Ajka Pty Limited and Australian Fisheries Management Authority - [2001] AATA 258

DECISION AND REASONS FOR DECISION [2001] AATA 258

ADMINISTRATIVE APPEALS TRIBUNAL )

)NoS1998/320 &
)S1998/321

GENERAL ADMINISTRATIVE DIVISION          )
           Re      AJKA PTY LIMITED
  Applicant
           And    AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
  Respondent

DECISION

Tribunal Deputy President B.H. Burns

Date30 March 2001
PlaceAdelaide

Decision The decision of the Tribunal is that the decisions under review are affirmed. Liberty to apply.

..................(Signed)………………..
DEPUTY PRESIDENT B H BURNS
CATCHWORDS
FISHERIES – refusal pursuant to s.32 of the Fisheries Management Act 1991 to issue permits to take skipjack tuna by the purse seine method in the Eastern Tuna and Billfish Fishery, the Southern Tuna and Billfish Fishery and the Western Tuna and Billfish Fishery – pursuit of statutory objectives – limited access policy – whether policy was lawful – whether cogent reasons for departing from policy – decisions affirmed.

REASONS FOR DECISION

30 March 2001 Deputy President B.H. Burns

This is an application for review of a decision of a delegate of the respondent dated 3 August 1998 (T36) which affirmed upon review two earlier decisions dated 5 March 1998 (T25) and 1 April 1998 (T28) refusing the applicant's application pursuant to s.32 of the Fisheries Management Act 1991 ("the Act") for permits to undertake skipjack tuna fishing by the purse seine method in 3 fisheries, namely, the Eastern Tuna and Billfish Fishery (ETBF), the Southern Tuna and Billfish Fishery (STBF) and the Western Tuna and Billfish Fishery (WTBF).
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T36), together with 35 exhibits, 11 lodged by the applicant (Exhibits A1-A11) and 24 lodged by the respondent (Exhibits R1-R24). In addition, the Tribunal heard evidence from Mr Lovre Gobin, fisherman, Ms MB Lack, Fisheries Manager, Mr PD Neave, Senior Fisheries Management Officer, Mr AJ Presser, Resource Economics Consultant, Dr JB Morison, Agricultural and Resource Economist, and Dr PC Young, Fisheries Consultant. The applicant was represented by Mr Heywood-Smith and the respondent was represented at first instance by Mr Cole, and later by Ms Mortimer, all of counsel.
The issue before the Tribunal is whether or not the applicant should be granted permits to enable fishing for skipjack tuna by the purse seine method in certain designated areas pursuant to the discretionary provisions of section 32 of the Act and particularly s.32(1). In exercising the discretion in s.32(1) of the Act the Tribunal (in the shoes of the respondent) must consider whether the existing relevant policy of the respondent is lawful and, if lawful, whether there are cogent reasons to depart from it. If the relevant policy is not lawful, the task of the Tribunal is as to whether or not the discretion in s.32(1) of the Act should be exercised in favour of granting the permits sought, or any of them.
history of the application
On 5 September 1997 the applicant wrote to the Manager of the Eastern Tuna and Billfish Fishery requesting, amongst other things, that a permit to fish skipjack tuna be issued to the applicant in the "Australian Fishing Zone" (T16). On 23 October 1997, the applicant received a reply (T18) which stated,
"…
I consider that were you to submit a formal application for a permit to purse seine for skipjack tuna in any of the three tuna fisheries, in all likelihood it would not be granted.
…"
On 13 November 1997 the applicant wrote to the respondent, repeating its request for a permit to target skipjack tuna in the Australian Fishing Zone (T20). On 12 December 1997 the applicant received a reply (T21) which stated,
"…
…I can find no exceptional circumstances in the arguments presented by you as to why I should deviate from these policies. Therefore, AFMA cannot consider your submission favourably.
…"
That letter also alluded to the possibility of submitting a Fishing Permit application form.
On 18 February 1998 the applicant submitted an application to the respondent for a permit to enable the targeting of skipjack tuna in Australian waters (T24). This was treated by the respondent to be in respect of the Eastern Tuna & Billfish Fishery and was refused on 5 March 1998 (T25). On 12 March 1998 the applicant submitted an application to the respondent for a permit to enable the targeting of skipjack tuna in "Australian Waters Sthn & Western Tuna Fishery" (T26). On 1 April 1998 the respondent refused the application in respect of the Southern and Western Tuna & Billfish Fisheries (T28).
These decisions were affirmed upon review dated 3 August 1998 (T36).
EVIDENCE BEFORE THE TRIBUNAL
Mr Louvre Gobin was the first witness to give evidence on behalf of the applicant. Mr Gobin is a fisherman of longstanding and is a shareholder in, and principal director of the applicant. He operates fishing vessels and is a director of Port Lincoln Tuna Processors, a tuna cannery.
Mr Gobin gave evidence that the cannery has been in operation for about 25 years and employs about 150 people. It now processes the greater proportion of skipjack tuna caught in Australian waters, and also processes imported skipjack tuna, bought from American and Japanese boats. He stated that skipjack tuna is not exported from Eden in New South Wales, but comes to the Port Lincoln cannery via road transport. He said that he was aware that there had been some difficulties with labelling the canned tuna with an Australian product endorsement, given the actual amount of Australian content in each can. He considered that to be allowed to catch more skipjack tuna in Australian waters would help the whole country, and that the cannery was not reliant upon whatever fish he was able to put into it. The cannery has expanded in the past twelve months as a result of the closure of the Greenseas Heinz factory in Eden. He told the Tribunal that it is difficult for the Port Lincoln cannery to compete internationally.
Mr Gobin gave evidence that on his understanding, there were only two actively pursued permits in the Southern and Western Tuna and Billfish Fisheries in 1998. He told the Tribunal that on his understanding of events, the restrictions put in place on the skipjack tuna fisheries had nothing to do with the actual fish stocks at the time. He stated that to the best of his knowledge, up until about 1990, skipjack tuna had only been caught in south-eastern Australia. He gave evidence that due to the cost and particularities of the weather, there are not many people interested in making the substantial investment required to engage in skipjack tuna fishing. He considered it to be extremely remote, given the practicalities of the fishing industry, that the existing permit holders not utilising their permits would seek to utilise such permits to full potential in the future. He also told the Tribunal about the difficulties in fishing for skipjack tuna given the Australian water and weather conditions. The Tribunal notes that the actual number of vessels involved in skipjack tuna fishing appears in Exhibit R6 as amended by Exhibit R10.
In 1996 Mr Gobin purchased a 35 metre vessel which he named "Independence". That vessel has been converted to be able to do purse seine fishing, and Mr Gobin stated that there are about seven purse seiners in Australia. He said that "Independence" fishes for approximately two months a year to fill the quota of bluefin tuna, but remains inactive for a further ten months of the year. When at sea, it employs about a ten person crew. He gave evidence that "Independence" was converted to purse seining to enable bluefin tuna to be caught unharmed for tuna farming purposes.
Mr Gobin informed the Tribunal that in about 1997-98 he was approached and asked whether he was interested in purchasing a skipjack tuna licence for approximately $200,000 which he declined. He said that he understood two licences had been issued subsequent to the introduction of the restrictions. He said that he has not seen any advertisements for permits recently and was restricted in looking for one due to the size of his vessel. He said that he had some recent discussions with a Mr Stan Lukin about the possibility of leasing part of Mr Lukin's skipjack tuna permit, but that nothing eventuated from those discussions.
Mr Gobin told the Tribunal that his family and their companies have permits for crayfishing, trawling in the South East Fishery and jack mackerel fishing along with a tuna quota, a licence for long lining in the Southern and Western Tuna Fisheries and long line permits for the Western Tuna Fishery and part of the Eastern Tuna Fishery which are not used. He agreed during cross-examination that the permits he has which remain unused continue to have some commercial value.
Mr Gobin gave evidence that the granting of a permit would enable him to utilise Independence for a further six months of the year in purse seine skipjack tuna fishing. He said that he would predominantly fish in the southern and part of the eastern fisheries of Australia with such a permit.
Mr Gobin stated that compared to the purse seiners in the American fleet (ranging from about 1000 to 1500 tonnes), his vessel (150 tonnes) would be catching a "drop in the ocean" in comparative terms.
mary lack
Ms Lack, Fisheries Manager, has post graduate qualifications in agricultural economics and has been employed with the respondent since the mid 1980s.
Ms Lack told the Tribunal that skipjack tuna is a productive and highly migratory fish, which is the reason for separately managed fisheries, the S/WTBF and the ETBF. She said that there has not been enough work done on assessing the impact of fishing for skipjack tuna. She said that skipjack tuna fishing is seasonal, according to the migratory patterns of the fish.
