Bolding and Australian Fisheries Management Authority
[2001] AATA 235
•23 March 2001
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2001] AATA 235
ADMINISTRATIVE APPEALS TRIBUNAL )
)Nos V2000/563 and 2001/135
GENERAL ADMINISTRATIVE DIVISION ) Re BRIAN STANLEY BOLDING Applicant
And
AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY (AFMA)
Respondent
DECISION
Tribunal Assoc. Prof. B W Davis AM (Part-time Member) Date23 March 2001
PlaceMelbourne
Decision The decisions under review are affirmed.
..............................................
Part-Time Member
CATCHWORDS
Primary Industry – Fisheries – South-East Non-Trawl Fishery (SENTF) – Southern Shark Fishery (SSF) – gillnets – gear and area restrictions – individual transferable quotas (ITQs) – total allowable catch (TAC) – entitlements – economic efficiency – ecologically sustainable development (ECD) – precautionary principle.
Legislation –Commonwealth
Fisheries Management Act 1991 – ss.3, 6, 32(1), 56, 165
Fisheries Administration Act 1992
Fisheries Legislation Amendment Act 1997
Administrative Decisions (Judicial Review) Act 1977
Environment Protection and Biodiversity Conservation Act 1999
National Environmental Protection Act – Schedule 1, Clause 3.51
Authorities:
Bannister Quest v AFMA (1997) 77 FCR 503
AFMA v P W Adams Pty Ltd (1995) 134 ALR 51
Dixon v AFMA and Executive Director of Fisheries WA and Northern Territory of Australia (2000) AATA 442 (5 June 2000)
REASONS FOR DECISION
23 March 2001 Assoc. Prof. B W Davis AM (Part-time Member) The Application
1. The applicant, Brian Stanley Bolding, is a B5 gillnetter professional fisherman who operates in both the South East Non-Trawl Fishery (SENTF) and the Southern Shark Fishery (SSF).
2. The applicant sought review of a decision made by a delegate of the Australian Fisheries Management Authority (AFMA), dated 3 April 2000, to grant him a permit number 25562B, authorising the use of a vessel (the Nina) in the SENTF, carrying 5 gillnets that are 420 metres long by 20 meshes deep, with a total headrope not exceeding 2,100 metres. This decision was made under s.165 of the Fisheries Management Act 1991 (“the Act”) and related to the calendar year 2000.
3. The 3 April 2000 decision affirmed an earlier AFMA decision dated 20 December 1999 to grant the applicant a permit pursuant to s.32 of the Act.
4. In making the decision of 3 April 2000 the reviewing officer applied the respondent’s then existing policy, namely:
(a)the retention of gear restrictions in the SENTF, pending the introduction of Individual Transferable Quotas (ITQ) in the SSF; and
(b)ensuring consistency of conditions relating to gear, area and other restrictions on all permits granted to operators authorised to fish in both the SSF and the SENTF (i.e. dual SSF/SENTF operators).
5. AAT review of application V2000/563 relating to the 3 April 2000 decision was scheduled to take place in Melbourne in late January 2001, but by then the year 2000 permit had lapsed, some policy changes had occurred within AFMA and a new fishing permit had been granted to the applicant for calendar year 2001, but subject to the same gear restrictions as the year 2000 permit.
6. The applicant sought review by AFMA of the year 2001 permit restrictions and indicated to the respondent and the AAT that he reserved the right to file a new application with the AAT unless satisfied with the outcome.
7. A new review application was filed with the AAT on 12 February 2001 (V2001/135) and a joint hearing with V2000/563 was conducted in Melbourne on 13 and 14 February 2001. The applicant conducted his own case, the respondent was represented by Ms Ann Dornau.
Background
The SENTF (South-East Non Trawl Fishery)
8. The SENTF is broadly located in the Australian Fishing Zone, in waters that extend from Fraser Island, Southern Queensland, to the border between Western Australia and South Australia. The Southern Shark Fishery (SSF) and the South East Non-Trawl Fishery (SENTF) are generally located in the same waters. The SSF lies adjacent to the coastal waters of Victoria, Tasmania and South Australia. The principal species taken in the SSF are school and gummy shark and the fishing methods are demersal gillnet and demersal longline.
9. The principal species taken in the SENTF are blue eye trevalla, ling and blue warehou. The methods used for taking these species in the SENTF are all those that take demersal (bottom dwelling) scalefish, other than Danish seine and trawl – including droplines, trotlines, demersal longlines, gillnets, traps and purse seine.
10. Gillnets are a type of net that are set with the bottom of the net anchored to the ocean floor and the top of the net floating in the water column. These kinds of nets are used to target shark (in the SSF) and also to catch a variety of other fish which fall within the description of ‘scalefish’ – blue eye trevalla, ling and blue warehou. Some scalefish are primarily caught by gillnets (such as blue warehou) and some are primarily caught by other methods such as hooks (eg blue eye trevalla) but there is some overlap.
