Administrative Law - appeal from Adminzstrative Appeals Tribunal - decision of Minister for Primary Industry to cancel Fishing Boat Licence and Master Fisherman's Licence - variation of Minister's decision by Tribunal - whether Tribunal's decision a suspension or a cancellation - whether the power in s.9A(3A) of the Fisheries Act exercised retrospectively - whether the conviction of one of several holders of the Fishing Boat Licence a conviction of "the holder of the licence" Words and Phrases - "the holder of the licence" Acts Interpretation Act 1901, ss.15AA, 23. Administrative Appeals Tribunal Act 1975, ss.43(1), 44. Fisheries Act 1905 (W.A.) Fisheries Act 1952, ss.7, 8, 9, 9A, 13(1). Fishing Legislation Amendment Act 1985, s.10. t at Dah GAETANO SALVATORE LA MACCHTIA v. THE MINISTER FOR PRIMARY INDUSTRY WA G121 of 1986 Bowen C.d., Toohey and French JJ. Perth 22 December 1986 RECENin~ \ 3 1 HEE 1980 FEDERAL COURT OF AUSTRALIA PRINCIPAL AEGISTAY IN THE FEDERAL COURT OF AUSTRALIA ) NO. WA Gi21l OF 1986 WESTERN AUSTRALIA DISTRICT REGISTRY) GENERAL DIVISION ) ON APPEAL from the General Administrative Division Appeals Tribunal constituted by Deputy President R.D. Nicholson, Mr I.A. Wilkins and Dr. J. Billings BETWEEN GAETANO SALVATORE LA MACCHIA Applicant AND THE MINISTER FOR PRIMARY INDUSTRY Respondent CORAM: Bowen C.J., Toohey and French JJ. De December 1986 REASONS FOR JUDGMENT BOWEN C.J. I agree with the reasons for judgment of Toohey J. Iecertify that this and-the- preseding pages are a true copy of the Reasons for Juc.cment herein of his Honour the Chief Judge, Sir Nigel Bowen oy wiliawn Datedt 22 Neeowler (2&6 Associate IN THE FEDERAL COUFT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WA G121 of 1986 wee ee ON APPEAL from the General Administrative Division of the Administrative Appeals Tribunal constituted by Deputy President R.D. Nicholson, Mr. I.A. Wilkins and Dr. J. Billings BETWEEN : GAETANO SALVATORE LA MACCHIA Applicant and THE MINISTER FOR PRIMARY INDUSTRY Respondent CORAM: Bowen C.d., Toohey and French JJ. 22 December 1986 REASONS FOR JUDGMENT TOOHEY J. This is an appeal from a decision of the Administrative Appeals Tribunal substantially affirming a decision by the respondent Minister to cancel Fishing Boat Licence No. 61205 and Master Fisherman's Licence No. 71309. The respondent had added, as a rider to his decision to cancel the licences, that applications for new licences "not be considered until at least 3 weeks after the date of cancellation". The Tribunal varied that rider by directing that: - Subject ta application tnerefor, the Respondent consider granting a new Fishing Boat Licence and a new Master Fisherman s Licence to the Applicant and such others as apply with him from and including 22 December 1986". The application to the Tribunal was made by Gaetano Salvatore La Macchia as the holder of the Master Fisherman's Licence and as one of the holders of the Fishing Boat Licence. When the matter came before this Court counsel for Mr. La Macchia, at the suggestion of counsel for the respondent, added G.M. La Macchia and G. & A. Zagami as applicants. The three additional persons were holders, with Mr. La Macchia, of the Fishing Boat Licence. The events giving rise to the application to the Tribunal may be described in this way. On 13 June 1985 Mr. La Macchia was convicted -~f an offence under para.13(1)(i) of the Fisheries Act 1952 of the Commonwealth. The offence was that on or about 19 April 1984, at waters off Perth, he acted in contravention of a Fisheries Notice in that he, being a person in charge of vessel LFB F569 (the "Vulcano"), used in proclaimed waters a quantity of rock lobster pots which were not licensed pursuant to the provisions of the Western Australian Fisheries Act 1905. The Fisheries Department in Western Australia administers the Fisheries Act of the Commonwealth on behalf of the Australian Fisheries Service within Western Australia. There was ua corcespondence between Ir. La Macchia » solicitors and both the Fisheries Department and the Australian Fisheries Service regarding action that might be taken both in respect of Mr. La Macchia and the "Vulcano" by reason of Mr. La Macchia's conviction. This culminated in a decision by the respondent on 14 October 1986 to cancel the licences in the terms already mentioned. The power of cancellation derived from sub-s.9A(3A) of the Fisheries Act which came into operation on 31 August 1985 as part of the Fishing Legislation Amendment Act 1985. It 1s a power exercisable in a number of circumstances, including conviction of the holder of a licence of an offence against the Act. The applicants attacked the Tribunal's decision on several grounds. The principal attack was along these lines. The Fisheries Act confers on the Minister a power to cancel licences in the circumstances appearing