SOUTH AUSTRALIAN RIVER FISHERY ASSOC & WARRICK v STATE OF SOUTH AUSTRALIA No. SCCIV-02-1381 [2003] SASC 174

SOUTH AUSTRALIAN RIVER FISHERY ASSOC & WARRICK v STATE OF SOUTH AUSTRALIA No. SCCIV-02-1381 [2003] SASC 174 - SASC 2003 case summary — Zoe

[40]

"69 The plaintiff seeks to enforce this agreement and alleges that it is implicit in the arrangement that the Government thereafter would administer the Fisheries Act upon a footing which is consistent with the agreement. In particular the plaintiff alleges that his licence should be treated as transferable and renewable indefinitely in respect of the river fishery as reconstituted on 7 August 1997.

...

71 In my opinion the Minister has fulfilled his obligations in terms of that agreement. It is unnecessary to determine whether or not the agreement has legal effect as alleged because it has been overtaken by the formal contract represented by the licence renewals from year to year. In my opinion the terms which will be implied in the individual licences will correspond to the terms of the preliminary agreement which is alleged by the plaintiff to have been made between the Minister and the plaintiff association on behalf of the licence holders.

72 This case may therefore be reduced to a consideration of the extent to which the plaintiff is entitled to protection under his licence.

73 In view of the history which I have outlined and upon a consideration of the rights which adhere to a contractual licence and upon a consideration of the 1997 regulations I conclude that it is implicit in the scheme of the regulations (including the general fishing regulations) that the exercise of power to make regulations on 7 August 1997 proceeded upon the basis that exercise of power on that occasion was "one off" so as to provide long term security based on the licences then in force and gear endorsements which (based on the general fishing regulations) are the subject of the licence conditions. The river fishery referred to in the Scheme of Management (River Fishery) Regulations and Fisheries (General) Regulations is that which was thus reconstituted on 7 August 1997 to the intent that the rights of the licence holders in the fishery would become "permanent" when the number of licence holders was reduced to 30. It will be necessary to examine how this concept of permanent licences should be interpreted and applied. It was implicit in the arrangements that the longstanding "reach system" operating in the river fishery would remain as a cornerstone of the deal."

[178]

The plaintiff contends that the defendant has enacted the variation of the regulations for an improper purpose. I disagree although I am satisfied that the only reason for the Government's action was to honour its commitment in terms of the political compact with Mr Lewis. The plaintiff relies upon statements in R v Toohey ex parte Northern Lands Council [1981] HCA 74; (1980-81) 151 CLR 170 where Aickin J in particular draws the distinction between an exercise of power which is (a) corrupt (b) exercised for an improper purpose and (c) merely ultra vires without the presence of any element of any impropriety. In the present case there is no suggestion of corruption. However, the plaintiff contends that the powers of government have been exercised for a purpose which is not within the purposes envisaged by Parliament when it enacted the Fisheries Act. The plaintiff contends that the sole or substantial purpose of the variation of regulations is to satisfy the recreational fishing lobby as represented by Mr Lewis. In my opinion the Fisheries Act is not to be administered solely or necessarily by reference to scientific considerations. Social factors may be brought to account in the course of conserving the resource.

Subject to observance of its contractual obligations arising under the "permanent" statutory licences granted in 1997 (which give rise to a different issue) the government was entitled to preserve the River for the benefit of the general public. Section 20 of the Fisheries Act sets out a statement of principal objectives (see Dighton par 67) but the Governor in Council is not bound thereby.

The regulation making powers are extremely wide and it is not for the court to pass judgment upon a decision to prefer one section of the community to another in the course of framing the regulations and policy.

...

In the present case I am prepared for the sake of the argument to assume that the majority of members of the Executive Council were acting to give effect to a political compact. Mr Lewis required the advancement by a number of years a course of action which an ERD Committee of Parliament would have postponed. The time frame upon which Mr Lewis insisted apparently reflected a point of view expressed in the electorate of Chaffey and Hammond (and perhaps elsewhere). I can see nothing improper if the Government chose to yield to this point of view although it may not have been action which the Government would have embraced in the absence of the political compact.

[197]

The Revitalisation of the $3.5 million River Murray commercial fishery in South Australia is the aim of a new management framework outlined today by the Minister for Primary Industries Rob Kerin.

The plan has been developed over the past two years in conjunction with the 39 commercial fishing licence holders who operate on the River Murray between Wellington at the mouth of the River and the NSW border. It has been developed jointly with Primary Industries SA Fisheries, the South Australian Research and Development Institute, the Riverland Fisheries Association and the South Australian Recreational Fishing Advisory Council.

Commercial fishing covers about 207 kilometres of the river or about a third of the total length of the River Murray in South Australia. The main commercial fish are: callop, Murray cod, European carp, redfin perch, bony bream and yabbies.

