Supreme Court of WA|2000-04-07|Before: Wheeler J

Shark Bay Tuna Farms Pty Ltd v Executive Director, Fisheries WA & Anor [2000] WASC 79 (7 April 2000)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SHARK BAY TUNA FARMS PTY LTD -v- EXECUTIVE DIRECTOR, FISHERIES WA & ANOR [2000] WASC 79

Fish and fisheries - Application to vary aquaculture licence - Effect of renewal of licence - Objection - Construction of Fisheries Resource Management Act - Authority of Executive Director - Jurisdiction of tribunal created by statute - Questions of law - Delegation by Executive Director

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1

Adams & Anor v Executive Director, Fisheries WA [2000] WASC 34

Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147

Bernard v Collard (1988) 6 MVR 292

Bulk Chartering & Consultants Australia Pty Ltd v T & T Metal Trading Pty Ltd (1993) 114 ALR 189

Carltona v Commissioner of Works [1943] 2 All ER 560

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374

Devries v Australian National Railways Commission (1993) 177 CLR 472

Jenkins v Huntsinger 125 P 2d 327

Kelly v Watson (1985) 64 ALR 113

Lighthouse Philatelics Pty Ltd v Commissioner of Taxation (1991) 32 FCR 148

LS v Director-General of FACS (1989) 18 NSWLR 481

Manna; ex parte Director-General of Social Services (1979) 2 ALD 86

Mercantile Credits Ltd v Commissioner of Taxation (Cth) [1971] HCA 1; (1970) 123 CLR 476

Parramatta City Council v Palmyra Freehold Pty Ltd [1974] 2 NSWLR 83

R v Adams; ex parte Barbeler (1981) 46 LGRA 227

R v Hall University Visitor; ex parte Page [1992] UKHL 12; [1993] AC 682

R v Hickman; ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598

R v Joske & Ors; ex parte Shop Distributive and Allied Employees Association & Ors [1976] HCA 48; (1976) 10 ALR 385

R v Marshall; ex parte Baranor Nominees Pty Ltd [1986] VicRp 2; [1986] VR 19

Re Bennett and Repatriation Commission (1994) 36 ALD 387

Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257

Re Nicoletta Ciffolilli; ex parte Peter Phillip Rogers, Executive Director of Fisheries Department of Western Australia [1999] WASCA 205

Re Reference Under Obudsman Act, section 11 ex parte Director-General of Social Services (1979) 2 ALD 86

Re Western Australian Greyhound Racing Association (Cannington Raceway) (No 1) (1991)

State Rail Authority of NSW v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 160 ALR 588

The King v Hickman & Ors [1945] HCA 53; (1945) 70 CLR 598

Watson v Miles [1953] NZLR 958

1 WHEELER J: Pursuant to s 155 of the Fish Resources Management Act 1994 (" the FRMA") a number of questions of law have been stated for the opinion of the court. They arose in the following way.

2 The objector holds an aquaculture licence pursuant to s 92 of the FRMA. The intervener also holds an aquaculture licence pursuant to s 92 of that Act. Pursuant to s 142 of the FRMA, the intervener lodged an application dated 12 August 1997 to vary its licence, so as to "include the culture of Pinctada margaritifera (black lip pearl oysters)" ("the application to vary").

3 On 12 June 1998, Mr Andrew Cribb, an officer of the Fisheries Department, considered the application and made a "proposed decision" approving it subject to certain conditions ("the proposal").

4 The proposal was advertised in "The West Australian" newspaper on 17 June 1998 pursuant to s 148(1)(d) of the FRMA. The objector lodged a notice of objection within the 21-day time period specified by s 149 of the FRMA. The grounds specified in the notice then lodged were that: the proposed site of the pearl farm was inappropriate because of its proximity to the objector's farm and likely adverse effects upon the objector; the intervener had not used the site since an aquaculture licence was granted in respect of it in about 1994 and the intervener's licence should therefore have been terminated; alternatively, that because of the lack of use of the intervener's licence it should have been rescinded or not renewed; and in determining the application the Executive Director should have used what is known as the "precautionary" approach.

