Supreme Court of WA|2014-05-02|Before: Edelman J

SEA SHEPHERD AUSTRALIA LTD -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 66 (2 May 2014)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SEA SHEPHERD AUSTRALIA LTD -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 66

Statutory interpretation - Whether exemption instruments made by Minister under the Fish Resources Management Act 1994 (WA) must be published in the Government Gazette - Meaning of 'instrument ... having legislative effect' in the Interpretation Act 1984 (WA) - Judgment pars [45] - [81], [82] - [98]

Statutory interpretation - Inconsistency - Whether a requirement by s 41 of the Interpretation Act for publication in the Gazette of exemption instruments made under s 7 of the Fish Resources Management Act is inconsistent with the terms and operation of the Fish Resources Management Act - Judgment pars [99] - [129]

Constitutional law - Separation of powers - General law principles - Divide between legislative power and executive power - Judgment pars [51] - [81]

Statutory Instruments Act 1946, 9 & 10 Geo 6, ch 36

First Respondent : Mr R Mitchell SC & Ms M Georgiou

Second Respondent : Mr R Mitchell SC & Ms M Georgiou

Third Respondent : Mr R Mitchell SC & Ms M Georgiou

First Applicant : Environmental Defender's Office WA (Inc)

Second Applicant : Environmental Defender's Office WA (Inc)

First Respondent : State Solicitor for Western Australia

Second Respondent : State Solicitor for Western Australia

Third Respondent : State Solicitor for Western Australia

1 This decision involves only an issue of law. The issue is one of statutory interpretation and constitutional law.

2 Sea Shepherd Australia and Ms Burden seek judicial review of government decisions in relation to a policy described as the 'Shark Hazard Mitigation Strategy'. Part of that strategy involves setting baited drum lines in the Metropolitan Coastal Area and the South West Coastal Area to target three species of shark.[1] The three species of shark are all 'totally protected fish' under the Fish Resources Management Act 1994 (WA).[2]

3 The respondents are the State of Western Australia, the Premier of Western Australia, and the Minister for Fisheries. The respondents have made decisions in relation to the Shark Hazard Mitigation Strategy by relying upon two Exemption Instruments, numbered 2375 and 2376. I refer in these reasons to those exemption instruments in capitals. The Exemption Instruments purport to exempt various persons from the operation of the Fish Resources Management Act.[3] The exemptions purport to last from 21 January 2014 until 30 April 2014.

4 The Exemption Instruments have not been published in the Government Gazette. Sea Shepherd Australia and Ms Burden argue that the Exemption Instruments are 'instrument[s], made under any written law and having legislative effect' so that they were required to be published in the Gazette.[4]

5 The respondents deny that the Exemption Instruments have 'legislative effect'. Without legislative effect, publication in the Gazette was not required.

6 A fundamental difference between the parties therefore rests upon the divide between, on the one hand, an instrument which is administrative or executive in effect and, on the other hand, an instrument which is legislative in effect. This is the preliminary issue. As Professor Aronson and Dr Groves have observed, this is an issue which very few cases have considered.[5]

7 If an exemption instrument is not 'subsidiary legislation', because it is administrative in effect, then publication in the Gazette is not required. The proceedings will be at an end.

8 On the other hand, if an exemption instrument is subsidiary legislation, because it is legislative in effect, then at least two further issues arise. The two further issues are (i) whether Sea Shepherd Australia and Ms Burden have legal standing to challenge the decisions, and (ii) whether the Court should grant the relief sought, even though the relief relates to offencecreating provisions of the Fish Resources Management Act.

9 No submissions were made by the respondents on the further issues which arise if publication in the Gazette is required. Instead, the respondents say that if publication of the exemptions is required then an interlocutory injunction should not be granted because, notwithstanding the inadequacy of any relief other than an injunction, the balance of convenience weighs against the grant of an injunction.

10 The respondents argue that if publication in the Gazette is required then the balance of convenience still favours refusing an interlocutory injunction because it would preclude their defence on the further issues, and on any further proceedings, because the 'obvious response of the State ... would be to Gazette the Exemptions'.[6] Senior counsel for the State submitted that a reasonable time would need to be provided before the injunction could take effect so that drum lines could be removed.[7] He argued that publication in a Gazette could occur within hours,[8] so that the practical consequence is that no injunction would ever have any effect.

11 I have concluded that an exemption instrument is not subsidiary legislation. Publication in the Gazette is not required. This conclusion means that it is not necessary to decide this issue about the balance of convenience. I merely say that if I had concluded that publication in the Gazette was required, then, in the absence of any evidence concerning the speed at which publication in the Gazette could occur, it may be open to doubt whether the respondents could satisfy the Court that the balance of convenience against an injunction was in their favour.

