Case: Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288 ; (2003) 145 FCR 1
Outcome: cited
the Authority, nor the Panel, had a general discretion to depart from the provisions of the Management Plan. The provisions of the FM Act and the Management Plan are clear. Section 29(3) of the FM Act provides that the selection process is to be carried out in accordance with the procedures specified in the Management Plan. Put another way, that means in conformity with procedures which, it is envisaged by the FM Act, will be laid down in the Management Plan. Full particulars of those procedures are to be specified in the notice under s 24 of the FM Act which starts the process whereby SFRs are to be granted (see s 25(b)). The Management Plan is quite clear in the procedures it specifies. It would have been open to the makers of the Management Plan to confer a general discretion but they did not do that. Section 27 of the Management Plan deals with eligibility for registration and does so by reference to the quota units a person is authorised to take. The authorisation to take is the fishing permit. Section 28(2)(j) of the Management Plan sets out the formula to be applied and it is even more explicit. It refers to what a person was authorised to take in the fishery in accordance with a fishing permit held by the person immediately before the end of the notice period. The matter is put beyond any doubt by s 25 of the Management Plan which links the quota units which are to be translated directly to the units specified in the permit and registered in the Register. The relevant fact is the number of quota units specified in the fishing permit and Register, not what the number of quota units might be after a review as to the merits ( Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288 ; (2003) 145 FCR 1). I would also note that a general discretion to examine entitlement by examining the merits of a condition attached to a fishing permit may lead to delay and that does not appear to be contemplated by the process envisaged by ss 24-31 inclusive of the FM Act and the relevant provisions of the Management Plan. In my opinion, these considerations also lead to a rejection of the narrower submission that it was open to the Panel to exercise the power in s 32(8) of the FM Act. There is an additional reason why this submission must fail. The power to make a decision as to the availability of a grant of SFRs is dealt with in a different section of the FM Act (s 29(3)) from the power to make a decision to vary or revoke a condition attached to a fishing permit (s 32(8)). The decisions are subject to different review procedures, the first is subject to review by the Panel under s 142 and the second is subject to review by the Tribunal under s 165. The first respondent had the opportunity to challenge the quota allocation attached to his fishing permit by seeking review by the Tribunal. He may, in fact, have exercised that right by his involvement as a party in the Fischer No 2 proceeding. However, I do not need to decide that question because the important point is that the FM Act provides for a separate procedure for such challenge.