Professional Fishers Association Incorporated v Minister for Fisheries S208/2002 [2002] HCATrans 495 (11 October 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S208 of 2002

B e t w e e n -

PROFESSIONAL FISHERS ASSOCIATION INCORPORATED

Applicant

and

MINISTER FOR FISHERIES

Respondent

Application for special leave to appeal

GAUDRON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 OCTOBER 2002, AT 9.31 AM

Copyright in the High Court of Australia

MR R.J. ELLICOTT, QC: Your Honours, I appear with MR M.G. McHUGH for the applicant. (instructed by Woolf Associates)

MR. M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR N. PERRAM for the respondent. (instructed by the Crown Solicitors Office of the State of New South Wales)

GAUDRON J: Yes, Mr Ellicott.

MR ELLICOTT: Your Honours, I appear for Profish, which is an organisation representing the commercial fishermen of New South Wales. Your Honours, as a result of the legislation in question here, a large number of commercial fishermen are being forced to give up businesses along the coast of New South Wales, which relate to what are called the estuarine waters.

Now, your Honours will have gathered from the submissions that the legislation in question arose because of a case in the Land and Environment Court which held that, in effect, every commercial fishing application for a licence and, indeed, it could result in every recreational licence having to be the subject of an environmental impact statement. Of course, that was an impossible position for any government to face and they decided they had to do something about that and these provisions were then enacted.

We say that under those provisions, when the Minister decides to, in effect, deal with a particular fishing activity, such as commercial fishing in estuarine waters, then the Minister has to have, because of this amended legislation, an environmental impact statement which is based - - -

GAUDRON J: Is not your difficulty that what we are talking about now is a lack of activity rather than an activity?

MR ELLICOTT: No, your Honour.

GAUDRON J: I mean, it might very well be that you are right if he were to grant a licence permitting such activity, but we seem to be in a different field of discourse, do we not?

MR ELLICOTT: Your Honours will have seen the legislation. If I could take your Honours to section 115.

KIRBY J: Where do we find that?

MR ELLICOTT: You will find the relevant section at page 131 of the copy of the Act.

KIRBY J: I assume there is nothing quite like this in legislation in any other State?

MR ELLICOTT: No, your Honour.

KIRBY J: So, this is purely a local question in New South Wales.

MR ELLICOTT: It is purely to deal with a difficulty and the decision was made, in effect, to have an environmental impact statement based on a draft management strategy which would allow a cumulative assessment of the environmental impact. So that instead of a case-by-case approach, once that was done and a determination was made about it, a fishing licence could be granted against that background, either recreational or commercial, as in this case.

Once the process has gone through, section 115O provides for the :

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 -

Now, he is to consider certain things under subsection (3), but under (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 modifications as will in the Fisheries Minister's opinion eliminate -

et cetera, but:

(c) a determination to prevent the carrying out of the designated fishing activity or any part of the activity.

So that a determination, as contemplated by these provisions, could say there will be no recreational fishing in certain waters or in no waters or it could say there shall be no commercial fishing in certain estuarine waters along the State.

GAUDRON J: Under what provision was the decision in fact made?

MR ELLICOTT: The decision was made, first of all, by the Minister, of course, he makes a decision, and then under section 8 of the Fisheries Management Act he sought to implement that decision.

GAUDRON J: Yes. It is a different Act, is it not?

MR ELLICOTT: Yes, but they are very much in - these two sets of provisions - - -

GAUDRON J: But we do have to look first, do we not, at the Fisheries Management Act, not the Environmental Planning and Assessment Act.

MR ELLICOTT: That is what I am taking your Honours to now. Do your Honours have that Act? I understand my friend has provided a copy.

GAUDRON J: Yes, thank you.

MR ELLICOTT: If your Honours go to Part 2 of Division 1, section 8, and your Honours will see:

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.

