Federal Court of Australia|1990-07-16|Before: Spender J

The application for transfer of Torres Strait Fishing Boat Licence No. H00609B to Perder Investments Pty Ltd be remitted to the Protected Zone Joint Authority to be determined according to law.

The respondent should pay the applicant's costs, to be taxed if not agreed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

2. The applicant is the purchaser of a fishing vessel "Dhikarr" and associated licences, including the Torres Strait Fishing Boat Licence No. HOO609B, from Colin Richard Dwyer and Joy Olive Dwyer. The licence is necessary to permit the trawler to operate in the waters to which the Act applies. The agreement to purchase is dated 21 April 1989. The purchase price was $320,000.00, and was apportioned as to the vessel $233,000.00 and as to licences $87,000.00. The licences the subject of the agreement included a Queensland Commercial Fishing Vessel Licence No. VO4178E together with all current endorsements thereon; Commonwealth Fishing Boat Licence (endorsed N.P.F. and 117) No. B457466; and the Torres Strait Fishing Boat Licence at the centre of this application. The purchase agreement was subject to and conditional upon the approval by the appropriate authorities, on or before the date of settlement, of the transfer from the vendor to the purchaser of the above three licences. Settlement was effected, however, on 6 July 1989. Thus it appears that that condition (contained in cl. 11 of the agreement) was waived.

3. The Torres Strait Fishing Boat Licence No. HOO609B was valid from 14 April 1989 to 2 December 1989. It was issued by Mr. Lightowler, the present respondent, as delegate of the Protected Zone Joint Authority ("the Authority"), and pursuant to s. 19(2) of the Act. The licence was in respect of the prawn fishery within the jurisdiction of the Authority.

4. The Authority is established by s. 30(1) of the Act. It consists of the "Commonwealth Minister" and the "Queensland Minister" (s. 30(2)). Section 30(3) provides:

"The Protected Zone Joint Authority has such functions

in relation to fisheries in respect of which arrangements

are made under section 31 as are conferred on it by this

Part and by the law of Queensland."

Section 30(7) provides:

"All courts and persons acting judicially shall take judicial

notice of the signature of a person who is or has been a

member of the Protected Zone Joint Authority or a

deputy of such a member and of the fact that he is, or was

at a particular time, such a member or deputy."

5. Section 31 provides for the making of arrangements between the Commonwealth and Queensland. Relevantly it provides:

"(1) Subject to this section, the Commonwealth may make

an arrangement with Queensland that the Protected Zone

Joint Authority is to have the management of a particular

fishery in waters adjacent to Queensland.

(2) An arrangement under sub-section (1) shall provide

either that -

(a) the fishery (being a fishery wholly or partly in

the Protected Zone coastal waters of

Queensland) is to be managed in accordance

with the law of the Commonwealth; or

(b) the fishery (being a fishery wholly or partly in

waters on the seaward side of the Protected

Zone coastal waters of Queensland) is to be

managed in accordance with the law of Queensland.

6. By a proclamation of Thursday, 14 February 1985, an arrangement pursuant to s. 31 of the Act was announced. Clause 2(2) of that proclamation provides:

"It is hereby arranged, in pursuance of sub-section

31(1) of the Torres Strait Fisheries Act 1984, that the

fisheries to which this clause applies shall be

managed in accordance with the law of the

Commonwealth by the Protected Zone Joint

Authority established by section 30 of that Act."

That clause applied to the fishery in the area of the Protected Zone south of the Fisheries Jurisdiction Line. The effect of this proclamation is that the commercial fishing for prawns in that area but outside the limits of Queensland was to be managed by the Authority in accordance with the law of the Commonwealth.

7. Section 34 provides for the functions of the Authority:

"Where there is in force an arrangement under this Part

under which the Protected Zone Joint Authority has the

management of a fishery and the fishery is to be managed

in accordance with the law of the Commonwealth, the

Protected Zone Joint Authority has the functions of -

(a) keeping constantly under consideration the

condition of the fishery;

(b) formulating policies and plans for the good

management of the fishery; and

(c) for the purposes of the management of the fishery -

(i) exercising the powers conferred on it

by this Part; and

(ii) co-operating and consulting with other

authorities (including Joint Authorities

established under the Fisheries Act

in matters of common concern."

