Case: Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd [1993] FCA 45 ; (1993) 40 FCR 381
Outcome: discussed
addition, or in the alternative, the appellant submitted that the operation of cl 850.211 produced an absurd result and was invalid on that ground. The appellant referred the federal magistrate to the decision of the Full Court of this Court in Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd [1993] FCA 45 ; (1993) 40 FCR 381 (" Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd "). The federal magistrate rejected the appellant's submission, saying that cl 850.211 was not inconsistent with s 48 of the Act. He said that the fact that the rights provided by s 48 were subject to the standard visa criteria was neither unreasonable nor absurd. The federal magistrate concluded that cl 850.211 was not invalid and that the appellant had not established that the Tribunal had fallen into jurisdictional error. Issues on the appeal At the start of the hearing, the appellant sought leave to amend his notice of appeal. The application was not opposed by the first respondent and I granted leave to amend. The thrust of the amended grounds of appeal is that cl 850.211 was invalid and that the Tribunal erred in taking it into account. In the circumstances, it was an irrelevant consideration. Clause 850.211 was said to be invalid because it was not authorised by s 504(1) of the Act or any other lawful authority, or because in its terms it sought to limit the operation of s 48 of the Act, or because its promulgation was an unreasonable exercise of any regulation-making power, or for any one or more of these reasons. In Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd , a management plan under s 7B of the Fisheries Act 1952 (Cth) was challenged on the ground that it was a form of delegated legislation which was capricious and irrational. The plan contained a statistical fallacy which led to unfair catch allocations. The trial judge accepted the applicant's arguments and declared that the plan was void. His decision was upheld on appeal. In the course of his reasons on the appeal, Lockhart J considered the scope of the unreasonableness ground of review. His Honour said (at 382): "Delegated legislation is not invalid on the ground of unreasonableness in the sense that the courts may form a different view as to what is reasonable. Unreasonableness in this branch of the law means unreasonable in the sense that 'a merely fantastic and capricious by-law, such as reasonable men could not make in good faith' is bad, because delegated legislation of this kind could not be regarded as an exercise of the power conferred upon the subordinate legislative body making the delegated legislation: Slattery v Naylor (1888) 13 App Cas 446 at 452." A little later, his Honour said (at 384): "Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended when authorising the subordinate legislative authority to enact laws." (See also the joint judgment of Beaumont and Hill JJ at 400-401). In Minister of State for Resources v Dover Fisheries Pty Ltd [1993] FCA 366 ; (1993) 43 FCR 565 , Gummow J discussed the reasonable proportionality ground of review in relation to delegated legislation and the operation of the doctrine of reasonable proportionality in the area of federal constitutional law. The proportionality principle is "differently focused" in the former case: "The fundamental question is whether the delegated legislation is within the scope of what the Parliament intended when enacting the statute which empowers the subordinate authority to make certain laws: see Austral Fisheries at 383-384, per Lockhart J". (Citation omitted.)