Elliott v Minister administering Fisheries Management Act 1994

1. [1]

   BEAZLEY P: I have had the advantage of reading in draft the reasons of Basten JA. I agree with his Honour’s reasons and proposed orders.

2. [2]

   BASTEN JA: The appellant, Dean Andrew Elliott, is a commercial fisherman whose primary business is catching mud crab in Wallis Lake on the central New South Wales coast. Since 1 December 2017 his entitlement to take mud crab has been limited by a quota scheme established under the Fisheries Management Act 1994 (NSW) (“the Act”). He claims that the scheme is invalid.

3. [3]

   Although the Minister had announced the scheme some 18 months earlier, the applicant brought proceedings to challenge its validity only on the day of its commencement, namely 1 December 2017. The application was dealt with expeditiously, a hearing being held before Rothman J on 24 and 25 January 2018, with judgment delivered on 16 February 2018. [1] Despite the industry-wide nature of the quota system, and the expedition with which the proceedings have been determined, the applicant has been able, pursuant to interlocutory relief, to continue to exploit the fishery to the same level as he did before the introduction of the quota scheme. It will be necessary to say something further in due course about the nature and effect of the interlocutory relief.

4. [4]

   The present proceedings are brought by way of an appeal as of right from the judgment of Rothman J. No affidavit was filed demonstrating that the amount in issue was not less than $100,000, below which amount leave is required. [2] The appellant stated that he needed to purchase 487 access shares to maintain his past level of exploitation of the fishery. [3] At the price fixed by the subsidised share trading market ($110 per share), that valued his loss at $53,570, or $25,100 more than he offered. However, if the gross value of his mud crab catch in past years is compared with the value of his current entitlement, the sum involved is greater. There being no objection, if leave be required it should be granted.

Issues on appeal

1. [5]

   The amended summons filed in the Common Law Division on 23 January 2018 (the day before the hearing) sought relief with respect to six “decisions and acts” on two grounds, each of which alleged that the decisions were “tainted and adversely affected by jurisdictional error”.

2. [6]

   The relevant “decisions and acts” were of varying kinds. Two involved legislative instruments, being regulations made under the Fisheries Management Act, namely the Fisheries Management Legislation Amendment (Quota Shares) Regulation 2017 (NSW) (“the Quota Shares Regulation”) and the Fisheries Management (Estuary General Share Management Plan) Regulation 2006 (NSW) as amended and current at 6 October 2017. With respect to the latter Regulation, the references below are to the “Estuary General Plan”, the Plan being appended to the Regulation.

3. [7]

   The challenge with respect to the latter Regulation was not to be taken at face value; the applicant’s entitlement to catch mud crabs arose under that Regulation by way of an allocation of “shares” in the fishery. (These shares were colloquially referred to as “access shares”.) Rather, what was intended was a challenge to the amendments to the Regulation made by the Quota Shares Regulation (which commenced on 30 June 2017) and the Fisheries Management Legislation Amendment (Quota Management) Regulation 2017 (NSW) (“the Quota Management Regulation”), which commenced on 6 October 2017. [4] The operation of these regulations will be discussed below; it is sufficient to note that the validity of the regulations was treated as dependent on precisely the same principles as other administrative decisions and acts.

4. [8]

   The second category of decisions and acts identified in the amended summons included two instruments promulgated in execution of the quota share scheme introduced by the regulations. In fact there were four instruments relevant to the allocation of quota shares, being:

5. [9]

   Thirdly, the applicant sought to challenge the validity of a deed executed by him on 17 March 2017 which permitted him to enter the market which had been established for the sale and purchase of shares in the various fisheries. Although he in fact made bids to purchase further access shares in the fishery, his bids were unsuccessful. His own execution of the deed was challenged on administrative law grounds. This approach was fundamentally misconceived, but the purpose of the challenge was also obscure, unless the invalidity was consequential on the “invalidity” of the subsidised share trading market, discussed below.

6. [10]

   Fourthly, the applicant sought to challenge the validity of the “Business Adjustment Program”, pursuant to which the management of numerous fisheries by the imposition of quotas was to be effected. That was a Government policy announced on 31 May 2016, following an extensive independent review of the sustainability of fishing resources in State waters and the economic viability of the fisheries concerned. The announcement of the Program was challenged as if it were a decision affecting the legal rights and interests of individuals, which it was not. It was not, as such, amenable to judicial review.

7. [11]

   The notice of appeal formulated the challenges in somewhat different ways. The orders sought in the amended notice of appeal separated out the validity of the regulations from the other statutory instruments. The challenge to the validity of the regulations was maintained.

8. [12]

   In the second category of instruments, the challenge to the validity of the allocation formula promulgated on 13 October 2017 and the quota share issue instrument of 17 October 2017 was maintained, each being described both as an instrument and as a “decision”. Consequentially, the applicant submitted, the “transitional fishing determination including the ITCAL decision made in or with effect from October 2017” was invalid. (The term “ITCAL” was an acronym for “Interim Total Commercial Access Level”, as fixed for various fisheries.)

9. [13]

   The amended notice of appeal also sought to challenge “[t]he commercial fishing determination if any made prior to 1/12/2017.” It would not be possible to make an order in those terms. What precisely was sought was not clarified by the submissions.

10. [14]

    Importantly, no relief was sought with respect to the applicant’s participation deed, nor was the Business Adjustment Program challenged. Those elements of the original proceedings therefore fell away.

11. [15]

    The primary challenges identified by the appellant in his written submissions were, in effect, threefold.

