Reported Decision : (2002) 54 NSWLR 585 New South Wales Court of Appeal CITATION : Professional Fishers Association Incorporated v Minister for Fisheries [2002] NSWCA 145 FILE NUMBER(S) : CA 40158/02 HEARING DATE(S) : 12 April 2002 JUDGMENT DATE : 20 May 2002 PARTIES : Professional Fishers Association Incorporated (Appellant) Minister for Fisheries (Respondent) JUDGMENT OF : Sheller JA at 1; Stein JA at 2; Heydon JA at 62 LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT LEC 40124/01 FILE NUMBER(S) : LOWER COURT Pearlman J JUDICIAL OFFICER : COUNSEL : T F Robertson SC/M G McHugh (Appellant) D F Jackson QC/N Perram (Respondent) SOLICITORS : Woolf Associates (Appellant) Crown Solicitors Office (Respondent) CATCHWORDS : JUDICIAL REVIEW - validity of fishing closures and notification - whether environmental assessment required - statutory construction and interpretation - D Environmental Planning and Assessment Act 1979, div 3 of pt 5, div 5 pt 5, s 112, ss 115G - 115R LEGISLATION CITED : Fisheries Management Act 1994, pt 1, pt 1A, pt 2, pt 3, s 3, s 4, ss 7A - 7G, ss 8 - 12, s 62, sch 1, sch 1A Fisheries Management and Environmenal Assessment Legislation Amendment Act 2000 Interpretation Act 1987, ss 42 - 46 CASES CITED: Sustainable Fishing and Tourism Inc v Minister for Fisheries (2000) 106 LGERA 322 DECISION : Appeal dismissed with costs IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40158/02 LEC 40124/01 SHELLER JA STEIN JA HEYDON JA Monday, 20 May 2002 PROFESSIONAL FISHERS ASSOCIATION INCORPORATED v MINISTER FOR FISHERIES This appeal concerns the closure of Botany Bay and Lake Macquarie to commercial fishing for a period of five years. On 31 August 2001 the Minister for Fisheries published in the Government Gazette two notifications under s 8 of the Fisheries Management Act 1994 (the FM Act), one relating to Botany Bay and the other to Lake Macquarie. Such a notification is called a 'fishing closure'. The effect of the fishing closures will be to confine the areas in question exclusively to recreational fishers (except for abalone and lobsters in Botany Bay). The appellant, the Professional Fishers Association Incorporated, represents commercial fishers in the State of NSW. It brought judicial review proceedings in the Land and Environment Court challenging the validity of the s 8 notifications and the fishing closures. Pearlman J dismissed the application finding that the applicant/appellant had failed in each of its three challenges. Only the first challenge is relevant to the appeal. That is the submission that the s 8 notifications and the fishing closures are invalid. The foundation of the appellant's claim is that her Honour erred in law in holding that the Minister did not have to comply with the provisions of Division 5 of Part 5 of the Environmental Planning and Assessment Act 1979 (the EPA Act). The appellant contends that where the Minister purports to make a 'fishing closure' under s 8 of the FM Act, the Minister is first obliged to have that decision informed by the process of environmental assessment as provided for by Division 5 of Part 5 the EPA Act. The respondent does not dispute that he did not comply with Division 5 of Part 5 prior to making the subject fishing closure orders. Accordingly, it is the submission of the appellant that the Minister was required, but failed, to comply with the requirements of Division 5 of Part 5 of the EPA Act. Held: On the appeal, per Stein JA, Sheller JA and Heydon JA agreeing: 1) The power in s 8 of the FM Act is drawn in very wide terms. There is no express limitation or precondition as to its exercise. If parliament had intended for the exercise of the power to be subject to Division 5 of Part 5 of the EPA Act it would have been a simple matter to effect by express words. The provision does not bear an implication which qualifies its use by the prior requirement of compliance with the EPA Act. 2) Occasions will arise which necessitate the urgent exercise of the power by the Minister to prevent environmental degradation or harm to public health. The need to comply with Division 5 of Part 5 of the EPA Act would be the antithesis of the need for urgent action and contrary to the objects of the FM Act. 3) The Minister did not act beyond power when he made the notifications without complying beforehand with Division 5 of Part 5 of the EPA Act. 4) The Minister was not required to undertake the environmental impact statement process before making the fishing closure orders under s 8 of the FM Act. 5) The Minister did not act ultra vires. Orders: 1) Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40158/02 LEC 40124/01 SHELLER JA STEIN JA HEYDON JA Monday, 20 May 2002 PROFESSIONAL FISHERS ASSOCIATION INCORPORATED v MINISTER FOR FISHERIES Judgment 1 SHELLER JA: I agree with Stein JA. 2 STEIN JA: Introduction 3 On 31 August 2001 the Minister for Fisheries caused to be published in the Government Gazette two notifications under s 8 of the Fisheries Management Act 1994 (the FM Act) relating to the closure of Botany Bay and Lake Macquarie to commercial fishing for a period of 5 years. 