5 Pursuant to s 149(4) of the FRMA, the Executive Director referred the objection to the Minister for Fisheries and pursuant to s 152 a tribunal was established by the Minister by notice dated 7 September 1998. The notice establishing the tribunal recited that it was established "for the purpose of hearing and determining the objection to a proposed decision by the Executive Director to vary aquaculture licence No 1361".

6 The objection was heard in February 1999 and at that hearing, the objector sought to amend its grounds of objection by including five further grounds. Those grounds, in essence: questioned the authority of Mr Cribb to make the proposal; asserted that because the licence had expired at the time of the application, the application to vary necessarily lapsed and the Executive Director was unable to make any 'proposed decision' in respect of it; and alternatively, asserted that by reason of breaches of the licence by the intervener, the licence was of no effect and was unable to be the subject of any application or any proposed decision. Evidence was led before the tribunal on 1 July 1999 concerning Mr Cribb's authority and on 24 August 1999 the tribunal made certain proposed findings of fact, which were expressed to be subject only to any decision of this Court in respect of the questions of law stated for its opinion.

7 The Executive Director submits that the tribunal was unable to entertain the grounds sought to be added by the objector, being grounds 5-9, for a number of reasons. First, for broadly two reasons, he submits that the only "matter" which the tribunal is permitted to determine pursuant to s 152(2) is the objection as it was when referred by the Executive Director, and that to add additional grounds would be to seek to add an additional "matter" to that referred to the tribunal. As a related submission, he asserts that, the new grounds really being fresh matters of objection, they are outside the 21-day time limit specified by s 149(2) and that the objector is therefore out of time to raise those matters. Finally, he submits that a person who is an "affected person" is not entitled to raise a ground of objection which goes to anything other than the manner in which that person may be "significantly affected by the proposal".

8 These submissions are best understood against the background of the relevant statutory provisions, which are set out below.

9 Section 146 defines an "affected person". For certain purposes, "affected person" means, essentially, the person who applies for an authorisation or to whom it is proposed to transfer an authorisation ("authorisation" being a statutory term which includes a licence). In respect of those persons, the FRMA provides that before refusing to grant an authorisation, varying or cancelling it, or refusing to transfer it, the Executive Director must give each affected person notice in writing of the relevant proposal. So far as applications of this kind are concerned, s 146 relevantly defines as "affected":

(ii) is likely to be significantly affected by the proposal."

10 10 Section 148 provides that before granting varying or transferring, inter alia, an aquaculture licence, the Executive Director must cause notice of the proposal to be published and must give affected persons the opportunity to object to the proposal.

11 Section 149(1) and s 149(2) provide that within 21 days after being given notice or after publication of the relevant notice, an affected person may object. Section 149(3) provides that an objection is made, "by giving to the Executive Director notice in writing in a form approved by the Executive Director setting out the grounds of objection". Section 149(4) provides that the Executive Director is to refer any objection to the Minister.

12 By s 151, if no objection has been received and the time for making an objection has elapsed, the Executive Director may give effect to the proposal. However, if an objection is referred to the Minister pursuant to s 149(4), s 152 provides that the Minister is to establish a tribunal "consisting of not less than one person and not more than three persons ... who in the Minister's opinion have suitable expertise to hear and determine the matter" and is to "refer the proposal, every objection, and any other relevant materials to the tribunal for the hearing of the matter".

13 Section 152 also provides that:

"(2) The tribunal is to hear and determine the matter and is to make such decision as it thinks fit.

(3) A decision of the tribunal is final and must be given effect to by the Executive Director".

14 The tribunal is to afford to every person who has objected and every other person who in the tribunal's opinion should be given the opportunity to respond to any objections a reasonable opportunity to call or give evidence and to make submissions: (s 153).

15 Section 154 is a provision, common in legislation setting up tribunals, to the effect that the tribunal is to act according to equity and good conscience and the substantial merits of the case and with as much speed as possible. Section 155, pursuant to which this matter arises, provides for questions of law arising in proceedings before the tribunal to be stated for the opinion of the Supreme Court.