    1. (1)

       The conduct of the market for access shares (known as the “subsidised share trading market or “SSTM”) was without statutory authorisation; its effect was artificially to inflate the value of access shares for those seeking to purchase them.

    2. (2)

       There was no proper authority for the issue of quota shares.

    3. (3)

       The criteria for the issue of quota shares were not provided for in the Estuary General Plan, in accordance with the requirements of s 71A(2) of the Act.

12. [16]

    The appellant submitted that the Act and Regulations in combination did not authorise the administrative steps which were taken to fix quotas and allocate quota shares. He further submitted that the trial judge erred in applying the principle of statutory interpretation known as the “principle of legality”. In broad terms, the principle involves a presumption that parliament will not legislate to interfere with fundamental rights and freedoms, without expressing a clear intention to do so. The appellant said that the imposition of quotas with respect to mud crabs reduced his fishing business so far as to render it financially non-viable and therefore diminished his rights in the fishery without compensation for the loss suffered.

Subsidised share trading market

1. [17]

   In his written submissions, the appellant criticised the short lived subsidised share trading market as involving “economic duress”, saying his involvement was based on “misleading” public statements. It was not explained how these allegations (assuming them to be accurate) demonstrated a basis for an administrative law challenge to the conduct of the market. Even if they did provide the grounds for a challenge, it is equally unclear what relief would be available.

2. [18]

   On 17 March 2017 the appellant entered into a “participation deed”, entitling him to buy or sell access shares in the subsidised share trading market. The outcome of the appellant’s bidding was reported on 28 June 2017. The appellant participated by submitting bids in seven fisheries, of which four were successful. (He also offered to sell his access shares in another fishery, unsuccessfully.)

3. [19]

   The process of matching bids was completed by the end of June 2017. The share trading was undertaken on an industry-wide basis. If the operation of the market were held to be “invalid” the result would presumably be to undo the overall outcome. That could involve the recoupment of a subsidy paid out by the State and the return of traded shares to their original owners. The possibility that the Court would give relief having these effects (or even some limited part of them) is remote. At least as a matter of discretion, relief would likely be refused.

4. [20]

   The extent to which the administration of the market was an exercise of statutory power was unclear. Although there was a significant volume of descriptive material before the Court relevant to the operation of the market, little reliance was placed upon it by the appellant, either in written or oral submissions. On one side, the market involved offers lodged by individual operators who already held access shares and wished to buy or sell shares in that fishery. On the other side, there were two government parties, namely the Department of Primary Industries (“the Department”) and the New South Wales Rural Assistance Authority (“the Authority”). The latter was established under the Rural Assistance Act 1989 (NSW). [5] The principal function of the Authority was to “provide assistance, and administer programs for the provision of assistance, to farmers or other persons engaged in rural industries or any other persons eligible to obtain such assistance.” [6] Absent any submission to the contrary, it may be assumed that commercial fishing is a rural industry for the purposes of that Act.

5. [21]

   One purpose of the scheme was to allow for a restructuring of the fishing industry, in part through the distribution of a $16 million subsidy. It was part of the Authority’s role to administer the subsidy. The Department was exercising its functions under the Fisheries Management Act. The objects of the Act include the promotion of a viable commercial fishing industry and extend to the appropriate sharing of fishery resources between the users of those resources, [7] within the waters to which the Act applies. [8] A broad range of regulatory powers allows for the implementation of these objects, including by the establishment and regulation of share management fisheries.

6. [22]

   It is neither necessary nor appropriate to engage in further speculation on this issue, which was not developed by the appellant. As the respondents submitted, this particular matter was not raised at trial and could have been addressed by evidence. [9] There was a suggestion in submissions at trial (though not raised in the summons and not ultimately pursued) that there had been an unfairly discriminatory reopening of the market after it had closed. [10] That suggestion was not raised on the appeal.

7. [23]

   Pursuant to s 71 of the Act, a share in a share management fishery is tradeable. It was not suggested that the powers of the Government under the Act and regulations did not extend to regulation of the trade in such shares. While it is true that the precise market mechanism adopted was not identified in the Fisheries Management Act, or in regulations under the Act, neither was it prohibited. The market appears to have been the provision of a service to a particular industry which was heavily regulated by the State. It provided a means of consensually reallocating access shares in the numerous fisheries so as to allow the intended imposition of quotas to operate by reference to those actively involved in the industry. To describe the activity as a non-statutory exercise of executive power was not only inaccurate but said little about the legality of the exercise. [11]

8. [24]

   In part the appellant’s argument appears to have been based on the proposition that the conduct of the trading market gave rise to an artificial inflation of the value of access shares, thereby placing them beyond his means. However, there was no evidence to support that proposition, assuming it had legal relevance. Rather, it may be inferred that the value attributed to access shares (which varied considerably between fisheries) was a consequence of the stated government policy of imposing quotas, both in terms of allowable catch and the number of days during which fishing would be permitted and the equipment allowed to be deployed.

9. [25]

   When share management fisheries were introduced, each participant in the mud crab fishery was issued with 125 shares, providing a right to participate in the fishery. The shares were defined by reference to seven regions and the means of taking mud crabs. Once it was announced that quotas would be linked to the access shares, those who wished to maintain their existing level of exploitation of the fishery (including the appellant) realised that they might require additional access shares. The announcement of the policy of imposing quotas (following a significant period of investigation and consultation) may have led to an increase in value of the shares. Whether the existence of a promised subsidy affected the value is not clear, nor presently relevant. Many shares were apparently traded prior to the commencement of the subsidised share trading market, but the price range was not revealed in the evidence. [12] The submission that the market artificially inflated the value of the shares in the mud crab fishery was not supported by reference to the evidence. This challenge to the conduct of the subsidised share trading market in 2017 must be rejected.

