation, at law or in equity.A fishing licence, permit or a licence to employ was personal to the holder and not transferable or alienable.A fishing licence, permit, licence to employ and a boat authorisation certificate:might be held in trust for some other person or body corporate, provided that full control over its exercise remained in the hands of the legal holder to the exclusion of any beneficiary;might be held by a body corporate or jointly by and in the name of the partners constituting a partnership.
Point of Law 9.7: Was it lawful for the first defendant to cancel or refuse to renew the first plaintiff�s licences, permits or boat certificates issued under the Fisheries Act 1917 or Fisheries Act 1971 on the grounds that he contemporaneously held a licence to take fish including abalone in Western Australia? Answer: No.
Point of Law 9.8: Were regulations 5, 17 and/or 21A of the Managed Fisheries Regulations 1971 either before or after amendment on 28.8.80 valid under the Fisheries Act 1971? If yes to the whole or part thereof, according to the proper construction thereof, did they lawfully prohibit the holder of a permit or authorisation certificate from:being other than a single natural person;owning a proprietary interest in a permit, authorisation certificate, or authorised boat, held in the name of another;having an interest, or occupying an office, in a company or partnership which was a permit or authorisation certificate holder; or1 having a beneficial interest in the proceeds of exploitation of licences, permits or boat certificates of registration or authorisation held by another. Answer: Regulation 5 was valid, but did not directly bear on the issues raised in (a) to (d) inclusive.Regulations 17 and 21A were invalid.
Point of Law 9.9: Was it lawful in dealing with an application under Regulation 17(1) of the Managed Fisheries Regulations 1971 to impose as a condition of approval thereof that the applicant agree to forfeit all other licences, certificates or permits previously issued to that applicant under the said Fisheries Act 1971? Answer: No.
Point of Law 9.10: Was it lawful for the defendants to refuse to register for each of the plaintiffs at the same time one or more boats to take fish for sale? Answer: No.
Point of Law 9.11: According to the proper construction of Regulations 7(1)(c) and 35(5) of the Managed Fisheries Regulations 1971 was it lawful, either before or after 28.8.80 for the first plaintiff as holder of an "A" class fishing licence and/or a person employed by him pursuant to a licence to employ, to take abalone by diving from shore without a boat? Answer: No. But the holder of a permit under regulation 7(1)(c) or the holder of an abalone authority might take abalone by diving from shore without a boat.
Point of Law 9.12: Was it competent for the first defendant to delegate to the Prawn Fishing Industry Advisory Committee and/or the Minister of Fisheries the power to grant or refuse an authority or permit under Regulation 11 or the power to consent to or refuse the transfer of a proprietary interest (legal or equitable) in an authorised boat under Regulation 17 of the Managed Fisheries Regulations 1971? Answer: It was competent for the first defendant to delegate the power referred to in this point of law to the Minister of Fisheries but not to the Prawn Fishing Industry Advisory Committee.
Point of Law 9.13: Was an abalone permit or authority capable of being transferred except pursuant to the procedure established by Regulation 35AA? Answer: No.
Point of Law 9.14: Was it lawful for the fifth defendant, in considering an application for the transfer of an abalone, prawn or rock lobster authority, and/or an authorised or registered boat with respect thereto to consider the amount of the proposed consideration? If yes, was it lawful for the fifth defendant to refuse any such application on the basis of such consideration alone? Answer: No.
Point of Law 9.15: Was it lawful for the defendants to refuse to register a corporation as the owner of a boat to be used for the purpose of taking abalone? Answer: Yes.
Point of Law 9.16: Was it lawful for the defendants to refuse to issue boat authorisation certificates to a corporation? Answer: No, unless the authorisation related to the taking of abalone.
JUDGE2 PERRY J 166. I agree with the answers proposed by Olsson J to all of the Points of Law, except those which he gives to points 9.6 and 9.8. I agree with his reasons as to the other points.
Under Regulation 31 of the Managed Fisheries Regulations 1971, an abalone authority could not be granted or renewed unless the Director was "satisfied by production of a medical certificate or otherwise that the applicant is medically fit to dive". I am unable to see how that provision can properly be of application to a corporation. In the result, I am driven to the conclusion that in the case of an abalone authority, it could only be granted to a natural person.