16 The Executive Director at first submitted that the "matter" for the tribunal to hear and determine pursuant to s 152(2) is the objection, and that its jurisdiction extends no further than that. Mr Hooker, for the Executive Director, agreed during the course of argument that this proposition was too narrow. Once an objection is made, it appears that both it and the proposal must be referred to a tribunal; there is no provision in the statute for the Executive Director simply to reconsider the proposal himself or herself. The tribunal appears to be required to stand in the shoes of the Executive Director and to determine the proposal, in the light of the objection and in the light of any other relevant materials that might be referred. "The matter" must therefore be the proposal, together with the objection and other materials.

17 Turning to the question of what constitutes the objection, the Executive Director's submission as I understood it, rested on two bases, one being s 149(3), and the other being the broader policy consideration that the permitting of additional grounds to be raised after an objection had been referred to the tribunal, might be inconsistent with the tribunal's duty to act with as much speed as possible.

18 So far as the first of these considerations is concerned, as a matter of ordinary meaning an objection may either be an expression of disapproval or a stating of the reason for disapproving of something. It does not appear to me that s 149(3) assists in distinguishing between these two meanings. While it is open to read the subsection, as the Executive Director does, as suggesting that an objection is constituted by a notice of grounds for objection, it seems to me that it is equally open to read it as predicated on the assumption that "an objection" is something distinct from the "grounds of objection" so that the subsection prescribes the form in which an objection must be made and the matters which accompany an objection, rather than purporting to define the expression "an objection".

19 Further, so far as the statutory scheme is concerned, a relatively short time is afforded to an objector in which to make objection, and the provisions of the part of the FRMA which deal with the tribunal suggest that its object is to ensure that objections may be made relatively informally and may be made by those who are not legally represented. It seems unlikely that the statutory intention was strictly to confine an objector to the original grounds of objection. So far as the policy considerations alluded to by the Executive Director are concerned, the tribunal's duty to act according to "equity and good conscience" would require it to consider, in deciding whether to permit amendment or addition to grounds of objection, the stage at which the application came to be made, the nature of the alteration, any prejudice to any party in either granting or refusing the application, and other relevant matters.

Such a course seems more consistent with "equity and good conscience" than a blanket ban on amendments. It should also be noted that legislative provisions that confine an objector to the original grounds of objection are not unknown, as the objector points out (eg the former Income Tax Assessment Act, s 190), and the legislature could have adopted such a course here if it thought fit.

20 It appears to me therefore, that an "objection", by analogy perhaps with an "appeal", is to be understood simply as a statement by an affected person that he or she disagrees with the decision proposed. It is supported by grounds of objection, which direct the tribunal's attention to the matters truly in dispute. If this is so, there is no reason why it would not be open to the tribunal to permit amendment of, or addition to, the grounds of objection if the tribunal considered it appropriate to do so.

21 In relation to the submission that an objector is necessarily confined to those matters which make him or her a person "significantly affected" by the proposal, I am unable to see any reason in the language of the statute for arriving at that conclusion. In particular, s 149(3) to which reference has already been made, provides merely that a notice of objection must set out the grounds of objection, but does not in any way attempt to confine those grounds.

22 There seems to me to be no policy reason for attempting to read the FRMA in a manner which confines the grounds in this way. The persons listed in s 146 correspond closely with those groups of persons who, in the absence of a tribunal or other review procedure prescribed by statute, might well be considered to have standing to seek judicial review of the Executive Director's decisions. It is a feature of the law governing judicial review of administrative decisions that, once a person has established standing to challenge a decision, the person is not confined to an argument which rests upon the effect of the challenged decision upon him or her, but is free to raise matters which point to a lack of jurisdiction to make the decision or to some legal error in the way in which the decision maker's task has been performed. It appears to me that the purpose of this part of the FRMA is to make available to those persons whom the legislature considers to have appropriate standing, a procedure which may be more effective than judicial review in the sense that it is less formal and gives greater attention to the merits of the proposed decision. In the absence of clear words, it is unlikely that the legislature intended at the same time to restrict the reasons upon which an objector might rely.

23 It is perhaps convenient to discuss at this point one important consequence of the creation of the tribunal pursuant to statute, and one important respect in which the jurisdiction of the tribunal differs from that of a court judicially reviewing a decision such as that in issue here. It is a precondition of the jurisdiction of the tribunal that there be:

(c) to which there is an "objection" (ie which, in a case such as the present, is objected to by a person who is both the holder of an aquaculture licence and is likely to be significantly affected by the proposal).