Why this urgent application was tried as a preliminary issue

12 Sea Shepherd Australia and Ms Burden filed an application for an interlocutory injunction on Wednesday 26 February 2014.

13 On Friday 28 February 2014, the parties filed their submissions.

14 On Tuesday 4 March 2014, the parties confirmed that all of the evidence and all of the relevant submissions on the central issue in dispute between them could be dealt with at the hearing. The central issue raises the legal question concerning whether the Exemption Instruments were required to be published in the Gazette.

15 Despite agreement on the essential question, Sea Shepherd Australia and Ms Burden initially persisted in their opposition to having the matter heard as a preliminary issue. There are two reasons why this course was not an efficient means of case management.

16 First, an interlocutory injunction application requires consideration of whether there is a serious issue to be tried at a final hearing and, if so, whether the balance of convenience favours granting the injunction.[9] In this case there was nothing to be gained by making a preliminary determination of whether this issue is seriously arguable only to hear the same argument again at a final hearing. I have all the material before me which is necessary to decide this point.

17 The legal representatives of all parties have also given considerable thought to the issue involved, as the following sequence shows:

(i) prior to 17 December 2013, the Environmental Defender's Office obtained preliminary advice on the lawfulness of actions by the respondents;[10]

(ii) on 14 February 2014, copies of extracts of the exemptions were provided to the Environmental Defender's Office,[11] following which oral advice was provided by counsel to the Environmental Defender's Office;[12]

(iii) on 21 February 2014 written advice was provided to the Environmental Defender's Office;[13]

(iv) on 28 February 2014, extremely comprehensive written submissions were filed by both parties; and

(v) I have received comprehensive, careful, and wellpresented oral submissions.

18 Secondly, there is no advantage for Sea Shepherd Australia and Ms Burden in opposing a final determination of the preliminary issue. To the contrary, a determination only that there is a serious issue to be tried would generally preclude injunctive relief.

19 In McClure v The Mayor and Councillors of the City of Stirling (No 2),[14] Beech J explained:[15]

In the context of proceedings which challenge the validity of legislation (including delegated legislation), special considerations arise on an application for an interlocutory injunction. In the absence of compelling grounds, it is the duty of the court to respect and to defer to the enactment of the legislature until that enactment is adjudged to be invalid.

20 In Richardson v The Forestry Commission,[16] Mason CJ held that the application of this principle 'foreclose[d]' the balance of convenience in favour of the Forestry Commission on an application for an interlocutory injunction. The interlocutory injunction sought in Richardson was to restrain acts by the Forestry Commission, including cutting down and removing trees, which was alleged by Mr Richardson to be unlawful under the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (Cth).

21 In the absence of a determination that the enactment is invalid, this deference to the enactment of the legislature would be a significant obstacle to any interlocutory injunction sought by Sea Shepherd Australia and Ms Burden.

22 In these circumstances, counsel for Sea Shepherd Australia and Ms Burden agreed at the hearing on 4 March 2014 that the fundamental issue between the parties should be tried as a preliminary issue.

23 During the hearing it became common ground that the preliminary question was as follows:

Are the Exemption Instruments which are made under s 7(2)(c) of the Fish Resources Management Act (WA) 'subsidiary legislation' for the purposes of s 41 of the Interpretation Act 1984 (WA) with the effect that the Exemption Instruments are invalid or inoperative?

24 For the reasons I explain below, the answer to this question is 'no'.

25 The Fish Resources Management Act was assented to on 2 November 1994. Its objects are to develop and manage fisheries and aquaculture in a sustainable way; and to share and conserve the State's fish and other aquatic resources and their habitats for the benefit of present and future generations.[17]

26 The Minister for Fisheries is a body corporate under the Act.[18]

27 The Act is divided into twenty parts which contain wide ranging provisions concerning fish and fisheries.

28 Some of the provisions which are relevant to this case concern the grant of licences and permits. Section 4 defines both licences and permits as 'authorisations'. A permit is an interim managed fishery permit or a permit granted under section 80 (for processing fish). Section 4 defines a licence as any of the following

(g) any other licence provided for in the regulations.

29 Part V of the Act is concerned with general regulation of fishing. It has divisions regarding prohibited fishing, protected fish, bag and possession limits, and general penalties.

30 In the division of Part V which concerns protected fish, s 45 of the Act provides that a class of fish may be prescribed to be totally protected fish; or commercially protected fish; or recreationally protected fish, for the purposes of this Act. Section 46 then provides for offences in relation to totally protected fish. Those offences include that a person must not take any totally protected fish. Section 4 defines 'take' as including matters such as catching, capturing, killing or destroying fish by any means.

