Blank and Australian Fisheries Management Authority - [2000] AATA 1027

DECISION AND REASONS FOR DECISION [2000] AATA 1027

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/1200

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ARNO BLANK
  Applicant
           And    AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY (AFMA)
  Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date15 November 2000
PlaceHobart

Decision      The decision under review is affirmed.
  [Sgd B W Davis]
  Part-Time Member
CATCHWORDS
Primary Industry – fisheries – scallops – Bass Strait – Central Zone – closure – request for opening – scallop beds – spawning – depletion – bycatch – economic efficiency – ecologically sustainable development (ESD) – precautionary principle.
Legislation: Commonwealth
Fisheries Management Act 1991 – ss.3, 32(1) and 165
Fisheries Administration Act 1992
Environment Protection and Biodiversity Conservation Act 1999
Fisheries Legislation Amendment Act 1997
Administrative Decisions (Judicial Review) Act 1977
National Environment Protection Act 1994 – Schedule 1, Clause 3.5.1

Authorities:
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Dixon v Australian Fisheries Management Authority and Executive Director of Fisheries WA; Northern Territory of Australia ( June 2000) AATA 442.
Bannister Quest Pty Ltd v AFMA (1997) 77 FCR 503

REASONS FOR DECISION

15 November 2000 Associate Professor B W Davis AM (Part-time Member)

The Application

The applicant, Arno Blank, sought review of a decision made by a delegate of the respondent the, Australian Fisheries Management Authority (AFMA), pursuant to s.165 of the Fisheries Management Act 1991 ("the Act"), to grant a fishing permit to Delmark Holdings Pty Ltd ("Delmark") that does not entitle Delmark to fish in an area of Bass Strait waters known as "Area X" (see attached diagram, Appendix 1).
Background
The decision of AFMA's delegate made under s.165 of the Act, dated 3 October 2000, was to confirm the primary decisions of another AFMA delegate, made under s.32 of the Act on 8 September 2000, to grant to Delmark a fishing permit entitling it to fish in the Bass Strait Central Zone Scallop Fishery (the Central Zone) except for that part of the fishery known as "Area X".
The Central Zone Fishery is subject to Offshore Constitutional Settlement (OCS) arrangements between the Commonwealth, Victorian and Tasmanian Governments. The fishery encompasses an area from the Victorian – South Australia border through central Bass Strait to the Victorian – New South Wales border, generally 20 nautical miles off the Victorian and Tasmanian coastlines. Victoria and Tasmania retain jurisdiction over scallop fisheries generally within 20 nautical miles of their respective coastlines. "Area X" is an area of waters to the east and adjacent to Flinders Island.
The Central Zone Fishery has traditionally been a winter fishery and in the 1990's, when open, was generally open from 1 June until late December each year. In March 1999 the AFMA Board decided to close the fishery for the remainder of 1999, with the intention the closure be reviewed in 2000. In response to a letter from the applicant, AFMA's then Acting General Manager, Fisheries, wrote to the applicant on 9 April 1999, explaining reasons for the Board's decision. In essence both catch and catch rates had fallen significantly between 1994 and 1998 and there was concern further fishing activity would destroy breeding stock and seriously reduce the chances for long term recovery of the fishery.
AFMA also drew attention to its statutory obligation under s.3 of the Act to ensure that exploitation of fisheries resources and any related activities are conducted in a manner consistent with the principles of ecologically sustainable development (ESD) and exercise the precautionary principle. The latter requires that where there are threats of serious or irreversible environmental damage, there is need for an assessment of the risk-weighted consequences of various options and a cautionary and preventative approach, relaxed only if subsequent research demonstrates that safeguards are no longer required. The precautionary principle is enshrined in a number of pieces of legislation, including the Fisheries Legislation Amendment Act 1997. (Schedule 2 re AFMA Act 1991, s.3(1)(6)).
In February 2000 the Bass Strait Scallop Consultative Committee (BSSCC) recommended that a scientific survey be undertaken in Area X, which was regarded as prospective. The survey was intended to determine the density and total biomass of scallops available, give an indication of potential yield, size composition and the nature and levels of any bycatch. The survey team were not required to report upon whether any scallops found should be harvested.
The survey was conducted in June 2000 and the draft report dated 30 June 2000 was considered by the BSSCC at its meetings on 5 July and 12 July 2000. Mr. Blank tabled a document setting out 'preliminary comments by the Victorian Ocean Scallops Association' on the scientific survey at the 5 July 2000 meeting. The survey had found a total estimated biomass of 480 tonnes, highly likely to be less than 800 tonnes, the scallops were in good condition, but there was evidence recruitment had been low in recent years and very little bycatch was recorded.
Although a majority of the BSSCC favoured recommending the entire fishery be opened to commercial fishing, the AFMA Board at its meeting on 26 July 2000 decided, amongst other things, that Area X should remain closed while a trial commercial fishing operation was permitted in the remainder of the Central Zone for a three month period with catch limits per month and per permit. The Board agreed that the BSSCC should review catch data under agreed criteria, if substantial beds of scallops were found and verified by independent observers. The AFMA Board noted that the BSSCC recommendation had been made largely on economic grounds but if Area X was opened, the surveyed low biomass would not sustain fishing activity for an extended period of time.
As a result of this decision permits for the Central Zone fishery, excluding Area X were issued, including permit number 26293 granted to Delmark Holdings Pty Ltd on 8 September 2000. On 6 October 2000 Delmark applied to AFMA for approval to transfer permit 26293 to Mr. Blank and, on 11 October 2000, AFMA granted permit number 26293 for the Central Zone Fishery to Mr. Blank.