24 The tribunal is unable authoritatively to determine: whether there is in fact and law a proposal; whether the person who made the proposal referred to it was in fact and in law the Executive Director; or whether in fact and law a purported objector is likely to be significantly affected by the proposal. There may be other necessary preconditions to jurisdiction, which the tribunal is also unable authoritatively to determine. As Deane J observed in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307 at 343:

"An administrative tribunal will ordinarily have no authority to transcend the limits of the jurisdiction conferred upon it by hearing an application aimed not at invoking the jurisdiction which it possesses, but at securing an authoritative determination of questions of fact or law anterior to the existence of that jurisdiction".

While his Honour was in dissent in that case, I do not understand the principle he there enunciated to be controversial.

25 Indeed, because of the peculiar nature of this tribunal, which is set up as an ad hoc body by the Minister when certain statutory preconditions are met, it appears to me to be in a somewhat different position, so far as its jurisdiction is concerned, from the ordinary administrative body. Such a body will normally, as part of its function, be able to form an opinion "as to the limits of its own authority" (see Re Adams (1976) 12 ALR 239 at 242 per Brennan J). If the tribunal were, for example, a body created by statute to hear all objections which might be made to every proposal of a particular type, it would be open to it to determine for itself whether a particular matter was or was not an "objection", or whether what was objected to was a "proposal" of the relevant type. If it found there was no objection, or no relevant proposal, it seems to me that it would be open to such a body to decline to hear the matter.

26 However, I do not think it is open in any case for this tribunal to decline to deal with a proposal and objection referred to it on the basis that it lacks jurisdiction. By s 152(2) the tribunal is required to hear and determine "the matter"; that is, it must, once constituted, deal with the matter referred to it. For the purpose of s 152, it appears that the expressions "the proposal" and "every objection" must be understood as referring to anything which purports to be a proposal or which purports to be an objection, and which is referred by the Minister. A somewhat analogous understanding of a statutory provision, (differing in certain respects because the provision was one conferring jurisdiction of a general kind on a "standing" rather than an ad hoc administrative tribunal) is found in the reasons of the Federal Court in relation to the expression "decision ... made in the exercise of powers conferred by that enactment" in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd.

27 In dealing with "the matter" referred to it, however, it will be necessary for the tribunal to consider questions which would, in another context, be seen as jurisdictional issues. For example, the effect which the proposal will have on the interests of the "affected person" is likely to be a significant factor in many cases in determining whether it would be appropriate to give effect to the proposal. In the course of dealing with this question, the tribunal may well hear evidence directed to establishing that the interests of that person will not be affected significantly, or perhaps will not be affected at all. The tribunal may form the opinion that the objector is not likely to be significantly affected. The tribunal can form this opinion, however, not for the purpose of determining whether it has jurisdiction to hear and determine "the matter" but only in order to determine whether it would be appropriate to permit the Executive Director's proposal to be given effect.

28 Similarly, I see no reason why the tribunal should not consider, if the point is taken before it, whether the person purportedly acting as Executive Director had authority so to act, or whether the decision which the Executive Director proposed to make is one which may legally be given effect, or whether, having regard to all the circumstances, it was open to the Executive Director to entertain the application which led to the proposal. All of these are matters which may bear on the propriety of giving effect to the proposal, which is the matter the tribunal is empowered to determine.

29 I am fortified in this conclusion by the power of the tribunal to state a case for the opinion of the Supreme Court. The existence of such a power suggests that the legislature contemplated that legal issues might arise, perhaps not infrequently, in the course of the tribunal's deliberations, and that it might be necessary that such questions be authoritatively determined before the tribunal could reach a concluded view.

"Lapse" of the Licence and Alleged Breaches of Conditions

30 The objector submits that, because there was some period of time between the application to vary dated 12 August 1997 and the "proposed decision" of 12 June 1998, during which the licence had expired, that the application must be regarded as having "lapsed" so that it was not, by 12 June 1998, open to Mr Cribb to propose to grant it. Further, it submits that because at all material times the intervener was in breach of a condition of the licence, either the licence was "of no effect" or the proposed decision to vary it should not have been made. The relevant condition, and the provisions relating to renewal, are as follows.

