Braithwaite v Minister for Primary Industries [2006] NSWADT 305

CITATION: Braithwaite v Minister for Primary Industries [2006] NSWADT 305

DIVISION: General Division

APPLICANT PARTIES: Garry Braithwaite RESPONDENT Minister for Primary Industries

FILE NUMBER: 063203

HEARING DATES: Decision on the papers

SUBMISSIONS CLOSED: 07/21/2006

DATE OF DECISION: 10/27/2006

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Fisheries Management Act - fishing licence- endorsement on licence - Fishing licence - endorsement on licence

MATTER FOR DECISION: Jurisdiction

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Fisheries Management Act 1991 (Cth) Fisheries Management Act 1994

In person REPRESENTATION: L Derwent, solicitor

ORDERS: The application is dismissed for want of jurisdiction.

Background 1 Mr Braithwaite is the holder of a NSW Commercial fishing licence. He applied to the Minister for Primary Industries ("the Minister") for the issue of a permit under section 37 of the Fisheries Management Act 1994 ("the FM Act"). If granted, the permit would authorise him to take Southern Bluefin Tuna. Mr Braithwaite's application shows that he wants to be authorised to take Southern Bluefin Tuna for sale. The application was unsuccessful and Mr Braithwaite applied to this Tribunal for a review of the determination. 2 The Minister contends that the Tribunal has no jurisdiction to hear Mr Braithwaite's application and seeks an order dismissing the proceedings. The matter was referred for determination of the preliminary issue of whether the Tribunal has jurisdiction to hear the application. The determination was to be made on the basis of written material submitted by the parties. Applicable legislation 3 It is common ground that the State of New South Wales has jurisdiction to manage the fishery for the taking of Southern Bluefin Tuna in the waters within 3 nautical miles of the coast of NSW. It is also common ground that in 1990 the State of NSW and the Commonwealth entered an arrangement in relation to that fishery. For present purposes, by operation of section 7(1)(b) of the FM Act and the 1990 arrangement, the State of NSW has jurisdiction over management of the fishery for Southern Bluefin Tuna in waters from the NSW coast to the limit of the Australian fishing zone. The State of NSW was given jurisdiction of the Commonwealth Ocean Trap and Line fishery for all species by all methods other than pelagic longline via the 1991 Offshore Constitutional Settlement ("the 1991 OCS"). 4 Southern Bluefin Tuna are listed as an endangered species under section 220C of the FM Act (see Part 1 of Schedule 4). It is an offence for any person to harm a fish of this species or be in possession of a fish of this species in New South Wales, including NSW waters as prescribed under the FM Act. A fishing closure published in Government Gazette Number 55 of 16 May 2005 (the fishing closure) prohibits the taking of Southern Bluefin Tuna by any holder of a NSW Commercial fishing licence or any person from a NSW licensed fishing boat. 5 Permits under section 37 of the FM Act may be issued by the Minister at his discretion subject to the limits of the power prescribed in that section. Such permits authorise the taking of fish that would otherwise be contrary to the FM Act. The permits may only be issued for the purposes prescribed in section 37(1) but those purposes include 'any purpose approved by the Minister that is consistent with the objects of this Act'. The FM Act does not prescribe the grounds under which the Minister may decide to either grant or refuse such a permit. Section 37 provides: 37 Defence--special permits for research or other authorised purposes (1) The Minister may issue to any person a permit which authorises the person to take and possess fish or marine vegetation of any kind or of a specified kind for any or all of the following purposes: (a) research purposes, (b) aquaculture purposes, (c) aquarium collection purposes, (d) any purpose prescribed by the regulations, (e) any other purpose approved by the Minister that is consistent with the objects of this Act. (2) A permit may authorise the holder to take fish or marine vegetation by any method or by any specified method, from any waters or any specified waters or in any other specified way, despite any provision of or made under this Act to the contrary. (3) It is a defence to a prosecution for an offence against this Act or the regulations if the person charged satisfies the court that the person was the holder of a permit under this section that authorised the act or omission constituting the offence. (4) A permit under this section: (a) is subject to such conditions as are prescribed by the regulations or specified in the permit, and (b) remains in force for the period of 1 year or such other period as is specified in the permit, and (c) may be cancelled or suspended by the Minister at any time by notice given to the permit holder. (5) The Minister may from time to time, by notice given to the permit holder, vary the conditions of a permit under this section. (6) The regulations may make provision for or with respect to permits under this section. In particular, the regulations may prescribe the fee payable for the issue of a permit. (7) The power to issue permits under this section is limited by section 220ZW (Licence to harm threatened species etc). 