By virtue of motion dated 15 September 2000, to which was appended an application for an order to review pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977, the applicant sought orders from the Federal Court of Australia that "holders of a fishing permit for the trawling and dredging of scallops be permitted to fish in Area X within the Central Zone fishery." Affidavits dated 18 September 2000 and 19 September 2000 respectively were filed in support of the applicant's application by the applicant and Dr. David Gwyther, an environmental consultant. A further affidavit dated 25 September 2000 was field by the applicant.
In response to the applicant's Federal Court application AFMA caused affidavits to be filed on 22 September 2000 by Thomas James Kim Parkinson, Senior Fisheries Manager and Dr. Peter Young, a marine scientist and former chief of CSIRO's Division of Fisheries.
Following a directions hearing in the Federal Court matter Number V709 of 2000 on 26 September 2000, at which the orders sought by the applicant were not made, the applicant's solicitors wrote to AFMA and requested on behalf of Delmark and the applicant that AFMA reconsider the decision made by its delegate to grant a fishing permit to Delmark that does not entitle Delmark to fish in Area X.
The review delegate of AFMA who was to reconsider the original decision made on 8 September 2000 also considered the Notice of Motion and application for an order or review made in the Federal Court and also an exchange of letters between Mr. Duncan Leadbetter, Chairperson of the BSSCC and the Acting Chairman of the AFMA Board, Mr. Stuart Richey, at the time when opening or closure of Area X was being decided. The review delegate made his decision on 3 October, reaffirming the initial decision but also noting that the survey results for Area X indicated a low estimated biomass which would limit opportunities for commercial fishing in the area.
A copy of the review decision was forwarded to the applicant's solicitors on 4 October 2000. Copies of the final report in relation to the scientific survey were received by AFMA on 5 October 2000 and two of the survey team Dr. Jayson Semmens and Dr. Malcolm Haddon submitted a document entitled "Reply to the preliminary comments by the Victorian Ocean Scallops Association", refuting claims in the latter and explaining how the survey was conducted and what it demonstrated.
The applicant, Arno Blank, filed an application for review of the AFMA decision with the AAT on 5 October 2000, claiming the decision was wrong and Area X should be opened to fishing.
Facts and Contentions
While both parties were agreed about many of the facts in the case, their contentions differed markedly. The applicant contended that the decline in catch rates was symptomatic of "boom and bust" conditions which prevail in the scallop industry and there was an abundance of juvenile scallops in other areas of Bass Strait. Closure of Area X was based upon the unknown prospect of future recruitment, as opposed to a commercial catch which would meet all the harvest criteria. The applicant claimed that AFMA's policy was wrong, being based upon erroneous scientific opinion.
The respondent contended that the BSSCC's advice had been noted, but heavy decline in catch levels across the entire fishery meant that sustainability of stocks was of primary concern. AFMA was obliged to pursue its statutory obligations to attempt to achieve ecologically sustainable development (ESD) and application of the precautionary principle. In pursuing economic efficiency objectives it must have regard to the long term benefit of the industry as a whole and not with the profitability of any individual operator or operators. Failure to identify other scallop beds during the commercial survey and low level recruitment into Area X were was of major concern. Area X should therefore remain closed.
AFMA contended that the Tribunal should not depart from carefully developed policy unless there were cogent reasons for doing so.
Evidence
At the Tribunal hearing the applicant was represented by Mr. J. Ribbands, and the respondent by Mr. Peter Hanks SC.
The applicant, Arno Blank, is a professional scallop fisherman with more than two decades experience in the industry. He is a member of the Bass Strait Scallop Consultative Committee and has also chaired the Victorian Ocean Scallops Association. He appeared a credible witness.
The principal evidence advanced in his evidence-in-chief was that Area X needed to be fished now for commercial reasons, because the scallops were mature and would die if not harvested this year. He rejected claims harvesting might endanger the fishery, noting that despite fluctuations in scallop availability year to year, the industry continued and harvesting could occur regularly every 3-4 years, fears of the "last scallop bed" being unfounded. He cited personal knowledge of juvenile scallops in the Lakes Entrance area of Victorian waters and further juvenile beds in a triangular area of Bass Strait north-east of Deal Island as evidence of regeneration. He admitted nobody involved in the scallop industry was sure how spawning in one area might affect spat availability and settlement in that area or elsewhere or what ultimate yield of scallops might result. There were a range of uncertainties and "boom and bust" situations were characteristic of the industry.
Under cross-examination he refuted a suggestion the small biomass identified in Area X during the scientific survey meant harvesting should not occur. He considered the survey flawed and claimed that despite adverse weather conditions it was easy to obtain 103 bags when permitted to operate for survey cost recovery in the region. He claimed that current closure of the Tasmanian scallop fishery was more a reflection of compliance problems and illegal fishing than the general availability of scallops.
Dr. David Gwyther, a senior environmental consultant then gave evidence on behalf of the applicant. He reinforced the point that scallop availability fluctuated year to year, but stated that Area X met the criteria for harvesting scallops and in his view this should now occur. He did not agree with some of the views of Dr. Peter Young as consultant to the respondent. Studies that he (Dr. Gwyther) had conducted in Port Phillip Bay indicated a mortality rate on average of 40 per cent per year, but with a possible range of 11-55 per cent, if scallops were left unharvested when mature. He argued that if Area X was harvested, the Bass Strait Fishery would still remain productive for years to come. He admitted it was impossible, as yet, to say precisely when and where spawning might occur, what spat settlement might occur, what production might result, nonetheless the fishery continued to survive, albeit on a "boom and bust" basis.