4 The two notifications were essentially identical. They were to take effect from 1 May 2002. The form of the notification regarding Botany Bay is as follows: I, EDWARD OBEID, prohibit the taking of fish for sale by the methods of commercial fishing described in Column 1 of Schedule to this Notification, from the waters described in Column 2, during the period specified in Column 3, respectively, of that Schedule. This Notification will be effective from 1 May 2002, for a period of five (5) years. This Notification replaces all other commercial fishing closures currently in force in the waters of Botany Bay prescribed in the schedule below. SCHEDULE Botany Bay Column 1 Column 2 Column 3 Method Waters Period All methods, with the exception that lobsters and abalone may be taken by in accordance with the relevant share management fishery management plans. The whole of the waters of Botany Bay, together with all its tributaries, creeks, bays and inlets. For a period of five years. 5 Such a notification is called 'a fishing closure'. The effect of the fishing closures will be to confine the areas in question exclusively to recreational fishers (except for abalone and lobsters in Botany Bay). 6 The appellant, The Professional Fishers Association Inc, represents commercial fishers in the State. It brought judicial review proceedings in the Land and Environment Court. Pearlman J recorded in her judgment of 28 February 2002 dismissing the application, that three challenges were made. Only the first challenge is now relevant to the appeal. That is, the submission that the s 8 notifications of the fishing closures are invalid. An Amended Notice of Appeal was filed which so limited the challenge. 7 The basis of the appellant's claim is that the Minister was required, but failed, to comply with the requirements of Division 5 of Part 5 of the Environmental Planning and Assessment Act 1979 (the EPA Act). Her Honour found that the Minister was not bound to comply with Division 5 of Part 5 of the EPA Act. It may be noted that the respondent does not dispute that he did not comply with Division 5 of Part 5 of the EPA Act prior to making the subject fishing closure orders. I should also add that Mr Robertson SC, who appeared on behalf of the appellant, does not attack the Minister's power to make a closure order as such. 8 It may be seen, therefore, that the issue before the court is a somewhat narrow one of statutory construction of the relevant legislation. The legislation 9 Division 5 of Part 5 of the EPA Act was enacted as a legislative response to the decision of the Land and Environment Court in Sustainable Fishing and Tourism Inc v Minister for Fisheries (2000) 106 LGERA 322 (Talbot J). His Honour held that Part 5 of the EPA Act applied to the grant of commercial fishing licences under the FM Act. The issue of a fishing licence was an 'approval' granted for 'the use of land' and hence an 'activity' under Part 5. Accordingly, s 112 of the EPA Act applied. 10 By the Fisheries Management and Environmental Assessment Legislation Amendment Act 2000 the Parliament effected amendments to the EPA Act and the FM Act. Division 5 was inserted into Part 5 of the EPA Act. Broadly speaking the new regime required the preparation of an Environmental Impact Statement (EIS) in relation to entire categories of fish, eg prawn trawling, but removed the requirement in relation to each individual application for a licence. As her Honour said, the legislative intention was to replace a case-by-case assessment with a whole of fishery assessment. The new Division 5 (ss 115G to 115R) commenced on 22 December 2000. 11 Before turning to the provisions in Division 5 of Part 5 of the EPA Act, it is necessary to understand the legislative scheme of the FM Act. 12 The key provision for this case is s 8 of the FM Act which provides as follows: (1) The Minister may from time to time, by notification, prohibit, absolutely or conditionally, the taking of fish, or of a specified class of fish, from any waters or from specified waters. (2) any such prohibition is called a fishing closure. 