in sub-s.9A(3A). It does not confer upon the Minister a power to suspend licences except in particular circumstances which are not relevant to this appeal. The decision of the Tribunal was in truth a suspension of the licences rather than their cancellation since the Tribunal contemplated the restoration of the licences from 22 December 1986. Indeed the Tribunal concluded its reasons in these terms: "If action to cancel had been taken in 1984 and 1985 the Tribunal may have been satisfied that cancellation for three weeks was suitable. However, having particular regard to the delay in resolving the matter to the point where the Applicant was entitled to consider that the matter had come to an end, the Tribunal considers that the correct period for the cancellation to endure 1s the period of two weeks". In the applicants submission, there was an impermissible use of the power to cancel to achieve a suspension for which the Act does not provide. I have some svmpathy with this argument but it cannot succeed. Certainly the use by the Tribunal of expressions such as "cancellation for three weeks was suitable" and "the correct period for the cancellation to endure is the period of two weeks" suggest an intention to bring about a result short of permanent deprivation of the licences. But the Tribunal's reasons must be read in their entirety. When they are so read, it is apparent that the Tribunal was under no misapprehension as to what it was doing. In the course of its reasons the Tribunal commented: "The act of cancellation has a different legal quality to suspension and it is cancellation not suspension which takes place on an exercise of power under sub-section 9A(3A). The act of cancellation lacks the temporal limit characteristic of suspension". It is clear that the Tribunal was affirming the decision of the Minister to cancel the licences and it is equally clear that the Tribunal well understood the consequences that followed. Applications for new licences were required; the granting of such licences was a matter for the Minister. Sub-section 43(1) of the Administrative Appeals Tribunal Act 1975 requires the Tribunal to affirm, vary or set aside the decision unaer review. The Tribunal varied che decision under revlew in cwe respects. First, it directed cancellation of the licences as From 8 December 1986, a step thought by the Tribunal to be appropriate having regard to the time at which the application came before it. Secondly, 1t varied what I have described as the rider to the Minister's decision by including what may also be described as a rider to its own decision. rt directed the respondent to consider granting new licences (if sought) as from 22 December 1986. The Tribunal did not direct the respondent to grant new licences, whether from 22 December 1986 or from any other date. What it required the respondent to do was, on application, to give consideration to granting new licences as from that date. Thus, both in form and in substance, it maintained the cancellation of the licences. Certainly it expressed a view as to the appropriate time that might elapse before new licences be granted. That was a view expressed by the Tribunal, having regard to the impact of cancellation upon the applicants' fishing activities. Whether the respondent grants new licences will be a matter for him in the exercise of the power conferred by s.9 of the Fisheries Act, as will the date from which any new licence operates. Contrary to the applicants' submission, there is in the Tribunal's decision no implied promise of reinstatement of the licences, no clear intent that licences be restored after a certain period and no absence of intention to deprive the applicants permanently of their licences. These are all matters which the Tripunai has left to the Minister. albeit with a fairly strong indication of what the Tribunal would do if 1t stood in the Minister's shoes. When the Tribunal gave its decision on 24 November, it was open to the applicants to apply forthwith for a Fishing Boat Licence and a Master Fisherman's Licence. Equally 1t was open to the respondent, on receipt of such applications, to consider whether he would grant licences and if so from what date. There are, I think, only two other matters in the applicants' case that call for comment. The first is the argument that, in relying upon a power in sub-s.9A(3A) which did not exist at the time of the conviction of Mr. La Macchia, a penal power was exercised retrospectively. There are two answers to this contention. The first is that the Minister was not exercising a penal power even though cancellation imposed a hardship on the applicants by depriving them for a time of their ability to fish commercially. Cancellation is not part of the penalty a Court of Petty Sessions may impose. It is part of the scheme of the Act which seeks to control commercial fishermen in their fishing activities. Rock lobsters are a valuable common property resource and activities damaging the resource are hard and costly to police. The power of cancellation is an important aspect of the system of control and should be seen in that light. Secondiv, while the Minister could not have qiven a notice prior to the sub-section coming into operation. he was not constrained thereafter to rely upon a conviction that itself occurred after the sub-section came into operation. The commission of an offence, whether before or after 31 August 1985, is a circumstance warranting the giving of a notice under sub~s.