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Monday, 30 March 1987
Page: 1433


Senator COONEY —Pursuant to standing order 109a, I give notice that, at the giving of notices on the next day of sitting, I shall withdraw Business of the Senate, Notice of Motion No. 1 standing in my name for 3 sitting days after today, relating to Fisheries Notice No. 174 and Notice of Motion No. 1 standing in my name for 5 sitting days after today relating to Meat Inspection Orders No. 4 of 1986. I seek leave to incorporate in Hansard a statement of explanation and correspondence relating to the Regulations and Ordinances Committee, both of which are quite brief.

Leave granted.

The documents read as follows-

Fisheries Notice No. 174

This Notice prohibits certain fishing in Western Australia. The Minister for Primary Industry made it as an exercise of his discretion under the Federal Fisheries Act 1952 which empowered him to specify prohibited fishing equipment. The Notice specified the use of fishing equipment which did not comply with:

(i) the requirements of a particular Western Australian Fishing Notice or any future substituted W.A. Notice; and

(ii) the requirements of a certain licence issued under the Western Australian Fisheries Act 1905.

The Committee raised with the Minister the question whether he had exercised his discretion lawfully by merely referring to unspecified equipment prohibited by current or future legislation of a State.

The Minister informed the Committee that the Commonwealth and Western Australia had agreed shortly to conclude an arrangement whereby that State would manage the fishery in accordance with State law. Thus, federal measures, including the Notice, would soon cease to have effect. The Minister considered that the Notice gave effect to his intention to manage the fishery co-operatively in the interim.

Having reconsidered the matter in the light of advice from its acting legal adviser Professor Dennis Pearce, the Committee has decided not to pursue the matter of legality. The Committee noted that section 49a of the Acts Interpretation Act 1901 forbids regulations to which that Act applies legislating by reference to an instrument as in force `from time to time' (as is the case with the reference in the Federal Notice to possible future State Notices made in substitution for an existing State Notice). However section 8a of the Fisheries Act 1952, in applying certain sections of the Acts Interpretation Act to Fisheries Notices, does not include section 49a. There was therefore the suggestion that Parliament deliberately intended not to limit Fisheries Notices in the same way as regulations. The Committee is grateful to the Minister for his assistance with its scrutiny.

Meat Inspection Orders No. 4 of 1986

These Orders help to consolidate rules relating to the inspection of meat.

Orders 9, 10 and 11 provide that:

(i) an authorised meat inspector could suspend work at certain premises if he or she was satisfied that this was necessary to ensure hygiene or facilitate an inspection; and

(ii) that, where an inspector believed that premises were unclean or unsanitary he or she could by written notice require that remedial action be taken and that operations cease until such remedial action was taken.

An aggrieved person could apply to the Secretary of the Department for a reconsideration of these decisions, with a further right of appeal to the Administrative Appeal Tribunal.

The Committee noted that these were large and necessary powers to ensure the maintenance of the highest standards of meat hygiene. However, the decision could also have the effect of suspending or terminating business operations affecting individuals' livelihoods. While it was necessary in the public interest that such powers be available, the Committee considered that administrative justice also required that reasons for decisions should be supplied within a short time of the exercise of such significant administrative powers.

The Minister for Primary Industry, Mr John Kerin, M.P., informed the Committee that departmental administrative practice required official notices to set out reasons for decisions. He agreed, however, that this administrative practice should be made a legal requirement by being formalised in an amendment to the Orders. The Committee commends this Minister for once again demonstrating his willingness to accommodate the Committee's concerns about standards of fairness in administrative decision-making.

Notices of Motion

Notices of Motion

Notices of Motion

PARLIAMENT OF AUSTRALIA

THE SENATE

STANDING COMMITTEE ON REGULATIONS

AND ORDINANCES

24 February 1987

The Hon. John Kerin, M.P.

Minister for Primary Industry

Parliament House

Canberra, A.C.T. 2600

Dear Minister,

At its meeting on 19 February 1987 the Committee considered Fisheries Notice No. 174 which prohibits the use of rock lobster pots off the coast of Western Australia. The Committee seeks your advice on whether certain provisions of the Notice are made within the powers conferred by the Fisheries Act 1952.