Ms Lack gave evidence that permits are generally granted for a twelve month period and that there is a general expectation that such will be renewed each and every twelve months. Only criminal offending in relation to fisheries matters, or lack of adequate log-books, would generally prevent renewal. She said that to the best of her knowledge there have not been any permits granted without the correct formal application process being followed. In one case, a permit was granted upon internal review. In relation to the initial process for the granting of permits, she agreed that, generally speaking, applicants at that time did not necessarily have a history of fishing for skipjack tuna, but fell within the general category of being people pursuing purse seining in the relevant fisheries. Prior to the permit system, endorsements were issued to the licences attaching to particular vessels to enable skipjack tuna fishing. The permit application form also required the nomination of a vessel.
Ms Lack gave evidence that the log-books for the period 1988 to 1992 were most likely poorly maintained, resulting in an underestimation of the total catch of skipjack tuna.
Ms Lack gave evidence that ecologically sustainable development, economic efficiency and cost effective management were the overriding objectives in managing the fisheries, and that a balancing act was required to effect those objectives. She stated that in the future, the respondent may consider managing the purse seine sector independently of the long line sector, and that differential arrangements might be put in place in respect of different species of tuna. She gave evidence that the objective in managing economic efficiency was to try to reduce overcapitalisation of the fisheries resources.
Ms Lack told the Tribunal that limited entry strategies were necessary to limit the number of people operating in any one fishery, and are a commonly used method of management throughout the world. She said that an expansion in the number of operators would impact negatively on the value of the current permits. In particular, it would reduce the market for selling existing permits.
Ms Lack was of the view that the precautionary principle was important in fisheries management. She further said that the respondent does not take a "use it or lose it" attitude with respect to these types of permits, and does not play a role in approving transfer of permits. She stated that from November 1997 there was a relaxation in the no licence splitting policy such that licence splitting was allowed, subject to approval by the management authorities, and that any change in the nominated vessel needed to be registered on the permit. She explained that the policy change resulted from a perceived need to help develop the Southern and Western Fisheries and that a subsequent application resulted in licence splitting being allowed in the Eastern Fishery as from mid 1999. She further said that the respondent has since reinstated the no licence splitting policy in relation to the Southern and Western Fisheries. In relation to the current operators, she gave evidence that it appears that only one licence splitting arrangement appears to have occurred in the last 12 to 18 months, but that particular permit is not currently attached to a vessel.
Ms Lack referred to various international agreements governing fisheries to which Australia is a signatory and also to certain proposed agreements which may be ratified in the future, and stated that such agreements may impact on Australian fisheries management to take into account such international interests. On 23 December 1999 Australia ratified the United Nations Agreement on Straddling Stocks and Highly Migratory Species, which still requires more signatories before coming into force.
Ms Lack was referred in cross-examination to the various reports of the Bureau of Resource Sciences, a division of the Department of Agriculture, Fisheries and Forestry, and agreed that on the information available in the 1997 update (T14/72), there was no clear evidence that purse seine fishing significantly affected the skipjack tuna stock in the western and central Pacific area, or that the low 1997/98 catch was a reflection of heavy fishing pressure. She was in substantial agreement with the contents of the "Fishery Status Reports" for 1996 (T14) and 1997 (T15). She was also taken to the minutes of a meeting of the Eastern Tunamac, one of the management advisory committees set up to advise the respondent's board, and agreed that the suggestion is present in those minutes that there was scope for domestic expansion within the existing skipjack tuna fishers' operations. She further agreed during cross-examination that the fishery status reports over a long period of time appear to indicate that the Eastern skipjack tuna fishery is under exploited and has a higher long term potential yield.
Ms Lack agreed that the cost of equipping vessels for purse seining, coupled with the perceived value of the fishery, limited the number of people who would be interested in the type of permit concerning this application. She said that she is aware of one purse seiner currently being built, but was unsure which permit would be placed on the vessel.
Ms Lack told the Tribunal that the statistics that provided the basis for annexure F to her statement (Exhibit R1) are derived from the logbooks. She said that she is not aware of any exploratory or development fishing programs initiated in respect of skipjack tuna. She gave evidence that the respondent is currently developing a plan of management for both the Eastern Fishery and the Southern and Western Fisheries and will determine whether to move to output or input controls as part of developing those plans. In that regard, she told the Tribunal that the respondent would like to see more effective management of the fisheries in the future, but that the current position is that since the respondent does not know enough about skipjack tuna, the approach was to maintain limited entry policies as the first step in containing the fisheries.
Ms Lack stated that there is no evidence suggesting that the objective of ecologically sustainable development either is, or is not, being satisfied at the moment in respect of skipjack tuna stocks. She said that the evidence suggested that the skipjack tuna resources have been under-utilised throughout the 1990s and continue to be so. She told the Tribunal that the management arrangements of the respondent were intended to prevent any "racing for the fish" as has happened in relation to other fish species, and that under current arrangements, the respondent has not got any sustainability or biodiversity concerns in the purse seine sector. She gave evidence that whilst the catch has varied since 1994, there has been no research into the effort put into obtaining the catch by the existing operators. She agreed in cross-examination that the respondent is not in a position to say what the availability of skipjack tuna in the western region of the Southern and Western Fisheries may be, given no vessels have fished there in the 1990s.
Ms Lack agreed during cross-examination that the respondent does not consider that increasing the net sizes (or "catch potential") of existing permit holders would be a threat to either skipjack tuna fishery. She said that to the best of her knowledge, there were other purse seine vessels with the capacity to take skipjack tuna in Australia which do not have licences, and that they are involved in jack mackerel fishing.
peter neave
Mr Neave, Senior Fisheries Management Officer, has worked for the respondent since 1992, having also worked for its predecessor, Australian Fisheries Service, since the mid 1980s. He gave evidence as to the manner in which the volumes of evidence placed before the Tribunal (Exhibit R8) was compiled, and from which sources it was derived. Such information came from both the files of applications for permits that were kept, and also from the current licensing files which give an indication of the current state of permits.
In relation to the information regarding expressions of interest in purse seine fishing since 1992, Mr Neave said that whilst he cannot guarantee that all applicants are included in the documents, to the best of his knowledge all applicants about whom some reference appears in the documentary evidence appear in the tables.
Mr Neave stated that he is satisfied that all permits that have been granted have been in accordance with the criteria and the proper processes.
He agreed in cross-examination that there have been recent changes in the respondent's policy regarding net size limits.
andrew presser
Mr Presser, Consultant in Resource Economics and Management, prepared a report dated 7 March 2000 at the request of the applicant (Exhibit A7), and a further supplementary report dated 29 March 2000 (Exhibit A8).
Mr Presser was the Principal Fisheries Manager in the South Australian Department of Primary Industry and Resources, a State government member on the Great Australian Bight Management Advisory Committee and is currently principal consultant to Worldwide Project Management Services. His field of experience is economic analysis and management of resources.
Mr Presser told the Tribunal that in his opinion the granting of an additional permit would not impact upon the access rights of the existing permit holders, nor would it constitute a lifting of the limited entry policy. He further said that in a consideration of the whole of the Australian fishing fleet, to allow an already existing boat (that being the applicant's purse seining vessel) to be better utilised is consistent with objective (c) of sub-section 3(1) the Act. He said that to enable an operator such as the applicant to operate more effectively in another fishery is consistent with the overall achievement of economic efficiency within the whole of the Australian fishery. On his reading of the stock assessment report on skipjack tuna from the Bureau of Resource Science, skipjack tuna is not an endangered stock, and in his opinion, there is no evidence indicating a threat of serious or irreversible environmental damage in the Eastern, Southern and Western skipjack tuna fisheries, although noting the indications that there may be some overfishing in the Indian Ocean fishery.