(3A). The order does not have retrospective effect simply because 1t relies upon conduct that occurred before the power existed. See In re A Solicitor's Clerk £19571 1 W.L.R. 1219 at 1222; O'Neill v. Reid C1959] N.Z.L.R. 331 at 335-336; Customs and Excise Commissioners v. Thorn Electrical Industries Ltd. £19753 1 All E.R. 439 at 447-448, The other argument is that Mr. La Macchia was only one of several holders of the Fishing Boat Licence and that therefore it could not be said, in terms of sub-para.9A(3A)(b)(i), that "the holder of the licence is convicted of an offence ...". To assess the argument it is helpful to set out para.(b) in full. "(b) in the case of a licence granted under sub-section 9(2) or (3) in respect of a boat - (i) the holder of the licence is convicted of an offence of a kind referred to in paragraph (a); or (ii) during any period during which the holder of the licence held a licence in respect of the boat - another person is convicted of an offence of a kind referred to in paragraph (a) in relation to the use of the boat;". Sub-paragrapn +'11' is cast in wide terms so that tne other person convicted of an offence in relation to the use of the boat need stand in no special relationship to the holder of the licence. Indeed it would be enough that a person stole a licenced boat and committed a relevant offence, though one would not expect the Minister to exercise his power of cancellation in such a case. But 1t 1s clear that the legislature intended to cover the situation where any person, whether the holder of a licence or not, was convicted of an offence under the Act. It is therefore unlikely that the legislature contemplated that, in the case of several holders of a Fishing Boat Licence, the power of cancellation should not operate where only one of the holders was convicted of an offence. A construction of sub-para.9A(3A)(b)(i) that would promote the purpose underlying the Act is to be preferred to a construction that would not promote that purpose (Acts Interpretation Act 1901 s.15AA). The Court cannot rewrite the legislative provision. But it is unnecessary to do so. Undue emphasis on the use in sub-para.(i) of the definite article in the expression "the holder of the licence" diverts attention from the result that Parliament intended to achieve and which, in my view, 1t did achieve. The matter should be approached in this way. Did Mr. La Macchia, who was convicted of an offence under the Act, answer the description "holder of the licence"? He did, as indeed did the other applicants. But 1t was enough for the purposes of sub-s.3A(2A; that Mr. La Macchia himself answered the description; whether others answered 16 as well is not to the point. References to the use of the singular to include the plural (Acts Interpretation Act s.23) do not advance the matter. As Bray C.J. said in Reg. v. Olsen; Ex parte Vahlberq and Vahiberg (1975) 11 S.A.S.R. 156 at 164: "The Acts Interpretation Act does not authorise ... a distributive construction". But for present purposes it does not matter. For reasons already given, I am of the opinion that the conviction of Mr. La Macchia fell within sub-para.9A(3A)(b)(i). For these reasons I joined with the other members of the Court in dismissing this appeal on 10 December 1986. I certify that this and the preceding 8 pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Toohey. A L——— Associate Dated: 22 December 1986 Counsel for the applicant: M.J. McPhee instructed by McPhee & Meyer Counsel for the respondent: D.R. Williams, Q.C. and H. Riley unstructed by Australian Government Solicitor Date of hearing: 10 December 1986 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION No. WAG 121 of 1986 On Appeal from the General Administrative Division of the Administrative Appeals Tribunal constituted by Deputy President R.D. Nicholson, Mr I.A. Wilkins and Dr. J. Billings BETWEEN: G.S. & A.M. LA MACCHIA and G. & A. ZAGAMI Applicant and THE MINISTER FOR PRIMARY INDUSTRY Respondent CORAM: BOWEN CJ, TOOHEY & FRENCH JJ DECEMBER 1986 REASONS FOR JUDGMENT FRENCH J. The applicants are the owners of the fishing boat "Vulcano". They use the boat to fish for rock lobster, an activity which