Finance Bill (No. 6): Amendment to the Fisheries Act 1983 by SOP
Introduction Broader Problems with the Quota Appeal System The Response in the Bill to the Perceived Difficulty' A Better Approach Other Comments Legislative Outcome and Comments
118 Supplementary Order Paper 165 was referred to the Internal Affairs and Local Government Select Committee on 24 November 1992. The Supplementary Order Paper proposed to add new clauses 41 to 44, which amended the Fisheries Act 1983, to the Finance Bill (No. 6). In its submission, the Committee questioned whether new clauses 41 to 44 were consistent with generally accepted principles in relation to the granting of rights of appeal and review. Those principles are now reflected in part in section 27(2) of the New Zealand Bill of Rights Act 1990. We also commented on whether the new clauses were inconsistent with what the Law Commission has referred to as the "general principle of jurisprudence that law should have prospective effect only" (A New Interpretation Act NZLC R17 1990, paragraph 192).
119 Our understanding of the background to the amendments contained in this Supplementary Order Paper was that the Ministry of Agriculture and Fisheries was concerned about the effect that the interpretation of the law in two court decisions could have on the overall quota allocation system and the integrity of fisheries management. The decisions were Jenssen v Director-General of Agriculture and Fisheries (CA 313/91, 16 September 1992) and Gunn v Quota Appeal Authority (CP 118/89, High Court, Dunedin, 5 October 1992). There was also a risk that other quota allocations would then be appealed and increased on a rehearing, thus threatening the overall management of the fisheries.
Broader Problems with the Quota Appeal System
120 The difficulties for the integrity of the quota management system that might be created by these decisions on individual cases were related to some basic problems with the appeal structure for quota decisions in the Fisheries Act 1983. The initial decision on the allocation of quotas is a polycentric decision but, as we understand it, appeals may be concerned only with individual allocations, and decisions can be given without consideration to the wider management of the fisheries. Under such a system there will always be a risk that successful appeals or applications far judicial review will trigger a rash of similar appeals or review applications, thus threatening the basis of the original allocations and the overall management of the fisheries. One reason for once again drawing attention to these wider problems was that, until a general review of the decision-making process is completed in a satisfactory manner, there is a risk that the same problems will arise in other contexts.
The Response in the Bill to the Perceived Difficulty
121 New clause 43 attempted to limit the ability of appeal or review bodies to follow the Court of Appeal's lead in a range of ways. It is helpful to cite clause 43(1) in full:
43. Limitations on powers of Quota Appeal Authority and courts in certain cases -
(1) The principal Act is hereby amended by inserting, after section 28ZG (as inserted by section 29(1) of the Fisheries Amendment Act 1990), the following section:
"28ZGA. Notwithstanding anything in this Act or any other enactment or rule of law, -
"(a) Neither the Quota Appeal Authority nor any court shall, in respect of any proceedings whatever filed on or after the 16th day of September 1992, have power
"(i) To allocate to any person any provisional maximum individual transferable quota, guaranteed minimum individual transferable quota, or individual transferable quota for any species of fish in any quota management area; or
"(ii) To make a declaration to the effect that a person is entitled to such an allocation, unless that person held, immediately before the 30th day of September 1986, a permit authorising that person to take fish of that species in that area and (if applicable) held as allocation of individual quota:
"(b) No court shall, in respect of any proceedings filed on or after the 16th day of September 1992, review, quash, or call into question any decision of the Director-General made before or on or after that date under section 28E (3) of this Act:
"(c) No court shall allow any proceedings filed before the 16th day of September 1992 to be amended to bring within the scope of the proceedings any decision of the Director-General made under section 28E (3) of this Act:
"(d) No court shall, in respect of any proceedings filed on or after the 5th day of October 1992, review, quash, or call into question, or award any damages in respect of, any decision made before the 1st day of October 1986 by or on behalf of the Director-General under section 63 or section 64 of the principal Act."
122 New section 28ZGA(a), as we understood it, was to limit the remedies available to the Quota Appeal Authority that the body could not give redress to those who may, on the Court of Appeal's wider interpretation of the law, have a good claim in law to an allocation of quota. While such a solution might have the desired practical effect, in our view it was offensive in principle. It would retrospectively deny a remedy to people who may have grounds to dispute a decision of the Director General of Agriculture and Fisheries, and appeared to be a clear conflict with the right in section 27(2) of the New Zealand Bill of Rights Act 1990 of a persons aggrieved by administrative action to have the action reviewed. The Committee suggested (see paragraph 125 that this problem could be solved by an alternative method which carried no risk of breach of the New Zealand Bill of Rights Act 1990.