8. In this context, s. 8 refers to the objectives of the Act:

"In the administration of this Act, regard shall be had

to the rights and obligations conferred on Australia

by the Torres Strait Treaty and in particular to the

traditional way of life and livelihood of traditional

inhabitants, including their rights in relation to

traditional fishing."

The preamble to the Act is in these terms:

"An Act relating to fisheries in certain waters

between Australia and the Independent State of

Papua New Guinea"

9. Section 36 deals with the powers of the Authority with respect to the powers conferred by Part IV of the Act dealing with, inter alia, the issue, renewal and transfer of licences. Section 36 relevantly provides:

"(1) Subject to this section, a licence, Treaty

endorsement or entry granted or made under this Act

otherwise than by virtue of this section does not

authorize the doing of any act or thing in or in relation to

a Protected Zone Joint Authority fishery.

(2) In relation to a Protected Zone Joint Authority

fishery that is to be managed in accordance with the law

of the Commonwealth, the powers of the Minister under

the provisions of Part IV are exercisable under those

provisions by the Protected Zone Joint Authority as if

references to the Minister in those provisions were

references to the Protected Zone Joint Authority."

10. Section 38 deals with delegation by the Authority and provides in part:

"(1) Subject to this section, the Protected Zone Joint

Authority may, by instrument, either generally or

as otherwise provided by the instrument,

delegate to a person any of its powers under this

Act, other than this power of delegation or the

powers that it has by virtue of the operation of

sub-section 35(1).

(2) A power so delegated, when exercised by the

delegate, shall, for the purposes of this Act, be

deemed to have been exercised by the

Protected Zone Joint Authority.

(3) A delegation under this section may be

expressed as a delegation to the person from

time to time holding, or performing the duties of,

a specified office in the Department or a

specified office in the service of Queensland or

an authority of the State of Queensland or under

the law of Queensland.

(4) A delegate of the Protected Zone Joint Authority

is, in the exercise of his delegated powers,

subject to the directions of the Protected Zone

Joint Authority.

(5) A delegation of a power under this section -

(a) may be revoked, by instrument, by the

Protected Zone Joint Authority (whether

or not constituted by the persons constituting

constituting the Protected Zone Joint Authority

at the time at which the power was delegated); and

(b) does not prevent the exercise of the power

by the Protected Zone Joint Authority.

..."

Of particular importance to this matter are sub-sections 38(2) and (4).

11. Mr. Lightowler is covered by an instrument of delegation signed by the federal Minister for Primary Industries and Energy, Mr. Kerin and the Queensland Minister for Primary Industries, Mr. Harper dated 18 May 1989. The delegation by the Authority, pursuant to s. 38(1) of the Act, delegated to the person occupying or performing the duties of an office, the position number of which was specified in the first column of the Schedule to the instrument of delegation, the powers and functions of the authority with respect to Australian boats and Australian citizens as contained in the sections and sub-sections of the Act specified in the second column of the Schedule to the instrument of delegation. The effect of this instrument of delegation was to delegate to Mr. Lightowler, the present respondent, who then occupied the position numbered 990959, the powers and functions conferred, inter alia, by ss. 19(1), 19(2) and 25. Section 19 deals with the grant of fishing licences and s. 25 with the transfer of licences.

12. Section 25 provides:

"(1) Subject to sub-section (2) and to any condition of

a licence relating to the transfer of the licence,

the Minister may, in his discretion, upon

application being made in accordance with the

appropriate form by the holder of a licence

granted under section 19 in respect of a boat and

by another person as proposed transferee, transfer

the licence in respect of the boat to the other person."

The qualification contained in sub-section (2) is not presently relevant. Thus it is apparent from s. 25 that the transfer of fishing licences is a matter calling for the exercise of a discretion.

13. By an application dated 21 April 1989, the vendors of the Dhikarr and the proposed purchaser applied to the Authority for a transfer of the licence HOO609B to the applicant. This application was submitted to the Queensland Fish Management Authority under covering letter of 10 July 1989 together with a submission dated 6 July 1989. Before the submission of those documents, by a letter dated 24 April 1989, the solicitors for the applicant informed the Queensland Fish Management Authority of the purchase and requested details of the licences issued in respect of that vessel relating to fishing operations.