Mr Presser gave evidence that it appears that purse seining is restricted to certain parts of the Australian Fishing Zone, such that there is scope for expansion in areas like the northern section of the West Coast fishery.
Mr Presser told the Tribunal that the practices of increasing net sizes and licence splitting are inconsistent with the precautionary principle espoused by Dr Young in particular. He said that the approach he took in compiling his report was to consider whether the granting of the permit would be contrary to the achievement of the objectives of the Act. He considered that taking into account the catch histories in the documentary evidence, there was no evidence to suggest that inactive permit holders would be seeking to activate their permits in the near future. He focused his report more on the Eastern Fishery because of the lack of information available concerning the Southern and Western Fisheries.
Mr Presser considered the theoretical economic model used by Dr Morrison to be slightly inappropriate given the migratory patterns of skipjack tuna. He said that he considered an assessment of the effort and cost of fishing, as against the abundance of fish stocks, to be relevant considerations in economic modelling of skipjack tuna. He did not disagree with a number of extracts from the FAO Technical Guidelines for Responsible Fisheries (contained in attachment B to Exhibit R1) which refer, in general terms, to the precautionary approach to fisheries management, and the need for interim management measures until such time as a management plan is put in place.
When asked to compare the Indian Ocean figures for skipjack tuna with the Southern and Western Fisheries, he considered that assuming similar migratory patterns, there is not a similar threat of overfishing in the Southern and Western Fisheries.
julian morison
Dr Morison, Agricultural and Resource Economist, is currently conducting a number of projects with the Fisheries Department in South Australia developing economic indicators. He is also a member of the Northern Prawn Fishery Independent Allocation Advisory Panel, the South-East Trawl Fishery Cascade Plateau Remote Zones Allocation Advisory Panel, and assesses economic implications for various licence holders. He prepared a report dated March 2000 ((Exhibit R12).
Dr Morison gave evidence that as the number of boats operating in a fishery increases, so the total cost of the effort involved in catching fish increases, resulting in gradually diminishing returns. He said, further, that it is always difficult to try to ascertain the maximum sustainable yield of a given fishery. He took the Tribunal through the economic model appearing in his statement (Exhibit R12), and considered that it applied equally to open access and limited access fisheries. He told the Tribunal that on current available evidence, he is unable to say where the skipjack tuna industry might currently fall on the curve in his modelling. He agreed that he based his evidence on economic theory and that his evidence with respect to economic efficiency was an attempt to demonstrate the underlying reasoning that may underpin the respondent's policy objectives.
Dr Morison stated that the addition of another operator in skipjack tuna fishing would increase management costs and decrease the value of existing permits. He considered that allowing someone an additional permit on the basis that they already have a suitable boat that was outfitted for other purposes creates a dangerous precedent, in that in may encourage other operators with excess capacity in their vessels at certain times of the year, to use that as a basis to apply for such a permit. He further considered that such a situation places a burden on the respondent to assess an individual operator's efficiency, which he did not consider to be the role of the respondent. He said that one of the implications of allowing the applicant to have a permit would be to lead to an eventual open fishery, diminishing the respondent's ability to manage the fisheries.
Dr Morison said that if an individual operator perceived there to be value in a particular fishery, then it was open to that operator to purchase a permit from another operator for whom the permit was not considered to be as valuable. He considered that the market value of a permit was a relevant consideration in so far as pursuing the economic efficiency objective involves trying to ensure that individuals are not differentially impacted upon or that their property rights are diminished. He considered that once a method of allocation of permits was established, and if such permits were secure and tradeable, then market forces could then sort out the value and transferability of the permits.
Dr Morison told the Tribunal that the first step in the management of any fishery is to limit entry, which gives a starting point from which to try to move towards maximising economic returns. He said that where existing operators are not using their permits, then transferring such permits on the open market was the best economic option. In relation to whether or not granting a permit to the applicant would constitute an open entry policy, he agreed in cross-examination that were the respondent to adopt a policy of allowing one or two applications for permits to further the development of the industry, this would not constitute an "open entry policy".
Dr Morison agreed that volume of catch per unit of effort is part of the consideration of economic efficiency. He said economic efficiency requires that resources applied to a fishery are not wasted, and are used efficiently. He further agreed that economic efficiency also requires that the fish resource is not underdeveloped.
Dr Morison said that where existing operators are not utilising their permits, it does not necessarily follow that allowing an additional permit would not affect the economic or management objectives of the Act. He told the Tribunal that the essential problem of overexploitation of fisheries throughout the world resulted from poor specification of fishing rights. In his opinion, the introduction of a "use it or lose it" policy would weaken the existing proprietary rights and have an impact adverse to the economic efficiency objective. He also said that it would be difficult and costly for the respondent to attempt to gauge the efficiency and efficacy of each individual operator.
Dr Morison gave evidence that to allow an additional player into a fishery may impact upon the statutory and quota rights of the existing permit holders if and when a management plan came into being, as it would increase the number of permit holders wishing to be allocated such rights, however they might be divided up. He told the Tribunal that the value of permits is determined by the profit which can be generated operating in a fishery, and that an increase in the number of permit holders may impact upon the size of each permit holder's potential catch, given a stable fishery. He agreed in cross-examination that were an additional permit holder to enter a fishery, and the total catch were to rise in a relative manner, the value of the permits would remain the same.
peter young
Dr Young, Marine Science and Fisheries Consultant, is also the Acting Chair of the Tasmanian Marine Farming Planning Review Panel. He prepared a statement dated 23 March 2000 (Exhibit R13).
Dr Young referred to a number of recent reports and studies upon the relevant fisheries, but to his knowledge there has been no specific published research done on skipjack tuna resources in Australia, such that there is no present means of knowing the tonnage of skipjack tuna which swim from the Indian Ocean into the Western Australian Fishing Zone and out again.
Dr Young told the Tribunal that a fishery without proper management will become unsustainable, as the amount of effort required to sustain the same catch volume will increase over time as stock diminishes. He said that as a general principle, the first step is to curtail any further fishing efforts, to then research, and only then look to expansion of the fishery if appropriate.
Dr Young told the Tribunal that the current literature supports a cautious approach whereby management of a fishery should aim at fishing about two-thirds of the maximum sustainable yield, so as to maintain a parental fish population bigger than the critical number required to get the maximum sustainable yield. He said that this is a "safety first approach". He told the Tribunal that in smaller fisheries in Australia, the cost of research into ascertaining what may be the maximum sustainable yield can often be impractical, such that an even more cautious approach is adopted. He agreed in cross-examination that there has been no exploratory or developmental fishing in the relevant fisheries since their inception.
Dr Young referred to the international agreements to which Australia is a signatory and considered that in his opinion such agreements supported the taking of a precautionary approach. He told the Tribunal that "reasonable restraint" in international terms should be taken to mean that fishing efforts should not be increased. In his opinion, Australia should not be making unilateral decisions to grant extra permits until the international management structures are implemented.
Dr Young told the Tribunal about problems in the Queensland East Coast Trawl fishery where there has been no real restriction on the number of licences issued, resulting in a current situation whereby a licence buy-back is being considered to limit the number of permit holders. He said that in a fishery about which one has inadequate knowledge, the generally agreed process would be to limit the number of permit holders, investigate the stock levels, and then re-examine the number of permit holders.
Dr Young gave evidence that skipjack tuna are an equatorial species and come down on the warm eddies. He said that 99 per cent of skipjack tuna are caught in equatorial and sub-equatorial regions, and that catch patterns vary according to the global climatic conditions affecting the Indian and Pacific Oceans. He considered that more skipjack tuna would be caught if the fishing was moved further north. He told the Tribunal that on current evidence, skipjack tuna is not currently an over-exploited species.
