A1S fCATCHWORDS ADMINISTPATIVE LAW - application for declaration that Minister for Primary Industry had not validly prohibited taking of tcaliacs trom area off Queensland Coast - power conferred on Minister 'o prohibit fisning with respect to specified class of y nohice oubiished in the Gazette" - taking of prawns and shrimps prohibited by such a nerice - original norice purcortedly varied by further rotice puplished sunsequent to a arerdment to relevant section - whether oower conferred "power to make an instrument" such that s.33 of the Acts inte pretation Acr applicable tc enabl= amendment, variation and revocation - characterization of power conferred upon Minister - whether imolied cower to anend or ravaxe - erfect af transitional provision - wranibiftion valid. TUSTS - vorower order for costs of inrerlocutory application vyhen successful rarty on interlocutory application ultimately unsuccesstul, Fisheries Act 1922 ss.4, 5H, 9, All)(ay, Aliid) mterpretatior Act 1901 (Com) 3.33 Leqisiation Amemiment Act 2984 sub-s.19(3) ELENMEAD PTY LTD, MARK ALAN ANDERSON and AUDREY ELI7APETH ANDERSON -v- THE COMMONWEALTH OF AUSTPALTA and MICHAEL JOHN BROADSMITH SPENDER Cc. BRISBANE 3 DECEMBEP 1984 IN THE FEDEFAL COURT JF AUSTRALIA ) QUEENSLAND DISTPICT REGISTRY ' QLD 3134 of 1984 SENERAL DIVISTON ) BETWEEN : EDENMEAD PTY LTC, MAP ALAN ANDERSON and ANDPEY ELTCABETH ANDEPSON AND: THE COMMONWEALTH SF AUSTRALIA and MICHAEL F3HN BRCARSM=TH JUDGE MAKING OPDER: SFENDEF J. DATE GF OPDER: 3 DECEMBER i984 WHERE MADE: RFITSBANE THE COUPT ORDERS THAT: l. Application G13%4 :f 1984 pe dismissed with cests tc be taxed unless otherwise agreed. te No order as to costs of interlocutory application on 22 & 23 November 1984. IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT PEGTSTRY ) QLD G124 of 1984 GENEPAL DIVISION ) BETWEEN ETENMEAD DOTY OTD, MARK ALAN ANDEFSON and AUDPEY ELTUARETH ANDERSON Applicants AND: TRE COMMONWEALTH OF AUSTRALIA and MICHAES JOHN BFOADSMITH Pesponderts Cy SPENDEP J. 2 DECEMBEP 1984 EXTEMPOPE PEASONS FOR FODGMENL This is an application for a declaration that the Commonwealth Minister of State for Primary Industry has not validly prohibited the taking ct scallops in an area off the Queensland coast, which I will refer to as the Capricorn area of Queensland and, further, a claim fer an injunction restraining Mr Broadsmith and the Commonwealth of Australia 'from seizing, removing or selling any scallops taken by the applicants or any ef them in the Capricorn area or Eringing er requiring the masters of the two vessels of the applicants or either of them ta a place in Australia if fourd in sucn ara with scalloos on board, or causing that to be done. The parties have agreed that this trial is to be confined to whether that relief ought tc be granted and it is therefore urnece-.sary for me to decide the further claims made in the ipplication for damages 'for trespass, conversion and false imprzsonment and for an injunction to restrain the defendarts Syom furtrer such acts. The facts oaschind the application are these. ")y prawning in the owner of a 26.92 metre steel "Dp naned "Barameca". a pursuant £2 sun-s., 9(2) authorising the use of the boat in proclaimed waters The licence extends to autnorise the use of th a) area of waters of the Northern Prawn Tishery, which Guif of Carpentaria. The vessel nas been used for the Gulf of Carpentaria and for scallop fishing off the Capricorn coast of Queensland. Mr Anderson, "Pacific Venture", vessel "Barameda". Mark Alan Anderson and his wife the Barameda. , Audrey Elizabeth other applicants, own a prawn trawler named which apparently has similar Mr Anderson 18 the) skipper Because of the closure to fishing of the Nortnern Territory section of tne Nortnern Prawn Fishery on 1 Novemner 1984, whicn closure will last until the middie of February i525 sc as 79 enable prawn srocks ~2 pu1li up, pork tne "Barameda" an [on the "Facific Venture" nave beer breugnt ro the Capriccemn emast with the object of fishing for scallops. ents deny tnat assertion. It 1s a matters of significant ftinare1al concern toa the appiicants anc of real concern tc tre respondents, whose functions inelude ensuring 'that, thyeough procer conservation and management Measures, the Living resources of the Australian fishing zane ara not endangered by over-exploitation, and the further objective of we suLy fa) mum utilisation ving resources af) th p ng the ptimu e1i t1O of livina es of the Australian fishing zone. The question at the core of both applicatiens then is quite asimple one: has the Minister validly prohibited the fishing for scallops off the Capricorn coast? Before the