31 The key provision of the Fish Resources Management Act in this case is s 7. That section is in the first part of the Act which is concerned with preliminary matters. Section 7 provides as follows.

(1) The Minister may, by instrument in writing, exempt a specified person or specified class of persons from all or any of the provisions of this Act.

(2) The Minister may only grant an exemption under subsection (1) for one or more of these purposes

(f) community education about compliance with this Act;

(b) must be in a form approved for that purpose by the CEO; and

(5) An exemption may be granted subject to such conditions as the Minister thinks fit and specifies in the instrument.

(6) The Minister may, if he or she thinks fit, by further instrument in writing

(b) delete, vary or add to any conditions imposed in relation to that exemption.

(7) A person must not contravene a condition of an exemption.

Penalty: In the case of an individual, $10 000 or, in the case of a body corporate, $20 000.

32 A consequence of the very detailed oral submissions by counsel tonight was that five subissues emerged. Those subissues are as follows.

33 First, what is meant by 'instruments ... having legislative effect' in the definition of 'subsidiary legislation' in s 5, and applied to s 41, of the Interpretation Act 1984 (WA)?

34 Secondly, can instruments which exempt individuals or groups of individuals from the operation of an Act have 'legislative effect' so that they fall within the definition of 'subsidiary legislation' in s 5 of the Interpretation Act?

35 Thirdly, does the Fish Resources Management Act impliedly exclude the operation of s 41 of the Interpretation Act in relation to exemption instruments under s 7?

36 Fourthly, do the Exemption Instruments in this case have legislative effect?

37 Fifthly, if s 41 of the Interpretation Act applies, and if the Exemption Instruments have legislative effect, then does the failure to publish those Exemption Instruments in the Gazette mean that they are invalid or inoperative?

Sub-issue 1: Instruments having legislative effect in s 5 and s 41 of the Interpretation Act

1.1 The requirement for publication of subsidiary legislation

38 Section 41 of the Interpretation Act provides as follows:

Publication and commencement of subsidiary legislation

(1) Where a written law confers power to make subsidiary legislation, all subsidiary legislation made under that power shall

(b) subject to section 42, come into operation on the day of publication, or where another day is specified or provided for in the subsidiary legislation, on that day.

39 Section 42 deals with matters such as laying regulations, rules, local laws and bylaws before Parliament, and disallowance.

40 Section 5 provides that 'subsidiary legislation'

means any proclamation, regulation, rule, local law, by-law, order, notice, rule of court, local or region planning scheme, resolution, or other instrument, made under any written law and having legislative effect.

41 No submissions were made concerning the history of s 5 and s 41 of the Interpretation Act and in the circumstances of urgency I have not been able to trace clearly the origins of those sections. It may be that they are the successor provisions to the original provision in Commonwealth legislation requiring statutory rules to be sent to the Government Printer and to be published or notified in the Gazette where required by any Act.[19]

42 Counsel for Sea Shepherd Australia and Ms Burden submitted that the purpose of s 41 was as described by Stephen J in Watson v Lee,[20] in the context of the Acts Interpretation Act 1901 (Cth) as amended: to 'provide a mechanism for parliamentary oversight of delegated legislation and, no less importantly, allow those whom such laws effect to learn of their making and of their terms.' This submission can be accepted. It can also be accepted that, as counsel submitted in reply, upon publication in the Gazette, subsidiary legislation stands referred to the Joint Delegated Legislation Committee for consideration.[21] Matters for consideration by that committee include whether the subsidiary legislation is within power, has unintended effect on a person's existing rights or interests, and contains only matter that is appropriate for subsidiary legislation.[22]

43 But accepting each of these consequential matters concerning the purpose and effect of publication in the Gazette does not substantially assist to answer the ancillary question of statutory construction concerning which instruments have legislative effect.

44 As I explain below, the question whether an instrument made under a written law has 'legislative effect' can give rise to extremely fine distinctions. This may be one reason why many jurisdictions have abandoned this test and adopted instead the formality contained in specific legislation addressing subsidiary legislation_._[23] That legislation is generally modelled on the Statutory Instruments Act 1946, 9 & 10 Geo 6, ch 36 which generally provides for the publication of instruments, other than Orders in Council, by focusing upon whether the form of the words used by the relevant legislation involve a reference to 'statutory instrument' or whether the primary Act deems an instrument made under it to be legislative, or whether this is prescribed.