Dr Young used the catch of the American purse seine skipjack tuna fishing fleet in the Pacific Ocean (detailed in Exhibit R17) to postulate that if all current permit holders exercised their permits, there was a potential catch of approximately 100,000 tonnes per year. He said that on current information, it is simply unknown as to whether 100,000 tonnes per year would be sustainable. With regard to the figures, he conceded in cross-examination that he was only speculating as to the potential size, and was not aware of the size of the American vessels. He said that it was meaningless to speculate as to what might be the maximum sustainable yield on current information. He gave evidence that if one does not know about a fishery, one must be supremely cautious, and that the 32 permits currently issued was a huge number in such circumstances.
Dr Young said that the granting of an additional permit to fish areas which have not been fished in the past would not further the goals of subparagraph 3(2)(a) of the Act as concern must be had for future rather than past fishing practices, according to the precautionary principle. He considered that whether it be one or 1,000 new permits issued, the issuing of any further permits would be contrary to Australia's international obligations.
Dr Young said that there is cause for concern about skipjack tuna stocks in the Indian Ocean such that it would be prudent to stop expansion pending investigation. In relation to the central western Pacific stock, he said that there is no evidence of overfishing. He gave evidence that it is difficult to look at any problems with a fish such as skipjack tuna in a purely localised sense, because of its migratory nature.
the parties' submissions
Both parties made both oral and written submissions.
applicant's submissions
Mr Heywood-Smith submitted on behalf of the applicant that the respondent's policy resulting in rejection of the applicant's permit application is unlawful because in the circumstances of the skipjack tuna fishery, there are no cogent reasons to adopt a blanket "no new permits" policy. He submitted that "cogent reasons" is not a restrictive term and that there were "cogent reasons" in this case for departing from a policy of "no new permits".
Mr Heywood-Smith submitted that the skipjack tuna fishery is an abundant resource which is not endangered, and that Australia only takes an infinitesimal quantity of the available resource. He submitted that skipjack tuna is only targeted as a sideline, and that existing operators are reluctant to venture into the Western Australian, Northern Territory and Queensland areas of the fisheries. He further submitted that there was no evidence from the respondent to suggest there was a threat of serious environmental damage, and that the only available evidence suggests that the resource is under-utilised.
Mr Heywood-Smith submitted that given the history in the fishery of people not using their permits, it may be appropriate to consider the addition of another permit. He submitted that the respondent had not properly taken subparagraphs 3(1)(c) or 3(2)(b) of the Act into account in the exercise of its discretion. He further submitted that there has been little (if any) growth in the skipjack tuna industry since the closure of the fisheries and that there has only ever been an average of four operators actively fishing on their permits. He also submitted that the respondent had not produced any evidence of opposition to the introduction of another permit holder amongst existing permit holders.
Mr Heywood-Smith submitted that the Tribunal should reject the evidence of Drs Morison and Young as not being impartial expert opinion. In relation to Dr Young, he submitted that Dr Young's evidence as to the potential for 100,000 tonnes of fish being taken was based upon a ridiculous scenario which flew in the face of the facts about the fishery. He also submitted that Dr Young's opinions ran contrary to all other available evidence before the Tribunal. He submitted that Mr Presser's evidence should be accepted as it accords with common sense, was sound in terms of economic efficiency theory, and that the respondent had not discredited it in any way.
Mr Heywood-Smith submitted that Mr Gobin was a credible witness. He referred to Mr Gobin's history of having fished for southern bluefin tuna, and the fact that Mr Gobin's boat, "Independence" would remain idle for ten months of the year. A permit would enable ten people to be employed skipjack tuna fishing for a further six months of the year. In his submission, any possible leasing arrangements the applicant may have been able to enter into were irrelevant, as was the issue about what he earned from bluefin tuna fishing. He further submitted that there was no evidence that there are currently any permits available for sale. He also submitted that the applicant was not advancing a case concerned with the individual economic efficiency of Mr Gobin, but pursued economic efficiency in broader terms, in that to allow the applicant a permit would assist the Australian economy by enabling the more efficient utilisation of a vessel already in existence and limiting the need to import so much skipjack tuna.
Mr Heywood-Smith submitted that the cannery was an irrelevant issue, save and except for the fact that an increase in the skipjack tuna catch in Australian waters would limit the amount of skipjack tuna Australia needed to import. He further submitted that the two boats currently under construction were also not relevant, as they are replacement boats.
Mr Heywood-Smith submitted that the respondent has already recognised a need to promote the development of the fisheries by increasing net sizes and sanctioning licence splitting.
respondent's submissions
Ms Mortimer submitted on behalf of the respondent that there was a limited entry policy in place for sound policy reasons, and that the applicant was not prevented from entering the fishery by purchasing an existing permit. She submitted that the limited entry policy was consistent with the pursuit of the objectives set out in the Act, and was the "first step" in managing a fishery where details remain unknown or unclear.
Ms Mortimer submitted that the economic efficiency objective is being pursued and that the applicant had not presented any evidence to persuade the Tribunal to the contrary, especially as the applicant had presented an incorrect construction for "economic efficiency".
Ms Mortimer submitted that the ecologically sustainable development objective is also being pursued by the respondent's limited entry policy. In her submission this is consistent with Australia's international obligations.
Ms Mortimer submitted that Dr Morison had been an impressive witness who had simply maintained his opinion in the face of a number of unrelated hypotheticals put by the applicant's counsel. She further submitted that Dr Young was a highly qualified expert in his field and that his evidence was necessarily limited according to the information available to him. She also submitted that Dr Young's evidence was clear in respect of the precautionary principle and the care that needs to be taken to maintain this fishery. In her submission, Mr Presser had not understood the distinction between individual economic efficiency and the pursuit of the overall economic objective, and had strayed far from his field of expertise.
Ms Mortimer submitted that the evidence of Dr Morison and Mr Presser was limited, in any event, to providing some explanation as to the concept of economic efficiency. In her submission, Mr Gobin was not as candid with the Tribunal as he could have been and was an inaccurate witness, prone to exaggerate and withhold other information such as the amount that he makes from southern bluefin tuna fishing. She submitted that Mr Gobin has no history of skipjack tuna fishing and is simply making an opportunistic application.
Ms Mortimer submitted that there was transferability of these permits, as indicated by the fact that the applicant had been offered the lease of a permit during the course of proceedings. She submitted that the purse seine permit history (Exhibit R9) clearly demonstrated a high degree of transferability. She also submitted that Mr Heywood-Smith was only speculating in his assertion that the two boats currently under construction are replacement vessels. In her submission, the existence of permit holders not actively pursuing their permits is not a cogent reason for departing from the limited access policy.
Ms Mortimer submitted that to grant a permit to the applicant would be a departure from the limited entry policy, as it abandons the limiting criteria for no other reason than an idea that there ought to be more people fishing in the relevant areas.
THE TRIBUNAL'S FINDINGS, REASONS AND DECISION
The Tribunal would indicate at the outset that it has given careful consideration to the whole of the evidence, including the various submissions both oral and written made by the parties, and to the authorities referred to therein.
The respondent, which came into being on 3 February 1992 pursuant to s.5 of the Fisheries Administration Act 1991 ("the FA Act"), is obliged (as this Tribunal is on review) to pursue certain objectives in the performance of its functions. These objectives are set out in sections 3 and 16 of the Act and s.6 of the FA Act. These objectives are
"3 Objectives
(1)The following objectives must be pursued by the Minister in the administration of this Act and by AFMA in the performance of its functions:
(a)     implementing efficient and cost-effective fisheries management on behalf of the Commonwealth; and
(b)     ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development and the exercise of the precautionary principle, in particular the need to have regard to the impact of fishing activities on non-target species and the long term sustainability of the marine environment; and
(c)     maximising economic efficiency in the exploitation of fisheries resources; and
(d)     ensuring accountability to the fishing industry and to the Australian community in AFMA's management of fisheries resources; and
(e)     achieving government targets in relation to the recovery of the costs of AFMA.
(2)In addition to the objectives mentioned in subsection (1), or in section 78 of this Act, the Minister, AFMA and Joint Authorities are to have regard to the objectives of:
(a)ensuring, through proper conservation and management measures, that the living resources of the AFZ are not endangered by over-exploitation; and
(b)achieving the optimum utilisation of the living resources of the AFZ;
but must ensure, as far as practicable, that measures adopted in pursuit of those objectives must not be inconsistent with the preservation, conservation and protection of all species of whales."