14. The Queensland Fish Management Authority, by letter of 27 April 1989, advised the applicant's solicitors of the details of the Queensland Commercial Fishing Vessel Licence, the Commonwealth Fishing Boat Licence and the Torres Strait Fishing Boat Licence and then continued as follows:

"You are advised that in accordance with a current

'freeze' on the transfer of any Torres Strait Fishing Boat

licence enclosed for the prawn fishery the Torres Strait

Fishing Boat Licence number H00609B would be

required to be surrendered before the Queensland

Commercial Fishing Vessel and Commonwealth Fishing

Boat licences for this vessel could be transferred. A

declaration agreeing to this surrender is required to be

completed by both the transferors and the transferees."

The "freeze" here referred to is a reference to a joint statement dated 3 November 1988, headed "TORRES STRAIT PRAWN FISHERY: CLOSURES AND FREEZE ON LICENCE TRANSFERS". In this statement, Mr. Kerin and Mr. Harper announced the closure of the Torres Strait Prawn Fishery and a freeze on the transferability of licences for that fishery. The joint statement said:

"The closures and the freeze were recommended to the

PZJA by a working party which included representatives

of the prawn fishing industry and Torres Strait Islanders.

The recommendations were also supported by scientific

advice which indicated the lengthened closure would allow

small recruiting tiger prawns to grow and disperse through

the fishery, increasing the value of the potential harvest."

"In the meantime, the working party recommended a

freeze on licence transfers as an interim measure to

retain the status quo and stop speculation while

discussions continue."

"The Ministers said that they saw considerable merit in

the proposal to introduce non-transferability of Torres

Strait prawn licences on a long-term basis as a method of

reducing the number of licensed vessels in the fishery."

"Non-transferability will reduce the number of licensed

vessels without affecting the fishing patterns of existing

operators. It will simply ensure that when an existing

operator leaves the fishery he will not be replaced."

15. The submission which accompanied the application for the transfer of the licence under cover of the letter of 10 July 1989 indicated that the directors of the applicant were Trevor Crettenden and Susan Felton both of 87 Cedar Street, Palm Cove, and indicated that since 1980 Mr.Crettenden had skippered various vessels solely in the Torres Strait. It pointed to the difficulty he would experience in having to fish and navigate unfamiliar waters. He had a personal commitment to fishing in the Torres Strait over a long period. In addition to other matters, the submission said:

"It is our understanding that the current

'Freeze' on Torres Strait licence transfers is

a temporary measure only, designed to keep the

'Status Quo' and that industry members have in

fact been invited to comment thereon. we

submit that the plicy positively disadvantages

those such as Mr Cretenden who have devoted

their whole fishing activities to the area as

skippers and are prevented from the benefit of

that experience in acquiring their own boats.

We submit that the application of this policy

to Mr Cretenden through his company would be

an abuse of the discetion, given the facts of

this particular case. Mr Cretenden, through

his company, is not a speculator but a genuine

fisherman whose only experience relates to the

Torres Strait."

Reference is also made to the fact that the transfer sought would not introduce further "effort" to the fishery and requested:

"...the PZJA to exercise his discretion and exempt our

client from the application of the relevant policy and

approve the transfer of the Torres Strait licence

endorsed for the Prawn Fishery attaching to the vessel

'Dhikarr' to Perder Investments Pty Ltd."

16. By letter dated 1 August 1989 the Secretary of the Queensland Fish Management Authority advised:

"I refer to your submission on behalf of Perder

Investments Pty Ltd, to be exempted from the current

non-transferability to (sic) Torres Strait Prawn boat

licences policy introduced by the Protected Zone Joint

Authority (P.Z.J.A.).

The non-transferability policy which was introduced on

3 November, 1988 for an interim period has subsequently

been retained by the (P.Z.J.A.) on a permanent basis.

However, an exception is made where the present

licencee dies or is permanently incapacitated, the licence

may be transferred to either a wife or equivalent or a

child of the original licencee.