10. [26]

    The appellant sought to rely upon the allegation that the share trading market was “unauthorised” and “invalid” to impugn the subsequent allocation of quota shares, on the basis that the outcome of the market operations was an irrelevant or impermissible consideration taken into account when allocating quota shares. The Formula Notice and Share Issue instrument were said to be invalid on this basis, which was also labelled “legal unreasonableness”.

11. [27]

    Even if the challenge to the market were to be upheld, the consequential submission cannot be accepted. The allocation of quota shares depended upon the number of access shares held by each participant in the fishery, including the appellant. The share trading market did not change the number of access shares in the fishery. If there were a defect in the operation of the market, resulting in the appellant, for example, being the registered holder of fewer shares than should have been the case, it was not shown that that fact affected the legal validity of the allocation formula, or the actual allocation of quota shares.

(a) Background

1. [28]

   On 17 October 2017 the Minister issued 66 quota shares to the appellant in the class “Estuary general – mud crab quota shares”. That class of shares was provided for pursuant to Pt 3A “Quota Management”, in the Estuary General Plan. The appellant was an eligible shareholder with respect to Region 4 (Central), which included Wallis Lake. [13] Pursuant to cl 6B(3), the Minister was required to determine the number of quota shares to be issued to each eligible shareholder; the issue of the shares was required pursuant to cl 6C(1). The creation of a new class of shares was authorised by s 71A of the Act, which currently provides:

2. [29]

   The appellant raised a number of challenges to this aspect of the statutory scheme.

(b) amendments to s 71A

1. [30]

   Section 71A commenced on 1 July 2004. [14] At that time, s 71A read as follows:

2. [31]

   The statutory amendments which gave effect to the Government’s Business Adjustment Program for share management fisheries were contained in the Fisheries Management Amendment Act 2015 (NSW), which was assented to on 24 November 2015. The amendments commenced at different times. Amendments to s 71A fell within a batch of amendments which commenced on 22 July 2016. The repeal of s 71A(3) and (4) and the addition of a new subs (6) removed the requirement that the criteria for the issue of further shares take into account the catch history of persons in the fishery. This chronology is important in relation to a challenge to the Quota Shares Regulation, addressed below. More immediately, the appellant sought to rely on the principle of legality to read down the operation of s 71A, as amended.

(c) construing s 71A

1. [32]

   The appellant’s submission in the Court below was that the conferral of a power to issue “further classes of shares” should be construed as limited to the conferral of further benefits on persons, whether existing shareholders or not, in the fishery. The provision should not be read, the submission continued, as permitting “the taking of any benefit or property of existing shareholders … without just terms or compensation.” [15] In support of this contention, the appellant relied upon the principle of legality as requiring a construction of the provision which would not allow for the impairment of existing property rights without express words or necessary implication. The submission was reiterated on the appeal.

2. [33]

   Relying on the reasoning of Lord Phillips in Ahmed v Her Majesty’s Treasury (No 1), [16] the appellant argued that a strict interpretation should be applied to statutory provisions delegating legislative power which might be exercised to diminish or destroy property rights of individuals. Ahmed was concerned with anti-terrorism laws which conferred extensive powers on the executive to freeze the assets of persons reasonably suspected of being terrorists. After referring to two New Zealand cases, Lord Phillips stated:

3. [34]

   This approach has not been adopted in Australia, where the leading authority on the principle for determining the validity of delegated legislation is Attorney-General for the State of South Australia v Adelaide City Corporation, [17] a case not referred to by either party. It is clear from the majority judgments that each regulation-conferring power must be read in accordance with its terms and in context. [18] Hayne J stated, with respect to the earlier reasoning of the Court in Barry [19] (to which the appellant referred in passing), Lynch [20] and Leslie: [21]

4. [35]

   Nor is it correct to say that the clear statement principle has any overriding operation. The general requirement that effect must be given to the text of the statute, read in context and having regard to its apparent purpose remains the principal focus of statutory construction. Further, to place any reliance on the clear statement principle in the present context requires reference to its underlying justification. That is because, as noted below, the impugned provisions do not diminish or destroy rights and interests which would fall within the canonical statement of fundamental common law rights and freedoms. This case is concerned with the imposition of a limitation on the exercise of statutory rights permitting individuals to participate in particular fisheries.

5. [36]

   Broadly speaking, there are two kinds of justification given for the clear statement principle, as a principle of statutory interpretation. One is factual; the other is normative. In stating that “[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness”, O’Connor J in Potter v Minahan [22] appeared to make a factual statement, descriptive of the legislative process. Thus, in Bropho v Western Australia, [23] the joint reasons described the rationale identified by O’Connor J in Potter as “an assumption” and continued:

6. [37]

   However, four years later, the Court stated in Coco v The Queen: [24]

7. [38]

   Two inferences may be drawn from these statements of the rationale of the principle. First, and favourably to the appellant, there is no necessary constraint depriving the holder of statutory rights of the benefit of the principle, although it will operate differently in that context. As one commentator has argued, there is much to be said for such an approach being directed towards “vulnerable” rights, particularly in an environment where so many aspects of the rights and interests of individuals depend upon legislative protection. [26] However, in considering an administrative regime for the regulation of broadcasting services, Gageler J stated in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd: [27]

8. [39]

   To the extent that the principle applies with respect to the statutory scheme for conferring rights to participate in a fishery, there is no doubt that its application must be muted. That is not only to avoid imposing a constraint on legislative power, but also because the nature of the right, being one conferred by statute, is inherently liable to alteration by statute.