31 Condition 6 of the aquaculture licence granted to the intervener required that the intervener "shall actively and continuously use the area authorised for the purpose of farming fish to the satisfaction of the Executive Director of Fisheries". It is said, and I assume for the purpose of these reasons, that the area has not been used at all by the intervener for the purpose of farming fish.

"The authority conferred by an authorisation is of no effect at any time when any of its conditions are being contravened ...".

"(1) If a person applies to the Executive Director for the renewal of an authorisation within 60 days after the day on which it has expired, the authorisation may be renewed despite the fact that it has expired.

(2) If an authorisation is renewed as provided under subsection (1), the authorisation must be taken -

(a) to have been renewed from the day on which the renewal was effected;

(b) to have been of no effect during the period from the day on which it expired until the day on which it was renewed ...".

34 Section 143 provides that the Executive Director may cancel, suspend or refuse to renew an authorisation if, inter alia, a condition of the authorisation has been contravened.

35 It seems to me that the objector's contentions in relation to these provisions can be dealt with relatively briefly. So far as s 143 is concerned, it is plainly discretionary in its terms. The Executive Director has not cancelled or suspended the aquaculture licence. The tribunal cannot, in this case, compel the Executive Director to cancel or suspend, or treat the authorisation which was not in fact cancelled or suspended as if it had been. Since the Executive Director did not purport to act pursuant to s 143, it is of no relevance.

36 So far as s 137 is concerned, the argument runs that the aquaculture licence was of "no effect" while it was contravened, and that there was therefore not at any relevant time anything which the intervener could apply to vary, or which the Executive Director could propose to vary. This argument overlooks the opening words of s 137(2). It is the authority conferred by the licence which is of no effect. The licence is still in force, but no action which would be prohibited by the FRMA in the absence of a valid authorisation may be carried out under it by the holder.

37 The continued existence of the licence for some purposes has legal consequences. For example, contravention of a condition of an aquaculture licence would still be an offence pursuant to s 96, notwithstanding that by reason of the earlier contravention of some other condition, the authority conferred by that licence was of no effect pursuant to s 137(2). It would also appear to me that any holder of such a licence may apply to vary it, although a variation which purports to authorise the doing of any act which would otherwise be prohibited, will not be of effect while the condition continues to be contravened. Indeed, one can envisage a variation application being made in such a circumstance where a condition has proved to be impossible for the holder of the licence to comply with, seeking to remove that condition. It appears to me that the distinction between s 137, which provides that "the authority" conferred by an authorisation is of no effect, and s 139, which provides that "the authorisation" is to have taken to have been of no effect during a relevant period, is carefully drawn.

38 Finally, the objector's submission that the application to vary must necessarily "lapse" at the time of the expiry of the licence, and that the Executive Director cannot propose to vary a licence which is of no effect, focus the difficulty that pursuant to s 94 of the FRMA, if a person applies to the Executive Director for the renewal of an aquaculture licence, then, subject to s 143 (and presumably subject to the time limit provided by s 139), the Executive Director "must" renew the licence. Further, where a person has applied for renewal of an authorisation and the Executive Director proposes not to renew it, the authorisation is nevertheless taken to continue in force until a final decision is made to renew or not to renew (as the case may be) (s 149). Although there is no licence in existence, then, during the period following expiry and preceding renewal, there is a contingent right to a renewal.

39 The nature of a "proposal" becomes important in this context also. Even though there may be a contingent right to renew, it would seem clear enough that the Executive Director cannot actually purport to vary something which is not at the time in effect by reason of s 139. However, a proposal is merely an expression of an intention. If an application is received from a person who is at the relevant time the holder of an authorisation which is in existence (as was the case here) then the Executive Director may commence to consider it. It would not be unreasonable of the Executive Director to interrupt that consideration should the licence expire after the application had been received. However, I do not see any indication in the statute that he must do so.