If no authority attaches to a boat, it may be transferred to another person by the registered owner, irrespective of any question of consent from the Director. Upon transfer, the boat would remain a registered boat. The Director would be notified of the new owner in accordance with the procedures in that respect in the Act and Regulations. In the case, however, of a boat to which an authority (including an abalone authority) applied, that authority would lapse on transfer of the boat unless the consent had been given by the Director. This means, in effect, that the consent is really a consent to the removal of the authority into the hands of someone other than the person who first obtained it. In granting or refusing any application for consent under Regulation 17(1), the Director must take into account "all relevant matters, including those set out in Regulation 12". So that on the transfer of a registered boat to which an abalone authority was attached, the Director would have to have regard to such of the considerations set out in Regulation 12 as were relevant. Another relevant consideration would be whether or not the new owner of the registered boat (who would have the benefit of the abalone authority attaching to it) could prove that he or she was medically fit to dive with the meaning of Regulation 31. That this should be so seems to me to be necessary in order to preserve the integrity of the regulatory scheme.
Point of Law 9.6: Was a fishing licence, a permit, a licence to employ, and/or a boat certificate of authorisation or registration, capable of being transferred or alienated at law or in equity or otherwise held in trust or by a body corporate and/or by a partnership and if yes did such transfer or alienation require the approval of the Director of Fisheries? Answer: Under both the 1917 and 1971 Fisheries Acts, the ownership of a registered boat might be transferred or alienated at law or in equity without the registration of the boat being affected by the transfer or alienation, and without any approval being required, although both Acts imposed an obligation to give notice of transfer.A corporation could be the owner of a registered boat, but a corporation could not be the owner of a boat for which an abalone authority had been granted under the Managed Fisheries Regulations 1971.An authorisation certificate granted in respect of a boat pursuant to the Managed Fisheries Regulations 1971, remained effective following the grant by the owner of "a proprietary interest of any kind (whether legal or equitable)" in the boat, which expression must be taken to include transfer or alienation, at law or in equity, provided that the consent in writing of the Director had first been obtained in accordance with Regulation 17 of the Managed Fisheries Regulations 1971.A fishing licence, permit and a licence to employ was personal to the holder and not transferable or alienableA fishing licence, permit, licence to employ and a boat authorisation certificate:(a) might be held in trust for some other person or body corporate, provided that full control over its exercise remained in the hands of the legal holder to the exclusion of any beneficiary;(b) might be held by a body corporate (except in the case of an abalone authority) or jointly by and in the name of the partners constituting a partnership.
Point of law 9.8: Were regulations 5, 17 and/or 21A of the Managed Fisheries Regulations 1971 either before or after amendment on 28.8.80 valid under the Fisheries Act 1971? If yes to the whole or part thereof, according to the proper construction thereof, did they lawfully prohibit the holder of a permit or authorisation certificate from:(a) being other than a single natural person;(b) owning a proprietary interest in a permit, authorisation certificate, or authorised boat, held in the name of another;(c) having an interest, or occupying an office, in a company or partnership which was a permit or authorisation certificate holder; or(d) having a beneficial interest in the proceeds of exploitation of licences, permits or boat certificates of registration or authorisation held by another. Answer: Regulation 5 was valid. Regulation 17 was valid. Regulation 21A was invalid.As to regulations 5 and 17, they did not prohibit the holder of an authority with respect to a boat from having any of the attributes referred to in (a), (b), (c) or (d), subject to the answer to Point of Law numbered 9.6.
JUDGE3 DUGGAN J 182. Subject to only one exception I agree with the answers proposed by Olsson J and the reasons he has advanced for his conclusions.
RAYMOND ARTHUR GEORGE EDWARDS AND DEEP SEA ARK (AUST) PTY LTD
A M OLSEN & ORS AND THE STATE OF SOUTH AUSTRALIA No. SCGRG 86/2556 Judgment No. 5703 Number of pages - 41 Statutes
(1996) 67 SASR 266
(1989) 168 CLR 314
(1974) 131 CLR 477
(1987) 45 SASR 27
(1990) 64 ALJR 234
(1995) 64 SASR 359
(1965) 113 CLR 177
(1937) 56 CLR 746
(1956) 100 CLR 146
(1990) 64 ALJR 234
(1995) 64 SASR 359
(1965) 113 CLR 177
(1977) 139 CLR 54