commencement on 15 June 1984 of the Fishing Reg: slation Amerdmenr Act cf 1984, sub-s. 9(1)(d) of the Act Gy ifa mh be A 1) bww He) ied po ts iD w iB) Lal Oo "S fs) n fae) w v Fj i) fae fishing oy fishing for a soecified class by tt licence under s. 9 of the Act where that licence contained a» endorsement for that class under sub-s. didi, i© ' a at "3 "s B a] "s ct c amendment, contarned in sub-s. 3(1)(a} Za pe Ji ™ % U < Ee mn rv oO1 "3ed) The Minister may, by notice publisned in the Gazette - (a) prohibit, either at all times or during a period specified in the notice, the taking. from proclaimed waters or from an area of proclaimed waters, of fish or of fish included in a ciass of fish specified in the notice;" Section 8(1)(d' provided:- 'QO1) x2 Mirister may, by notice oublished in the Gazette - (d) prohibit fishin in an area or proclaimed waters in respect of fish included in the class of fish specified in the notice, other than - (1) traditional fishing; or ut 11) fishing that consists cf taking, processing or carrying fish of thar class with the use fF a boat in respect of which there 1s a licence under section 9 that, by virtue of an endorsement under sub-section 3(4), extends to authorizing that takune, processing or carrying, as the vase may pe;" mo In the Commonwealth of Australia 'Gazette Ms. § Feiday, 4 November 1983, tne Muirister of w nas ate > s Industry, Joann Charies FKerin, published Fisher = wt te Q 1G fa w $s e headed 'Prohibition Pela fad inj to the Tasingy of Frawns or off the East Coast of Australia". That notice previded:- ny "Ss i ia r N CHAPLES &E r for mary Indu mam i] p's fs) a7) Aritrow ays y iD aragraph @(1\{d) 2, prohibit fishing in aimed wate spec Pete wie oe a] (1) traditional fishirdg; or (11) fishing that consists of taking, processing or carrying fish of that class with the use of a boat in respect of which there 15 a licence under section 9 that, by viztue of an endorsement under sub-section 914), extends to authorizing that luhing, processing or carryird, as the case may be; lare that fnis notice shall have effect from 1 January 1984. SCHEDULE 1 Area of Proclaimed Waters The area of proclaimed waters north of the parallel 37°30°' south latitude and east of the meridian 142°09' east longitude." 272 of Primary os He tnen specified in Schedule 2 that the class of fisn was decaood crustacea of tne family Penaeidae (commenly wnown as shrimps or prawns) ch including royal red srawns. That notice is datea the thirty-first day of Getober i vay »D 3, ard tne date of puplication of the Gazette, as I say, was 4 November 1583. By notice pusiished in Governmert Gazette No. S 72 af Morday, 27 February 1984, tne same Minister, in Fisheries Notice 117A, Labelled "Variation of Fisheries Notice No. 117 vrohibition relating to the taking of orawns or shrimps off the east coast of Austrailia", cuolished a notice in these terms:- "IT, JORN CHAPLES KEPIN, the Minister of State for Primary industry, hereby 'ad vary the instrument known as Fisher1 Notice Neo. 127 made in pursuance paragraph 8(1)(d) of the Fisheries 1952 and ublished in Gazette No. §$ on 4 Noven 1983, by omitting Schedu 1 and upstituting the following schedule: wy Dwr t Q c/ L iy b = 15 e Ss Ta SCHEDULE 1 Area of Proclaimed Waters The area of vsroclaimed waters north fit oO parallel aeO 4c" south latitude and east of 4 meridian 142°99' east longitude; and 3+ wba (b) declare that this notice shall have effect on and from 1 March 1984. Dated this 24tn day of February 1984 JCHN KERIN Minister of State for Primary Industry" Finally, in the Goverrment Gazette No. S 458 of Tuesday, 30 October 1984, Fisheries Notice No. 1178 appeared. That C pr ovided:- VARIATION OF PISHEPIES NOTICE NO, 127 PROHIBITION RELATING T0 THE TAKING OF PRAWNS OR SHRIMPS CFF THE EAST COAS'T oF AUSTPALIA I, JOHN CHARLES KEPIN, the Minister of State for Primary cndustry, hereby vary the insLrument krewn as Fisheries Notice Na. 117, made in pursuarce of sub-section (1y'd) of the Fisherles Act 1952, and published in Gazette Mo. 272 an 4 Nevenper 1982, by inserting in Schedule 2 of that Notice after the first varagrapn, a secanid varagraph as follows: Bivalve woOlluscs of the family Pectinidas (commonly kncwn as scallons:'. Matea this twenty-second day of October 1984. JOHN KERIN Minister of State for Primary Industry" The arguments for the apoizcant may be shortly put as foliows: the first and hasic submission was that power under s.3 of the Act is not a power to make an instrument, but a power to do something, namely, to prohibit, and therefore s. 33 of the Commonwealth Acts Interpretations Act 1901 does not apply. In support of that