Therefore under current policy, your submission to

have your client's boat licence for 'Dhikarr' exempted

from the non-transferability policy has been refused, and

accordingly the current Torres Strait Licence number

H00609B should be returned to this office."

17. Central to these proceedings is a direction to delegates under the Act by Mr. Kerin "for an (sic) on behalf of the Protected Zone Joint Authority" in respect of the relevant prawn fishery. The delegates covered by the direction dated 16 December 1988 included persons to whom the Protected Zone Joint Authority had delegated its powers or functions under the Act pursuant to s. 38(1) of the Act. Specifically, that direction in cl. 2 dealt with the transfer of prawn licences in the following terms:

"Delegates shall not, pursuant to an application made

on or after the relevant date under subsection 25(1)

of the Act, transfer a prawn licence to another person."

And cl. 3 provided under 'Transfer of Licence Package' which includes Prawn Licence:

"Pursuant to an application made on or after the

relevant date under subsection 25(1) of the Act,

delegates shall not transfer a licence package to

another person unless the prawn licence is forfeited

to the delegate."

18. The date of the direction is 16 December 1988, and the instrument of delegation is dated 18 May 1989. In any event, Mr. Lightowler regarded himself as bound by this direction.

19. The grounds on which the application for an order of review of this decision proceeded were that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made, that it involved an error of law, or that it was otherwise contrary to law. Included in the ground based on an improper exercise of the statutory power was the particular that "the respondent had exercised a personal discretionary power at the direction or behest of another person" and that "the respondent had exercised a discretionary power in accordance with a rule of policy without regard to the merits of the particular case;".

20. The reasons of the respondent for his decision to refuse the transfer of the Torres Strait Licence read in part:

"The Directions to Delegates prohibited the transfer

of a prawn licence to another person. In the

circumstances the delegate considered the

prohibition on the transfer of a prawn licence

applied to the Applicant.

At the time of making the decision, the Delegate was

aware of PZJA's relaxing of its Directions in

connection with prawn licences to allow the transfer

of a licence to the spouse or equivalent or child of

the original licensee in circumstances where the

licensee had died or become permanently

incapacitated. Even though the Applicant was not

entitled to be considered under the exemptions

provided in the further Directions. On the facts and

evidence available to the Delegate, the Applicant

did not fulfil any of those criteria whereby a transfer

of the said licence was permissible.

None of the submissions lodged by the Applicant

pointed to there being any other facts to bring the

Applicant within the exemption of the further

Directions whereby a transfer to it might be allowed."

21. It seems, however, that the purported exemption referred to in these reasons arose as the result of further directions given on 11 August 1989, subsequent to the decision in this case, which was communicated to the applicant by letter of 1 August 1989. As at the date of decision, the direction of 16 December 1988 was the only direction operative. The date of Mr. Lightowler's reasons is 6 December 1989, which might explain the mistaken reference to the "relaxing of its directions", which did not apply as at the date of the decision under review.

22. As appears from those reasons, and this was not disputed by counsel for the respondent, this was not a case where the subjective circumstances of the applicant had been considered against the background of a general policy and, after a consideration of the intrinsic subjective factors, a decision had been made in accordance with a general policy. What occurred in this case was that the decision-maker considered himself bound by the direction that had issued under s. 38(4). The central submission on behalf of the applicant was that a refusal to transfer any licence is not the adoption of a policy in the exercise of a discretion but was a refusal to exercise any discretion at all. Shortly put, the submission was that the statutory discretion conferred on the delegate pursuant to s. 25 in relation to the transfer of licences had not been exercised in this case, and the decision made by the delegate acting on the blanket direction of the Authority of 16 December 1988 involved an error of law.

23. The principle that a decision-maker cannot abrogate a discretion by the application of a universal policy with no consideration of the merits of the matter is clear from the authorities. In Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) [1979] AATA 179; (1979) 2 ALD 634 at 640, Brennan J. was concerned with the inter-relationship of ministerial policy and ss. 12 and 13 of the Migration Act 1958 which deal with the deportation of an immigrant. His Honour said at 640-641:

"The Minister must decide each of the cases under

ss. 12 and 13 on its merits. His discretion cannot be

so truncated by a policy as to preclude

consideration of the merits of specified classes of

cases. A fetter of that kind would be objectionable,

even though it were adopted by the Minister on his

own initiative. A Minister's policy, formed for the

purposes of ss. 12 and 13 of the Migration Act, must

leave him free to consider the unique circumstances

of each case, and no part of a lawful policy can

determine in advance the decision which the

Minister will make in the circumstances of a given case.