What he did was, of course - he had to make a decision first and the decision was that he was going to prohibit commercial fishing in estuarine waters and the first of those was to be Botany Bay and Lake Macquarie, and that is what this case was about. It was part of a decision he had made and then he sought to implement it by the provisions of section 8. One question which arises, which we did not press below, is the true meaning of section 8, whether it allows you to close waters for a purpose. But assuming that it does - - -

KIRBY J: The respondent says that, even now, you do not point to any particular words in section 8, which are to be interpreted to bring about the curious situation that the words mean, in any particular situation, what the mental state of the Minister suggests.

MR ELLICOTT: Your Honour, section 8 is merely a machinery provision. The Minister first makes a decision and then he decides to implement it under section 8, and if he decides that he is going to prohibit a particular designated fishing activity in certain estuarine waters, then that decision is a determination within the section I just took your Honours to and he can only make that determination if he has, first of all, provided for the procedure of an environmental impact statement.

GAUDRON J: You rely virtually entirely on the Environmental Protection Act for your argument?

MR ELLICOTT: No, your Honour. Can I take your Honours back a few sections to section 7A and this Part 1A went into the Act at the same time as those other provisions, as part of the answer to this impossible problem of having to deal with each one separately and 7B provides for "designated fishing activities" to be declared, and this is one of them, and recreational fishing is another and then it provides for a "Fishery management strategy for designated activities". That has to be done. It says, "The Minister is to". They are compulsive requirements. Then, 7D:

A fishery management strategy is the strategy for achieving the objectives of this Act -

and one can see those quickly in section 3 -

with respect to the designated fishing activity for which it is prepared.

Now here comes the connection:

The draft strategy is the basis for environmental assessment undertaken under Division 5 of Part 5 -

and that is the division we were looking at -

of the EPA Act of that activity.

(2) A draft strategy is to be prepared . . . so as to enable:

(a) an environmental assessment consistent with the principles on which assessments of activities are undertaken under Part 5 of the EPA Act, and

(b) the cumulative environmental impact of fisheries approvals under this Act to be assessed.

If one goes back to section 115, and those provisions I took your Honours to, your Honours will see that they start with the requirement of an environmental impact statement being made on the basis of a draft management strategy.

GAUDRON J: Yes, but have we a draft management strategy?

MR ELLICOTT: No, we do not. We do not have a draft management strategy.

GAUDRON J: We have just simply a decision.

MR ELLICOTT: We have a decision, but it is not a draft management strategy.

GAUDRON J: No.

MR ELLICOTT: And the whole point is that what has happened here is that the Minister has made a determination, in effect, about the prohibition of a designated fishing activity, that is commercial fishing, without having that EIS or without having the draft management strategy.

KIRBY J: When I read the reasons of Justice Stein I must say I found them rather convincing. Where is the error that you say that his Honour made?

MR ELLICOTT: The error is a simple one, your Honour, and that is that they thought, in the Court of Appeal, that section 8 was some supreme provision; it is merely a machinery provision to implement decisions and it was always in the Act, but you cannot act under section 8 unless a Minister first makes a decision and he has to do it for a purpose and he has to decide whether it will be done absolutely or conditionally, for instance. But if his decision is to prohibit a designated fishing activity along the coast of New South Wales and to start off with Botany Bay and Lake Macquarie - - -

GAUDRON J: If he does that then he does not have to manage it; there is nothing to manage.

MR ELLICOTT: With respect to your Honour, you cannot do it under section 115O - - -

KIRBY J: What is the problem in the words? The words seem wide enough to encompass what the Minister has done.

MR ELLICOTT: Your Honour, the problem is not in the words. The problem is understanding what the section is doing. It is a mere machinery provision. It is to implement - - -

GAUDRON J: It is an empowering provision, Mr Ellicott. You have to say it empowers subject to qualifications or limitations.

MR ELLICOTT: Yes. Well, with respect, I submit it is abundantly clear that these provisions were put into the Act - and it is so difficult to do it in the time we have - for the very purpose of making sure that in future if decisions were made, not about whether to close to protect some particular species of fish or not about whether to close in order to deal with an oil spillage or something of that description, but if you were going to decide to close waters for the purposes of regulating a designated fishing activity, as such, along the coast of New South Wales, then in order to do that you must first have an environmental impact statement, otherwise you might as well forget those provisions; they were put in there for that very purpose.