supmission, reliance was placed on the several judgments of the members of the Full Court of this Court in Collector of Customs (N.S.W.) v. Brian Lawlor Automotive Pty Ltd (1979) 24 A.L.R. 307; (1979) 41 F.L.R. 328. mw The alternative supmission ry the applicant was thar the power to make the instrument under the sunp-3 3f1l)fdi) had nw been repealed by the 1984 amendment wnich came inrco torce on i oO UI une 1384. Tt aus argued that that power can no longer b oD interpreted as also cconferring 1 power to amend an instrumenc. The instrument itself, that 1¢ to sav, the notice im the ga ct + e r (D ' ub-s. (7 is preserved ry virtue of the transitional praviszron of 10(3) of tne amending Act, but, as there 1s no longer a vsower to make that ianstrumenr, there is no longer, in the applicants submissicn, any means by whith that power can be extended by So far as the primary submission is concerned, it was submitted on behalf of the applicants that the distinction upon which they rely 1s a very narrow distinction, but was a distinction made by the Full Court in Lawlor's Cas=#, and one which I should make here. For the respondents, tiz orimary submissions are made. The first 1s that the Fisheries Notice No. 117 had been validly amended by Notice No. 117B, because the power to make the amendment was deemed conferred tpcn tne Minister by sup-s. 33(3) of the Acts Interpretation Act, or, alternatively, there 1s to be implied in sup-s. 8/1) of the Act a power to amend or revake a notice. The central question in the resolution of these competing submissions 18s whether tne orovisions of sub-s. 33(3) of 'ne Acts Interpretation Act apply to the power which is onferrea om the Minister by sub-s. 8:1) of the Act. fub-s,. '€3) Where ar Acc confers a power grant or aigsue any instrument . 2 rules, regulations or by-laws! th power snall, unless the contrary intention appears be construed as including a power avercigable in the like manner and sunject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument." An or the yeleavant powers conferred by 5.8 are ¥ iS ¥ expressed in the legislation in these terms: "The Minister may, by notice cublished in the Gazette ..." Tt ais therefore a question of whether that power ¢ ws n roperly come within the description "a power to make, grant or 1ssue any instrument", If it does, then the Acts Interpretation Act of 1991 identifies that power as in n luding a power, inter alia, to vary or amend any such instrument. I, With respect, accept the proper aoproacn is) that adopted by Smithers J. in Lawlor's Case, where at p.319, line 44, he ident:fiea the process as ore properly of characterization. He said:- "To characterize the nature of the power which 1s conferred upon the Minister and tne Collector, as his delegate, under the Customs Act, veference to relevant sections of Day i of Pt V of the Customs Act 15 necessary." Having referred ther ta a large rumber of provisiors, his Horour concluded that the oower there Q mntferred oy rhe partitular section of the Custors Act 1901 waietn wnich he was dealing, was not a power to grant, issue or make an instrument. Adopting <niz approach as the oroper one, I am oO f£ the view that "he pover conferred by s. 3 of the Act is nroperiy characterised AS a power to wnich sup-s. 33(3) of the Acts Interpretation Act aopliss. I form that view for a number of reasons, incluaing most importantiv, an acceptance of the view that the mere form or gqeammatical expression in whicn a4 power 15 conferred is) not determinative of its 'true characterisation. It would be inimical to the proper application of the law, were the argument of the applicants as to the manner in which the power is couched, to be determinative of tre legal consequences. On analysis, the applicants' arqumert 1s that sub-s.33(3) of the Acts Interpretation Act would apply if sub-s. 8(1) read: "The Minister may publish a netice in the gazette prohibiting the fishing for seallaes"; put if daes not avopiy where the legislative expression of the power 1s "The Minister may, by notice published in the Gazette, prohibit the fishing for scallops". t-4 br Io accept also that some comfort can be obtained for the resporcents' arqumenr as fe the prorer interpretation to be placed ons. 8 of the Act, by reference 'to the manner in which a not dissimilar statutory provision was dealt with by Lee J. in Nashua Australia Pty Ltd v. Channon /1981* 36 A.L In that case, iat was nor arque conferred the pcewer of cevocation. Sis donour was there concerned with the narrower and quite different submissior that because the vower to make determinations arises under the Customs Act and because the power of revocation does not so arise - it sters from tre Acts Interyreration Act - the Minister, in exercising his power t9 make a aeterrination under s. 273 of the Cuscoms Atk would be entinled to revoke such a determination, but h2s delegate, having had deleqated to him anly the rowers of the Minister conferred by 5. 