1.2 The meaning of 'legislative effect' in the Interpretation Act

45 As I have explained, the central issue to be decided concerns the operation of the definition of 'subsidiary legislation' in s 5 of the Interpretation Act: 'any proclamation, regulation, rule, local law, by-law, order, notice, rule of court, local or region planning scheme, resolution, or other instrument, made under any written law and having legislative effect' (emphasis added).

46 Although I received comprehensive submissions concerning the meaning of 'legislative effect' in other legislative contexts, and in the law generally, the task of statutory construction must begin and end with the statutory text; historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text.[24] The primary focus must therefore be upon the text of s 5 and its meaning within the Interpretation Act itself.

47 The difficulty is that although s 5 requires that each instrument in the list of instruments must have 'legislative effect' before it is subordinate legislation, there is no further illumination about the meaning of 'having legislative effect'.

48 There is nothing of assistance in the second reading speech of the Interpretation Bill 1984 (WA).[25]

49 Nor can much assistance be gleaned from the use of the concept of 'subsidiary legislation', as defined, on other occasions in the Interpretation Act, other than that the potential scope for subsidiary legislation is wide. The width of the potential scope appears from s 43 of the Interpretation Act.

50 Section 43 of the Interpretation Act contains general provisions about subsidiary legislation. Some examples of the broad scope which s 43 provides for subsidiary legislation are as follows.

(i) A power to make subsidiary legislation includes a power to amend or repeal any such subsidiary legislation.[26]

(ii) Where a written law confers power on a person to make subsidiary legislation for any general purpose and also for any incidental special purpose, the enumeration of the special purposes shall not derogate from the generality of the powers conferred with reference to the general purpose.[27]

(iii) A power to make subsidiary legislation may be exercised either in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified case or class of case.[28]

(iv) A power to make subsidiary legislation may be exercised so as to make, as respects the cases in relation to which it is exercised, the same provision for all cases in relation to which the power is exercised, or different provision for different cases or classes of case, or different provisions for the same case or class of case for different purposes of the legislation.[29]

(v) Subsidiary legislation may also be made[30]

(ii) throughout the State or in a specified part of the State;

(b) so as to require a matter affected by the legislation to be

(i) in accordance with a specified standard or specified requirement;

(ii) approved by or to the satisfaction of a specified person or body or a specified class of person or body;

(d) so as to provide, in a specified case or class of case for the exemption of persons or things or a class of persons or things from the provisions of the subsidiary legislation, whether unconditionally or on specified conditions or conditions additionally imposed and either wholly or to such an extent as is specified or otherwise determined.

1.3 The general meaning of 'legislative effect'

51 In the absence of any clear guidance within the Interpretation Act concerning the meaning of 'instrument, made under any written law and having legislative effect' it is of assistance to turn to other contexts and general law approaches relevant to 'legislative effect'. The notion of a dividing line between instruments which have legislative effect and those which have administrative effect was not a new concept when the Interpretation Act was enacted. The concept of separation of powers has a long history. That concept informed decisions involving antecedent Commonwealth legislation many years before the Interpretation Act. And it also informed decisions concerning the availability of judicial review which have, in turn, been relied upon by the Full Court in the interpretation of s 5 of the Interpretation Act in this State.[31] Although this development of the concept of 'legislative effect' has the nature of the common law casebycase decisionmaking, as French CJ has observed it 'is also a characteristic of the application by courts of broadly stated statutory provisions, the interpretation, fleshing out, and application of which the legislature has left to the courts'.[32]

52 The concept of separation of powers has a long and revered history. Nearly two centuries before Montesquieu's The Spirit of the Laws (1748), Bodin wrote that '[a] state cannot fail to prosper where the sovereign retains those rights proper to his majesty, the senate preserves its authority, the magistrates exercise their legitimate powers, and justice runs its ordinary course'.[33]

53 The first three chapters of the Constitution of the Commonwealth of Australia are also structured upon this divide into (i) the Parliament, (ii) the Executive, and (iii) the Judiciary. Each of these chapters corresponds with different concepts of power: legislative, executive or administrative, and judicial.

54 As Professor Craig has said, the boundaries between these spheres of power are 'notoriously difficult' to determine.[34] This is particularly the case because each of legislative, executive and judicial power can involve incidental powers from other fields. It has been said in relation to the boundary between judicial power and nonjudicial power that there is no single test or combination of necessary or sufficient factors to bring a power within judicial power.[35] An example of the blurring of powers is the chameleon doctrine.[36] The same is true of the boundary between legislative and executive power.