is the subject of extensive regulation under Commonwealth and State fisheries legislation. These laws among other things provide for the licensing of fishermen and their boats and limit the number of pots that may be set from each licensed boat. In the case of the Vulcano the limit, in 1984, was 84 pots. On 19 April 1984 the first named applicant exceeded that limit by 6, having set a total of 90 pots from the boat. This fact was discovered on that day by Fisheries Inspectors carrying out a routine pot count in waters west of Garden Island and south south west of Cape Vlaming. Nearly fourteen months later on 13 June 1985 the first named applicant was, in respect of that overpotting, convicted of a breach of sub-s.13(1)(i) of the Fisheries Act 1952. Upon his conviction he was fined $200.00 and six of his pots were confiscated. But that was not the end of the matter. The conviction led to a decision taken by the respondent on 14 October 1986 to cancel the Master Fisherman's Licence which had been granted to 3. the first named applicant under sub-s.9(1) of the Fisheries Act 1952 . At the same time the Fishing Boat Licence held by all the applicants in relation to the Vulcano was also cancelled. This licence had been issued pursuant to sub-s.9(2) of the Act. The only record of the decision before the Court took the form of the handwritten word "agreed" over the signature of the respondent endorsed on a Minute signed by the Director of the Australian Fisheries Service. The Minute to which the respondent agreed concluded with the following recommendation:- " - Pursuant to your powers under Section 9A of the Fisheries Act 1952 cancel the fishing boat licence for the Vulcano issued in the names of G.S. & A.L. La Macchia and G. & A. Zagami , and Master Fisherman Licence issued to G.S. La Macchia. «. For the reasons set out in the attached Minute to the Secretary of August 1986 »- And to apply from a date determined by the Director, Australian Fisheries Service - Applications for new licences to replace those cancelled, not to be considered until at least 3 weeks after the date of cancellation." The date determined by the Director as the date from which the cancellations would apply was 15 November 1986. 4. On 10 August 1986 the Secretary of the Department of Primary Industry had himself purported to cancel the licences under the provisions of the Fisheries Act. This decision was the subject of an Application by the first named applicant for review in the Administrative Appeals Tribunal. Subsequently 1t was accepted by the Department that the Secretary's power to cancel licences had been removed by amendments to the Fisheries Act enacted in 1985. The application for review in the Administrative Appeals Tribunal therefore proceeded and was heard as an application to review the respondent's decision. It appears that the Tribunal must have made an order staying the respondent's decision pending its hearing and determination of the Application for Review although the terms of that order do not appear from the papers. In the event the hearing proceeded promptly and on 24 November 1986 the Tribunal comprising a Deputy President and two members made an order in the following terms:= "The decision under review is varied so that 1. Fishing Boat Licence No. 61205 and Master Fisherman's Licence No. 71309 are each cancelled with effect from 8 December 1986; and 5. 26 Subject to application therefor, the respondent consider granting a new fishing boat licence and a new master fisherman's licence to the applicant and such others as apply with him from and including 22 December 1986." From this decision the first named applicant appealed to the Court pursuant to s.44 of the Administrative Appeals Tribunal Act. The Notice of Appeal was filed on 4 December 1986 and a stay of the Tribunal's order was sought on Friday, 5 December 1986. Directions were then given to enable the Appeal to be heard by a Full Court on 10 December and a stay of the Tribunal's order was granted pending the hearing and determination of the appeal or further order. Upon the hearing of the appeal by this Court counsel for the respondent suggested that it would be appropriate for all the holders of the fishing boat licence to be joined as parties. Counsel for the first named applicant told the Court that he had instructions on behalf of the other owners to consent to their joinder as applicants and an order was made accordingly. Statutory Framework The essential legal elements of the scheme of regulation established by the enactment of the Fisheries Act 1952 are in summary as follows:- 6. (i) The proclamation of certain waters by the Governor General as proclaimed waters for the purposes of the Act (s.7). (ii) A power to regulate fishing in proclaimed waters by publication of notices prohibiting various activities therein (s.8). (iii) A power to licence persons to take fish in proclaimed waters (s.9). (iv) A power to grant a licence to a person in respect of a boat authorising the use of the boat for fishing in proclaimed waters (s.9). (v) A power to cancel such licences (s.9 and later s.9A.). An amendment to the Act affecting the power of cancellation and creating a supplementary power of suspension was passed in 1973. Both powers were dealt with by a new s.9A then inserted in the Act. By Act No. 29 of 1985, s.9A was itself amended and restructured so that its first three subsections related to the power to suspend licences. A new subsection 3A relating to the cancellation of licences was introduced and provided as follows:- "The Minister may, by notice in writing given to the holder of a licence granted under Section 9, cancel the licence if - (a) in the case of a Master Fisherman's licence - the holder of the licence is convicted of an offence against this Act, the regulations or any other law of the Commonwealth relating to fishing or against a law of Papua New Guinea or a State or Territory relating to fishing; and (b) in the case of a licence granted under subsection 9(2) or (3) in respect of a boat- 7. (i) the holder of the licence is convicted of an offence of a kind referred to in Paragraph (a); or (ii) during any period during which the holder of the licence held a licence in respect of the boat - another person is convicted of an offence of a kind referred to in paragraph (a) in relation to the use of the boat." Grounds of Appeal The grounds upon which the applicants appeal to this Court are:- "(a) A power exercised by the Respondent to cancel the (b) (c) fishing boat licences with the clear intent of restoration of same after a given period of cancellation is not authorised by s.9A (3A) of the Act because the exercise of such power lacks the legal quality of permanence necessary for a true cancellation. The exercise of such a power in those circumstances amounts to nothing more than a suspension and the use of a power to cancel to in effect suspend. Even if the Respondent had the power to cancel and then to consider restoration of the Master Fisherman's Licence held by the applicant, he had no power to cancel the Fishing Boat Licence the subject of the orders where that licence was held by several people jointly and only one of those people, the Applicant has been convicted on offence pursuant to the Act. (sic) It is submitted this is so particularly in circumstances where the offence by the Applicant was committed prior to the coming into force of Section 9A(3A). To exercise such a power, in effect, is to apply additional penalities retrospectively to parties who were not subject to such penalties at the time the offence was committed by only one of the co-holders of the licence. The exercise of the power by the Respondent to cancel the licences for a given period with an implied promise to reinstate was nothing more 8. than a de facto suspension of licence and thus the use of a power to effect a purpose other than that for which the power was granted making the use of that power void for male fides." Characterisation of the Decision to Cancel the Licences By para. (a) of the Grounds of Appeal the applicants contend that the purported cancellation of the Licence by the respondent was not a cancellation at all. By reason of the "clear intent of restoration...after a given period" the exercise of the power is said to have lacked "the legal quality of permanence necessary for a true cancellation". The opening words of the Minute containing the recommendation for cancellation of the licences accepted by the respondent described its purpose as:- "To seek your agreement to cancel the fishing boat licence issued to G.S. & A.M. Lamacchia for the boat ""Vulcano" and Master Fisherman's Licence issued to Mr G.S. Lamacchia (sic) - And not to consider new licence applications for Lamacchia or Zagami until at least three weeks after the Gate of cancellation, at which time all relevant issues would be considered." The form and expressed purpose of the respondent's decision permit of only one legally relevant characterisation. It was a decision to cancel the licences, that is to say a decision to "render void, to obliterate, to put an end to...." - Shorter Oxford English Dictionary. 