273, does not acquire or attain the f pawer ¢9 revoke referred to by sub-s. 23(3) of the Acts Interpretation Act. o£ chat submission Lee J. said at p.221, line 25: "Section 33(3) should not he reaarded as operating so as to corfer power, but merely as operaling t9 define the extent of a power un fact conferred by another Act. Its effect 16 that, unless there be 2 contrary untenticn the power to make an instrument 183 a power the ambit of which includes power to repeal, rescind, revoke, amend or vary. In all cases s 33(3) operates to define the extent of the instrument making power (unless of course there is a contrary intention shown)." It was submitted by senior counsel for the Commonwealth, Mr Fryberg Q.C., that Lawlor's Case 1s distinguishable, and I agree with that submission. The crucial distinction is that tne power under the Customs Act with which Lawlor's Case was concerned conferred a power which may or may not be exercised in writing. The existerce of a document ain writing was not a necessary condition to tne exercise of a power conferred ov that section or the Customs Act, and indaad corfecred quite indirectly Ly tnat sorovision. The existence of any writing was a possible uncident to the exercise of tnat power but was py no means a necessary tondition. It follows therefore that the conferral of such power cannot, on a proper characterisation, be construed as A power to grant, 1ssue or maKe an instrument. In addition, there are other factors which serve to distinguish the corelusion reached in Lawlor's Case from the conclusion which ought properly to follow in this case. Here the publication of the instrument 1s essential to the valid exercise of the power. It 1s, in Mr Pryberg's words, the very act by wnicnh the power 1s exercised, and conceptually there is no distinction to be drawn between the publication of the notice and the exercise of the power, T tT 18 a sterile and arid distinction to suggest tnat the grammatical form in which the power is granted aetermires its true characterisatior. Additionally, in lLawlor's Case, 17 sub-s 33(3) of the Acts Interoretatior Ach acelied, one woula have the curisus cesult that a licenc ct) granted in writing would be capable of revocation, a consequence which could not apply ta an cral licence. Le 's wt bed vyct Ha if) s w4 . Pi w co r-mh w = } re Dip) ein Lawlor ¢ Case oT would have the direct effect of depriving an individual of an to or revocation ot a Fisheries wuw rt iw)re} s fm Q A. a TT = wD ns a ww iD wiDyh a D operate equally on all holders of unendorsed licences and would operate merely to restrict the general Linerty Also here, any revocation of amendment of the notice requires publicity ain the Gazette, the amendment ar revocation being effected only by the publication of a notice to that effect in the Gazette. In respect of both arguments advanced by the Commonwealth as to the existence of a power to amend or vary the eriginal notice either by application of sub-s. 33(3) or by an umplication of a power contained ina power to prohibit of a power to amend or vary, the irrational or absurd consequences ar the absence of any sucn power might be referred to. I accept that 1f there were no power to amend or revoke, there would be quite startling consequences. As submitted, once published, a prohibition could never be revoked. That improbable consequence would only be corrected by a further Act of Parliament. Having i4. regard to the purposes for which notices are to be issued and to tne objectives to which the Minister 15 to have regard set out in 3s. 5Bof the Act, it ais unlikely tnat the in wT OY ntion of the leqislation was ts make notices non-revocable. While there would o wy wb re] rs) = iD '§ cr o increase the scope of the prohikition with reference to elther time or olace by the issue of a fresh natice, tnere would be n> power £9 re f2 uce ine 2) te) iP] e of a prohibition. A further consequence would he that a oronibiticn could be ner2a lod ul oO is) h a score H erfectively amended by way of DS y a fresh notice repeating everything already contained in an existing prohibition and adding to it. A simple amendmert ut Q fco xisting prohibition published without the whole of the e terms would be ultra ' uo ct \a ban) Q vires. For the reasons that I nave given, I am of the view that tne power ctontained ins. P of the Act, aither before or after the 1994 amendment, attracted sub-s. 33(3) of the Ac ct s to + rD ts is] rs fv) fa fu Tt Ny [e) fe] > a aT and there was therefore included in the paw 6 conferred by the Act a power to amend, vary ar revoke th 1D prohibition oublished in the Gazette. It is therefore unnecessary for m2 to conclude whether there also exists the implied power for which the respondents sontend in the alternative. I simpiy express the view that considerations advanced in respect of the existence of such an implied power are by no means unconvincing, but it 15 strictly unnecessary to conclude whether such a power 1s to be implied. 