Braithwaite v NSW Department of Primary Industries [2006] NSWADT 2

CITATION: Braithwaite v NSW Department of Primary Industries [2006] NSWADT 2

DIVISION: General Division

APPLICANT PARTIES: Garry Braithwaite RESPONDENT NSW Department of Primary Industries

FILE NUMBER: 053327

HEARING DATES: 16/12/05

SUBMISSIONS CLOSED: 12/16/2005

DATE OF DECISION: 01/09/2006

BEFORE: Handley R - Judicial Member

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

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Fisheries Management Act 1994 Interpretation Act 1987

CASES CITED: Professional Fishers Association Incorporated v Minister for Fisheries [2002] NSWCA 145

APPLICANT In person REPRESENTATION: RESPONDENT T Reynolds, solicitor

ORDERS: The Tribunal has no jurisdiction to hear Mr Braithwaite's application.

REASONS FOR DECISION 1 This matter involves an application by Garry Braithwaite for the review of a decision of the NSW Department of Primary Industries ('the Department') dated 18 May 2005 to refuse to grant an endorsement on his commercial fishing licence to permit him to catch southern bluefin tuna ('SBT'). 2 Mr Braithwaite, who lives in Bermagui, NSW, has been involved in the fishing industry for many years. He holds a commercial fishing licence (with crew) and a fishing boat licence (with crew). On 18 March 2005, he wrote to the Department's Director of Fisheries Management concerning the proposed renewal of the 'closure' for SBT (the prohibition on the taking of SBT) in NSW waters. On 18 May 2005, the Director responded to Mr Braithwaite informing him that the Department had decided to renew the closure. On 23 September 2005, Mr Braithwaite filed an application for the review of this decision by the Tribunal. 3 At a Directions Hearing on 25 October 2005, the matter was referred for hearing of a preliminary issue - whether the Tribunal has jurisdiction to hear the application. 4 Pursuant to s 126 of the Fisheries Management Act 1994 ('the Act'), the Tribunal has jurisdiction to review decisions involving the refusal, suspension or cancellation of commercial fishing licences or fishing boat licences, or the imposition of conditions on those licences, or the registration of fish receivers. Mr Braithwaite's application concerns the imposition of conditions on commercial fishing licences. The relevant subparagraph, s 126(1)(b), permits review where a person is dissatisfied with "(b) the imposition of conditions on the person's relevant authority (otherwise than by regulation)". The phrase 'relevant authority' is defined in s 125 so as to include commercial fishing licences. 5 On 16 May 2005, the Acting Deputy Director-General, Agriculture and Fisheries, acting under delegation from the Minister for Primary Industries, by notification in the NSW Government Gazette of that date, prohibited the taking of SBT "from all NSW waters by any holder of a NSW commercial fishing licence, or by any person from a NSW licensed fishing boat, by all methods of fishing, from 18 May 2005 until 17 May 2010". The Minister is authorised to prohibit the taking of fish or of a specified class of fish, from any waters or from specified waters pursuant to s 8(1) of the Act. Section 8(2) states: "Any such prohibition is called a fishing closure." 6 Mr Braithwaite's current commercial fishing licence issued on 7 July 2005 is valid until 20 May 2006. This licence permits him to take fish for sale subject to certain restrictions on ocean trap and line fishery and ocean haul fishery. SBT are not excluded from the fish to which the licence applies. His current fishing boat licence issued on 5 December 2005, valid until 6 December 2006, is also subject to conditions. These include reference to Fishing Closure Notification OG1 – Offshore Commercial Fishing, in respect of which it is stated that Mr Braithwaite's "boat may be used to take fish in ocean waters more than three nautical miles from the baselines on the territorial sea". 7 Mr Braithwaite submitted that fishing closures are used by the Department as fishery management tools to place conditions on commercial fishing licences and fishing boat licences and make endorsements on commercial fishing licences. He noted that the closure in respect of SBT does not affect recreational fishers, and that the objects of the Act stated in s 3 include promoting viable commercial fishing and sharing fisheries resources. 8 Ms Reynolds referred to the NSW Court of Appeal decision in Professional Fishers Association Incorporated v Minister for Fisheries [2002] NSWCA 145 ('the Professional Fishers case'), where the Court held (per Stein J at paragraph 27): "The power in s 8 of the FM Act is drawn in very wide terms. It is not expressed to be subject to any limitation or pre-condition as to its exercise." In particular, there was no requirement to comply with the Part 5 of the Environmental Protection Act 2000 requiring the preparation of an environmental impact statement. 9 Ms Reynolds submitted that the making of a fishing closure under s 8 is not a reviewable decision. As long as the closure is in accordance with the objects of the Act, then the discretion in s 8 is not otherwise confined. The objects of the Act stated in s 3 include the conservation of fish stocks and populations of fish. The Fisheries Scientific Committee (established under the Act) recommended the listing of SBT as an endangered species. On 21 September 2004, the Minister made an Order under s 200D of the Act listing SBT as an endangered species. 10 The issue for the Tribunal is whether the prohibition on Mr Braithwaite catching SBT imposed by the fishing closure dated 16 May 2005 constitutes a decision imposing conditions on his commercial fishing licence so that the decision is reviewable by the Tribunal pursuant to s 126 of the Act. 11 In my view, the making of the fishing closure in respect of SBT is not a reviewable decision. Firstly, there is nothing to suggest that the making of the fishing closure was not a valid exercise of delegated power, remembering that the NSW Court of Appeal in the Professional Fishers case recognised that the power in s 8 is drawn in very wide terms. I agree with Mr Braithwaite that such a fishing closure would appear to be fishery management tool, but I also agree with Ms Reynolds that the conservation of fish stocks and populations of fish is within the objects of the Act stated in s 3. Where a particular fish is regarded as an endangered species, as is the case with SBT, regard to other objects of the Act such as the promotion of commercial fishing and sharing of fisheries resources, will necessarily be in the longer term, as the Director of Fisheries Management recognised in his letter to Mr Braithwaite dated 18 May 2005 when he referred to the possibility of determining access to this fishery resource "at a later stage". 12 Secondly, while the closure obviously affects Mr Braithwaite's licence in so far as it restricts the fish he can take for sale, it does not impose a specific condition on his commercial fishing licence of a kind that seems to be contemplated by the Act. Section 104(4)(b) of the Act empowers the Minister (or, pursuant to s 227, his or her delegate) to issue a fishing licence "subject to such conditions as are prescribed by the regulations or specified in the licence". The Tribunal's jurisdiction to review decisions in respect of conditions, set out in s 126(1)(b), provides a right of review in respect of "(b) the imposition of conditions on the person's relevant authority (otherwise than by regulation)". Thus, it is only the imposition of conditions specified in the licence that is reviewable. 13 I note also that although a fishing closure is not strictly speaking a 'regulation', it does have the character of delegated legislation. Essentially, it is a form of ministerial order, the breach of which – the taking of fish, or being in possession of fish, in contravention of a fishing closure – is an offence pursuant to s 14. Moreover, s 9 of the Act requires notification of a fishing closure to be notified in the NSW Government Gazette, and s 12 states that ss 42 to 45 of the Interpretation Act 1987 apply to notifications in the same way as they apply to statutory rules within the meaning of that Act. Subject to jurisdictional limitations, delegated legislation is of universal application and it seems very improbable that Parliament would have granted a specific power of review in the context of licensing where delegated legislation restricts the activity licensed. 14 Thus, I conclude that the Tribunal does not have jurisdiction to review the prohibition on Mr Braithwaite taking SBT imposed by the fishing closure notified on 16 May 2005.