Hodgson & Anor v Minister for Primary Industries, Water and Environment H1/2001 [2002] HCATrans 222 (3 May 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H1 of 2001

B e t w e e n -

ALAN HODGSON and KEVIN TRETHOWAN

Applicants

and

MINISTER FOR PRIMARY INDUSTRIES, WATER AND ENVIRONMENT

Respondent

Application for special leave to appeal

GAUDRON J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM HOBART BY VIDEO LINK TO CANBERRA

ON FRIDAY, 3 MAY 2002, AT 12.30 PM

Copyright in the High Court of Australia

MR D.J. PORTER, QC: If the Court pleases, I appear for the applicants. (instructed by Chris Boland)

MR T.J ELLIS, SC: If the Court pleases, I appear for the respondent. (instructed by the Director of Public Prosecutions (Tasmania))

GAUDRON J: Yes, thank you, Mr Porter.

MR PORTER: If the Court pleases, there is firstly the application for an extension of time in which to make this application. I am now advised that the respondent does not oppose that application and, in those circumstances, I am not sure whether the Court wishes - - -

GAUDRON J: How far out of time are you?

MR PORTER: Only a matter of weeks, your Honour.

GAUDRON J: Do not trouble yourself further.

MR PORTER: Thank you, your Honour. If the Court pleases, the applicants submit that the judgment of the Full Court as to the construction of the relevant statutory scheme is sufficiently attended by doubt and raises certain issues such that it requires consideration by this Court. It is the applicants' submission that the issues raised go beyond mere matters of statutory construction of a local statute. I generally rely on the applicants' summary of argument and the cases and materials referred to but wish to highlight the following. In short, as your Honours would have appreciated, the statutory scheme created by the Living Marine Resources Management Act 1995 and the Fisheries (Scalefish) Rules provides firstly for the Minister to grant or refuse a fishing licence. An aspect of that process is whether is qualified to hold the licence. By the subordinate legislation which is constituted by the Scalefish Rules, the determination of some aspects of the qualification - - -

GAUDRON J: Now, that raises a question. You call it subordinate legislation, but you do so in a context, do you not, in which the Act provides that the management plan is to prevail over any provisions of the Act if there is inconsistency?

MR PORTER: I am sorry, I missed the last point?

GAUDRON J: If there is inconsistency.

MR PORTER: Yes, that is quite right, your Honour. The Act, by section 33, provides that the Minister may make rules in respect of the management plan and it is to that extent that it becomes subordinate legislation made by way of a rule in the ordinary manner. The particular point, of course, is that section 76 makes such rules prevailing over parts of the Act to the extent of any inconsistency. So it is in the first place subordinate legislation to the extent that it is made by the Minister pursuant to section 33, but in a later section those rules are given that effect and it is the latter section, section 76, which we say is the first issue creating a special leave point requiring consideration by this Court.

CALLINAN J: Mr Porter, I thought there was quite a lot of legislation, particularly in relation to local authorities, certainly in Queensland, that by-laws should regarded as part of the Act and, although they were subordinate legislation, were to be treated as if they were the Act. I cannot give you the provision or the names of the cases, but I think that is certainly so.

MR PORTER: There are certainly statutory provisions in statutes, that is the enabling Act itself, by which authority is given to an executive officer to effect the amendments to legislation, but they are in very specific terms and the enabling act spells out the precise - - -

CALLINAN J: No, I am thinking of more than that, I am thinking of by-laws made under an Act deemed to be part of the Act by the Act itself. In principle this does not seem to me to be very different.

MR PORTER: With respect, your Honour, I am not quite sure I am aware of the particular by-laws - - -

CALLINAN J: No.

MR PORTER: - - - or the authorities to which your Honour refers and I apologise for that. But the point we make here as to section 76 is that, perhaps, firstly I can make the point that it was not the subject of argument before the Full Court, it was not a matter that was relied upon by either party. Neither party sought to persuade the Full Court that there was any inconsistency between the rules which constituted the management plan and the relevant provisions - - -

GAUDRON J: That makes it more difficult for you to do it here, does it not?

MR PORTER: It is a matter relevant to whether the Full Court judgment should be allowed to stand without review by this Court, your Honour. I mean, obviously the Court was entitled to take whatever view it was able to of the construction of the - - -

GAUDRON J: But the parties are bound by the way in which they conduct their cases, as a general rule, and an appeal in general terms is to see whether or not the court below is wrong, not to have a complete re-hearing because of points counsel did not take.