40 Still less does it appear, that the application to vary ceases to have any effect, so as to require a fresh application and a fresh fee. The consequences of the view advanced by the objector could be inconvenient and unnecessarily costly. For example, on one view of the facts of this case, the licence ceased to have effect for a period of approximately 24 hours. To require the making of a fresh application to vary in those circumstances, would be to increase the administrative burden on both licence holder and Executive Director with no apparent corresponding benefit in advancing the objects of the FRMA.

41 During the period between expiry and renewal, although a licence is of no effect for the purposes of the FRMA, this does not appear to me to be a case in which it should be considered to be a nullity for all purposes; rather, the expired document identifies what it is that the holder will be permitted to do, and under what conditions, should he or she apply within time to the Executive Director, subject to the Executive Director's discretion pursuant to s 143. This conclusion is assisted, I think, by the terms of s 139 which speak of a "renewal". One meaning of this expression is "to make effective for an additional period" (Macquarie Dictionary); it refers to something which exists, although it does not at a particular time have effect. It follows, I think, that the Executive Director is entitled to give consideration to the question of whether he will vary a licence, during the period within which it is capable of being renewed.

"1 From 14 November 1991 and continuing Mr Peter Phillip Rogers has held the substantive position of Chief Executive Officer, (Executive Director) of the Fisheries Department (Fisheries WA).

2 In late September 1995, Mr Rogers was suddenly taken ill and went to hospital.

3 From late September 1995 until 1 November 1995 Mr Rogers was unable to perform his duties as Executive Director of Fisheries WA.

4 In late September 1995, following the onset of Mr Rogers' illness, the Minister for Fisheries signified his approval for Mr John Nicholls to act as Executive Director in place of Mr Rogers.

5 Following that approval, Mr Rogers, in late September 1995, directed Mr John Nicholls to act as Executive Director for the duration of his (Mr Rogers') absence and inability to act.

6 Pursuant to the direction from Mr Rogers, Mr Nicholls assumed the role of Executive Director from late September to 1 November 1995.

7 Immediately before assuming the role of Executive Director, Mr Nicholls held a position in the Rural Finance Corporation.

8 On 1 October 1995 Mr Nicholls executed an instrument of delegation to the person occupying the position of Director of Programs in Fisheries WA.

9 On 23 April 1998, Mr Rogers deployed Mr Andrew Cribb, an employee of Fisheries WA, to act in the position of Director of Programs from 23 April to 17 July 1998.

10 Mr Cribb acted in the position of Director of Programs from 23 April to 17 July 1998."

43 The relevant statutory provisions here are s 15 and s 51 of the Public Sector Management Act 1994 ("PSMA") and, the objector alleges, s 13 of the FRMA. Section 15 of the PSMA provides:

"The Minister may, in writing and either generally or as otherwise provided by the instrument of delegation, delegate to a person any of the powers or duties of the Minister under this Act ...".

44 Section 51 provides:

(a) if an office of chief executive officer is vacant, or a chief executive officer is absent from duty or for any reason unable to perform his or her functions, direct an employee to act for such a period not exceeding 12 months as is specified in that direction in the office of chief executive officer during that vacancy, absence or inability ...".

45 By delegation made 10 November 1994, pursuant to s 15 of the PSMA, the Minister for Public Sector Management made a delegation in these terms:

"I ... delegate to each chief executive officer the following power conferred on me by section 51 of the Act, namely, in any case in which the chief executive officer is absent from duty or for any reason unable to perform his or her functions, the power to direct an employee to act for a period not exceeding 3 months in the office of that chief executive officer during that absence or inability.

This delegation is subject to the provisions of section 51 of the Act. Further, each delegate shall, before exercising this delegated power, obtain the approval of the responsible authority of the agency concerned and, if that responsible authority is not the Minister of the Crown responsible for that agency, the approval of the Minister of the Crown."

"(1) The Executive Director may, by instrument in writing, delegate to a person, ... any power or duty under this Act, other than this power of delegation."