13 Part 1A of the FM Act is entitled 'Fishery management strategies' and was inserted into the Act by the amending legislation. Section 8 is not within Part 1A but within Part 2, which is entitled 'General fisheries management'. Within Part 1A s 7C requires the Minister to arrange for the preparation of a draft fishing management strategy for each 'designated fishing activity'. The list of designated fishing activities includes share management fisheries for commercial purposes. Schedule 1 to the Act includes a number of different commercial fisheries. Section 7D states that a fishing management strategy is a strategy for achieving the objects of the Act (s3) and the draft strategy is to be the basis for environmental assessment under Division 5 of Part 5 of the EPA Act. 14 Division 5 of Part 5 of the EPA Act is headed 'Environmental Assessment of Fishing Activities'. This division applies to designated fishing activities as defined in the FM Act, Schedule 1A (see ss 115I and 115G). Section 115J(2) provides that a draft fishery management strategy is required for a designated fishing activity and is to be the subject of environmental assessment. This assessment is to include the 'likely cumulative environmental impact of the designated activity carried out by all the proponents'. Under s 115K an EIS for a designated fishing activity must be prepared. The requirements and processes for an EIS are prescribed by ss 115K, 115L, 115M and 115N. 15 Following the EIS process, the Minister is required to make a determination under s 115O(1) with respect to the designated fishing activity the subject of the EIS. By her or his determination, the Minister may permit the designated fishing activity, permit it subject to modifications or prevent it being carried out, in whole or part (s 115O(4)). 16 Section 115O also contains other provisions regarding the Minister's determination. For example, subsection (6) provides that when giving effect to a determination, the Minister is to comply with the applicable provisions of the FM Act. Subsection (7) provides that a determination does not prevent the imposition of 'new fishing regulatory controls applicable to a designated fishing activity'. A fishing regulatory control includes a fishing closure under s 8 of the FM Act (s 115G). 17 Section 115R(1) provides that only Division 5 applies to a designated fishing activity. Subsection (2) is the subject of some debate as to its proper meaning. It will be referred to later in these reasons for judgment. 18 The determination of the Minister under s 115O does not of itself have legal effect, except to the extent provided in s 115R(3). The determination is implemented by use of the provisions contained in the FM Act (s 115O(6)) but may be subject to s 115O(7). Judgment at first instance 19 After reciting the essence of the applicant's case Pearlman J said: 36. There are a number of difficulties with the propositions put in the applicant's case. The first concerns the proper construction of s 8 of the FMA. Having regard to the context of s 8, it is apparent that it is intended to empower the Minister to close waters to fishing in the interests of general fisheries management. Thus, the fishing closures which are contemplated by s 8 are prohibitions rather than activities which require environmental assessment. Furthermore, the Minister is empowered to issue notifications "from time to time". He is required by s 9 to publish a notification, but special provision is made, in s 9(2), for the publication of notifications when "the Minister considers that the fishing closure is required urgently". The Minister is also empowered, under s 11, from time to time to revoke a fishing closure. This context supports s 8 being construed as relating to fisheries management and not to the environmental assessment of fishing activities. A fishing closure under s 8 is defined in s 115G of the EP&A Act as a "fishing regulatory control" and it is, in its effect, a machinery or implementation provision. 37. A second matter to note is that div 5 is concerned with "designated fishing activities". Section 115G provides that a "designated fishing activity" is a "fishing activity". Section 115G also provides that a "fishing activity" bears the same meaning as the definition in the FMA. The definition of "fishing activity" in s 4(1) of the FMA is as follows: fishing activity means the activity of taking fish, including: (a) searching for fish, or (b) any activity that can reasonably be expected to result in the locating, aggregating or taking of fish, or (c) carrying fish by boat from the place where they are taken to the place where they are to be landed. 38. Accordingly, that with which div 5 is concerned is the activity of taking fish as described in sch 1A of the FMA. It is not concerned with the prohibition of the taking of fish. In its context, as part of pt 5 of the EP&A Act, div 5 is concerned with an activity (being the taking of fish as described in sch 1A), and div 5 requires that activity to be environmentally assessed by way of a draft management strategy and an environmental impact statement. It may be that the consequence of the environmental assessment is a decision (called a "determination" under s 115O) by the Minister that the activity shall be prevented, but that is a consequence, not a starting point. 