9. [40]

   Secondly, the principle does not override the usual exercise of statutory construction by reference to the text of the statute, its identifiable purpose and the context within which a particular provision is found. As demonstrated by Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd, [28] even the general supervisory jurisdiction of this Court may be excluded by implication where the statutory purpose and the structure of the legislation lead to that conclusion, absent any express statement to that effect.

10. [41]

    The manner in which the appellant invoked the clear statement principle is of some consequence. Although there was reference to the principle in its application to delegated legislation, [29] primary reliance was placed on its operation with respect to the construction of the empowering legislation. It was submitted that where the Parliament proposes to permit the diminution of a proprietary right or interest, it should expressly so provide in the statute; if that is not done, the power will be read as not permitting delegated legislation having such an affect. Thus, the submission proceeded, the Quota Shares Regulation and the Quota Management Regulation would only be valid exercises of the power to create and issue further classes of share in a share management fishery, pursuant to s 71A(1), if that provision had expressly stated, “including by imposing a quota limiting the catch permitted by an existing share.”

11. [42]

    The clear statement principle has limited application in the present circumstances for two main reasons. First, and contrary to the appellant’s submissions, he was not, prior to the amendments, conducting his business in accordance with a common law public right to fish. The Fisheries Management Act abrogated any public right to fish in tidal waters and replaced it with a statutory licence. In Harper v Minister for Sea Fisheries [30] Mason CJ, Deane and Gaudron JJ said of the Tasmanian abalone fishery:

12. [43]

    To similar effect, in Northern Territory of Australia v Arnhem Land Aboriginal Land Trust [31] the High Court held that the effect of the Fisheries Act 1988 (NT) was to abrogate the common law public right. There is no relevant distinction between the scheme of the Northern Territory Act and the current State legislation; if anything the current State legislation is more proscriptive and universal in its operation.

13. [44]

    Nor would it assist the appellant to be exercising a public right to fish: such rights are “freely amenable to abrogation or regulation by a competent legislature”. [32] Further, the variation of the access shares in accordance with the new statutory regime did not, on any view, constitute an acquisition of property, a conclusion consistent with the reasoning of the High Court in Commonwealth v WMC Resources Ltd. [33] Nor was further regulation to be read as if it deprived shareholders of a common law right, rather than a statutory privilege.

14. [45]

    The appellant sought to read s 71A in isolation from its statutory context. The key contextual provisions were those found in Pt 2A of the Act. Counsel for the appellant rejected reliance on Pt 2A on the basis that the purpose of Pt 2A was “to provide for quota, not for quota shares.” He described the distinction as “very important in the context of this case because it was the quota shares which were used to diminish … the property of my client”. [34] However, the submission failed to derive the purpose of Pt 2A from its terms.

15. [46]

    The purpose of that Part was to provide for determinations of total allowable catch, [35] the allocation of quotas to shareholders, [36] together with the creation of an offence of taking fish in contravention of a quota. [37] The whole of Pt 2A constituted the express, unequivocal and unqualified basis upon which quotas could be imposed. No clearer statement of the power to vary the effects of holding access shares could be required. Indeed, although there is undoubtedly a distinction to be drawn between the concept of a “quota” and the creation of a class of “quota shares”, it is a distinction which tends to undermine the appellant’s case. Depending on the requirements of the regulations, a quota could be allocated pursuant to Pt 2A without the issue of quota shares, so long as the shareholder was notified in writing of the allocation. [38] Far from being a critical element in the statutory scheme of imposing quotas with respect to fisheries, s 71A was merely a mechanism to give effect to that objective.

16. [47]

    The reference in the submission to diminishing “the property of my client” should also be addressed. The claim of a form of “property right” bears a resemblance to the submission put in South Australian River Fishery Association Inc and Warrick v South Australia [39] (“SA River Fishery”) and rejected by Doyle CJ (Besanko J agreeing) in the following terms:

17. [48]

    In the present case the statutory context includes the following elements. The appellant’s rights arose under the Estuary General Plan; pursuant to cl 2 of the Regulation, that Plan came into force on 5 February 2007. The Act provided that a management plan for a fishery “is not to be replaced by a new plan until at least five years after the existing plan was made, unless the existing plan otherwise provides.” [40] That period expired in February 2012.

18. [49]

    Further, the power to establish a “total allowable catch” for any fishery was not novel. Prior to the commencement of Pt 2A on 6 October 2017, that power was found in Pt 2, Div 4 of the Act. [41] Part 2, Div 4 conferred functions on the “Total Allowable Catch Setting and Review Committee” (referred to as “the TAC Committee”), and required that the Committee have regard to “the need to ensure that the exploitation of fisheries resources is conducted in a manner that will conserve fish stocks in the long term”. [42] Section 34(1) required the Minister to review the regulations and other instruments regulating the taking of fish by commercial fishers (and others) in the light of any TAC Committee determination. In short, the appellant’s shares were always contingently subject to further controls by way of the imposition of quotas. The appellant’s expectations, set out in detail in his affidavit evidence cannot diminish the contingency.