47 What is in issue in this case is the power of the chief executive officer, Mr Rogers, to direct Mr Nichols to act as Executive Director while Mr Rogers was ill. It follows, therefore, that s 13 of the FRMA has no application. That section presupposes that there is a chief executive officer who is performing an act of delegation. It is not directed, as s 51 of the PSMA is, to the question of who the chief executive may be, in the sense of making provision for a person to act in that office while the Executive Director is unable to do so. A person appointed pursuant to s 51 is not a delegate of the chief executive officer but is a temporary replacement for the chief executive officer.

48 Turning to the other arguments in relation to this delegation, the objector, as I understand it, asserts that Mr Rogers did not obtain the approval of the responsible Minister for a delegation to Mr Nichols. As I understand the tribunal's finding of fact, it found that the Minister's approval was obtained. Certainly, there was evidence which permitted such a finding to be made. Mr Rogers said that he had a telephone conversation with the Minister's principal private secretary concerning this matter, and it would be open to the tribunal to infer that the principal private secretary was acting for the Minister with the Minister's approval and authority.

49 Next, it is said that because Mr Nichol's appointment was said to be for the duration of Mr Rogers' illness, then it was for an indefinite period and was not therefore for a period "not exceeding 3 months". Much of the tenor of the submission seemed to be to the effect that it was necessary that there be an instrument of appointment containing starting and finishing dates. The contrast of s 51 of the PSMA with s 13 of the FRMA demonstrates that, while a written instrument is required under the latter, there is no requirement of writing under the former for an appointment of an acting chief executive officer. This is understandable, since the chief executive officer is in many pieces of legislation the person in whom is reposed the most important powers and discretions pursuant to the legislative scheme. In most cases, chief executive officers are permitted to delegate and often do so, but some functions are reposed in chief executive officers personally. A vacancy in such an office, even for a very short period of time, might have a potentially serious impact on public administration. In those circumstances, it is not surprising that s 51 apparently permits appointment of an acting chief executive officer without the need for any writing. That this is a deliberate legislative choice is further illustrated by contrast between s 51 of the PSMA and s 15 of the same Act, which requires a delegation in writing. It follows, that when s 51 refers to acting for "such period ... as is specified in that direction" all that is required is that a direction, which need not be written, should indicate both the person who is required to act and the period for which that person is required to act.

50 There is nothing in s 51 of the PSMA or in the delegation of powers pursuant to s 51 made under s 15, which requires that the period for which the employee is to act be specified by reference to particular dates, rather than in some other way. Indeed, it will often be more convenient that it not be so specified. It appears to me that a direction to act "while the chief executive officer is on annual leave" or "from today until the chief executive officer is recovered from illness and returns to work" or "while the chief executive officer is attending a conference in Sydney" would all be directions which would specify an identifiable period. The period would be identified, not by reference to the calendar, but by reference to whether particular events had occurred. The convenience of such directions in terms of the efficiency of public administration is obvious. Holidays, illnesses, conferences, and no doubt other events, may be cut short or prolonged in an unforeseen manner, and a direction the duration of which is specified by reference to those events, avoids potential gaps in administration. It is true that there is a risk that such an event may, for unforeseen reasons, continue for longer than the period of three months specified in the delegation. Should that be so, the terms of the delegation pursuant to s 15 of PSMA would serve to limit the direction, so that it would cease to have effect upon the expiry of the three-month period.

51 Certain submissions made by the objector were directed to establishing that there was no direction by Mr Rogers that Mr Nichols act as Executive Director for the duration of Mr Rogers' absence and inability to act. The short answer to these submissions is that the tribunal has found as a finding of fact, that there was such a direction. There was ample evidence before the tribunal which would justify such a finding. There were no doubt ambiguities in the relatively informal conversation which took place between Mr Rogers and Mr Nichols when Mr Rogers suddenly became ill, but it was for the tribunal to determine what meaning was intended to be conveyed by the words which Mr Rogers and Mr Nichols said were used (they having given evidence which differed in detail but was broadly similar in effect) and the finding in fact made by the tribunal was one reasonably open on that evidence.

52 There were also submissions made to me in respect of the "alter ego" doctrine, the Executive Director contending that even if there had been no valid direction, that Mr Cribb could be regarded as an employee through whom the Executive Director was entitled to act, in accordance with principles enunciated in cases such as O'Reilly v Commissioner of State Bank of Victoria [1983] HCA 47; (1983) 153 CLR 1. Given the conclusions which I have reached in relation to the other delegation issues, I do not think it is necessary to consider this question.