The objectives of s.6 of the FA Act correspond with those in s.3(1) of the Act.

"16 AFMA to pursue objectives
(1) In performing its functions under this Part, AFMA must pursue its objectives and, in addition, act in accordance with its corporate plan and its current annual operational plan.
(2) …" (not applicable)

It is clear that s.16(1) reinforces the obligation upon the respondent to pursue the objectives of s.3 of the Act and those of s.6 of the FA Act in performing its functions under Part 3 of the Act which include the granting or not of permits such as those sought by the applicant pursuant to s.32 of the Act. A further requirement in s.16(1) of the Act is for the respondent to act in accordance with its corporate plan and its current annual operational plan. As there was no direct focus by the parties on this latter requirement by way of evidence led or submissions made, the Tribunal provided the parties with an opportunity to adduce further evidence and to make submissions in that regard.

The granting of permits pursuant to s.32 of the Act of the nature sought by the applicant clearly constitutes a function of the respondent with respect to the Act and the FA Act. In its deliberations the Tribunal is mindful of the fact that the objectives in s.3(1) of the Act and s.6 of the FA Act must be pursued as required by those sections and by s.16(1), whereas the Tribunal has to have regard to those of s.3(2) of the Act. The Tribunal is also mindful that in the shoes of the respondent in performance of its functions (under Part 3 of the Act regarding the regulation of fishing) it must, under s.16(1) of the Act, act in accordance with the abovementioned plans.
The Tribunal agrees with the respondent's submission that whilst the objectives in s.3(1) and those of s.6 of the FA Act must be pursued, it does not require them to be achieved. The language of these sections indicates that that is so, as it must be bearing in mind that there may be, from time to time, factual situations in a particular fishery which will not permit, at a particular point in time, the actual achievement of one or more of the relevant objectives. The Tribunal is also mindful that in the making of a particular decision, varying degrees of weight and emphasis may be given to a particular objective and that there will be decisions made by the respondent from time to time (and by this Tribunal in the shoes of the respondent on review), where one or more of the statutory objectives are irrelevant because of the nature of the particular decision (Australian Fisheries Management Authority v. PW Adams Pty Ltd 134 ALR 51 at 71).
The particular decisions under review in these proceedings relate, in each instance, to refusing the grant of a permit to catch skipjack tuna by the purse seine method in the respective fisheries. The fisheries in question had previously been closed and the policy in place at the time of decision making was that no more permits were to be issued unless cogent reasons were established.
The decision maker applied the "limited access policy" (as the respondent termed it but which the applicant called the "no new permits policy") in refusing the permits. The first question then arises as to whether, in the performance of the function of refusing the permits, was the respondent obliged to pursue the objectives (or any of them) outlined in s.3 of the Act and s.6 of the FA Act? The obligation in question only comes into existence if any of the objectives are relevant. If they, or any of them are relevant, then the decision must be one which is made in pursuit thereof. The abovementioned obligation is similarly upon this Tribunal in the making of the correct or preferable s.32 decisions in this matter.
The Tribunal would indicate that whilst the Tribunal has adopted the term "limited access policy" to describe the respondent's policy which was in place as at the dates upon which the decisions, the subject of this review, were made, in lieu of the term used by the applicant to describe the policy, namely, "no new permits policy", the name of the policy is of no moment and the abovementioned adoption is for convenience purposes only.
The limited access policy was developed over a period of time and is outlined in paragraph 6 of the respondent's Statement of Issues (Exhibit R19). The steps taken by the respondent in the development of its policy led ultimately to the closure of the fisheries in question with, relevantly, no further permits to be issued for the taking of skipjack tuna by the purse seine method, unless cogent reasons were shown.
The Tribunal would indicate that it is mindful of the thorough consideration by Drummond J in Bannister Quest Pty Ltd v Australian Fisheries Management Authority (1997) 77 FCR 503 regarding a number of the objectives in s.3 of the Act. Drummond J had recourse to the relevant Second Reading Speech of the then Minister regarding the objectives of fisheries management as identified in a policy statement entitled "New Directions for Commonwealth Fisheries Management in the 1990's". His Honour was of the view that this policy statement "is of the first importance as an aid to the proper understanding of both the FA Act and the FM Act and, in particular, to the interpretation of s.6 of the former and s.3 of the latter Act" (p 515). After identifying the true meaning to be given to s.3(1)(c) and s.3(1)(d) of the Act, Drummond J moved to the proper construction to be given to s.3(1)(b) of the Act regarding ecologically sustainable development. His Honour said (at p 525)
"What the legislature sought to achieve by charging AFMA with the duty to pursue this particular objective emerges quite clearly from the Minister's Second Reading Speech and the "New Directions" policy statement. I have set out above a portion of the Minister's speech in which he stated that the legislation would give effect "to the three objectives of fisheries management identified in the policy statement", the first of which was:
·to ensure that fisheries resources are not over-exploited and that any exploitation is at a level which can be sustained while maintaining the surrounding environment.
As I have also mentioned, the "New Directions" policy statement identifies the first of the three "overriding objectives" to which it refers as: "To ensure the conservation of fisheries resources and the environment which sustains those resources." The Minister's paraphrase of this objective reflects its limited scope. The concern is limited to ensuring the biological sustainability of fish stocks and the preservation of the marine environment upon which those fish stocks depend. The Minister made the following further comment on the first objective:
"The first of these objectives concerns the conservation of the resource, and more generally, the conservation of the marine environment. The Government regards the protection of fisheries from over-exploitation as a matter of the utmost importance … Put simply, the Government believes it has a duty to the community to ensure that the nation's resources are protected and preserved so that future generations can continue to benefit from them."
A reading of the policy statement shows that statutory objective 3(1)(b) is confined to achieving these same limited aims. See, for example, the references in the Summary to the objectives being concerned with creating a stable biological environment, to the first of the three objectives being to "sustain fish stocks", to it being imperative "that the Government ensures the sustainability of existing and developing fisheries", to references to the first objective being "the biological" objective and to the following statement (Summary, p xiii):
"Environmental protection
The marine environment is a valuable resource and the Government fully accepts its responsibility to conserve and protect that environment.
A good part of the protection of the environment will be achieved if the management objectives outlined in this statement are achieved. These objectives will ensure biological sustainability of the resource."
In the body of the policy statement, there are many similar references. For example, in the section dealing with "Fundamental Principles of Fisheries Management", the first of the "key principles and management methods" summarised is (p 15):