19. [50]

    In SA River Fishery, the Chief Justice disposed of a similar argument based on subjective expectations and consequent unreasonableness in restricting the rights under a licence of a fisher in the following terms:

20. [51]

    The point being made by Doyle CJ was not directed to the operation of the clear statement principle, but it articulated an important aspect of the nature of fishing licences, which is also found within the scheme of the Fisheries Management Act.

21. [52]

    Once the terms of s 71A are addressed in their statutory context, it is clear that the applicant’s reading of the scope of the provision is unjustified. Although the submission was articulated in different ways, it appeared to have three elements.

22. [53]

    The first element was a limitation said to be implicit in the phrase “classes of shares”. That language, it was submitted, required something different from and additional to the right of access to the fishery granted by the shares held by the appellant and others with similar rights. When combined with the word “further”, it was said that s 71A only authorised the conferral of rights in addition to those already held. [43]

23. [54]

    The second element in the submission was that, pursuant to s 71A(2), shares in the further classes were to be issued to existing shareholders, thus demonstrating an intention to confer additional rights. [44] While it is true that the new quota shares were in fact issued to existing shareholders in the fishery, that was not required by the operation of s 71A(2). The subsection refers to the allocation of any further classes of shares; the reference to “shareholders” is a reference to shareholders in the further classes of shares, not to existing shareholders in the fishery.

24. [55]

    The third element referred to the separate power (provided for in s 44(1) of the Act) permitting the omission of a fishery from Sch 1 to the Act, “for the purpose of redefining an existing share management fishery”. The effect of that action would be to cancel the shares in the fishery, entitling the holders to compensation. [45] Section 71A was not to be read as conferring an alternative power to reduce the rights of existing shareholders without compensation. [46]

25. [56]

    The basic proposition that s 71A only permitted the conferral of additional rights on existing shareholders was not consistent with the structure of the legislation. A “fishery” is defined in the Act in the following terms:

26. [57]

    A “share management fishery”, such as the one in which the appellant held shares, is a fishery specified in Sch 1 to the Act. [47] The shares held by the appellant in the “estuary general fishery”, identified in Sch 1, cl 6D, relevantly permitted “the taking of fish from estuarine waters by any lawful method …”. Pursuant to the Estuary General Plan, prior to the issue of quota shares with respect to mud crab, blue swimmer crab and eel, there were 63 classes of shares available in the fishery. Because of the range of criteria by which shares could be defined, it may well have been possible to issue further shares without limiting the rights of those who held shares. However, there is nothing in s 71A which supports any such implied constraint.

27. [58]

    Nor does the presence of a power to omit a share management fishery from Sch 1 for the purpose of redefining the fishery imply such a limitation. Section 44 comes within Pt 3, Div 2 of the Act which deals with the means by which share management fisheries are declared, included in Sch 1 and omitted from Sch 1. There are circumstances in which the Minister is required to recommend the omission of a fishery, [48] but that does not apply in this case. Further, the Minister is required to consult the relevant commercial fishing industry bodies before a fishery ceases to be a share management fishery. [49] No such steps were taken in the present case, nor is there anything in the statute which required that this process be undertaken. Accordingly s 44 and its provision for compensation where a fishery is omitted from Sch 1 had no operation. The existence of this quite different power does not confine the scope of s 71(A).

28. [59]

    As from 15 December 2017, the Act contained a new Div 4A in Pt 3, which permitted the Minister to put forward a “redefinition proposal” to holders of shares in a share management fishery, pursuant to which classes of shares might be amalgamated, or replaced. [50] This power was not invoked in this case, and the appellant did not place reliance upon it, no doubt because the power required majority support within the industry and provided no compensation where shares were cancelled in the implementation of the proposal. [51]

29. [60]

    Even conceding some limited operation to the clear statement principle, s 71A is not to be read down in the ways proposed by the appellant.

(d) temporal invalidity

1. [61]

   Accepting, at least implicitly, that s 71A could operate in the broader context supplied by Pt 2A, the appellant noted that at the time the amendments to the Estuary General Plan were promulgated, Pt 2A had not commenced. Thus, the Quota Shares Regulation commenced on 30 June 2017, amending the Estuary General Plan by the insertion of a new Pt 3A, but Pt 2A of the Act did not commence until 6 October 2017. (The amendments to s 71A itself had commenced on 22 July 2016.)

2. [62]

   Part 2A provides for “fishing determinations”, including determinations of “total allowable catch of fish”, referred to as a “TAC determination”. [52] For reasons which will be noted shortly, a “quota” could not be fixed until the relevant determinations had been made; however, that did not prevent the promulgation of provisions allowing for the issue of quota shares.

3. [63]

   As already noted, the Fisheries Management Amendment Act 2015, which inserted Pt 2A in the Act, and amended s 71A, was assented to on 24 November 2015. Its various parts came into operation on 22 July 2016, 6 October 2017 and 15 December 2017. (Some provisions have not yet commenced.) The Interpretation Act 1987 (NSW) provides for an Act (and other instruments) conferring powers which are to be exercised by making another instrument, to be exercised prior to the commencement of the power-conferring provision. Thus, s 26 of the Interpretation Act is relevantly in the following terms:

(e) criteria for allocation of shares

1. [64]

   Section 71A(2) provides for further classes of shares to be allocated to shareholders on the basis of “criteria provided for” by a management plan. One of the new classes of shares inserted in the Estuary General Plan by the Quota Shares Regulation was described as “Estuary general – mud crab quota shares”. This and two other classes of shares were stated to be created as “further classes of shares” under s 71A of the Act and were referred to in the Estuary General Plan as “quota shares.” [54]

2. [65]

   Clause 6B was entitled “Criteria for issue of quota shares”. To be eligible a person was required to be “an eligible shareholder”, a category which included the appellant as the holder of estuary general mud crab access shares in region 4. Clause 6B(3) provided that the Minister is “to determine the number of quota shares to be issued to each eligible shareholder”; cl 6B(4) provided that the determination is to be made “on the basis of an allocation formula set out in a notice published by the Secretary in the Gazette.”