Dr. Peter Young, a senior marine scientist and former chief of CSIRO's division of fisheries then gave evidence as consultant to the respondent. Dr. Young explained why the precautionary principle must be invoked and how it should be applied in the present instance, arguing that the scientific survey reinforced a substantiated body of evidence that the Bass Strait scallop fishery was in trouble and that preservation of minimum spawning stocks within each region must be fostered. He was concerned that if Area X was harvested it would eliminate the only proven source of mature scallops likely to produce larvae this year, or indeed for another two years, even if recruitment was achieved from this year's spawning. Because of this and other stated reasons, Area X should remain closed.

Under cross-examination he admitted there was no guarantee successful spawning would occur if the mature scallops were retained, but argued there was a higher probability of spawning in the November - December period than the earlier period of August – September – October. He was dealing with a "balance of probabilities" and argued AFMA should adopt the least damaging option, with the onus of proof lying on those who might wish to disturb the arrangement.

The respondent had intended to call Dr Jayson Semmens, field organiser and author of the final report on the scientific survey carried out in Area X in June 2000. Dr. Semmens was on a vessel in New Zealand waters and attempts to contact him during the Tribunal hearing failed. In substitution the respondent called Associate Professor Malcolm Haddon who had helped design the survey and analyse the results, but had not been present during field operations. In telephone conference a number of questions were put to Associate Professor Haddon and he referred to a document titled "Answers by Dr. Jayson M. Semmens to Questions Relating to His Scallop Survey" submitted by the respondent.