15. As to the alternative argumert based on the transitional proyisicns ta be found in sub-s. 19(3) of the Act as amended, farst, im fairness to the applicants, it ought to be indicated eroshibition purlishea under the Act, bun was direcred to a much Marrqwer ooint, that the Fisheries Notice Ne. 117B vas not eiftective to amend or vary Fisheries Natice Ne. 117. Zo far as the transiticnai position :s concerned, the isnirg Leaisiaticn Amendment Act of 1984 provide Ps "ery ua Dy sub-s 1003) - "(2) A notice in force ime commencement of this secticn under paragrapnh QRCl)did' of the Principal Act continues to nave effect after the commencement of this section as if at were a@ notice under paragraph 8(1)(a) of the Principal Act as amended by this Act and if the notice provided, pursuant to sub-section 8(4D) of the Principal Act as amended by this Act, that the activities pronibited by the notice were achivities in respect of which an endorsement could be made under sup-section 9(4) of the Principal Act as amended by this Act." ediately before the That section requires tha tT bas BP i) om D Ley v rv nris) ct fa oO 1bo a Ke "N . pneing a notice in force immediatel Kq lon iD m Cc n al fad D 1D a ce)3 iG fo] aQ Ly)N)+ fe) m the section under =ub-s. Bf1'(d) of the principal Act, contunues to have effect after 15 June 1984, as 1f ait were a notice under sub-s. 8(1)(a) of the principal Act. That 1s to say, after 15 June 1984 the notice in the Gazette is to be construed asa notice under sub-s. 8(1)(a). Tt follows therefore that, the Minister under that secticn having the power by notice published in the Gazette to erohioit the taking, processing or carrying of fisn, or fisn included in the ciass of fish speczfied in the Notice, possessed a power which included the powers as defined by sub-s the Acts Interpretation Act, and 1t was therefore competent fur In my view, the Minister for Frimary Industry has validly prohibited the taking of scallonos otf the Capricorr coast by persons wno cc net have the endorsement that the leqislation herefcre follows thar, in the absence of such an officers" (as defined ins. 4 In those oO rreumstarces, neither the declaration nor the ou cr injunction sought y the applicants will be granted. The application is dismissed with costs to be taxed, if not otherwise agreed. So f w yrooay tne@ costs asseciated with the intrerlocut applications are concerned, IT have difficulty in seeing how an 1ssue which 15 joined and which is argued and is lost can have the effect aim costs that the unsuccessful party 13 entitled to its costs aif, on the triral of the action, which involved different issues, that party succeeds. L7, There are a number of cases to which reference has been made where? various approaches to the question of costs nave been manifested. Contrary to the tentative view that I expressed before hearing argument, I will not order the reseendents to oay the apolicants' costs in respect ert the interlocutory application, but, so far as the costs of the anterlocsutory i ae) "Oo Be Pv ny ation are concerned, tT wilil make no order as to casts. Ide that, relying as I ac on what I consider to be the fundamental merits of tne matter; essentially, that while the they would have bean entitled 'to pave their costs of the applicatzon for interlocutory rel1lef as part of their costs in the cause, so that 1f ultimately successful they would recover tnose costs, having failed ultimately, they are not so entitled. Equally, the respondents, having failed at first instance, ought not, because they succeeded ultimately, be entitied to their casts. I confess that this area 1s one which ius not free from difficulty, but, doing the best I can in terms of what I cerceive to be the merits of the litigation as 1t has been corducted, I make no order as to costs with respect to either day of interlocutory application. 1G . Poorly thet tis atin ,r.eding rages are at u2 copy of the reaecns ror yucgmont herewm of His Honour . Mir Justtco Spondor sociate Dated 30. (.&S.