Firstly, paragraph 2 (b) of the Notice states that, pursuant to paragraph 8 (1) (c) of the Fisheries Act, the Minister prohibits the taking of western rock lobster with the use of a rock lobster pot, unless the pot complies with either Notice No. 233 gazetted on 26 September 1986 and made under the Western Australian Fisheries Act 1905, or any substitute notice that may be published under that Act.

Paragraph 8 (1) (c) of the Federal Act provides that the Minister may by notice prohibit the taking of fish by a method or equipment ``specified'' in the Notice. It may be argued that the terms of this paragraph are wide enough to confer on the Minister a power to make a Notice which specifies equipment by reference to the terms of another Notice which is extant and which the Minister has considered. It may be arguable that this incorporation by reference device is valid notwithstanding that the incorporated Notice in question has been made in another jurisdiction by another Minister.

However, the Committee has some concern that this argument may not extend to save the validity of the Federal Notice in so far as the incorporation by reference is made to apply to any notice that may be published under the Western Australian Act in substitution for the initial W.A. Notice. Clearly the Minister could not have contemplated each and every future State Notice and thus could not have considered the contents of each such State Notice for the purpose of exercising his or her independent discretion in the matter as required under the Federal Act. Thus, he or she might not lawfully have exercised the discretion to specify prohibited equipment. It may be that under paragraph 2 (b), the exercise of the discretion conferred by the Federal Act to prohibit certain specified fishing by Notice, is fettered and hence not lawfully exercised, where its exercise has the effect of sub-delegating to another authority the ultimate decision-making power. Under the Federal Notice it appears that the Western Australian Minister has been given the power to provide a ready-made decision or series of such decisions in the future to take effect as if they embodied an independent exercise of discretion by the Federal Minister.

The Committee has some difficulty in reading paragraph 8 (1) (c) in such a way as to authorise such an outcome. The Committee would therefore, be very pleased to have your comments and advice on the issue.

Secondly, paragraph 3 of the Fisheries Notice No. 174 provides that, pursuant to paragraph 8 (1) (f) of the Fisheries Act 1952, the Minister prohibits persons from having a quantity of rock lobster pots in excess of the less of 200 or the quantity of pots licenced to be used under the Western Australian Fisheries Act 1905. Points similar to those discussed above might also be made here and it is suggested that in paragraph 3 the Minister is purporting to exercise a discretion which does not take into account possible future amendments to the Western Australian Act.

The Committee considers that in the light of the foregoing points it should ask you whether you are satisfied that Fisheries Notice No. 174 has in fact been made in accordance with your powers and intentions.

Yours sincerely

BARNEY COONEY

Chairman

MINISTER FOR PRIMARY INDUSTRY

THE HON. JOHN KERIN, M.P.

Parliament House,

Canberra A.C.T. 2600

Telephone (062) 73 1711

Telex 62308

Facsimile (062) 73 2194

17 March 1987

Senator B. Cooney

Chairman

Senate Standing Committee on

Regulations and Ordinances

Parliament House

Canberra, A.C.T. 2600

Dear Senator Cooney

I refer to your letter of 24 February 1987, asking two questions about Fisheries Notice No. 174, on behalf of the Senate Standing Committee on Regulations and Ordinances.

Your committee's particular concern is that the notice may not be valid insofar as it may depend by reference on some future notice under the Western Australian Fisheries Act 1905 published in substitution for Notice No. 233 under that Act. I agree that I could not, in making Fisheries Notice No. 174, have contemplated every possible future notice substituting W.A. Notice No. 233.

However, the rock lobster fishery in Western Australia is one in which the Commonwealth and Western Australia have co-operated closely in managing for over 30 years and there is excellent liaison about proposals to vary management policies. In addition, the Commonwealth and Western Australian Governments have agreed that there should be an arrangement under Part IV A of the Fisheries Act 1952 for the fishery to be managed in accordance with the law of Western Australia. This will take effect in the near future, at which time all measures under the Commonwealth Fisheries Act 1952 in relation to the fishery, including Fisheries Notice No. 174, will cease to have effect.