MR PORTER: It is not a question, with respect, your Honour, of points not being taken and I accept, of course, that the parties are bound by the way in which they conduct their case. But that, I submit, is confined to factual scenarios defined by pleadings and the way in which issues are pursued. In this case, the respective parties were advancing at different interpretations of the same statutory scheme, but in neither case was it sought to put any reliance on section 76. Now, the Court, as I understand the law at least, is entitled to form its own view and to form its own view of the construction and is not bound by any - - -

GAUDRON J: That may be right, but the point I am putting to you is it makes it an unpromising start to an application for special leave if you say "We want to raise a point that was not raised below".

MR PORTER: Your Honour may be misunderstanding me and I apologise that it may be my fault. It is not that we seek now to raise it. We maintain the argument that we put before the Full Court. That argument does not rely on any inconsistency between the management plan rules and the section, so we are not now trying to rely on something that we did not raise in the court below. The fact of the matter is, your Honour, that the Full Court decided the issue against the applicants, using this question of section 76, when it was obviously not part of our case, but neither, more importantly, was it part of the respondent's case.

So we are certainly not seeking to raise something now that we did not raise below, but the point really goes directly to the correctness of the Full Court's decision. What we put to your Honours this morning is that it is strongly arguable that section 76 is invalid as offending the principle prohibiting the abdication of legislative power. Now, that would be the point that we would seek to agitate before this Court in attacking the Full Court judgment.

GAUDRON J: But first of all, your primary position is there is no inconsistency?

MR PORTER: That is correct, your Honour.

GAUDRON J: If there is no inconsistency, where is the error that would bring about a different result from that which is obtained thus far? You are after certiorari, are you, and mandamus ultimately?

MR PORTER: No, your Honour, we simply seek that the judgment of the Full Court be set aside and the order made by Justice Slicer at first instance be reinstated.

GAUDRON J: Yes. What is the course by which the matter would be remitted to the Minister? It is an appeal, is it? The appeal gives that right, does it, under the Living Marine Resources Management Act?

MR PORTER: The scheme of things, your Honour, is - if I can take it from the bottom up: the decision is made. Now it is made by the Minister or by his delegate. Now, that decision is reviewable by the Minister. That decision is appealable to the Resource Management and Planning Appeals Tribunal. Now, both those hearings are hearings de novo and an appeal from the Tribunal lies to the Supreme Court.

GAUDRON J: So you want it to go back to - - -?

MR PORTER: The Resource Management and Planning Appeals Tribunal which then has the power to hear the matter afresh as though it were the original decision-maker.

GAUDRON J: Yes, now, what is it that entitles you to that on the basis that the provisions are consistent?

MR PORTER: As I said to your Honours, the arguments advanced by the opposing parties, both at first instance and in the Full Court, both assume the consistency between the relevant rules and the Act. Different constructions are contended for. The Full Court decided it on the basis that there was an inconsistency and that the rules prevailed. What we would seek to have this Court do is to review the Full Court's decision and included in that, of course, is to determine whether the Full Court was correct in finding that inconsistency and then applying, of course, section 76.

GAUDRON J: Of course, but what is it that you say would bring about the result that the matter would go back to the Resource Management and Planning Appeal Tribunal? We are not entirely interested in academic questions of law. We want to know what it is that will bring about the result you seek. Now, what is the argument that says - I take it this is the argument - the Minister had to decide for himself or herself whether or not there were exceptional circumstances?

MR PORTER: Yes, that argument is set out at pages 43 to 45 of the application book. Now, the short points of significance are, if the Court pleases - we submit that the Minister has to be satisfied that the applicant is not disqualified and that the granting of the licence would not contravene a management plan. That comes from section 78 of the Act.

The next point we make is that the Secretary may make determinations in some applications in which the relevant issues arise. Now, the decision to grant or refuse the licence always remains with the Minister. Now, perhaps I can do this a shorter way, if the Court pleases, by taking your Honours back to the judgment at first instance which appears earlier in the application book and it is particularly pages 14 to 15 to which I would wish to bring your Honours' attention. At the bottom of page 14, that is paragraph 21, his Honour referred to the Spath Holme Ltd Case and there sets out and over onto the following page a lengthy quotation from that case. At line 31, on page 15, his Honour notes the reference to statutory construction and the "purposive approach". At line 46 on the bottom of page 15, his Honour said:

Parliament intended there to be a right of review available to a person with sufficient interest . . . The Minister's decision, in its entirety, is susceptible to the appellate process whether or not a component of that decision is made by another.