6 Section 220ZW of the FM Act provides: "220ZW Licence to harm threatened species, population or ecological community or damage habitat (1) The Director-General may grant a licence authorising a person to take action that is likely to result in one or more of the following: (a) harm to a threatened species, population or ecological community, (b) damage to a critical habitat, (c) damage to a habitat of a threatened species, population or ecological community. (2) A permit under section 37 may only be issued for a purpose referred to in subsection (1): (a) for scientific purposes, or (b) for the welfare of fish or marine vegetation, or (c) if there is a threat to life or property. (3) A permit under section 37A may not be issued for a purpose referred to in subsection (1)." 7 Section 8(1) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") provides that a reviewable decision is a decision of an administrator that the Tribunal has jurisdiction under an enactment to review. Section 38 of the ADT Act provides for the circumstances in which the Tribunal has jurisdiction to review a decision of an administrator. Section 38(1) provides that: "The Tribunal has jurisdictions under an enactment to review a decision (or a class of decision) if the enactment provides that application may be made to it for a review of any such decision (or class of decision) made by an administrator: (a) in the exercise of functions conferred or imposed by or under the enactment, or (b) in the exercise of any other function of the administrator identified by the enactment. 8 Section 5 of the ADT Act defines the term "enactment" to mean an Act other than the ADT Act or a statutory rule. Sub section 38(2) of the ADT Act provides that: "Nothing in subsection (1) enables jurisdiction to review a decision to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by the Act (other than this Act)". 9 There are provisions in sections 146, 160, 161 of the FM Act which give the Tribunal jurisdiction to review certain decisions in regard to aquaculture permits and section 177(4) of the FM Act gives the Tribunal jurisdiction to review the cancellation of an aquaculture lease. Pursuant to section 126 of the FM Act the Tribunal has jurisdiction to review certain decisions in relation to a 'relevant authority'. It provides: "126 Applications to Administrative Decisions Tribunal for reviews of certain decisions (1) A person who is dissatisfied with any of the following decisions under this Part may apply to the Administrative Decisions Tribunal for a review of the decision concerned: (a) the refusal to issue a relevant authority to the person or to renew the person's relevant authority, (b) the imposition of conditions on the person's relevant authority (otherwise than by regulation), (c) the suspension or cancellation of the person's relevant authority. (2) For the purposes of this section, an application for the issue or renewal of a relevant authority is taken to have been refused if the authority is not issued or renewed within 60 days after the application was duly made." 10 The term "relevant authority" is defined in section 125 as follows: "125 Definition of "relevant authority" In this Division, "relevant authority" means: (a) a commercial fishing licence, or (b) an endorsement on a commercial fishing licence, or (c) a fishing boat licence, or (d) the registration of a member of the crew of a boat, or (e) a fish receiver's registration." 11 The term "commercial fishing licence" is defined in section 4 to mean a commercial fishing licence issued under Division 1 of Part 4 and in force. Division 1 of Part 4 of the FM Act comprises sections 102 to 106. Mr. Braithwaite's case 12 Mr Braithwaite concedes that inside 3 nautical miles of the NSW coast the Minister must abide by section 220ZF of the FM Act when issuing section 37 permits. However, he does not concede that the Minister must abide by section 220ZF when issuing section 37 permits in waters from 3nm to 80nm where the State was given jurisdiction pursuant to the 1991 OCS. He contends that Southern Bluefin Tuna are not listed as a threatened species in waters outside 3 nautical miles of the NSW coast and are harvested by Commonwealth fishers. He further contends that Commonwealth fishers (including Mr Braithwaite) whose licences were transferred to NSW jurisdiction via the 1991 OCS were given certain guarantees by the Commonwealth and NSW State Fisheries agencies. Those guarantees included, firstly, a guarantee that no fishers would be disadvantaged by the change of jurisdiction and secondly, that they would not lose any of the rights they had under the Commonwealth jurisdiction. 13 Mr Braithwaite contends that in accordance with section 165 of the Commonwealth Fisheries Management Act 1991 he had a right of review to the Administrative Appeals Tribunal. Therefore, he argues, under the guarantees given to him when his Commonwealth fishing rights were transferred to NSW State jurisdiction he should have the right to appeal to this Tribunal for review of the decision not to grant him a section 37 permit. 