Both Dr. Semmens and Associate Professor Haddon defended the methodology and conduct of the scientific survey, noting that the final report demonstrated a low biomass of commercial scallops in Area X, with an apparent lack of recruitment in recent years. Less than one per cent of scallops found were less than 80mm shell width, with a size frequency suggesting the majority were in the three years plus age group. When asked to express a personal opinion about the implications Associate Professor Haddon (and Dr. Semmens in his document) stated because of critically low stocks in the Central Zone Scallop Fishery and to aid spawning, Area X should remain closed. No new scallop beds had been discovered during the commercial survey and he doubted that high mortality would result if the scallops in Area X were left unharvested for a further year. This prospect had to be weighed against potential loss of spawning if the scallops were harvested now.

Under cross-examination he discounted the idea production was "cyclic", juvenile beds often had high mortality rates and the entire fishery was now at risk, with very few beds available. The future of the industry must be considered above potential short-term gain.

Thomas James Kim Parkinson, Senior Fisheries Manager of AFMA, was then sworn and gave evidence using affidavits and a number of reports and documents to illustrate points made. He demonstrated the sharp decline in catch and catch rates since 1993, pointing out the need for structural reform within the industry, its "boom and bust" record and the dangers it now faced in terms of low stock availability and uncertainties about recruitment. He emphasised AFMA must pursue its statutory objectives of ESD and the precautionary principle, reinforced by the need to meet provisions of the new Environment Protection and Biodiversity Conservation Act (EPBC) which entered into force in July 2000. He quoted a range of statistics, illustrating decline in biomass and argued that failure to protect existing scallop beds might preclude the possibility of stock recovery in the Bass Strait region.

Counsel for the applicant cross-examined Mr. Parkinson on a range of matters, questioning whether the AFMA Board had appropriate scientific expertise, whether the decision made on 26 September to leave Area X closed adequately took into account scientific evidence, and whether it was feasible to open Area X if so-called pulse or paddock (rotational) fishing was adopted.

Mr. Parkinson responded that several members of the AFMA Board possessed scientific qualifications, the Board was well aware of BSSCC views and initial results of the scientific survey prior to decision-making about Area X, as the Board minutes of 26 July made clear. He questioned the feasibility and desirability of pulse or paddock fishing, but indicated AFMA had considered such options, as well as trip limit and catch limit possibilities. Issues of equity and economic efficiency arose, as much as stock assessment and allocation.

Mr. Parkinson noted that pulse fishing involved building stocks up, then harvesting to near depletion and awaiting regeneration. The timing was unpredictable and did not constitute a sound basis for ecologically sustainable development of the fishery. Paddock fishing or rotational fishing was based upon an assumption fishermen would leave juvenile and semi-mature beds while harvesting elsewhere and come back when the scallops were mature. While some fishermen might pursue this practice, it was not borne out by catch data, which showed that as soon as mature beds were located they were harvested and depleted. Rapid decline in stocks did not suggest restraint was being exercised. Imposing trip limits would not be equitable, as vessels varied in size, duration, and capacity.

Mr. Parkinson also pointed out that AFMA was preparing a Management Plan for the Central Zone Scallop Fishery, but this would now have to accredited under the Commonwealth's Environmental Protection and Biodiversity Conservation Act 1999, ("the EPBC Act 1999") which came into effect in July 2000. Several key principles would have to met. The first is that a fishery must be conducted in a manner that does not lead to overfishing. The second key principle is that, for stocks which are overfished, the fishery must be conducted such that there is a high probability the stocks will recover. The third key principle is that fishing operations should be managed to minimise the impact on the structure, productivity, function and biodiversity of the marine ecosystem.

In concluding evidence, the applicant, Arno Blank, testified that he and others sometimes practised rotational fishing, shifting operations so as to permit time for identified juvenile beds to develop. He saw this as a way of safeguarding stocks for the future. He admitted under cross-examination this might not apply to the industry as a whole; fishing was competitive and not all were interested in maintaining stocks if profit was available.

Legislative and Policy Framework:

Prior to making a determination the Tribunal must be cognisant of the legislative framework and any policies AFMA may have in place, without necessarily being bound by the latter in merits review.

Section 3 of the Australian Fisheries Management Act 1991 ("the Act") sets out the objectives which must be pursued by AFMA in the performance of its functions:

"3. (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)…

(d)maximising economic efficiency in the exploitation of fisheries resources; and

(e)ensuring accountability to the fishing industry and to the Australian community in AFMA's management of fisheries resources; and

(f)achieving government targets in relation to the recovery of the costs of AFMA.