Mr Kerin said the plan would have spin offs for sustainable long-term management of the fishery and better research information on fish populations along the length of the River in South Australia.

Key features of the plan are to:

. Reduce the number of licence holders on the River

. Allow the transfer of individual licences following a satisfactory reduction in the number of licence holders. This is the last fishery in SA to obtain transferability.

. Provide a more even distribution of commercial activity along the river

. Provide an opportunity for improved commercial viability

. Protect a further seven classes of fish to safeguard broodstock while research and management allow the fish stocks to increase

. Introduce a yabby bag limit or 200 yabbies per person per day for recreational fishers. This will ensure that everyone has access to a resource that is sustainable in the long term.

It is proposed to initially reduce the number of commercial licences in the fishery through a buyout, or 'voluntary separation' scheme; relocating at least two licences and providing an opportunity for remaining licence holders to restructure their reach holdings.

'Transfer for individual licences will enable the industry to have an asset with a commercial value that can be bought and sold at a price to be determined by market conditions.'

'It will allow holders of the fishing reaches a solid business base with a secure future so they can adequately invest in upgrading their operations,' Mr Kerin said.

'On behalf of the State Government I want to commend the industry which has taken a comprehensive look at the River Murray commercial fishery and come up with long-term solutions to ensure a sustained future.'

Certain reaches of the river are allocated to individual licences. Most of these are concentrated in the Riverland area between Morgan and the New South Wales border. The reduction in licences will enable some relocation of reaches, with some expected to be below Morgan.

'We see some real benefits for the environmental management of the fishery and the River itself - commercial operators on the River will report data on catch size and by-catch which will have a valuable role in providing additional information for scientific research.'

'This new management framework will in particular be able to provide additional information on fish populations in the lower reaches of the Murray,' Mr Kerin said.

'Under the proposed changes greater flexibility over the type of gear that may be used will be introduced. This will enable fishers to set the most appropriate gear to suit river conditions. This is expected to result in a reduction of commercial fishing gear on the river.'

It is also proposed that the following classes of fish will be declared protected: silver perch, freshwater catfish, southern purple-spotted gudgeon, western chanda perch, southern pygmy perch, river backfish and trout cod.

The Minister said recent experiences of the Murray Cod population bouncing back after a management closure demonstrates such a strategy can produce long-term benefits.

The Government has introduced a generous yabby bag limit as the use of more efficient traps has enabled increased catch efficiency which has resulted in considerable increases in the catch of yabbies being taken by recreational fishers. Up until now there have been no restrictions. Some recreational fishers have exploited this open limit to catcher commercial quantities and sell them illegally.

A draft plan for Structural Adjustment in the South Australian River Fishery was released for public consultation in April 1996. Consultations have also occurred with local councils and the local Gerard Aboriginal community.

[254]

In applying s 39 the Crown Solicitor argues that in the present instance the "nature of the subject matter" is the Fisheries Act and the amendment to its regulations. I do not consider that description to be adequate to deal with the jurisprudential analysis required by the proviso to s 39 in the search for an indicator from the nature of the subject matter as to what was "intended" and the effect which any change thereto might have. In my opinion the change in language between the 1872 legislation and its 1915 successor shows that the "nature of the subject matter" is something separate and apart from "the objects of the power". In the absence of any authority to assist me I conclude that one is entitled to look beyond "the terms used in conferring the power" and the identification of the "objects of the power" and to consider alone the "nature of the subject matter". It seems to me that this authorises the court to look beyond the context of the enabling Act and enables the court to explore the significance of features of the subject matter as now relevant.

In my opinion (and the present case may turn on this point) the proviso to s 39 enables the nature of the subject matter to be gleaned from sources beyond the context of the enabling act (in this case the Fisheries Act). Applying s 39 of the Acts Interpretation Act it becomes relevant to consider the effect of the regulations which themselves are to be varied insofar as those regulations contain any element which affects the characterisation of the subject matter. In the present case, the "nature of the subject matter" as relevant is an accrued property right arising under the 1997 licence. It seems to me that in determining relevance one must examine the ambit of the intended new regulation and then in relation thereto, to identify all material which might impinge upon the application of s 39 of the Acts Interpretation Act. The provisions of the Fisheries Act will be included in this material but it is not exclusive. The position would be otherwise if in terms of s 39 one were called upon only to have regard to "the terms used in conferring the power" or "the objects of the power" which will be found upon an examination of the enabling Act.

At a glance

Court

Decision date

Before

Source

Judgment (385 paragraphs)

SOUTH AUSTRALIAN RIVER FISHERY ASSOC & WARRICK v STATE OF SOUTH AUSTRALIA No. SCCIV-02-1381 [2003] SASC 174 (6 June 2003)

Parties

Cases Cited (15)