53 In my view, the answers to the questions stated for the opinion of the court should be as follows. Having regard to the conclusions I have reached it is not necessary to consider amendments to the wording suggested by the objector.

"1 Does the Tribunal have jurisdiction to determine whether the Proposed Decision was a matter of fact and law : -

(a) A Proposal of the Executive Director within the meaning of that phrase in Section 147, or alternatively Section 148, of the Act; or

(b) capable of being a proposal of the Executive Director within the meaning of that phrase in Section 147 of the Act or alternatively Section 148?"

Answer: Yes, for the purpose of determining the "matter" pursuant to s 152(2).

"2 Is the jurisdiction of the Tribunal limited to the ambit of:-

Answer: I do not understand what is intended by this question. I have canvassed the jurisdiction of the tribunal at length in my reasons.

(a) to consider a ground (or grounds) of objection which raises the issue of whether the Licence ought to have been terminated, rescinded or not renewed, prior to the making of the application for variation of 12 August, 1997, by reason of the Licence allegedly not having been used?"

(b) to allow an amendment to an objector's grounds of objection which seeks to raise:-

(ii) issues of law whether going to the validity in law of the Proposed Decision or the jurisdiction of the Tribunal including the jurisdiction of the Tribunal to determine the validity in law or otherwise of the Proposed Decision?"

"4 If the answer to either questions 3(a) or 3(b) is "yes" did the Tribunal have jurisdiction to allow the Amended Objection?"

"5 Was John Nicholls in or about September, 1995 validly appointed as (Acting) Executive Director?"

"6 Was Andrew Cribb validly appointed Director, Programmes on or prior to 12 June 1998 and did he on that date in fact and in law validly hold that position?"

"7 If the answer to either questions 5 or 6 is "no" was the Proposed Decision:-

made on behalf of the Executive Director on any and, if so, what basis?"

"8 Does the contravention of any condition of an Authorisation (the Licence) have the effect, pursuant to Section 137(2) of the Act, that during such contravention the Authorisation (the Licence) is of no effect such that the Executive Director cannot, during the period of any such contravention, validly vary an Authorisation (the Licence) pursuant to an application in that behalf made on the part of the holder of the Authorisation?"

"9 If the Answer to question 8 is 'yes' is the Proposed Decision of no effect?"

"10 Does Section 139(2) of the Act have the effect that, upon the expiry of an Authorisation (the Licence) under the Act for any period, an application for variation of that Authorisation (the Licence) made before the date upon which the Authorisation expired:-

"(b) is thereafter incapable of being revived even if the Authorisation (the Licence) is itself subsequently renewed?"

"11 Can a proposal pursuant to the provisions of Section 147, alternatively Section 148, of the Act be validly made or take effect in respect of an Authorisation at a time after that Authorisation has expired and in respect of an application made before the expiry of that Authorisation if:-

(a) at the time of the 'proposal' the Authorisation had not then been renewed?

(b) at the time of the 'proposal' the Authorisation had not then been renewed?"

Answer: A variation may not take effect in respect of an authorisation which has expired and not been renewed. A variation may take effect in respect of an authorisation that has been renewed.

"12 Can an Authorisation during such period as one or more of its conditions are being contravened by the holder of that Authorisation be validly renewed pursuant to the provisions of the Act?"

"13 Does the Tribunal in considering an objection referred to it pursuant to Section 152 of the Act, have jurisdiction to inquire into and determine any, and if so which, of the matters set out in questions 5 to 12 inclusive for the purpose of determining the objection to a proposal made pursuant to Sections 147(1) or 148(1) of the Act?"

Resources Management Act 1994

Sector Management Act 1994

Shark Bay Tuna Farms Pty Ltd v Executive Director, Fisheries WA & Anor [2000] WASC 79

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (137 paragraphs)

Shark Bay Tuna Farms Pty Ltd v Executive Director, Fisheries WA & Anor [2000] WASC 79 (7 April 2000)

Parties

Legislation Cited (2)

Cases Cited (16)