I do not stay to read that in its entirety.

GAUDRON J: No, it does not bear a lot of examination, does it? It does not bear close examination, that statement, does it: "The Minister's decision, in its entirety"? That assumes that what you are talking about is the Minister's decision in its entirety. It assumes that there is but one decision, not two. This is, it seems to me, the difficulty for your case. The scheme of the management and the Act postulate, it seems to me, two distinct decisions.

MR PORTER: That is very true, your Honour, and I do not resile from that. However, the way we put it is this: the Act provides for the making of the decision by the Minister. There is only one application process, that is, the application to the Minister. There may arise in certain circumstances the situation - - -

GAUDRON J: That may be a purely departmental consideration.

MR PORTER: Yes. To put it another way, your Honour, our argument is based on the proposition that by making the statutory rule giving the Secretary the power to determine this issue of qualification in certain circumstances, it is a delegation of part of the decision-making process under section 78. Now, when one looks at the scheme as a whole - - -

GAUDRON J: That does seem to be your inconsistency argument, does it not?

MR PORTER: No, your Honour, we can live with - - -

GAUDRON J: You just said by making the management scheme, the Minister delegated his power to decide, as distinct from creating a new power to decide?

MR PORTER: No, it was simply talking about our argument, leaving aside the section 76 problem of inconsistency. We say that the rules are not inconsistent with the Act. We say that because the Act has as its starting point the fact that the Minister remains the person responsible for the making of the decision. By the statutory rule, an aspect of that decision-making process was hived off to the Secretary. There is nothing to suggest, in our submission, that the Minister does not remain at all times responsible for the making of the decision to refuse or grant.

Now, the construction that that Full Court adopted was that the Secretary's determination which falls within the section 78 licensing application processing was fire-walled from the review and appeal provisions in the Act. Now, we say that that is contrary to what emerges as the clear purpose from the whole of the review provisions and appeal provisions. I am not quite sure whether my time is up, if the Court pleases?

GAUDRON J: No, I think you have three more minutes.

MR PORTER: Yes. The situation is, your Honours, that the decision is the Minister's, part of it is determined by the Secretary's delegate and, in accordance with the principles set out in the cases listed at the bottom of page 44 of the applicants' submissions, it becomes a situation where someone else can make the inquiry, make the determination. The decision-maker can adopt that decision by the other person and thus still be responsible for the overall decision and that is a well-recognised principle. What we say, in short, is that that is what this scheme provides for, that it is contrary to the purpose of the Act when you look at the appeal and review provisions to fire-wall, to exclude from that appeal on review process the Secretary's determinations. Now, that is our argument. It does not depend on inconsistency.

The Full Court said, "Well, that is all very well, but it makes the rules inconsistent. Therefore, section 76 prevails." Now, what we say about that is that that is an abdication of legislative power. Parliament retains very little if any control over the legislation. It is to be noted, in my submission, that the part in the Act over which prevalence is given and is subservient to the rules contains criminal offences, so that the situation then becomes contemplated that executive action can alter the scope of criminal liability and penalties imposed.

So, coming back to the original point, it is very strongly arguable that section 76 is invalid and ought to have no part in the construction process. Because of the construction we contend for, there is no inconsistency, it makes sense in accordance with the whole scheme and provisions of the Act. The Act provides for appeal and review from decisions, in particular a decision to refuse or grant a licence and the construction that the Full Court has adopted excludes from that review and appeal process secretarial determinations. Otherwise, I rely on the submissions. Thank you.

GAUDRON J: Thank you, Mr Porter. We need not trouble you, Mr Ellis.

This application raises only a question of the relationship between provisions of the Living Marine Resources Management Act (Tas) and the rules of a management plan made pursuant to that Act. As such, it does not give rise to any question of general principle which might appropriately attract the grant of special leave. Moreover, the proposed appeal has insufficient prospects of success to justify the grant of special leave. Accordingly, special leave is refused with costs.

AT 12.52 PM THE MATTER WAS CONCLUDED