20 Her Honour contrasted s 8 of the FM Act, which she said was directed towards the prohibition of a fishing activity, not to an environmental assessment of whether or not a fishing activity should be carried out. Her Honour concluded that the s 8 notifications were not determinations under s 115O and the Minister was not bound to comply with Division 5 prior to making or issuing a notification of a fishing closure. The appellant's submission 21 Put shortly, it is the submission of Mr Robertson on behalf of the appellant that her Honour was in error in failing to comprehend that the Minister had made a determination within the meaning of s 115O of the EPA Act before the fishing closure was gazetted. The Minister did this without undertaking the environmental assessment required by Division 5 of Part 5 of the EPA Act. It is submitted that the determination was accordingly unlawful, and it follows that the fishing closure orders were invalid. 22 The appellant concedes that the Minister can use s 8 of the FM Act for fishing management measures. Mr Robertson gave examples of an oil spill or the presence of an endangered species of fish in an area where commercial fishing might endanger them. 23 The appellant also accepts that the Minister can exercise the s 8 power, without EPA Act compliance (Division 5) if an estuary is in environmental crisis. 24 However, it is submitted that where the Minister makes a decision to close a fishery to commercial fishing, such as the subject closures of Botany Bay and Lake Macquarie, the Minister is first obliged to have that decision informed by the process of environmental assessment under Division 5. The power under s 8 is not available to the Minister until Division 5 has been complied with. 25 In response to the argument of the respondent that the starting point for consideration is s 8 of the FM Act, Mr Robertson submits that the provision is, to some extent, integrated into Division 5. He submits that the particular purpose for which the Minister purported to exercise the s 8 power was not available. In brief, the Minister was not entitled to use the power to achieve a re-allocation of a resource by closing waters to commercial fishers. The Minister was acting ultra vires or beyond the relevant power. The power cannot in this case be exercised without undertaking the environmental assessment mandated by Division 5. The Minister's submission 26 On behalf of the Minister, Mr Jackson QC submits that the starting point for consideration is s 8 of the FM Act. He poses the central question of whether the power under the provision can be exercised without complying with Division 5 of Part 5 of the EPA Act. Counsel made the following points: (a) Section 8 is not expressed to be subject to any limitation. Indeed, the power is expressed in the widest possible way. (b) Included in the regime for fishing closures (Division 1 of Part 2, General fisheries management) is s 10(2) which restricts a closure to 5 years and also s 11, which permits the amendment or revocation of a fishing closure from time to time. (c) Section 9(2) permits an urgent fishing closure by publication of the notification in a newspaper or by radio or television in the area, or by exhibition adjacent to the relevant waters, rather than by publication in the Gazette. (d) Fishing closures must be related to the objects of the FM Act in section 3. These provide in subsection (2): (a) to conserve fish stocks and key fish habitats, and (b) to conserve threatened species, populations and ecological communities of fish and marine vegetation, and (c) to promote ecologically sustainable development, including the conservation of biological diversity, and, consistently with those objects: (d) to promote viable commercial fishing and aquaculture industries, and (e) to promote quality recreational fishing opportunities, and (f) to appropriately share fisheries resources between the users of those resources. (e) Sections 42 to 45 of the Interpretation Act 1987 are applied by s 12 of the FM Act to notifications of fishing closures. (f) Section 62(2) of the FM Act provides that a management plan for a fishery does not prevail over a fishing closure expressed to have effect despite a management plan. (g) Section 115O(7) of the EPA Act evinces a legislative intention that Division 5 does not fetter the exercise of regulatory controls, (including fishing closure orders) on fishing activities. The rhetorical question is posed as to why there would be a fetter on the use of the s 8 power before the making of a determination under s 115O