3. [66]

   The appellant submitted that the critical criterion, namely the basis of allocation, was not set out in the Share Management Plan; there was, therefore, non-compliance with s 71A, rendering the creation of the further class of shares invalid.

4. [67]

   On one view, the appellant’s contention conflated the concept of a criterion being “provided for” in a document with the criterion being “specified in” the document. There may be circumstances in which such a conflation is appropriate, but that will depend upon the nature of the criterion and the statutory context. [55] It appeared to be implicit in the appellant’s argument that the phrase “to shareholders” in s 71A(2) itself required that further shares be allocated only to existing shareholders in the particular fishery. That reading has been rejected; however, even if it were to be accepted, there were numerous classes of shares already in existence in relation to the “estuary general fishery”. Clause 6B of the Plan at least specified with greater particularity the correlation between eligibility for quota shares and existing shareholders.

5. [68]

   That much was both provided for by, and specified in, the Share Management Plan. What was not specified was the number of shares to be allocated to each eligible shareholder. That required the identification of a particular basis of allocation, known as the “allocation formula”. The formula was not specified in the Plan. The question is, therefore, whether the formula needed to be specified in the Plan for the determination by the Minister of the number of shares per eligible shareholder to be valid.

6. [69]

   What was in fact specified in the Plan may be described as an eligibility criterion, and not the criteria for distribution amongst the eligible persons. In its terms, s 71A(2) is not limited to eligibility criteria, but refers to the criteria upon which shares are to be allocated. On the other hand, having regard to the nature of the exercise to be undertaken, the requirement to provide the criteria of distribution in the Plan should not be read in such a way as to require specification in the Plan. Where there are a number of factors to be taken into account, the substance of which will vary from fishery to fishery, that exercise can properly be “provided for by” a plan without specifying particular factors, or the formulae by which they are to be applied. In theory, it would no doubt have been possible for the Plan to specify that the allocation was to take account of the number of shares held with respect to the particular fishery, any determination of an appropriate total allowable catch and the need to distribute the entitlements equitably amongst existing shareholders. In practical terms, that would reveal no more than was revealed by the provision of the mechanism, namely the creation of an instrument setting out the formula.

7. [70]

   Finally, although the argument was not developed, reliance was placed on the distinction between the word “by”, used in s 71A(2), and “under”, which was not used. Counsel referred to Ex parte Zietsch; Re Craig, [56] a case turning on the distinction between a maximum price for goods fixed “by” a regulation, as opposed to a price fixed “under” the regulation. Where a maximum price is fixed “by” a regulation, the price will be found in the regulation; where it is fixed “under” a regulation, the regulation will empower an authority (or authorised person) to fix the price. [57] The submission (not expressly articulated) was, presumably, that where s 71A(2) stated that criteria were to be provided for “by” a management plan, they could not be provided for by a different instrument authorised by the management plan.

8. [71]

   This submission takes the matter no further. Although in a particular context prepositions such as “by” and “under” may have distinct meanings, the meanings cannot be identified by extracting a single word from its context in a sentence. In the present case, what must be construed is the expression “provided for by”, which in turn gains colour from that which is to be provided for, namely “criteria”. This language has already been addressed.

9. [72]

   The Estuary General Plan, as amended, was not deficient in this respect. The challenge to the availability of the power to issue quota shares must be rejected.

Power to make regulations

1. [73]

   There was a further challenge to the amending regulations, which were said not to comply with the requirements of the regulation-making powers in the Act. This challenge requires reference to three provisions in the Fisheries Management Act, and the relevant clause in the Estuary General Plan.

2. [74]

   First, there is a general regulation-making power in s 289:

3. [75]

   There is also provision in s 60 for a share management plan to be made by way of regulation. Taken in isolation, one would expect the specific powers in s 60, if more limited than the general power in s 289, to provide the relevant power. [58] However, these powers are interrelated as a result of the insertion in the Act, with effect from 22 July 2016, of the following provisions:

4. [76]

   Amendment of a plan is provided for in the following terms:

5. [77]

   With respect to the Estuary General Plan, cl 47 provides:

6. [78]

   On their face, these provisions are unconstrained by any specific limitations. However, the appellant contended that s 64 only permitted a “direct” amendment “of a kind” authorised by the Plan, thus requiring a degree of specificity in the Plan as to what may be permitted. (It is not entirely clear what something other than a direct amendment would involve, but it may refer to a variation of another instrument which has consequential effects with respect to the operation of a plan; this language has no present significance.)

7. [79]

   There is no reason to treat the phrase “of a kind” as not encompassing an amendment of any kind, if the plan so permitted. That is not to say there are no inherent constraints on the nature of the amendments which may be made. There is a limitation, in conventional terms, imposed by s 289(1) and the other provisions of the Act, including those dealing with the content of a management plan, and in particular s 57. There is no basis for concluding that the amendments made by the Quota Shares Regulation and the Quota Management Regulation in 2017 failed to comply with the terms of s 64 and cl 47.