55 The difficulty in identifying a dividing line between the different spheres of power is one reason why the concept of a separation of powers is now very unfashionable.[37] Professor Aronson and Dr Groves point to the development of descriptions such as 'quasi-legislative' and 'quasijudicial' as illustrations that the labels are 'hopelessly out of date as an exercise in description'.[38] Quasi ('as though it were') is often treated as nothing more than a Latin tag to deem something to be something which it is not. And in R v Toohey; Ex Parte Northern Land Council,[39] Mason J said that 'the modern view, now received doctrine, is that the classification of powers is not a sound criterion for the operation of precise rules of law'.

56 Despite modern scepticism, the division of powers remains of real importance in a number of areas of law, particularly constitutional law. This case, and the division required by the Interpretation Act 1984, is one context in which the importance of the distinction remains. It is necessary to determine on which side exemption instruments fall of the dividing line between the executive and the legislative.

(ii) The division between legislative and administrative instruments

57 In written and oral submissions both counsel relied heavily upon decisions concerning the meaning of 'a decision of an administrative character' within s 3(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). There are significant differences between the context in which that question is asked in the Administrative Decisions (Judicial Review) Act and the context in which the question in this case arises under the Interpretation Act. The former concerns those 'decisions' which are to be the subject of review. The latter concerns the legislation, and instruments of legislative effect, which is to be the subject of publication in the Gazette.

58 The different context of these decisions means that caution must be exercised before applying the approach from those cases to the different legislative context in this case.

59 Nevertheless, there are good reasons to have regard to those cases. As I explain below, one reason is that they have been applied by a decision of the Full Court of this Court in relation to the meaning of 'subsidiary legislation' under the Interpretation Act.[40]

60 Another reason to have regard to the cases on s 3 of the Administrative Decisions (Judicial Review) Act is that the leading decision upon which many of those cases rely, Commonwealth v Grunseit,[41] actually concerned legislation which was much more closely aligned with a provision like that in the Interpretation Act in this case.

61 A third reason is that the ultimate question being asked in those cases is probably the same as the ultimate question to be asked in this case: does the decision or instrument share sufficient of the general characteristics or effects of legislation that it can be described as (i) legislative in character or effect or (ii) administrative in character or effect.

62 The leading decision is that of Latham CJ (with whom McTiernan J agreed) in Commonwealth v Grunseit.[42] One issue in that case concerned whether a direction given by the Minister for the Army on 17 August 1942 was an order, rule, or by-law 'of a legislative and not an executive character' within the meaning of s 5(4) the National Security Act 1939 1940. That subsection applied the requirement in s 48 of the Acts Interpretation Act 1901 1937 for laying certain instruments before Parliament.

63 In the Chief Justice's judgment, he explained that the legislation in that case was based upon an assumption that it is possible to draw a distinction between instruments which are of a legislative character and those which are of an executive character. He said that the distinction was not always easy to draw. But his Honour then described[43] what is now a significant starting point[44] for the divide between a legislative act and an administrative act:

The general distinction between legislation and the execution of legislation is that legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases. Attention has been given in the United States of America to this distinction for the purpose of applying the doctrine which is there accepted of the separation of legislative, executive, and judicial power. My brother Williams referred to the case of J W Hampton Jr & Co v United States,[45] where it was said: 'The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law.'

64 The reference by the Chief Justice to legislation determining the content of a law as a rule of conduct or a declaration as to power, right or duty has been referred to on many occasions. It has been described as a 'hallmark of the exercise of legislative power'[46] and a 'rudimentary distinction'.[47]

65 In the Full Court of the Supreme Court of Western Australia, in Norton v The Queen,[48] RobertsSmith J (with whom Wallwork J and Pidgeon AUJ agreed) also referred to one of the decisions under the Administrative Decisions (Judicial Review) Act which had followed Commonwealth v Grunseit. Roberts-Smith J applied the same approach to s 5 of the Interpretation Act treating 'legislative effect' in the same manner as 'legislative character' (and in contrast with 'administrative character'), an approach open on the wide variety of meanings of 'effect':

... the distinction is essentially between the formulation of rules of law having general application and the application of general rules to particular cases.

66 Nevertheless, although this formulation may be the 'essential' distinction, and although this approach of Latham CJ may be a 'hallmark' or important consideration, it cannot be decisive.

67 One reason why the approach of Latham CJ cannot be decisive is because, as explained above, s 43(7) of the Interpretation Act specifically contemplates that a power to make subsidiary legislation may be exercised in relation to any specified case or class of case. This appears to contemplate the possibility of subsidiary legislation which applies general rules to specific cases.