KIRBY J: Yes, but it is not unusual and, in my recollection, it is not unusual under the environmental legislation in this State for, as it were, a fast track to be provided in certain circumstances and if you just look at the words of section 8(1):

The Minister may . . . absolutely or conditionally, the taking of fish, or of a specified class of fish . . . from any waters or from specified waters.

Now, on the face of things, you want us to read in from the structure of the legislation, or from other legislation that interrelates, qualifications. Now, three judges of the Court of Appeal, including one who had sat on the Land and Environment Court, said that that was not to be read in and you want to read it in. Why should we say that it has to be read in?

MR ELLICOTT: Because, as a matter of public interest, the livelihood of a large number of people is involved; that is one considerable matter. The other is simply this that, if these provisions that were inserted require certain actions to be taken as they do by the Minister and those actions are not taken, but he simply goes to another section, section 8 in this case - - -

GAUDRON J: Another part of the Act though; not simply another section. You see, your references to the EPA Act are in Part 1A.

MR ELLICOTT: I understand that, but they were put in alongside section 8 and they were put in there to connect up with that other division in the EPA Act and they were put there to ensure that if decisions were made about a designated fishing activity, then the Minister must first of all have an environmental impact statement; he must know what the effect of commercial fishing is; he must know what the effect of recreational fishing is, and you cannot assume that it is going to be this or it is going to be that, you have to have a study, and the whole purpose was to have a strategy within which those environmental considerations could be considered and these substituted for provisions which had the effect of requiring commercial licences to be the subject of individual - - -

KIRBY J: I am sympathetic to the general philosophy that Ministers should have to get the environmental impact statements to guide them - - -

MR ELLICOTT: Yes.

KIRBY J: - - -but the problem is for you, the wording of the Act and, also, it is my recollection that under this Act there are fast tracks and as Justice Gaudron points out, if, in fact, you are going to prohibit, then what is there to manage and what do you need the impact statement for?

MR ELLICOTT: You need an impact statement - - -

KIRBY J: You do not need an impact statement to tell you that there is going to be a much greater impact on the environment by commercial fishers than recreational fishers.

MR ELLICOTT: Well, you do, with respect, your Honour.

KIRBY J: Well, at least it would be open to the Minister.

MR ELLICOTT: If your Honour makes that decision, that is exactly what you do need, because there are a lot of learned papers and a lot of research into the question whether or not commercial fishing does more harm to the environment than recreational fishing and one has only to engage or observe it to know that there can be much more cruelty to the fish and there can be much greater effect at times on the seabed with recreational fishing than there can be with commercial, but that is just a matter for other people; it is not a matter the Court. But so far as this is concerned, the whole purpose of having the designated fishing activities subjected to an EIS was to determine those issues. So far as this is concerned, section 8 has no particular place in the Act, apart from it being there and having been there. What has to be asked - - -

KIRBY J: Is there anything in the words of section 8?

MR ELLICOTT: Your Honour, I cannot - - -

KIRBY J: No. You say it is the context.

MR ELLICOTT: I cannot say I cannot see anything in the words. I said I cannot ask your Honours to construe section 8 unless your Honours are prepared to see it alongside these amendments and if amendments come in, their purpose and effect and their objects have to be taken into account and if that is not a basic legal proposition, I regret the fact that it is not. It seems to me a pretty obvious fact that if legislation comes in, it may affect the operation of another provision that may have been there for many years and if the object which is sought to be achieved by the activity of the Minister is an object of making a determination which will prohibit or allow a certain designated fishing activity - we are not talking about a particular protected species or a particular oil spill, we are talking about the activity as a whole - if that is required, then the provisions that were put in, they need to be given primacy in relation to a provision such as section 8, otherwise the provisions themselves will become aborted and one will never need to observe them and the Minister will be able to make environmental decisions without an EIS about fishing management strategies and about designated fishing activities, and ignore the very provisions he asked the Parliament to put - - -

KIRBY J: I understand what you are saying but essentially you are saying this Court has to get into a detailed analysis of the interrelationship of section 8 to the other parts of this legislation. I mean, before Justice Callinan came here we would have just said this is just a local statute and the final court of the State has dealt with it. We do not say that now. It is really asking us to second-guess an analysis that has already been conducted, both in the Land and Environment Court and in the Court of Appeal.