14 Mr Braithwaite also argues that a right of review lies to this Tribunal pursuant to section 126 of the FM Act. He says that section 126(l)(a) provides for an application for review of the refusal to issue a relevant authority. He relies on the Macquarie concise dictionary definition of the word "permit" to mean "an authoritative or official certificate of permission; a licence". 15 Mr Braithwaite argues that in applying for a section 37 permit he in fact applied for a special type of commercial fishing licence to take Southern Bluefin Tuna. Section 125(a) of the FM Act defines "relevant authority" to include a commercial fishing licence. He submits that therefore this Tribunal would have jurisdiction to review the decision to refuse to grant him a section 37 permit. The Minister's case 16 The Minister submits that there are two key issues affecting this application. Firstly, by operation of the FM Act, that the Tribunal does not have jurisdiction to review the decision and, secondly, that by operation of section 37 and section 220ZW of the FM Act, the Minister does not have authority to grant the permit for which Mr Braithwaite has applied. Mr Derwent, the solicitor for the Minister, submits that section 220ZW of the FM Act applies to this Application because Southern Bluefin Tuna is a threatened species. 17 Mr Derwent submits that the scheme applying to Southern Bluefin Tuna is consistent with the objects of the FM Act, particularly the objects of conservation of fish stock, conserving threatened species and populations and promoting ecological sustainable development. 18 He says that a section 37 permit may only be issued for a purpose prescribed in section 220ZW(2) i.e. for scientific purposes, or for the welfare of fish or marine vegetation, or if there is a threat to life or property. He says that as Mr Braithwaite's application does not fall within the scope of section 220ZW(2), the Minister is prevented from issuing the permit he sought. 19 Mr Derwent argues that the FM Act does not provide for the review (either internal review or otherwise) of decisions to grant or refuse section 37 permits or decisions in relation to conditions applied to such permits. There is no conferral of jurisdiction of the Tribunal to review such decisions as required under section 38 of the ADT Act. 20 Further, he points to section 125 of the FM Act, which defines 'relevant authorities', and to section 126 of that Act which provides for review by the Tribunal of prescribed types of decisions regarding 'relevant authorities'. He contends that permits issued under section 37 of the FM Act are not within the defined 'relevant authorities' and thus Division 6 of Part 4 of the FM Act does not confer jurisdiction for review of the decision by the Tribunal. Mr Derwent argues that section 125 provides an exhaustive definition in that all other forms of authority are excluded from the scope of the Division. 21 With respect to Mr Braithwaite's assertion that guarantees were given by the Commonwealth and State when the OCS agreement was made, Mr Derwent submits that this is an issue of law rather than a reviewable decision. He further submits that the Tribunal does not have jurisdiction to determine that question of law. Findings 22 The Tribunal's jurisdiction to review a decision is derived from the legislation under which the decision was made and which provides that an application can be made to the Tribunal to review that decision. There is no general provision in the FM Act giving the Tribunal jurisdiction to review decisions made under that Act, however, there are specific provisions which do give the Tribunal jurisdiction to review certain decisions. 23 I do not agree with Mr Braithwaite's submission in regard to the application of section 126 of the FM Act. I agree with Mr Derwent's submission that section 125 provides an exhaustive definition of the "relevant authority" to which the right of review applies and that all other forms of authority are excluded from the scope of the Division. However, even if a permit were included in the definition of 'relevant authority' in section 125, it does not follow that the Tribunal has jurisdiction to determine Mr Braithwaite's application under section 126 of the FM Act. 24 Section 126(1) provides that the right to apply to this Tribunal extends to persons who are dissatisfied with "any of the following decisions under this Part". The reference to 'this Part' is a reference to Part 4 of the FM Act. Section 37 falls within Part 2, not Part 4, of the FM Act. Accordingly, in my view, section 126 does not provide a right to apply to this Tribunal in relation to the refusal of a permit under section 37 of the FM Act. 25 The Tribunal will only have jurisdiction to review the decision if there is another provision in the FM Act giving the Tribunal jurisdiction. There is no such provision. It follows, in my view, that the Tribunal has no jurisdiction to hear Mr Braithwaite's application and the Minister's application should succeed. Order The application is dismissed for want of jurisdiction.