"Fisheries are renewable biological resources which, if properly managed, can provide a continuing flow of product and income for an indefinite period.
An understanding of the size, distribution and population dynamics of the species exploited is essential for effective management of any fishery."
The statement goes on (p 16):
"Worldwide experience has demonstrated that unregulated fishing generally results in two problems:
·over-fishing, which reduces future fish production and which, if allowed to continue, reduces fish stocks to levels from which recovery is not possible; and
·over-capitalisation (significantly more capital and labour employed in harvesting fish stocks than are needed to do so efficiently), which wastes valuable resources.
The problems occur because of the lack of appropriate property rights to fisheries resources. This leads to economically inefficient exploitation. Unless action is taken, fisheries invariably become over-capitalised and, with increasing frequency, are biologically over-exploited.
To secure the long term viability of commercial fisheries management controls are needed. The objectives of these controls should be:
·to ensure the biological sustainability of the resource – that is, to ensure that current exploitation of the resource and human activities affecting the environment which sustains the resource do not endanger the future productivity of the resource;
·to maximise economic efficiency in the exploitation of the resource; and
·to ensure that the community receives an appropriate return from individual fishermen exploiting a community resource for private gain."
In the section of the statement dealing with "Fisheries and the Environment", in the summary headed "key interactions", the first element is: "Fisheries are part of a complex marine ecosystem and the Government recognises its responsibilities for conserving and protecting the marine environment."
Section 3(1)(b), on its true construction, requires AFMA, in pursuing this objective in the performance of its functions, to limit its consideration to matters that relate to two things, ensuring the biological sustainability of fish stocks and ensuring the protection of the marine environment upon which those fish resources depend." (emphasis added)
It goes without saying that the pursuit of the s.3(1)(b) objective is, as termed above by the Minister, of the utmost importance. Ensuring the biological sustainability of fish stocks and ensuring the protection of the marine environment upon which those fish resources depend is, in the opinion of the Tribunal, paramount.
The question in these proceedings arises as to whether the refusal pursuant to s.32 of the Act of any further permits to take skipjack tuna in the subject fisheries by the purse seine method, unless cogent reasons exist, is pursuing the objective of ensuring the biological sustainability of the fish stocks in those fisheries or any of them.
On the evidence before the Tribunal and having regard to the Tribunal's views regarding that evidence, the question must be answered in the affirmative. There was a great deal of evidence, both oral and written, placed before the Tribunal relevant to the biological sustainability of the fish stocks in the respective fisheries. The evidence in this regard which the Tribunal found most persuasive was that which emanated from Dr Young. He was a most impressive witness. He was by far and away the most qualified to give evidence regarding the biological sustainability of the relevant fish stocks as illustrated by his extensive curriculum vitae. His credentials were impeccable. In the giving of his evidence he was objective and well reasoned. The Tribunal has no hesitation in accepting his evidence (and rejecting that which might be said to be at variance) and, in particular, the relevance of the following regarding the subject fisheries.
1.The scientific information relating to the biological characteristic of skipjack tuna stocks in each of the respective fisheries is uncertain.
2.The capacity to place limits on the number of permits to fish in specified fisheries is perhaps the most fundamental measure in the capacity of fisheries managers (such as the respondent) to restrict fishing effort and thereby produce economically and biologically optimum results from the fishery and to prevent overfishing.
3.The subject fisheries are developing fisheries which present a difficult challenge to the respondent which has little or no knowledge of the size of skipjack tuna stocks or their productivity nor, with any exactitude, the catching capacity of individual boats permitted to operate in the fisheries. This situation is exacerbated when the catching method is by means of the extraordinarily efficient purse seine net where boats can target schools of fish, and have the capacity of catching almost entire schools of fish at the one time.
4.In relation to the fisheries, the subject of these proceedings, the respondent decided to allow a set of fishing operators to be permitted to fish, however, because of the existence of past fishing, the number of boats to be allowed was decided by historical accident (the number of licences with a fishing history) and this would not be the preferred way of determining the number of initial permits in a new or developing fishery that had no history of prior fishing. In total, thirty two permits were issued for the subject fisheries.
5.There are a number of scientific uncertainties in the fisheries namely
(a)Skipjack tuna have a circum-equatorial distribution with populations in both the Indian and Pacific oceans. The extent to which these tuna (which come to be in the subject fisheries) are isolated from other regional populations of the same species and the degree of isolation between these populations is not known for either the Indian or Pacific Ocean. If there is a degree of isolation then a sharp increase in fishing effort on the stocks in the subject fisheries could cause local depletions.
(b)The current level of exploitation of the skipjack tuna populations in the respective fisheries is not known. Catch rates are known for these fisheries but what proportion this represents of the standing stocks is unclear. Although catch figures from other nations appear to be available, the lack of knowledge about stock mixing prevents estimation of catch as a proportion of available stock.
(c)The fishing mortality produced by the current level of fishing in the subject fisheries is unknown, as is the increased level that might be expected if all fishing permits were fully activated and the stock/recruitment relationships for skipjack tuna are also unknown.
(d)Developing fisheries such as the fisheries in question need an information system that enables the respondent to assess the condition of the skipjack tuna stocks even in the absence of sophisticated analysis. Such a system at present does not exist.
6.In the absence of more detailed management arrangements being actually in place in the subject fisheries, the restriction on the number of permits to take skipjack tuna by the purse seine method represents the only restraint on an increase in the numbers of fish taken and hence an impediment to increasing the risk of unsustainable development of the fish stocks, bearing in mind that risk cannot be denied if the necessary meaningful scientific knowledge as to the status of the stock is absent. Similarly, this restraint must also be viewed in the context of the number of permitholders already in existence whose maximum potential regarding fishing effort is unknown.
7.The Tribunal is firmly of the view that extending the number of permits at this uncertain stage of each of the fisheries' existence may run counter to ensuring the biological sustainability of their respective skipjack tuna fish stocks. It follows that the limited access policy, i.e. the non-issuing of extra permits unless for cogent reasons, does pursue the objective in s.3(1)(b) of the Act and s.6(b) of the FA Act of ensuring that the exploitation of fisheries' resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development.