In these circumstances, I see no difficulty in making Fisheries Notice No. 174 in the form in which it exists. It gives effect to the intention I have of managing the fishery in co-operation with the Western Australian Minister during the period in which the fishery remains under the shared jurisdictions of the Commonwealth and the State.

My comments above also apply to your second question in relation to the possibility of the Western Australian Minister substituting a different number of rock lobster pots in a notice under the State Act and of that different number then having immediate effect for the purposes of fisheries Notice No. 174.

I hope that the foregoing comments will be of assistance to your committee.

Yours fraternally

JOHN KERIN

PARLIAMENT OF AUSTRALIA

THE SENATE

STANDING COMMITTEE ON REGULATIONS AND

ORDINANCES

24 February 1987

The Hon. John Kerin, M.P.

Minister for Primary Industry

Parliament House

Canberra, A.C.T. 2600

Dear Minister,

At its meeting on 19 February 1987 the Committee considered the Meat Inspection Orders No. 4 of 1986. There are two matters, one of form and one of substance, on which the Committee would welcome your advice.

The Committee noted that on the copy of the instrument sent to it for scrutiny, you, as Minister, made a number of corrections to the text including renumbering the order from ``5'' to ``4'' and correcting some typographical errors. However, the notes inserted below the amended provisions have not been altered. Given the new method of amending Orders by reprinting pages, these notices are designed to facilitate understanding of the new pages by actually identifying the changed provisions. The errors in these notes could lead to confusion for legal advisers, or persons in the meat industry seeking to understand these new and complex Orders.

The Committee would welcome your views on whether this problem can be quickly overcome.

Secondly, the Committee noted that there is no requirement in Order 14 that an authorised officer give reasons for his or her decision under Orders 9 and 10. Similarly, it appears that the Secretary, on a reconsideration under Order 11, need not furnish reasons for his or her decision to confirm, vary or revoke an authorised officer's notice. The relevant decisions can have the effect of suspending or terminating business livelihood operations. The Committee acknowledges that very strict standards of hygiene must be maintained in this industry, that diligence and speed in dealing with breaches of the legislation are essential and that the implications of any failure to preserve standards are grave. However, the Committee would ask you to consider an amendment to the Orders to provide that reasons for decisions be supplied within a short time of the exercise of such significant administrative powers as suspension or termination of a source of livelihood.

The Committee looks forward to receiving your views on the issues discussed above.

Yours sincerely,

BARNEY COONEY

Chairman

MINISTER FOR PRIMARY INDUSTRY

THE HON. JOHN KERIN, M.P.

Parliament House,

Canberra A.C.T. 2600

Telephone (062) 73 1711

Telex 62308

Facsimile (062) 73 2194

20 March 1987

Senator Barney Cooney

Chairman

Senate Standing Committee on

Regulations and Ordinances

Parliament House

Canberra, A.C.T. 2600

Dear Senator Cooney

I refer to your letter dated 24 February 1987 seeking my comments on two matters arising in relation to Meat Inspection Orders No. 4 of 1986.

The first point which the Committee raised concerns the reference to the amending orders in notes after amended provisions. I agree that it is most important that these notes be accurate. As the notes do not have legal effect I did not correct them on the original document. However, the notes were amended to refer to orders No. 4 of 1986 in the printed copies of the orders for sale to the public.

The Committee has also expressed concern that a notice provided in accordance with order 9, 10 or 11 to a person affected by a decision made under that order need not contain reasons for the decision. I acknowledge that a decision made under any one of those orders could have a significant effect on a person's livelihood. Administratively, the notice provided in accordance with those orders sets out reasons for the decision and in order to formalise this arrangement I have instructed my Department to amend order 14 to require reasons for the decision to be provided with the notice.

I thank the Committee for drawing these matters to my attention.

Yours fraternally

JOHN KERIN