but no such fetter afterwards, see s 115O(7). (h) There is no express limitation on the s 8 power and no reason why any limitation ought be implied, certainly not because of s 115O(4)(c) of the EPA Act . (i) The process of environmental assessment under Division 5 is, of necessity, lengthy. It is the temporal antithesis of the use of s 8 by the Minister. (j) Section 115O(6) also militates against the appellant's argument. It is unlikely that it was intended by the Parliament that the power lies dormant until a determination is made. Consideration 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, it is not stated to be subject to Division 5 of Part 5 of the EPA Act. If the Parliament had intended that the Minister comply with the new division inserted into Part 5 of the EPA Act, it would have been a simple matter to effect by express words . 28 Section 8 predated the amendments made to the FM Act and the EPA Act in 2000 (Act No 86). In terms of the FM Act the amendments were, generally speaking, effected by the insertion of a new Part 1A, 'Fishery management strategies' (ss 7A – 7G). Part 2 is entitled 'General fisheries management' and s 8 follows immediately under the heading 'Division 1 Fishing closures'. Section 8 was included in the original Act passed in 1994. The 2000 amendments did not amend s 8, nor any other provision in the division relating to fishing closures. 29 It is reasonably clear why fishing closures under s 8 would not be required to be the subject of an EIS under the EPA Act as a pre-condition of the exercise of the power to make a notification prohibiting the taking of fish from any waters. The necessary concession of the appellant that urgent fishing closures do not require a prior EIS provides the reason. Occasions will arise which necessitate the urgent exercise of the power by the Minister to prevent environmental degradation of fish stocks or species or harm to public health. Examples were given during the hearing and some are referred to earlier in these reasons. Many other examples may readily be conjured. 30 If the EIS process and procedure is not required for an urgent fishing closure under s 8, why should it be required for the fishing closures in question in this appeal? 31 The appellant's answer to this is that where the effect of the closure notification is to close a fishery to commercial fishing, as here, the environmental assessment is required to inform any s 8 decision of the Minister. This is said to be because the power should not be used to achieve a re-allocation of a fishing resource. 32 In my opinion, the appellant's argument begs the question that if such had been the intention of the Parliament, one would have expected it to say so expressly by some words of qualification to s 8. 33 Besides the plain words of s 8, are there any indications in the FM Act, and in Part 5 of Division 5 of the EPA Act, which assist in the task of construction? In my view, there are a number of indications in both statutes which favour the construction urged on the court by the respondent. 34 Immediately following s 8, it is provided by s 9(2) of the FM Act that if the Minister considers that the fishing closure is required urgently, the notification may be published in a newspaper circulating in the relevant area, or by radio or television broadcast in the area. Alternatively, a copy of the notification may be exhibited in a prominent place adjacent to the waters where the fishing closure applies. Section 9 does not provide any detail as to what circumstances might require the closure to be made urgently. For an urgent fishing closure, there can be no question of the need to comply with Division 5 of Part 5 of the EPA Act. To do so would be the antithesis of the need for urgent action. So much is conceded by the appellant. 35 It must be kept steadily in mind that a fishing closure notification is a fishery management tool available to the Minister. Section 8 permits the Minister to prohibit absolutely the taking of fish 'from any waters'. It does not say that a fishing closure cannot be made in waters which comprise estuarine waters or any other waters from which fish may be taken. 36 Section 10 may also be noted. It provides that a fishing closure order remains in force for the period specified but must not exceed 5 years. 37 Further, a fishing closure notification may, pursuant to s 11, be amended or revoked by the Minister at any time. 38 Section 12 of the FM Act applies ss 42 to 45 of the Interpretation Act to notifications of fishing closures under s 8. Section 46 of that statute presumes that the conditions and preliminary steps precedent to the making of such a notification under s 8 have been complied with and performed. 