8. [80]

   It follows that the challenges by the appellant to the validity of the amending regulations must be rejected. While the reasoning set out above is not in a number of respects that of the primary judge, there is no reason to doubt his conclusion in rejecting this ground of challenge.

Allocation formula for issuing quota shares

1. [81]

   On 11 October 2017 the Deputy Director-General, Fisheries, with the delegated authority of the Secretary, issued the Allocation Formula Notice. [59] The notice fixed an allocation formula for a number of classes of shares. With respect to the mud crab quota shares the formula required the application of multipliers to each of several classes of access shares, with the products being added to give a parcel of quota shares. Relevantly for the appeal, the appellant held access shares with respect to “estuary general meshing in region 4” and “estuary general mud crab trapping in region 4”. For each meshing share, he was entitled to 0.03094 quota shares; with respect to each trapping share, he was entitled to 0.49057 quota shares. The total was to be rounded up to the nearest whole number. A note accompanying the formulae in Div 2 of the Notice stated:

2. [82]

   On 17 October 2017 the Minister made the Quota Shares Issue Instrument. [60] That document indicated the allocation to the appellant in each of three classes of quota shares. In practical terms, his entitlement allows him to take 725kg of mud crabs in any one year.

3. [83]

   As the appellant challenged the result as capricious and arbitrary, it is appropriate to note that the forecast published by the Department in May 2016 stated that for the standard issue of 125 access shares for mud crab trapping in region 4, the shareholder would, from December 2017, be entitled to take 673.8kg. The statement in the instrument that shareholders would receive at least the catch quota forecast in May 2016 was correct with respect to the appellant.

4. [84]

   The appellant sought to rely upon the approach adopted by the Full Court of the Federal Court in Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd, [61] a case involving the allocation of quotas with respect to the deep sea fishery for orange roughy. The Full Court held the plan setting out the formula for allocating quotas to be invalid on the basis that the allocation was “capricious and irrational” and one that “no reasonable person could ever have devised”. [62]

5. [85]

   To the extent the case was relied on for the proposition that an administrative decision (even one in the form of a legislative instrument) is reviewable if arbitrary or capricious, it did no more than apply a line of High Court authority to similar effect. [63] If, on the other hand, it was relied on as an example of how that standard may be applied in determining commercial quotas in a fishery, it is of no assistance.

6. [86]

   The Court in Austral Fisheries set out an explanation given by an expert as to a “statistical fallacy”. The fallacy was said to lie in the assessment of a percentage change in a set of figures over time by taking the average of the changes in a number of subsets. The example given was a change in total Australian road fatalities in two periods. The increase was, on the hypothetical figures, 12.2%. The subsets were each State and the ACT. The change for the ACT was an increase from 1 death to 4, giving a percentage increase of 300%. Taking the average of the percentage increases in the separate jurisdictions was shown to be “meaningless”. [64] However, that was not the exercise undertaken by the Minister in setting the fishing quotas. That exercise took, as an integer in the calculation, the average over five years of the catch of each fisher as a percentage of the total catch for each year, to set the quota for that fisher. [65] That exercise did not engage the fallacy said to render the exercise arbitrary and capricious; why it was thought that it did is not apparent from the judgment. The case is of no assistance as an example of what might be considered arbitrary or capricious behaviour in fixing fishing quotas.

7. [87]

   The ground of challenge must be dismissed on the basis that the appellant made no attempt to demonstrate arbitrariness or even unreasonableness, if the latter standard is relevantly lower. He issued a notice to produce, and was provided with the calculations upon which the formulae in the instrument (which varied between fisheries) were based. [66] There was no expert evidence challenging them; they were not even tendered. The challenge to the validity of the Allocation Formula Instrument and, consequentially, the Quota Shares Issue Instrument, must be rejected.

8. [88]

   It remains to note that counsel for the appellant referred in the course of oral argument to a lack of “due process”, a term apparently referring to a lack of “notice”. This appeared to be an alternative ground to the failure to identify the criteria for allocation of quotas to shareholders in the Estuary General Plan. [67] The argument then proceeded by reference to authority already addressed with respect to the construction of s 71A. However, at least implicitly, there was a complaint that sufficient should have been disclosed on the face of the relevant instruments to allow an affected shareholder to determine how a particular allocation was calculated, so as to be able to consider whether a challenge was available.

9. [89]

   When articulated in terms of duties, the submission must fall into one of two categories. Either it depends upon a duty to comply with the requirements of the statutory scheme for allocating quotas, or it must engage a general law duty to provide the shareholder with the necessary information to understand the basis of the particular allocation. Unless the statutory instruments incorporate the latter duty, there is no freestanding obligation to supply the basis on which the formulae were constructed. The scope of the statutory obligations has been addressed. To the extent that further information is required to determine whether review proceedings are maintainable, there are court processes which allow for the production of relevant information; those processes were engaged and there is no complaint about a failure to comply with them. Accordingly, there was no further issue raised by reference to “due process”, beyond the construction issues already considered.

Conclusion

1. [90]

   Each of the grounds of challenge to the allocation of mud crab quota shares in region 4 under the Estuary General Plan having been rejected, the appeal must be dismissed.