68 Another reason was given in Queensland Medical Laboratory v Blewett.[49] In that case, the question for the Federal Court was whether a determination by the Minister for Community Services and Health was an executive act or a legislative act. The determination was that a new pathology services table should be substituted for the existing table in Sch 1A of the Health Insurance Act 1973 (Cth). Justice Gummow held that it was a legislative act even though a decision not to reclassify would have been an administrative act.[50]

69 Justice Gummow explained that the approach of Latham CJ in Commonwealth v Grunseit, which contrasts the general rule of conduct with the particular rule, cannot be a sufficient distinction between legislative and administrative acts. In a passage which has been subsequently cited with approval,[51] his Honour explained that from the point of view of the legislature 'individual norms' which apply only to the action of a single person on a single occasion may still be classed as laws, even though the operation of such laws must necessarily be upon particular cases.[52] And from the point of view of the executive, Professor Stewart had earlier written of the breadth of executive power and how 'we have been disabused of the notion that administrators are simply the executory amanuenses of the legislative will'.[53]

70 In Queensland Medical Laboratory v Blewett, Gummow J reached the conclusion that the decision was legislative in character by focusing upon the fact that the Minister had acted in a manner which had 'the immediate effect of changing the content of a law as a rule of conduct or declaration of power, right or duty'[54] (emphasis added).

71 Counsel for Sea Shepherd Australia and Ms Burden focused very heavily upon this statement by Gummow J in Queensland Medical Laboratory v Blewett. As I explain below, counsel's submission was that every exemption changes the content of the law because it exempts subject matter from the application of the law. There are three difficulties with this submission.

72 First, the approach of Gummow J was never posited as a general test. His Honour was making an observation that the Minister had made a decision which had the effect that part of an Act ceased to have effect and was replaced by another part (as a schedule of the relevant Act). His Honour's observations about changing the content of the law must be seen in the context that the result was 'the same as if the Schedule had been changed by an amending statute'.[55]

73 Secondly, if the submission of counsel for Sea Shepherd Australia and Ms Burden were correct then every licence, every permit, and every permission given in an instrument under any legislation would have legislative effect and require gazettal. At the very least, as counsel acknowledged, there could be many licences and permits which would require gazettal.[56] This could not be the approach that the legislature could be taken to intend[57] by the use of the words 'instrument ... having legislative effect'.

74 Thirdly, the only case to which I was referred, and the only case which I have located which concerned the characterisation of the nature of an exemption instrument reaches the contrary conclusion. This is the decision of the Full Court of the Federal Court in Ministry of Industry and Commerce v Tooheys Ltd.[58]

75 In that case, the Minister refused to make a determination under s 273 of the Customs Act 1901 (Cth) that item 19 of a customs tariff applied to particular goods. A determination that item 19 applied would have meant that no duty would have been payable on the relevant goods. One question for the Full Federal Court was whether the Minister's refusal to make a determination was 'a decision of an administrative character' within the meaning of s 3(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Full Court held that it was such a decision. The Court quoted with approval from the trial judge as follows:[59]

When, therefore, a decision is made by the Minister to make a determination under s 273 of the Act in relation to item 19 of the Tariff he is deciding that specific goods fall within the general description contained in that item and should be allowed in at a lower rate of duty or at no duty at all. Item 19 of the Tariff, in effect, lays down a general rule by describing in broad terms the goods which are to have the benefit of exemption or a lower rate of duty and s 273 read with other provisions of Pt XVI enables the Minister in his discretion to apply that general rule to particular cases. In my view this does not amount to changing the law. He is simply applying it in the exercise of his discretion to a particular set of circumstances. This may amount to doing the work which Parliament may have done had it been equipped to specify in advance all the goods it intended to cover but it does not follow from this that the Minister's decision is legislative in character.

76 For these three reasons, the remarks of Gummow J should not be treated as a test for 'legislative effect'.

77 I have explained that the approach to the determination of whether an instrument under the Fish Resources Management Act has 'legislative effect' begins by focusing upon the instrument and asking whether the instrument creates (i) a rule of conduct or a declaration as to power, right or duty (in which case it has legislative effect), or (ii) whether it applies the law in particular cases.

78 As I have explained, that approach cannot be finally determinative of the legislative effect of an instrument. So the tendency in the cases has been to consider a wide range of additional factors or indicia. The relevance of these factors to determining whether an instrument has legislative effect or administrative effect can only be because each of these factors is one of the usual characteristics of legislation. The more of these indicia which are present in an instrument, the more likely it is that the instrument will have legislative effect. Understood in this way, the approach of Latham CJ is no more than one broad description of one general characteristic of legislation.

