Case: National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29 ; (1984) 156 CLR 296
Outcome: referred to
v Australian Fisheries Management Authority [2006] FCA 1220 (8 September 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here: &nbsp; AustLII &gt;&gt; Databases &gt;&gt; Federal Court of Australia &gt;&gt; 2006 &gt;&gt; [2006] FCA 1220 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Rhodes v Australian Fisheries Management Authority [2006] FCA 1220 (8 September 2006) Last Updated: 11 September 2006 FEDERAL COURT OF AUSTRALIA Rhodes v Australian Fisheries Management Authority [2006] FCA 1220 ADMINISTRATIVE LAW review of decision of AAT which affirmed decision of Australian Fisheries Management Authority to cancel fishing permit relating to Southern Shark Fishery in Bass Strait region interpretation of 2003 Southern and Eastern Scalefish and Shark Fishery Management Plan and Offshore Constitutional Settlement to extent either imposed 'limited entry' or 'no new permits' policy whether Tribunal erred in finding as relevant to refusal to grant fishing permit enforcement of AFMA's cost recovery procedures claim of denial of natural justice in relation to processes implemented by Australian Fisheries Management Authority up to time of cancellation of applicant's fishing permit Fisheries Management Act 1991 (Cth) ss 17 , 32 , 38 , 39 Administrative Appeals Tribunal Act 1975 (Cth) Offshore Constitutional Settlement Southern and Eastern Scalefish and Shark Fishery Management Plan 2003 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 discussed Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 discussed Re Green and Australian Fisheries Management Authority [2004] AATA 426 ; (2004) 81 ALD 194 referred to Legione v Hateley [1983] HCA 11 ; (1983) 152 CLR 406 discussed Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475 discussed National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29 ; (1984) 156 CLR 296 referred to R v Small Claims Tribunal and Homewood; Ex parte Cameron [1976] VR 427 referred to Cameron v Cole [1944] HCA 5 ; (1943) 68 CLR 571 referred to Hoskins v Van Den-Braak (1998) 43 NSWLR 290 referred to Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28 referred to Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859 ; (2002) 122 FCR 78 discussed DAVID JOHN RHODES v AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY TAD 31 OF 2005 CONTI J 8 SEPTEMBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY TAD 31 OF 2005 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY ASSOCIATE PROFESSOR DAVIS BETWEEN: DAVID JOHN RHODES Applicant AND: AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY Respondent JUDGE: CONTI J DATE OF ORDER: 8 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The application for review by way of appeal from the decision of the Administrative Appeals Tribunal made on 27 July 2005 be dismissed. This further issue was raised by Mr Rhodes by way of challenge to the exercise by AFMA of its power of cancellation of Mr Rhodes' fishing permit for reasons of so-called 'non-payment of fees or levies'; it was acknowledged that '[i]n determining the scope of the obligation of natural justice, the statutory framework is of crucial importance'. I was referred by Mr Rhodes to the High Court decision of Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475, where in the reasons for judgment of Kitto J at 502-4, his Honour considered whether the Taxation Board of Review was '... legally bound to conform to the principles of natural justice in dealing with a reference in a case under s 136' . Kitto J made the prefatory observations that '[a] legal obligation so to act arises in respect of many statutory powers...', there being '... no words which are of universal application to every kind of inquiry and every kind of tribunal...', but '[w]hat the law requires in the discharge of a quasi-judicial function is judicial fairness' , which is '... not a label for any fixed body of rules...,' and '[w]hat is fair in a given situation depends upon the circumstances' . The statutory context of the then Income Tax and Social Services Contribution Assessment Act 1936-1958 (Cth), which was of course in focus in Mobil Oil , is significantly removed from that of the Management Act. Mr Rhodes sought support additionally for the operation in principle of the rules as to natural justice from the dictum of Brennan J in National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29 ; (1984) 156 CLR 296 at 326, where his Honour observed as follows: the limits of a statutory function are ascertained the interests which are apt to be affected by the performance of the function can be identified. Then it is possible for a court to say in the absence of express statutory provision what has to be done to be fair to those whose interests are apt to be affected by the performance of the function. The terms of the statute which creates the function, the nature of the function and the administrative framework in which the statute requires the function to be performed are material factors in determining what must be done to satisfy the requirements of natural justice....' Those considerations render formidable the task of establishing the operation of the rules of natural justice in the present statutory context where the basis for prospective qualification would be the same for all applicants, that being the holding of an existing shark permit conditional of course upon payment of the permit fee or levy.