9. If the respondent intended at the time of his decision to grant new licences upon application made after the expiry of three weeks from the cancellation date, that intention did not affect the legal character of the decision. The question remains open whether the power was exercised for an improper purpose as alleged in para. (c) of the Grounds. The provisions of the Fisheries Act 1952 relating to the suspension and cancellation of licences are of a protective Character. Such provisions are a familiar feature of laws which regulate, in the public interest, the right to engage in particular occupations or to exploit certain classes of natural resources. If one of the occasions prescribed by the Fisheries Act 1952 for the exercise of the power to cancel a licence has arisen, then, in the absence of express limiting criteria, the purposes for which that power may be exercised are as wide as the purposes of the Act itself. If the object of the cancellation in this case was to remove the applicants from participation in the rock lobster fishing industry for a period of 2 or 3 weeks, then that was an object which was not on the face of it, inconsistent with the scope and purposes of the statute. It would not in my opinion 10. constitute an improper purpose vitiating the exercise of that power, The order made by the Tribunal did in its second limb use language which might lend itself to interpretation as a limitation or qualification of the decision to cancel, giving it the character of a suspension. In my opinion however the only legally operative part of the Tribunal's decision was the cancellation as expressed in paragraph 1. The direction contained in paragraph 2 was at best unnecessary, and at worst confusing. The intent to effect a legally unqualified cancellation is however made clear by the following passages taken from pages 17 and 18 of the Tribunal's reasons For decision:- "In the view of the Tribunal the Minister has power to cancel the licence even in circumstances where there is an implied promise of restoration. Provided the act executed by the Minister and, on this appeal, by the Tribunal, is one having the legal quality of cancellation, the implied promise will not rob it of that quality nor be prevented by a_= restrictive interpretation of sub-s.9A(3A) in the context of the surrounding subsections relating to suspension. It will have that quality if it puts an end to the licence, not for a period, but for ever even though a new grant of the licence may subsequently be made or promised." "The act of cancellation has a different legal quality to suspension and it is cancellation not suspension which takes place on an exercise of power under sub-s.9A(3A). The act of cancellation lacks' the temporal limit characteristic of suspension." ll. For these reasons I am of the view that the contentions of the applicants expressed in paras. (a) and (c) of the grounds of appeal must fail. Application of Subsection 9A(3A) to Innocent Co-Holders of a Fishing Boat Licence Paragraph (b) of the grounds of appeal related only to the fishing boat licence. It seemed to involve two contentions:- l. AS a matter of construction sub-s.9A(3A) does not authorise the cancellation of a fishing boat licence held by a number of persons where only one of those persons is convicted of a relevant offence. 2. In any event the exercise of the power in this case amounted to the retrospective imposition of a penalty upon persons who were not, as mere co~holders of the licence, subject to such penalty at the time of the commission of the offence by the first named applicant. The power conferred by sub-s.9A(3A) is a power to cancel "the licence". An occasion of its exercise is the case in which "the holder" of the licence is convicted of an offence of the kind referred to in sub-s.9A(3A)(a). The mode of its exercise is "by notice in writing given to the holder". It is the applicants' contention that the occasion for the exercise of the power contemplated by sub-s.9A(3A)(b)(i) has not arisen. Only one of the four licence holders having been convicted of an offence, that event does not, it is said, fall 12. within the Language of sub-para.(b)(i) which contemplates only the case in which "the holder of the licence is convicted". In my opinion that contention 1s correct. When sub-s.9A(3A)(b)(i) is read with the opening words of sub-s.,9A(3A) "the holder" who is convicted of the offence is "the holder" to whom notice of cancellation must be given by the Minister. Sub-para. (b)(i) describes the occasion of primary liability to cancellation of a fishing boat licence. That is to say the occasion described in sub-para.(b)(i) results from the act of the licence holder and not from that of some other person. There is however a derivative liability to cancellation of a fishing boat licence and the occasion of this liability 1s described in sub-para.(b)(ii). The scope of the derivative liability is wide. Tt appears to extend even to the case where a stranger who uses the boat without authority is convicted of a relevant offence in relation to that use. The applicants contend that the subsection does not authorise the cancellation of a licence held by more than one person when only one of its holders is convicted of an offence. 13. This requires a reading of sub=para.