123 The Committee considered that the same basic points could be made about paragraphs (b), (c) and (d) of new section 28ZGA with the additional point that other rules of law, such as the general law on limitations, at least in part already govern the situation addressed in paragraph (d).
124 Our impression of the provisions was that they were really designed to alter the substantive rules to give effect to the understood purpose of the legislation. However, we questioned whether it was necessary to restrict access to the court, or to other bodies set up to resolve grievances, to do that.
125 The Committee suggested that the difficulties that the Minister feared the two court decisions would cause would be better addressed by an amendment to the substantive law (including the criteria granting provisional maximum individual transferable quotas under section 28E(3) of the Fisheries Act 1983) to clarify the interpretation that was intended. When the considerations that underlie the principle against retrospectivity are examined, it can be seen that such an amendment appears not to offend against principle (see NZLC R17 1990, paragraphs 214-221). The Law Commission in its consideration of the principle identified three reasons for it that are relevant here. We set them out, with comments relevant to this situation:
- the effectiveness of the law - a law which is not known cannot work effectively. The people subject to the law have in general to know in advance what it requires of them so that they can organise their actions in accordance with it. An amendment of the type that we were suggesting would restore the position that had been understood and proceeded upon by the Director-General of Agriculture and Fisheries and the Quota Appeal Authority when allocating quota in the past;
- justice - there appears to be no injustice because there are no vested rights or expectations in terms of those generally accepted understandings; and
- reasonable expectations - individuals may plan their transactions on the basis of their understanding of the law. Again the understanding in the present case was that reflected (as we comprehended the position) in the proposed change to the law rather than in the Court judgment.
The other two factors listed by the Law Commission - responsibilities for government, and effective administration - were not immediately relevant, unless it was in terms of the basic public interest in the careful management of an important national resource, again a consideration supporting change to the substantive law.
126 New clause 42 created a general time limit for the bringing of review proceedings which, given the nature of the decisions being taken, seemed a sensible addition to the scheme. There is obviously value in having certainty quickly. However, this new limit was given retrospective application. We asked why this was necessary, and why should the provision apply to actions in damages if the concern was simply to finalise the allocations?
Legislative Outcome and Comments
Legislative outcome
127 Although some of the technical matters we raised were addressed, the main thrust of our submission had little effect on the legislative outcome.
Use of supplementary order paper
128 In times past supplementary order papers contained little more than minor drafting amendments to a measure already in the House, but there is now a tendency for them to be used to amend legislation that is sometimes not even the subject of the original measure, as in this case.
129 Parliament can of course make changes to any law which it considers to be unsatisfactory, and that is not in question. What is in question in this case is the manner in which the law was changed.
130 As we said in our submission, the better course would have been to amend the substantive law, possibly by putting it in a declaratory form and by dealing appropriately with transitional issues. The purpose of such an amendment would be to clarify the interpretation of the law and to make it consistent with the way that the Director-General and the Quota Appeal Authority had applied it over a number of years. Such an amendment would not have offended against principle. As it is, the amendment in Supplementary Order Paper 165 used an approach that retrospectively denied a remedy to people who may have grounds to dispute a decision of the Director-General and who had already commenced proceedings.
131 There were a number of other unsatisfactory procedural aspects in the way that this amendment to the Fisheries Act 1983 was made:
(a) the time available to make submissions on the Supplementary Order Paper was very limited (a few days), and there was, therefore, little time for it to be discussed by the industry;
(b) the SOP was referred to the Internal Affairs and Local Government Select Committee whose members, understandably, were not in general well briefed on fisheries matters, and the select committee had only about one and one half hours available to hear submissions; and
(c) members of the industry who were able to attend would have been put to some expense in engaging counsel to prepare their submissions, and in making the journey to Wellington to be heard by the select committee.
132 It would be fair to say that neither the procedure, nor the legislative solution, conformed with the requirements of good legislative practice as set out in Legislative Change: Guidelines on Process and Content.
Footnotes
2. This submission had to be prepared in the course of only one day and it was not possible to give all of the important issues raised by the Supplementary Order paper the careful attention that they deserved, nor was it possible to consult with all of the members of the LAC. We did, however, draw on established principle in making the submission. This submission had to be prepared in the course of only one day and it was not possible give all important issues raised by Supplementary Order Paper careful attention that they deserved, nor consult with members LAC. We, did, however, draw on established principle in making the submission.