Effect of interlocutory relief

1. [91]

   There appear to have been orders described as effecting an “interim stay” in force since 1 December 2017. On that date, the Court made an order restraining “the respondent” (presumably the Minister) from “limiting the kilogram catch of mud crabs” by the appellant below the highest weight “for that month in any of the last five years.” It was unclear what steps the Minister had taken or was taking to limit the applicant’s catch. The power pursuant to which and the basis upon which such an interlocutory injunction was granted in the appellant’s favour was not identified. It seems to have been assumed that the order dispensed with the requirement that the appellant comply with the legal limits imposed by the quota shares pending determination of the validity of the laws under which the shares were issued. (Inappropriate notices were given to the Minister, the Director-General and the State as to the consequences of failure to comply with the Court’s order.) The primary judge vacated the order in delivering judgment dismissing the challenge to the validity of the legislation. It is not clear what the effect of that order was.

2. [92]

   Shortly after the judgment dismissing his challenge, the appellant sought an order in this Court that the interlocutory injunction be continued, subject to two variations agreed to by the respondents. The first involved the insertion in the grant of permission of specific weights of mud crabs allowed to be taken for each month from February to June 2018, which presumably reflected the appellant’s highest catch weights in the last five years for those months. That order was agreed to by the respondents on the condition that, if the appeal were unsuccessful, the appellant undertook in effect to reduce his future entitlements under his quota shares by the amount of any excess taken during the current financial year, together with an undertaking not to transfer or otherwise deal with his mud crab quota shares. An order was made in those terms.

3. [93]

   The power of a court to grant an interlocutory injunction to protect the interests of parties adversely affected by legislation, in circumstances where they seek to challenge the constitutional validity of such legislation, was established by Castlemaine Tooheys Ltd v State of South Australia. [68] That case involved South Australian laws designed to require that manufacturers of bottled beer use refillable bottles. The law was challenged under s 92 of the Constitution. The plaintiffs, being bound by the law they sought to challenge, sought interlocutory injunctions restraining the State “from enforcing or causing to be enforced against the goods of the plaintiffs in interstate trade and commerce”. [69] Mason ACJ accepted that there was jurisdiction and power to grant an interlocutory injunction in such a public law case, including a constitutional challenge to the validity of the law. He stated that: [70]

4. [94]

   The Chief Justice noted a number of cases in which the jurisdiction had been conceded, but in none of which did the court restrain the defendant from commencing prosecutions for breach of the statutes whose validity was impugned. [71] He also accepted a statement in a Canadian case [72] that “the balance of convenience normally dictates that those who challenge the constitutional validity of laws must obey those laws pending the court’s decision.” The harm to be suffered by the manufacturers was to be weighed against the damage to the public interest underlying the regulatory provisions. The application for interlocutory injunctions was dismissed.

5. [95]

   A similar jurisdiction was invoked in Richardson v Forestry Commission, [73] although the boot was on the other foot. The Commonwealth Minister sought an interlocutory injunction restraining the Tasmanian Forestry Commission and a logging company from undertaking operations in the Lemonthyme and Southern Forests of Tasmania, pending determination of the validity of the Commonwealth legislation. Mason CJ granted interlocutory relief to enforce the challenged legislation.

6. [96]

   In R v Secretary of State for Transport, Ex parte Factortame Ltd (No 2), [74] the owners of some 95 Spanish fishing vessels, which had been, but could no longer be, registered in Britain, sought interlocutory relief allowing them to continue to fish in British waters, pending the determination of their challenge under the European Communities Act 1972 to the relevant provisions of the Merchant Shipping Act 1988 (UK). The UK courts initially held that they were unable to grant relief which would in effect suspend the operation of British law. In response to a ruling of the European Court of Justice that such a jurisdiction existed, interim injunctions were granted. It is not necessary to compare the approach adopted in Factortame with that adopted in Castlemaine Tooheys.

7. [97]

   There is no doubt that the power to grant an interlocutory injunction against the authority responsible for enforcing the law is available in circumstances where regulations are challenged on the basis of inconsistency with the empowering statute, as in the present case. Usually one would expect the application for an interlocutory injunction to be resisted by the body charged with enforcing the public interest underlying the impugned legislation. The public interest is likely, in accordance with the principles stated in Castlemaine Tooheys, to hold sway. But where injunctive relief is granted a question will arise as to its effect in the event that the applicant is unsuccessful. Is it to grant immunity from prosecution for taking fish in contravention of a valid law? Or is it merely to restrain the relevant authority from prosecuting until the validity of the law has been determined, assuming that the applicant took fish in excess of his quota pending determination of his legal rights?

8. [98]

   In the present case, to the extent that the applicant has taken mud crabs in excess of his allotted quota, the undertakings given to the Court pursuant to the order made by consent on 27 February 2018 will allow the excess to be deducted from his future entitlements. It is not necessary for the Court to address the appropriateness or validity of the concessions made to the appellant pending determination of the litigation.

Orders

1. [99]

   No issue was taken by the respondents with respect to leave to appeal. Accordingly, so far as leave is required, the appellant should have a grant of leave to appeal.

2. [100]

   The appeal must be dismissed. The appellant should pay the first, second and third respondents’ costs, to be assessed on the basis of their common representation. (The fourth respondent submitted to the jurisdiction of the Court.)

3. [101]

   The interlocutory order will automatically cease to operate from the date of this judgment. The order will not fix the allowable catch limit in the remainder of this financial year.

4. [102]

   The Court should make the following orders:

   1. (1)

      To the extent necessary, grant the appellant leave to appeal from the judgment in the Common Law Division of 16 February 2018.

   2. (2)

      Dismiss the appeal.

   3. (3)

      Order that the appellant pay the first, second and third respondents’ costs in this Court, to be assessed on the basis that the respondents had common representation.

5. [103]

   PAYNE JA: I agree with Basten JA.