(b)(ii) which gives rise to an absurdity. The absurdity is that the holder of a fishing boat licence may be liable to have his licence cancelled for the act of a stranger in relation to the boat but not for the act o£ a person who holds the licence with him. It is no doubt open to argue that the words "another person" in sub~para(b)(ii) do not extend to any person who is a holder of the licence. In my opinion however, where there is one or more innocent co-holders and one guilty holder of a fishing boat licence it is open to interpret sub-para.(b)(ii) so that, with respect to the innocent co-holders, the holder convicted of an offence is "another person". With respect to the innocent licence holder, the occasion for the exercise of the power to cancel the licence is the conviction of the guilty licence holder as "another person" within the meaning of sub-para.(b)(ii). With respect to the guilty licence holder, the occasion for the exercise of the power is his own conviction as contemplated by sub-para.(b)(i). This view of the operation of sub-s.9A(3A) does not readily commend itself as a natural construction of its language. 14. In my opinion the subsection requires legislative attention so that its words and its evident policy may be consistent. However given that this interpretation is open, then though the opening be narrow, the policy of the Act should be given effect to and anomaly and absurdity avoided if possible. In my opinion therefore, the subsection does allow for the cancellation of a licence held by more than one person where one of its holders is convicted of one of the offences described in sub-s.9A(3A). Retrospectivity The derivative liability created by sub-s.9A(3A)(b)(1i) was introduced into the Fisheries Act by the Fishing Legislation Amendment Act 1985, No. 29 of 1985. Section 10 of that Act which amended s.9A of the principal Act came into effect on 31 August 1985. The applicants contend that the cancellation of the fishing boat licence under sub-s.9A(3A) involves the retrospective application of a penalty to innocent parties. 15. As Professor Pearce observes in the 2nd Edition of his text "Statutory Interpretation in Australia" at para. 211, it is appropriate to talk in terms of retrospectivity only where an amending act affects rights by changing them with effect prior to its commencement. This view gets support from the judgment of Dixon CJ. in Maxwell v Murphy (1957) 96 CLR 161 at 267 where his Honour said:- "The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events." The fact that the power to cancel a licence under sub-s.9A(3A) is conditioned upon a class of past events, does not mean that the inclusion in that class, of events which predated the law, renders its operation retrospective. In In Re A Solicitor's Clerk [1957] 1 WLR 1219 the Disciplinary Committee of the Law Society had made an order under s.16(1) of the Solicitors' Act 1941, as amended by s.11(1) of the Solicitors' (Amendment) Act 1956, directing that no solicitor should thereafter employ the appellant, a solicitor's clerk who had been convicted of larceny in 1953 without the permission of the Law Society. 16. The appellant contended that the Committee was giving retrospective effect to the Act of 1956 by applying it to a conviction which took place in 1953. Lord Goddard CJ. with whom Barry and Havers JJ. agreed said at 1222:~ "...In my opinion this Act is not in truth retrospective, It enables an order to be made disqualifying a person from acting as a solicitor's clerk in the future and what happened in the past is the cause or reason for the making of the order, but the order has no retrospective effect. It would be retrospective if the Act provided that anything done before the Act came into force or before the order was made should be void or voidable, or if a penalty were inflicted for having acted in this or any other capacity before the Act came into force or before the order was made, This Act simply enables a disqualification to be imposed for the future which in no way affects anything done by the Appellant in the past." See also Customs and Excise Commissioners v Thorn Electrical Industries Limited (1975) 1 All E.R. 439 at 447-448. In my opinion the use of the power conferred by sub-s.9A(3A) to cancel the applicants' fishing boat licence does not rely upon any retrospective construction of the amending act. For these reasons the propositions advanced in support of paragraph (b) of the Grounds of Appeal also fail and the appeal must be dismissed. ¥* 17. I certify that this and the preceding 16 pages are a true copy of the reasons for judgment herein of his Honour Mr Justice French. ht bk —— { Associate Dated: 22 December 1986 Counsel for the applicant: M.J. McPhee instructed by McPhee & Meyer Counsel for the respondent: D.R. Williams QC and H. Riley instructed by Australian Government Solicitor Date of hearing: 10 December 1986