79 A more recent decision in which a number of other factors indicating legislative characteristics is the decision of the Full Federal Court in RG Capital Radio Ltd v Australian Broadcasting Authority.[60] An application for special leave to appeal from that decision to the High Court of Australia was dismissed on the basis that there was 'no reasonable doubt of the correctness of the decision'.[61]

80 The question posed for the Full Court of the Federal Court in that case was whether a decision to determine a licence area plan was a decision of an administrative character within the meaning of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Some of the factors upon which the Full Court focused, which I have summarised and adapted, are as follows:

(i) the greater the control that Parliament has over the power reposed in the executive the more legislative the instrument will be in effect;

(ii) a requirement of wide public consultation before an instrument takes effect is an indicator that it has legislative effect;

(iii) the wider the range of considerations that the decisionmaker is entitled to take into account, the more likely the instrument will be characterised as legislative in effect;

(iv) a broad nature and impact of the decision will be another indicator of legislative effect;

(v) the absence of executive control of the decision indicates that it has a legislative effect; and

(vi) the omission of a power of merits review by an administrative tribunal is another indicator of legislative effect.

81 These are not exhaustive factors. At the end of the day, the question of whether an instrument has legislative effect is to be answered by considering whether the instrument bears sufficient resemblance to legislation, having regard to those qualities usually present in legislation. The more legislative qualities that are present in the instrument the more it is likely to have a legislative effect.

Sub-issue 2: Can exemption instruments under the Fish Resources Management Act have legislative effect?

82 Much of the focus of submissions was on this subissue.

83 Counsel for Sea Shepherd Australia and Ms Burden submitted that every exemption, other than those which might be purely procedural or evidentiary in character, is legislative in effect because every exemption changes the law.[62]

84 In contrast, senior counsel for the respondents submitted that instruments which give effect to exemptions under the Fish Resources Management Act are never instruments which have legislative effect.

85 The submission by counsel for Sea Shepherd Australia and Ms Burden was that the Exemption Instruments involved taking an administrative step, but that it was an administrative step which had legislative effect.[63] As I have already explained, he relied heavily upon the decision in Queensland Medical Laboratory v Blewett. As I have already explained, the approach of Gummow J in that case was not intended as a general test. Nor can it be applied as such.

86 I accept the submission by senior counsel for the respondents that exemption instruments under the Fish Resources Management Act will never be instruments of legislative effect within s 5 of the Interpretation Act. This is for three categories of reason, in combination, set out below.

2.1 The exemptions apply a rule to a particular case

87 The first reason that supports the administrative effect of exemptions made under s 7 of the Fish Resources Management Act is that those exemptions are better understood as applying a general provision to particular cases rather than creating a rule of conduct.

88 Whilst I accept that this broad factor deriving from Latham CJ is not always easy to apply, the approach of the Full Federal Court in Ministry of Industry and Commerce v Tooheys Ltd[64] is apt. As I have explained, in that case the general rule described in broad terms the goods which were to have the benefit of exemption or a lower rate of duty. The Minister had a power to apply that general rule to particular cases.

89 So too, the same approach applies in s 7 of the Fish Resources Management Act. The section prescribes a general rule in broad terms concerning the power to exempt a specified person or specified class of persons from all or any of the provisions of this Act. That broad rule is conditioned upon a requirement that one or more of seven listed purposes is satisfied. The issue of an exemption instrument is then an application of that general rule.

2.2 Other important indicators of legislative effect are absent

90 Other matters, discussed above, which are indicators of legislative effect are also absent from exemptions.

91 First, there is little control, and none expressed in the Fish Resources Management Act, that Parliament has over the power reposed in the Minister.

92 Secondly, there is substantial executive control over the exemption power reposed in the Minister. Section 7(6) permits the Minister, if he or she thinks fit, by further instrument in writing, to vary or revoke an exemption or delete, vary or add to any conditions imposed in relation to that exemption.

93 Thirdly, there is no requirement for any consultation, still less any wide public consultation before the exemptions take effect.

94 Fourthly, the range of considerations of which the Minister is permitted to take into account is limited to the seven factors provided in s 7(2).

95 There are two contrary matters relied upon by counsel for Sea Shepherd Australia and Ms Burden. One supports their case, but the other is neutral.