39 Part 1 of the FM Act is preliminary and contains the objects of the Act and definitions. Subsection (2) of s 3 has already been set out earlier. Section 3(1) contains the general objectives of the Act. They are to 'conserve, develop and share the fishing resources of the State for the benefit of present and future generations'. That is, the principle of inter-generational equity. It may be accepted, as submitted on behalf of the Minister, that a fishing closure must relate to the objects of the Act. 40 Part 3 of the FM Act concerns commercial fisheries and includes Division 5 relating to management plans for commercial fisheries. Section 62 provides a cross-reference to fishing closures under s 8. 41 Section 62 provides: (1) If a provision of the management plan for a fishery is inconsistent with any other regulation under this Act or any fishing closure, the management plan prevails. (2) However, the management plan does not prevail over a provision of a regulation or fishing closure which is expressed to have effect despite the management plan. (3) Before a provision referred to in subsection (2) is made, the Minister is required to consult with the Management Advisory Committee for the fishery and certify in writing to the Governor that the matter cannot be delayed until a new management plan is made. Any such provision in a fishing closure must be approved by the Governor. (4) Subsection (3) does not apply to a provision that deals with an environmental emergency and which has effect for a period not exceeding 8 weeks. 42 From this provision it may be seen that a fishing closure can prevail over a management plan if the Minister undertakes the consultation specified and certifies to the Governor that the fishing closure cannot be delayed until a new management plan is made. Subsection (4) may also be noted. It provides that ss (3) does not apply where there is an 'environmental emergency' for a period not exceeding 8 weeks. 43 Part 1A of the FM Act concerns the preparation of fishing management strategies to achieve the objectives of the Act. Section 7E sets out the content of a fishing management strategy. It includes the incorporation of any relevant management plan or draft. It also includes the need to outline the fishing regulatory controls applicable to the particular designated fishing activity. Section 7A defines 'fishing regulatory controls' by reference to Division 5 of Part 5 of the EPA Act, which includes, inter alia, a s 8 fishing closure (s 115G). 44 Section 7D(1) provides that a draft fishery management strategy, which is required for 'each designated fishing activity' (s 7C(1)), is to be the basis for environmental assessment under Division 5 of Part 5. Section 7A provides a number of definitions including 'designated fishing activity' by reference to Schedule 1A. A fishing activity for commercial purposes in a share management fishery is a designated fishing activity. 45 Part 1A of the FM Act directs one to Division 5 of Part 5 of the EPA Act (ss 115G to 115R). Section 115I provides that the Division applies to a designated fishing activity in Schedule 1A to the FM Act. Subsection (2) provides that Division 5 extends the definition by a designated fishing activity in certain respects. Section 115J mandates that environmental assessments of designated fishing activities are to be undertaken in accordance with the Division including, in subsection (2), a draft fishery management strategy. Subsection (4) requires the assessment of the likely cumulative environmental impact of the fishing activity. 46 Section 115K details the requirements for the preparation of an EIS in respect of a designated fishing activity. Sections 115L to 115N concern the required EIS process, including public participation. 47 Section 115O concerns the determination of the Minister with respect to the designated fishing activity the subject of an EIS. It is necessary to set forth the whole of the provision. It provides: (1) The Fisheries Minister is to make a determination with respect to the designated fishing activity the subject of an environmental impact statement for the purpose of attaining the objects of this Act relating to the protection and the enhancement of the environment and the objects of the Fisheries Management Act 1994. (2) When making the determination, the Fisheries Minister is to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the designated fishing activity (including the effect of the activity on the matters referred to in section 111 (2)-(4)). (3) The Fisheries Minister is to consider: (a) the environmental impact statement and the representations duly received by the Fisheries Minister with respect to the designated fishing activity to which the statement relates, and (b) any report on the statement and recommendations of the Director that are forwarded