MR ELLICOTT: Yes, which may turn out to be wrong and if it does turn out to be wrong, it hurts a lot of people and it may, indeed, hurt the environment. That is the point. That once the principle is adopted - it is not only about commercial fishing; it is about recreational fishing as well and there may be very serious effects on the environment.

GAUDRON J: But you have to say, do you not, Mr Ellicott, that Part 1A applies to every power to be found with respect to fisheries management, do you?

MR ELLICOTT: No, your Honour. Everything that purports to deal with a designated fishing activity.

GAUDRON J: But you designate fishing activities for the purposes of Part 1A.

MR ELLICOTT: Yes.

GAUDRON J: There does not seem to be any necessary connection between a designated fishing activity for the purposes of Part 1A and what is that under Part 2.

MR ELLICOTT: There is, with respect, because section 8 is subject to the objects of the Act and the objects of the Act - if I may trespass on my time, your Honour - is to promote viable commercial fishing, to promote quality recreational, to appropriately share fisheries, to conserve fish stocks, et cetera, to promote ecologically sustainable development, and if section 8 is subject to that, then obviously - - -

GAUDRON J: That is not, in any relevant sense, subject to it; it may give you some indication of how an ambiguous provision is to be construed, but section 8 does not say, "subject to section 3".

MR ELLICOTT: Well it is, it has to be, because you have to read it subject to the objects of the Act; that is the purpose of the Act and the Interpretation Act requires that. You give it a purposive construction and that is the whole purpose of it. I see my time is up.

GAUDRON J: Yes, thank you very much.

KIRBY J: You have not pursued the purpose argument.

MR ELLICOTT: The whole purpose of my argument is doing just that, your Honour; that section 8 cannot be used - - -

KIRBY J: I am referring to the argument that you abandoned in the Court of Appeal.

MR ELLICOTT: That is another argument, yes, your Honour.

KIRBY J: Yes, you do not pursue that?

MR ELLICOTT: If your Honours were to give special leave, that is a matter that your Honours would have to consider, that is, the true construction of the section. It may prevent the commission - - -

KIRBY J: That would be hard if you abandoned it in the Court of Appeal, would it not?

MR ELLICOTT: It was apparently abandoned, yes. If your Honours please.

GAUDRON J: Yes, thank you, Mr Ellicott. Yes, Mr Solicitor.

MR SEXTON: If the Court pleases. Your Honours, it is really only necessary, in our submission, to state what my learned friend's argument is, to see the problem with it. His argument is, in effect, that section 8 of the Fisheries Management Act is preconditioned on the regime in Division 5, Part 5 of the Environment Planning and Assessment Act.

KIRBY J: Would it not help the Minister to make his decisions, to have an environmental study? Why should he be immune from them unless the Act, by its proper construction, relieves him of that obligation? Generally the decisions will be better if they are informed by an environmental study. Now, I think you have an argument that that would not work in this particular type of case. Now what is that argument?

MR SEXTON: Well, if your Honour will just bear with me for one moment, and I will just go to those two provisions. My learned friend's argument, in effect, is that he uses the phrase of "resource allocation" and "policy decisions" and uses those, to bring in, as it were, the provisions of the Environment Protection Act. The problem is that those words, of course, do not appear at all in the legislation. If one looks at section 8 - - -

KIRBY J: Well they do not appear in section 8, but he says this is such an absolute provision that it allows the Minister to march straight out of the whole scheme of the Act.