3.(2) In addition to the objectives mentioned in subsection (1), or in section 78 of the Act, the Minister, AFMA and Joint Authorities are to be have regard to the objectives of:

(a)ensuring, through proper conversation and management measures, that the living resources of the AFZ (Australian Fisheries Zone) 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 "precautionary principle" is defined in s.4 of the Act as having 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. Clause 3.5.1 of that schedule reads:
"`Precautionary principle
Where there are threats of serious 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:
Careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and
An assessment of the risk-weighted consequences of various options."
As earlier noted, AFMA is in the process of developing a management plan for the Central Zone Scallop Fishery under s.17 of the Act. A draft was made available to the BSSCC and recommended to the AFMA Board at a meeting in July 2000. Before the process can be completed, the management plan must be assessed under the EPBC Act 1999. In the interim permit allocations are governed by s.32(1) of the Act.

Discussion

In making its determination the Tribunal is faced with a body of facts, but also the necessity to consider risk-weighted options, since whether Area X is opened to fishing or remains closed, a number of uncertainties remain. There is also a timing problem, in that if Area X is to be opened, the decision must be rapidly made late in the season leaving only a few weeks available for harvesting. Yet the Tribunal must weigh the evidence and implications of its decision carefully.
If Area X is opened to fishing there will be a short term commercial gain for a limited number of fishermen (given low biomass), but the certain loss of spawning opportunity and the area is unlikely to recover in less than 3 – 5 years.
If Area X remains closed there will be loss of commercial opportunity in a fishery where structural adjustment is required; no guarantee of spawning success but a strong possibility it will occur and prospective mortality of some mature scallops, but a weight of scientific opinion that many will remain available for harvest next year.
In considering the applicant's case there are three central issues to be addressed, namely:
(i)the availability or non-availability of scallops within Bass Strait and the contention that an abundance of juvenile beds exist, facilitating continuity of the industry in the future;
(ii)a claim that closure of Area X is based upon the unknown prospect of possible spawning, as against the reality that a biomass of mature scallops is available for harvesting; and
(iii)the claim that policy adopted by AFMA is wrong in that it is based upon erroneous scientific opinion and contrary to the legislative objectives of AFMA for an operational fishery.
In giving evidence the applicant took comfort from a view that beds of juvenile scallops had been identified in the Lakes Entrance region of the Victorian fishery and north-east of Deal Island in central Bass Strait. He regarded their existence as evidence that scallops in Area X could now be harvested. The respondent did not dispute that juvenile beds of scallops might exist at some locations in Bass Strait, but none had been discovered near Area X and the location, density and condition of claimed beds had not been independently assessed and verified.
The Tribunal notes there is ample documentary evidence of a serious decline in scallop availability and catch levels in the Central Zone Fishery and Bass Strait generally. Although mature scallops are currently being taken in Victorian waters, catch rates have remained low in recent years. Beds near King Island are depleted or located in hazardous waters, while the Tasmanian fishery is of very low biomass and has been closed for eight of the past twelve years, plus year 2000. The Central Zone Fishery has experienced a heavy decline in catch levels, from 3881 tonnes meat weight in 1983 to an average 750 tonnes meat weight in each of the five years from 1993 to 1997 and 110 tonnes scallop meat weight in 1998, being closed in 1999 (See Exhibit KP-9, provided as Appendix 2 to this report).

In these circumstances and with Area X identified as the only region with mature scallop availability in the Central Zone Fishery, it is the view of the Tribunal that this bed should be given every opportunity to spawn, implying that Area X should remain closed for the remainder of the year 2000 season.
The applicant's second contention is that the certainty of obtaining a commercial return by opening Area X this year outweighs the uncertainty created by hoping for spawning but risking scallop mortality, if the bed remains closed. The Tribunal recognises this risk but it is countered by the reality that if harvesting does occur, opportunities for spawning will definitely be lost. If retained, some mortality may occur, but evidence suggests that there is a good probability at least 60 per cent would be available for harvest next year. The Tribunal also notes that AFMA is required under its legislation to pursue the long-term interests of the fishery as a whole and not protect or enhance the financial position of any given individual or group of operators (see Bannister Quest Pty Ltd v Australian Fisheries Management Authority (1997) FCR 503 at 5.5 and 521).
The applicant's third contention is that the policy adopted by AFMA is wrong in that it is based upon erroneous scientific opinion and contrary to the legislative objectives of AFMA for an operational fishery. The applicant does not indicate why AFMA's scientific opinion is "erroneous", but seeks to juxtapose the advice of its reputable environmental consultant against the individual and collective opinion of the respondent's three scientific advisers and AFMA's Senior Fisheries Manager who is not a scientist but familiar with the scientific information available. Dr. Gwyther, for the applicant, was of a view that the scientific survey in Area X had revealed a scallop biomass which met his harvest criterion and argued his scientific research conducted in Port Phillip Bay indicated mature scallops might well suffer mortality rates around 40 per cent on average, but with other possibilities, if left unharvested for a further year.