That is not to deny the lawfulness of adopting an

appropriate policy which guides but does not

control the making of decisions, a policy which is

informative of the standards and values which the

Minister usually applies. There is a distinction

between an unlawful policy which creates a fetter

purporting to limit the range of discretion conferred

by a statute, and a lawful policy which leaves the

range of discretion intact while guiding the exercise

of the power."

Brennan J. had introduced these comments with a statement of general principle at 640:

"Of course, a policy must be consistent with the

statute. It must allow the Minister to take into

account the relevant circumstances, it must not

require him to take into account irrelevant

circumstances, and it must not serve a purpose

foreign to the purpose for which the discretionary

power was created. A policy which contravenes

these criteria would be inconsistent with the statute

(see Murphyores Incorporated Ltd. v. The

Commonwealth [1976] HCA 20; (1976) 136 CLR 1; Drake v.

Minister for Immigration and Ethnic Affairs (1979) 2

ALD 60; 24 ALR 577 at 589, and the cases there

cited). Also, it would be inconsistent with ss. 12 and

13 of the Migration Act if the Minister's policy sought

to preclude consideration of relevant arguments

running counter to an adopted policy which might

be reasonably advanced in particular cases. "

24. In British Oxygen Co. Ltd. v. Board of Trade [1970] UKHL 4; (1971) AC 610, Lord Reid, with whom Lords Wilberforce and Diplock agreed, said at 624-5:

"It was argued on the authority of Rex v. Port of

London Authority, Ex parte Kynoch Ltd. (1919) 1

KB 176 that the Minister is not entitled to make a

rule for himself as to how he will in future exercise

his discretion. In that case Kynoch owned land

adjoining the Thames and wished to construct a

deep water wharf. For this they had to get the

permission of the authority. Permission was refused

on the ground that Parliament had charged the

authority with the duty of providing such facilities. It

appeared that before reaching their decision the

authority had fully considered the case on its merits

and in relation to the public interest. So their

decision was upheld.

Bankes L.J. said, at p 184:

'There are on the one hand cases where a

tribunal in the honest exercise of its

discretion has adopted a policy, and, without

refusing to hear an applicant, intimates to

him what its policy is, and that after hearing

him it will in accordance with its policy

decide against him, unless there is

something exceptional in his case. I think

counsel for the applicants would admit that,

if the policy has been adopted for reasons

which the tribunal may legitimately

entertain, no objection could be taken to

such a course. On the other hand there are

cases where a tribunal has passed a rule, or

come to a determination, not to hear any

application of a particular character by

whomsoever made. There is a wide distinction

to be drawn between these two classes.'"

"The general rule is that anyone who has to exercise

a statutory discretion must not 'shut his ears to an

application' (to adapt from Bankes L.J. on p 183). I

do not think there is any great difference between a

policy and a rule. There may be cases where an

officer or authority ought to listen to a substantial

argument reasonably presented urging a change of

policy. What the authority must not do is to refuse to

listen at all. But a Ministry or large authority may

have had to deal already with a multitude of similar

applications and then they will almost certainly have

evolved a policy so precise that it could well be

called a rule. There can be no objection to that,

provided the authority is always willing to listen to

anyone with something new to say - of course I do

not mean to say that there need be an oral hearing."

25. In R. v. Port of London Authority Ex parte Kynoch Ltd (1919) 1 KB 176, Bankes L.J. had made reference to R. v. London City Council (1918) 1 KB 68. In the latter case, the applicant had asked for permission to sell pamphlets in one of the city parks and was told:

"In reply to your letter (undated) I have to state that

the Council has decided that no permits for the sale

of literature at the Council's parks and open spaces

are to be issued. I regret that it is not possible to

make exception to this rule even in a most deserving case."

"The Divisional Court regarded that not as the

adoption of a policy in the exercise of a discretion

but as a refusal to exercise any discretion."