MR SEXTON: They do not appear, your Honour, in the relevant provisions of the Environment Protection Act either. What it talks about is designated fishing activities. Those activities are set out in Schedules 1 and 1A to the Fisheries Management Act and when one looks at them, they are almost all the activities that relate to the taking of fish. As your Honour Justice Gaudron pointed out at the start, what we have here is not the taking of fish, but the non-taking of fish which is why, really, to again make the point - - -

KIRBY J: Yes, but the non-taking by commercial fishers means the taking by recreational fishers.

MR SEXTON: It does, but, your Honour, that was happening in any event. In other words, what is happening here is that less fish will be taken as a result of the Minister's decision.

KIRBY J: Well, that is what I said to Mr Ellicott that, on the face of things, that means a lesser impact on the support to environment, but he says that studies show that that is not necessarily so; in any case, that is not a matter for the Court. The question is the scheme of the Act.

MR SEXTON: Yes.

KIRBY J: Your anchor are the words of section 8. They are very, very broad, they appear to give the Minister carte blanche, an absolute fast track and you are out, and, as Justice Gaudron points out, there is certainly less to manage, one would think, if the Minister makes the decision than if he does not. The issue for us, I suppose, is whether or not the decision, being a very important one to the applicants and, arguably, to the environment and the operation of the Act, there is sufficient doubt in the construction put on it in the Land and Environment Court and in the Court of Appeal, unanimous decisions to date, for this Court to become involved in the matter.

MR SEXTON: Well can I just say two answers to that, your Honour: the combination of the decisions below and the words of the section, we would say really do not admit of any doubt in this case. As I just noted, one reason why the provisions of Part 1A would not necessarily extend to Part 2 is that the provisions of Part 1A, and by reference to designated fishing activities, chiefly concerns the taking of fish, and one can understand why, in those circumstances, there would be that regime of environmental impact statements.

The closure under section 8, that we are talking about here, will result in a less taking of fish. In other words, it is a different kind of conceptual activity. That is why one does not have the same need for an environmental impact statement. That is putting aside even the plain words, which in section 8 simply allow the Minister to do what he has done. My learned friend does not suggest that the Minister always has to comply with the Environmental Protection Act, when using the procedures under section 8. For example, if they are an emergency, an oil spill, as I understand it, he concedes that, in those circumstances, the Minister would be able to act without going to the Environmental Protection Act.

So, in those circumstances, what he has done there is, in effect, take section 8, the plain words of section 8, and really, in a sense, try to go to some policy basis of the Minister's decision to investigate that and to atomise the power that is given under section 8 in those terms, that it can be exercised on some occasions, but not under others. Well, if that is correct, one would expect the statute to provide some guidance as to how this discretion were to be exercised, but it does not do that.

KIRBY J: On the contrary, the words are:

prohibit, absolutely . . . any waters or from specified waters.

It is very broad language.

MR SEXTON: Yes, your Honour. So that, to that extent, in our submission my learned friend's argument proceeds on a completely false premise that section 8 has any relevance to questions of resource allocation or policy. It does not. It allows the Minister to exercise this power and sometimes, in emergency situations, it is quite obvious that the procedure suggested by my learned friend would not be applicable.

KIRBY J: What is an instance of that? That is what I was referring you to.

MR SEXTON: An oil spill would be an example, your Honour.

KIRBY J: Yes, you mentioned that. If you had to have an environmental impact statement, in that case, that could really delay the Minister's absolute power and that is an argument for not reading down section 8(1).

MR SEXTON: Well, in our submission, it cannot be read down and if it cannot be read down then my learned friend's argument falls.

Your Honour, in relation to the second question of the - - -

GAUDRON J: Yes, we do not need to trouble you further, Mr Solicitor. Yes, Mr Ellicott.

MR ELLICOTT: Your Honours, the Solicitor's argument really has the effect that the Minister can make decisions under section 8 and use section 8, even though the determination is made or decision is made, is one that the Act says he can only make because of its connection with the EPA Act, which the Act says he can only make if he goes through the process of environmental assessment. I have not - - -

GAUDRON J: Where does the Act say that? That is your problem. You have to point to something where the Act says that.