The Tribunal now turns to a consideration of whether the "limited access policy" pursues the objective in s.3(1)(b) of the Act and s.6(b) of the FA Act of ensuring that the exploitation of the subject fisheries and the carrying on of any related activities are conducted in a manner consistent with the exercise of the precautionary principle. The meaning of "precautionary principle" is to be found in s.4 of the Act which states
"precautionary principle has the same meaning as in clause 3.5.1 of the Intergovernmental Agreement on the Environment, a copy of which is set out in the Schedule to the National Environment Protection Council Act 1994."

The relevant Schedule defines "precautionary principle" as follows

"3.5.1 precautionary principle –
Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
In the application of the precautionary principle, public and private decisions should be guided by:
(i)careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and
(ii)an assessment of the risk-weighted consequences of various options."

The Tribunal is mindful when considering this issue that the precautionary principle comes into play "where there are threats of serious or irreversible environmental damage". Whilst the evidence before the Tribunal does not establish that that is the case, what it does establish, in accordance with the accepted evidence of Dr Young, is that whilst the necessary scientific evidence as to the state of the fish stocks in the fisheries remains, to say the least uncertain, there is, accordingly, a risk of serious environmental damage. The non issuing of further permits in any of the subject fisheries is, in the opinion of the Tribunal, for the reasons given by Dr Young, a step towards achieving the above objective – in other words, it is a step which pursues that objective, and the Tribunal so finds. At the very least, it cannot be said to be inconsistent with pursuing that objective. And so the Tribunal finds that the "limited access" policy, and in particular the refusal by the applicant of the permits in this case pursuant to s.32 of the Act, was a lawful pursuit of the s.3(1)(b) objective of the Act and its companion s.6(b) objective of the FA Act.