96 The factor which supports their case is the omission of a power of administrative review by the State Administrative Tribunal. This is an indicator of legislative effect. But it is not decisive especially when weighed against all the matters discussed above. Further, the Fish Resources Management Act also omits a power of administrative review from other instruments which are not of legislative effect: aquaculture leases,[65] and exclusive licences to take fish.[66]

97 The factor which is neutral is the power to exempt, and the actual exemption in this case for, the State of Western Australia. Counsel for Sea Shepherd Australia and Ms Burden submitted that this exemption changed the content of the law because s 8(1) of the Fish Resources Management Act provided that the Act binds the Crown. I have already explained that this is not the correct approach to apply. But, in any event, I do not accept this submission. The provision in s 8(1) merely removes doubt which might otherwise exist[67] concerning whether the State of Western Australia should be treated in the same way as any other natural person subject to the Act.[68]

2.3 Incongruity with exemptions having legislative effect

98 There is a third reason why exemptions under the Fish Resources Management Act do not have legislative effect. This is because there is an incongruity which arises if exemptions are instruments of legislative effect. Section 47 of the Interpretation Act provides that 'any act done under subsidiary legislation shall be deemed to be done under the written law under which the subsidiary legislation was made'. The incongruity which arises is between (i) acts done under an exemption from the operation of the Fish Resources Management Act, and (ii) those same acts being deemed to be done under the Fish Resources Management Act.

Sub-issue 3: Does the Fish Resources Management Act impliedly exclude a requirement of Gazettal?

99 Since I have concluded that exemption instruments made under s 7 of the Fish Resources Management Act do not have legislative effect, it is not strictly necessary to consider this subissue. However, I have considered this subissue below because

(i) a number of the matters relied upon by senior counsel for the respondents for the previous subissue are matters which are better understood as concerned with this subissue; and

(ii) those matters were fully argued and I should express my conclusion in relation to them.

100 I commence my discussion of this sub-issue with an explanation of how it arises and then I explain why if, contrary to my conclusion above, exemption instruments have legislative effect then s 41 of the Interpretation Act is impliedly excluded by the Fish Resources Management Act.

3.1 Section 41 does not apply if the intent or object of the Fish Resources Management Act is inconsistent with that application

101 Section 3 of the Interpretation Act provides that

(1) The provisions of this Act apply to every written law, whether the law was enacted, passed, made, or issued before or after the commencement of this Act, unless in relation to a particular written law

...

(c) in the case of subsidiary legislation, the intent and object of the Act under which that subsidiary legislation is made is inconsistent with such application.

102 Section 3 therefore qualifies s 41 of the Interpretation Act. In other words, if the intent and object of the Fish Resources Management Act is inconsistent with a requirement for gazettal of Exemption Instruments then s 41 will not apply to require publication in the Gazette.

103 It is sometimes a difficult question of degree to determine whether an implied legislative intention exists in a particular Act which is inconsistent with a provision in the Interpretation Act. An example of the difficulty in determining whether there exists an implication of inconsistent legislative intention is Pfeiffer v Stevens.[69] In that case, the Minister, acting under the Local Government Act 1993 (Q), sought to extend an interim local law twice. After the first extension, Mr Pfeiffer was prosecuted. The Acts Interpretation Act 1954 (Q), s 23(1), permitted the Minister's power to be exercised 'as the occasion required'. Mr Pfeiffer said that s 23(1) was inconsistent, by implication, with the power in the Local Government Act to extend the interim local law to the end of a period gazetted by the Minister.

104 The majority concluded that the provisions were consistent. In the majority, McHugh J said that an[70]

intention contrary to the Acts Interpretation Act may appear not only from the express terms or necessary implication of a legislative provision but from the general character of the legislation itself ... [In Blue Metal Industries Ltd v Dilley] the Privy Council said[71]

in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole.

3.2 Implied inconsistency because exemption instruments are treated as having the same effect as licences and permits

105 The first reason for implied inconsistency between s 41 of the Interpretation Act and the Fish Resources Management Act if s 7 exemption instruments were to have legislative effect is as follows. Licences and permits (authorisations) issued to particular individuals under the Fish Resources Management Act are not legislative in effect, and do not require publication in the Gazette unless expressly provided. But exemption instruments are treated in the same general way as licences and permits.

(i) The decision of the Full Court in Wilkes v Johnsen

106 The commonality of licences, permits and exemptions was considered in this State in the context of the Fish Resources Management Act in Wilkes v Johnsen.[72] Mr Wilkes had been convicted of offences under the Fish Resources Management Act, including an offence under s 46(b), s 52 and s 222 of that Act for 'being in possession of totally protected fish (eight undersized marron)'.[73]

SEA SHEPHERD AUSTRALIA LTD -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 66 (5 March 2014)

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SEA SHEPHERD AUSTRALIA LTD -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 66 (2 May 2014)

Legislation Cited (26)

Cases Cited (44)