to the Fisheries Minister under section 115L, and (c) any findings and recommendations of a Commission of Inquiry and advice of the Minister administering this Act that are forwarded to the Fisheries Minister under section 115M, and (d) the matters required to be considered under section 115N relating to threatened species conservation. (4) The Fisheries Minister may make any of the following determinations: (a) a determination to permit the designated fishing activity to be carried out, (b) a determination to permit the designated fishing activity to be carried out subject to such notifications as will in the Fisheries Minister's opinion eliminate or reduce the detrimental effect of the activity on the environment. (c) a determination to prevent the carrying out of the designated fishing activity or any part of the activity. The Fisheries Minister must make the determination public as soon as practicable after it is made. (5) If the approval of the Minister administering this Act is required under section 115P for a determination under this section, the Fisheries Minister is to make a preliminary determination before seeking approval under that section. A determination is not made under this section until a final determination is made in accordance with section 115P. (6) When giving effect to a determination, the Fisheries Minister is to comply with the applicable provisions of the Fisheries Management Act 1994 and the regulations under that Act. (7) A determination under this section does not prevent the imposition from time to time of new fishing regulatory controls applicable to a designated fishing activity, or changes from time to time to those controls. 48 Subsections (6) and (7) have some bearing on the construction to be given to s 8 of the FM Act. Subsection (6) provides that in giving effect to a determination under s 115O(4), the Minister is to comply with the relevant provisions of the FM Act and regulations. As counsel for the respondent submitted, it is hardly likely that the Parliament intended that prior to a determination under s 115O, his powers under s 8 lay dormant and not available to be exercised. 49 Subsection (7) is however more important and points to s 8 not being read down or subject to the implication of the need for prior compliance with Division 5 of Part 5 of the EPA Act before the power can be exercised. On its face, ss (7) makes it plain that a determination under s 115O does not prevent the imposition, at any time, of a new fishing regulatory control or change to those controls. Such regulatory controls would include a fishing closure notification under s 8. Accordingly, Division 5 of Part 5 of the EPA Act does not fetter the exercise by the Minister of his power to make a fishing closure notification under s 8. Subsection (7) is directed to not fettering the Minister's powers by a s 115O determination. If there is to be no fetter after a determination, why should there be a fetter read into s 8 before or in the absence of any determination under s 115O? The answer points to the Minister's power under s 8 of the FM Act being unfettered by the requirement to comply with Division 5 of Part 5 of the EPA Act as a pre-condition to making a notification of a fishing closure order under s 8. 50 Section 115O(4) concerns the options open to the Minister in making a determination. He may permit the designated fishing activity. He may permit it subject to modifications or he can determine to 'prevent the carrying out of the designated fishing activity' (ss (4)(c)). I am unable to see how this provision assists the appellant in creating some implication or limitation on the Minister's power under s 8. 51 In my opinion, the Minister was not required to comply with Division 5 of Part 5 of the EPA Act before making the s 8 notifications. In particular, he was not required to have made a determination under s 115O(4) before the fishing closure notifications were gazetted. The Minister was not required to obtain an EIS in relation to the proposed fishing closures prior to gazettal. 52 Given the concession made that not all fishing closures require prior compliance with Division 5 of Part 5 of the EPA Act, it is difficult to know where the appellant would draw the line. Would it confine the use of s 8 of the FM Act, without EPA Act compliance, to emergency notifications? Or would the appellant confine the need for prior EPA Act compliance to notifications affecting commercial fisheries and involving the potential re-allocation of a fishing resource? 