Dr. Young, Dr. Semmens and Associate Professor Haddon for the respondent did not discount this possibility, but because the scallops were in good condition and Dr. Gwyther's harvest criteria were rules of thumb, considered there was a strong possibility most of the scallops would remain available for harvest in the future, if Area X remained closed this year. Above all else, they stressed the crucial need to try to obtain recruitment, as the Central Zone Fishery was near collapse and Area X was the single known source from which spawning might occur.

The applicant also claims that the decision made by the AFMA Board on 26 July 2000 to keep Area X closed, was made without appropriate scientific advice and in the face of a majority recommendation of the BSSCC that the fishery should be opened, an opinion shared by the scientific representative on the BSSCC. But this claim is refuted by evidence given by AFMA's Senior Fisheries Manager, Kim Parkinson, and the minutes of the Board meeting itself, that a variety of considerations were addressed, with full recognition of the BSSCC recommendation and initial known results of the scientific survey in Area X. It was particularly stressed by the Board that resource sustainability was its key consideration. The Tribunal believes due process was followed and the Board made its decision having weighed a variety of evidence.

It is further contended by the applicant that at a meeting in November 1999, Mr. Kim Parkinson, Senior Fisheries Manager of AFMA, indicated the Central Zone Fishery would be opened in year 2000 if harvest criteria of 80mm shell size and having spawned twice were met. Mr. Parkinson denies this version of events, arguing that the issue of stock availability was also discussed. There is little point in debating what may or may not have been said, the reality is that decisions about the opening or closure of fisheries are the prerogative of the AFMA Board and the only role for the Tribunal is to determine whether or not due process was followed and an appropriate decision reached on the basis of evidence before it.

The applicant has also challenged adoption of the precautionary principle by AFMA, making a number of claims about its relevance or otherwise in the current case and arguing that it only applies when the long-term sustainability of the marine environment is endangered. The Tribunal rejects this construction, there is a clear legislative requirement for AFMA to adopt a precautionary approach, embodied in both AFMA's own legislation (the Fisheries Management Act) and the new but now operational EPBC Act. The onus of proof is on the operator (the applicant) to show harm is not being caused rather than an AFMA to prove safeguards are essential. (See Dixon v AFMA and Executive Director of Fisheries WA; Northern Territory of Australia June 2000 AATA 442, for detailed exposition on the precautionary principle and its application). AFMA agues that the Tribunal should not overturn carefully developed policy unless there are cogent reasons for doing so (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577). The Tribunal agrees and in this case can find no cause to do so.

To Summarise

(a)Evidence suggests that the Central Zone Scallop Fishery faces severe stock problems, apart from the small quantity of mature scallops in Area X.
(b)The prospect of short-term economic gains from harvesting must be weighed against the longer-term need to ensure sustainability of the industry by scallop recruitment.
(c)The weight of scientific opinion is that spawning opportunities should be maximised i.e. that Area X should remain closed during year 2000.
(d)AFMA is required to take a precautionary approach and seek ecologically sustainable development. It has tried to pursue this path, after taking all relevant information into account.
(e)The applicant has not been able to demonstrate that an alternative decision is clearly preferable.

Decision

The decision under review is affirmed.

I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  31 October, 1 November 2000
Date of Decision  15 November 2000
Counsel for the Applicant        Mr J A Ribbands
Solicitor for the Applicant         T F Grundy & Co
Counsel for the Respondent    Mr Peter Hanks SC
Solicitor for the Respondent    Labray Consortium