What then of the other objectives? As mentioned earlier in these reasons, there may be, from time to time, situations which emerge whereby one or more of the other objectives are irrelevant. That, of course, depends upon the circumstances of the particular case. Where the relevant circumstances of a particular fishery are well known, then it may be that each and every objective must be pursued. Here we have, however, developing fisheries where the relevant knowledge is not in place. The pursuit of the s.3(1)(b) and the corresponding s.6(b) objectives in relation to the refusal to issue the relevant permits is, in the opinion of the Tribunal, paramount and transcends the pursuit of the other objectives. Whatever relevance the refusal to grant the permits sought by the applicant may have to the pursuit of the other objectives, the s.3(1)(b) and s.6(b) objectives must, of necessity, outweigh the others, or any of them. It cannot in any event be said on the evidence before the Tribunal that the pursuit of the s.3(1)(b) and companion s.6 objectives has been shown to be inconsistent with pursuing any of the other objectives and it cannot be said that in refusing to issue the subject permits which does pursue the s.3(1)(b) and s.6(b) objectives, that that course of action does not have regard to the objectives in s.3(2) of the Act. It clearly does and the Tribunal so finds.

The Tribunal now turns to a consideration of the requirement in s.16(1) of the Act for the respondent (and this Tribunal on review) to "act in accordance with its corporate plan and its current annual operational plan". The Tribunal has given consideration to the corporate and operational plans placed before the Tribunal, (Exhibit R24), together with the parties' submissions (Exhibits A10, A11, R22 and R23). The Tribunal is of the view that the relevant plans for the purpose of these proceedings are those in force at the time the Tribunal makes its decision, namely, the corporate plan for 2000-2005 and the annual operational plan for 2000-2001. The parties have also placed before the Tribunal the respondent's corporate plan for 1997-2002 and operational plan for 1998-1999. The Tribunal would indicate that it has given consideration to all plans in case it be said that the latter and not the former are the relevant ones. The above were provided in response to the Tribunal's request to do so after it had reserved its decision in this matter. It is apparent on the face of all of the plans from a plain reading of them, that they all adopt the statutory objectives of s.3(1) of the Act and s.6 of the FA Act as clearly they must do, and the Tribunal so finds. As the applicant correctly submitted, the plans could not attempt to achieve objectives at variance with the statutory objectives of the Act. On the Tribunal's reading of the plans they clearly do not do so. To the contrary, the plans are consistent with pursuing the abovementioned statutory objectives, and the Tribunal so finds. As the Tribunal is of the view that the refusal to grant the subject permits is a pursuit of the objectives of s.3(1)(b) of the Act and s.6(b) of the FA Act, it follows that the refusal falls to be described as acting in accordance with the respondent's corporate plan (2000-2005) and its current annual operational plan (2000-2001) and the other plans if they are said to be relevant.
Having determined that the refusal to issue the subject permits is a lawful application of policy in conformity with pursuing the s.3(1)(b) and companion s.6(b) objectives, that it had regard to the s.3(2) objectives of the Act, and that it complied with the provisions of s.16(1) of the Act, the Tribunal now turns to whether there are cogent reasons for departing from the policy and exercising the discretion in s.32 of the Act in favour of granting the permits, or any of them, having regard to the particular circumstances of the case.
Having regard to all that has been put to the Tribunal in the above regard, including the submissions of the parties, the Tribunal is firmly of the view that there are no cogent reasons which would enable a favourable exercise of the s.32 discretion having regard to the circumstances of this particular case. The reason for being of this opinion is simply that to do so would fly in the face of pursuing the s.3(1)(b) and s.6(b) objectives and would not have regard to the s.3(2) objectives nor comply with s16(1) of the Act. To grant the additional permits sought, or any of them, would be tantamount to equating the cogent reasons proffered by the applicant to a pursuit of the s.3(1)(b) and s.6(b) objectives and to having regard to the s.3(2) objectives. This cannot be so for the reasons already given. The Tribunal's considered opinion is that cogent reasons cannot prevail over the pursuit of the s.3(1)(b) and companion s.6(b) objectives in circumstances where they are paramount. It would be quite unlawful in the opinion of the Tribunal.
Accordingly, the decision of the Tribunal is that the decisions under review are affirmed. Liberty to apply.
Before concluding, the Tribunal would take this opportunity of making the following comments. The Tribunal would encourage the respondent in the future to pay heed to the opinions of Dr Young regarding the steps which need to be taken to establish a fishery. In that regard the necessary research is of the utmost importance. That has not been the case in relation to the fisheries, the subject of these proceedings. It is in the interests of all involved in the fishing industry, and particularly the public interest, that the necessary research is done at the earliest point of time in a developing fishery. The fisheries in question were closed and permits granted having regard to catch histories and commitment. Mr Gobin (of the applicant company) who did not apply initially, has the necessary experience, skills and suitable boat, and wished to utilize the time he had when not fishing for bluefin tuna to take skipjack tuna by the purse seine method in the subject fisheries. He is aware that many of the relevant permit holders have from time to time not utilized their permits at all for the taking of skipjack tuna. From Mr Gobin's standpoint it is understandable that he considered that the permits sought should be granted. However, the duty of the Tribunal is, and must be, always to apply the law. The Tribunal would indicate that if after the necessary knowledge of these fisheries is obtained, and if it be established that in accordance with pursuing the relevant statutory objectives there needs to be other permits granted, then the opportunity be offered to Mr Gobin and candidates of his calibre to apply for such permits.
Finally, the Tribunal would add that if Dr Young's opinions about the importance of early relevant research are taken up by the respondent in relation to potential fisheries, then it will go a long way to minimizing the need in the future for cases of this nature.

I certify that the 93 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President B.H. Burns
Signed:         ............(Signed)….........................
   DM Walkley (Personal Assistant)
Date/s of Hearing  30 November 1999, 1-2 December 1999, 30-31 March 2000, 19-20 April 2000, 18 July 2000 and 22 August 2000

Date of Decision  30 March 2001
Counsel for the Applicant        Mr Heywood-Smith
Solicitor for the Applicant         Coates PL
Counsel for the Respondent    Mr Cole at first instance and later Ms Mortimer
Solicitor for the Respondent    Ladbray Consortium