53 A consideration of questions such as these highlights the difficulties in the submission of the appellant. Such a situation, as envisaged by the appellant, would be conducive to uncertainty as to the utilisation of the Minister's power under s 8. In my view, this also militates against the appellant's submission on the proper construction to be given to s 8 of the FM Act. 54 In my opinion, the Minister did not act beyond power when he made the notifications without complying beforehand with Division 5 of Part 5 of the EPA Act. For the reasons given he was not required, as a pre-condition to the exercise of the power, to undertake the EIS process to a determination under s 115O of the EPA Act. The power given to the Minister in s 8 of the FM Act is a very wide one and bears no implication qualifying its use by the prior requirement of compliance with the EPA Act. There is no provision in the FM Act, nor in the EPA Act, which leads to the acceptance of the appellant's submission. Accordingly, it is my view that Pearlman J was correct in her decision and the appeal should be dismissed. Section 115R 55 There is one outstanding issue which the court should address because of its importance in a practical sense. Her Honour construed s 115R(2) of the EPA Act as operating in a way which meant that Part 5 of the EPA Act, other than Division 5 of Part 5, applied to any designated fishing activity in the period prior to the Minister making a determination as referred to in s 115R(2). This is the subject of a Notice of Contention filed by the respondent. 56 Section 115R relevantly provides: (1) The provisions of this Part (other than this Division) do not apply to or in respect of a designated fishing activity. (2) Despite subsection (1), those provisions apply to a designated fishing activity if the Fisheries Minister has not made a determination with respect to the activity under this Division before: (a) 1 July 2003, except as provided by paragraph (b), or (b) a later date prescribed by the regulations for the purposes of that fishing activity. In that case, those provisions cease to apply if the determination is made after that date. (3) Despite subsection (1), those provisions apply to a fisheries approval that relates to a designated fishing activity if: (a) until a determination is made by the Fisheries Minister with respect to the activity under section 115Othe fisheries approval does not authorise commercial fishing activities and is granted or renewed for a period exceeding 12 months, or (b) after such a determination is madethe fisheries approval is not granted or renewed in accordance with the determination. 57 Her Honour's reasons on this issue are to be found in paragraphs 26-31 of her judgment. Inter alia, her Honour said in para 30: … The words used, namely, that those other provisions "… apply … if the Fisheries Minister has not made a determination …" by the specified date indicates that those provisions apply now in the absence of a determination. Furthermore, as I have pointed out in par 25, the statutory context indicates that environmental assessment of designated fishing activities will be carried out, depending upon the particular circumstances, under either div 5 or ss 111 and 112. 58 The meaning of s 115R(2) is not without its difficulties. Pearlman J acknowledged this (see para 24 of her Honour's judgment). While I can understand how her Honour arrived at the construction she favoured, I think that the preferable construction is that argued for on behalf of the respondent. Indeed, the appellant is now of a like opinion. 59 As Mr Jackson's submission observes, the difficulty to be faced with the provision (s 115R(2)) is the identification of when the omission occurs. That is, he says that it cannot be said that the non-determination of the Minister did not take place at a particular time. Of course, it will not be apparent until 1 July 2003 whether the Minister did not make a determination prior thereto. The question can only be temporally answered on 1 July 2003. It will then be possible to say whether the Minister failed to make a determination prior to that date. Since the question cannot be answered until 1 July 2003, Division 3 of Part 5 does not apply until that time and will not apply if, prior to 1 July 2003, the Minister makes a determination. 60 The construction of s 115R(2) which I prefer is consistent with the reason why Division 5 of Part 5 was inserted into the Act by the amending legislation, which was to avoid the application of Division 3 of Part 5. It was to be the exclusive regime for environmental assessment of designated fishing activities. The favoured construction also provides the respondent with an incentive to ensure that determinations are made by 1 July 2003. If they are not (and no extension is provided) the previous regime revives and the exclusivity ceases to operate. Orders 61 I propose that the appeal be dismissed with costs. 62 HEYDON JA: I agree with Stein JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.