26. I would regard that conclusion as entirely applicable to the present application.

27. In Sagnart Investments Limited v. Norwich Corporation (1971) 2 QB 614, Lord Denning said at 626:

"I take it to be perfectly clear now that an

administrative body, including a licensing body,

which may have to consider numerous applications

of a similar kind, is entitled to lay down a general

policy which it proposes to follow in coming to its

individual decisions, provided always that it is a

reasonable policy which it is fair and just to apply.

Once laid down, the administrative body is entitled

to apply the policy in the individual cases which

come before it. The only qualification is that the

administrative body must not apply the policy so

rigidly as to reject an applicant without hearing what

he has to say. It must not 'shut its ears to an

application': see [1970] UKHL 4; (1971) AC 610, 625, per Lord Reid.

The applicant is entitled to put forward reasons

urging that the policy should be changed, or saying

that in any case it should not be applied to him. But,

so long as the administrative body is ready to hear

him and consider what he has to say, it is entitled to

apply its general policy to him as to others."

28. The respondent in fact conceded that Mr. Lightowler had not exercised a discretion when deciding this matter but rather had followed obediently the direction given to him under the Act. Such direction, the respondent submitted, was a lawful direction pursuant to s. 38(4) of the Act and therefore there is no error to be found in the decision or conduct of Mr. Lightowler in following that direction. If there was any reviewable error, the respondent submitted, it should have been directed at the validity of the direction to delegates dated 16 December 1988.

29. The real contention between the parties, as I see it, is thus the lawfulness of the relevant direction to the delegates by the Authority, purporting to be pursuant to s. 38(4) of the Act. In my view the direction is invalid. It is quite inconsistent with the statutory discretion conferred on the Authority by the combination of ss. 25(1) and 36(2). It was conceded by the respondent that, if the Authority itself had applied the policy reflected in the direction of 16 December 1988 and had applied a blanket prohibition on the transfer of licences in the case of the application made by Perder Investments Pty Ltd, then such a decision could not be justified. But it was submitted that the same conclusion did not follow where a delegate had applied a policy of uncritical or blanket prohibition on transfer pursuant to a direction given under s. 38(4) of the Act.

30. In my opinion, this argument cannot be accepted. Section 38(2) provides that a power so delegated, when exercised by the delegate, shall, for the purposes of the Act be deemed to be exercised by the Authority. If the refusal to exercise a discretion by the Authority itself would be bad, then it cannot be made good by directing a delegate to refuse to exercise that discretion, because s. 38(2) deems that decision to be a decision of the Authority itself. A decision by the Authority can not be both valid and invalid at the same time.

31. It follows that, in my view, the Authority cannot permissibly under s. 38(4) give a direction to its delegates the effect of which is not to guide the exercise of the discretionary power but to prevent its exercise absolutely. The direction was thus unlawful and Mr. Lightowler's acting on it had the consequence that he "shut his ears" to the application. In my opinion, the applicant has made out grounds 3, 4, and 6(e) of its application; that is to say, the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made; it involved an error of law and, in particular, the respondent exercised discretionary power in accordance with the rule or policy without regard to the merits of the particular case.

32. The decision by the respondent to refuse to transfer Torres Strait Fishing Boat Licence No. H00609B issued under the Torres Strait Fisheries Act 1984 from Colin Richard Dwyer and Joy Olive Dwyer to Perder Investments Pty Ltd is set aside. In the circumstances I think it appropriate to remit that application to the Protected Zone Joint Authority to be determined according to law.

33. The respondent should pay the applicant's costs, to be taxed if not agreed.

Strait Fisheries Act 1984

Re Perder Investments Pty Ltd v Mark Andrew Lightowler [1990] FCA 239; 25 FCR 150 101 ALR 151 (16 July 1990)

Re Perder Investments Pty Ltd v Mark Andrew Lightowler [1990] FCA 239; 25 FCR 150 101 ALR 151

At a glance

Court

Decision date

Before

Source

Judgment (73 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (2)

Re Perder Investments Pty Ltd v Mark Andrew Lightowler [1990] FCA 239; 25 FCR 150 101 ALR 151 (16 July 1990)