MR ELLICOTT: Well, first of all, there is a clear connection between the two Acts: I have taken your Honours to Part 1A - - -

GAUDRON J: There is a clear connection between the Act so far is concerns the fishing management strategy.

MR ELLICOTT: Yes, that is right, and that is what this is about; that is what he is doing. The Minister, by this decision, is implementing a fishing management strategy, which he has made up for himself; not one that has been the subject, as it has to be, of public consultation, not one that is drawn up for the purposes of Division 5 of Part 5 of the EPA Act, not one that is based on an EIS that itself is based on that draft management strategy, but one that he thinks up in his office and he does not even have to consider the environment: he can just make a decision, "I am going to stop recreational fishing right along the coast of New South Wales". That is the effect of - - -

KIRBY J: I have sympathy for your argument, Mr Ellicott, but the problems for me are the words.

MR ELLICOTT: But that is the effect of it; it is not only sympathy, your Honour - - -

KIRBY J: - - -very broad words that are being used.

MR ELLICOTT: - - -it is the logic of it. The logic of it is that these provisions - and if I can take your Honour just quickly again to section 115G and following, at page 127, 115I:

This Division applies to designated fishing activities described in Schedule 1A -

There is the link. Then 115J:

Environmental assessments of designated fishing activities are to be undertaken -

Section 115K:

An environmental impact statement in respect of a designated fishing activity must be prepared -

et cetera.

KIRBY J: But all of these are of designated fishing activities, whereas, as Justice Gaudron pointed out, the whole point of 8(1) is to permit the absolute prohibition and you do not have the fishing activity.

MR ELLICOTT: But you cannot prohibit a designated fishing activity unless you go through the process. This is the point.

KIRBY J: Well, that is the question.

MR ELLICOTT: Section 115O says so, and I have take your Honour back to that again because it says, he can make - the whole process - - -

KIRBY J: What is your theory in the case of an oil spill? There is no relief for the Minister, he just has to go through - - -

MR ELLICOTT: Of course not; it is not about a designated fishing activity. A designated fishing activity is a global thing. It is whether you can have recreational fishing or whether you can have commercial fishing or whether you can have prawn trawling, et cetera, et cetera. That is what a designated fishing activity is. Whether you are going to protect a certain species of bream or whether you are going to protect the whole area from an oil spill, that is not a designated fishing activity you are dealing with, and section 8 is there to deal with it, but if you want to deal with a designated fishing activity, as the Minister has in this case, well what you have to do is go through this process. If that is not correct, then it means that these provisions can be ignored; you can just forget about them, you can just use section 8, and that is not an alternative. It would be ridiculous to suppose that the Parliament went to the trouble of putting these provisions in, which the Minister said, in his second reading speech - - -

KIRBY J: As you well know, Mr Ellicott, it is Ministers who propose legislation to Parliament and sometimes they are inclined to enlarge their powers.

MR ELLICOTT: Well they do, your Honour, but in this case he said that the purpose of this was to make sure that "environmental assessment procedures would be applied to fishing management strategy" and:

the bill will strengthen the requirements of part 5 of the Environmental Planning and Assessment Act by requiring whole-of-fishery assessments. Importantly, the existing environmental safeguards present in part 5 will apply to fisheries management.

Now this is fisheries management, this is not an oil spill, this is fisheries management and that is the reason why this is of such importance. It is not only related to this case, it is related to all fisheries management in New South Wales and future Ministers will just be able to thumb their nose at those provisions.

GAUDRON J: Thank you, Mr Ellicott.

We are of the view that the proposed appeal in this matter does not enjoy sufficient prospects of success to justify the grant of special leave.

We have noted the applicant's written submissions with respect to costs. However, we see no reason to depart from the usual rule that costs follow the event. Accordingly, special leave is refused with costs.

We will adjourn briefly to reconstitute for the second matter.

AT 10.08 AM THE MATTER WAS CONCLUDED