11. The term “B5 gillnetter” was adopted on a basis of the categorisation of fishermen in the SSF according to the number of gillnets they were permitted to use in that fishery under the Southern Shark Fishery Management Plan 1988 (the SSF Plan).
12. SENTF operators are only entitled to use gillnets in the SENTF on the basis of their SSF entitlement. For this reason all SENTF gillnet operators also hold SSF permits. The applicant is one of 39 dual SSF/SENTF operators with gillnet entitlements. At present there are 15 operators with permits authorising them to fish using the hood method in both the SSF and SENTF.
13. From February 1992, the SENTF has been administered by the respondent (AFMA) under the Fisheries Management Act 1991 (the FM Act). Since its inception, AFMA has generally favoured an approach of introducing quota management systems in Commonwealth fisheries, both for reasons associated with pursuit of “ecologically sustainable development” (ESD) and “economic efficiency” expressed in paras 3(1)(b) and 3(1)(c) of the FM Act.
14. Prior to 1 January 1998, the SENTF was managed by AFMA exclusively through a combination of input controls designed to keep catches to sustainable levels through indirect means. These controls included limited entry, area restrictions and gear restrictions. No limits were placed on the quantity of fish that could be taken by any permit holder. Despite these controls, an expansion of catches led to concerns that these restrictions were not proving effective in constraining harvesting capacity. As part of a new management scheme for the fishery, AFMA introduced ITQs for the SENTF key species on 1 January 1998. The introduction of ITQs took place after a great deal of research and consultation, including the commissioning of advisory reports and was, in part, a recognition by AFMA of the failure of input controls adequately to ensure sustainability in the fishery.
15. ITQs were also introduced in respect of 13 additional SENTF species on 1 January 2001.
16. Following the introduction of ITQs in the SENTF in 1998, AFMA consulted in the South East Non Trawl Management Advisory Committee and its predecessor, the South East Non Trawl Consultative Committee (SENTMAC), for advice concerning the revision of input controls in the fishery. Amongst other things, SENTMAC was established pursuant to s.56 of the Fisheries Administration Act 1991 (the FA Act) of provide advice to AFMA in relation to the preparation and operation of a plan of management for the fishery.
17. The AFMA Board accepted SENTMAC’s recommendations that some existing input controls be lifted. These include the removal of area restrictions within the SENTF and the combination of all four hood methods into a single hook entitlement. However, the Board also accepted SENTMACs recommendation that, in pursuit of s.3(1)(b) of FM Act (the ESD objective), existing gillnet restrictions should continue until the SSF came under quota management. The permits of the 15 dual SSF/SENTF hook operators also retained 1,000 or 2,000 hook restriction.
The SSF (The Southern Shark Fishery)
18. At the time these changes to management arrangements were being introduced into the SENTF, management of the SSF was also under review. Since 1988 the SSF had been managed through the use of input controls introduced under the SSF Plan. The SSF was a limited entry fishery controlled by gear restrictions and the non transferability of permits. In June 1997, SharkMAC recommended that ITQs be the future management arrangement for school and gummy shark. This recommendation followed concerns regarding the biomass of school shark raised by the Shark Fishery Assessment Group’s Report dated November 1996. SharkMAC’s recommendation was subject to several preconditions including:
· Completion of Offshore Constitutional Settlement (OCS), arrangements,
· Establishment of an independent allocation advisory panel and,
·The option of continuing some input controls to enhance the harvesting of school of the gummy shark stock.
19. In July 1997 the AFMA Board authorised AFMA management to pursue Individual Transferable Quotas (ITQs) as the basis for future management of the SSF under single Commonwealth jurisdiction.
20. Under OCS Arrangements signed by the relevant States, the SSF will incorporate the waters of Tasmania, South Australia and Victoria and will include previous State licensed operators who had access to school and gummy shark. The OCS Arrangements with South Australia and Tasmania were gazetted on 22 December 2000. The Victorian OCS Arrangement has been signed, and is to be gazetted in early 2001.
21. During December 1998, AFMA held 13 port meetings in Victoria, Tasmania and South Australia to ventilate issues concerning the introduction of quota into the SSF. An independent allocation advisory panel was formed in early 1999 to consult with industry and interested parties and advise on the apportionment and allocation of school and gummy shark. Following receipt of the advisory committee’s report and a catch verification process carried out by AFMA officers, the AFMA Board ultimately decided to introduce ITQs for school and gummy shark in the SSF on 1 January 2001.
22. Following discussions with the Southern Shark Industry Council, the Commonwealth government undertook to carry out a $2.6 million Industry Development Program for the SSF. Accordingly, in July 1999, the Department of Agriculture, Fisheries and Forestry Australia (AFFA) appointed a Working Group to advise on the most appropriate method for the provision of one-off structural assistance to permit holders in the SSF. The purpose of the program is to assist operators to deal with the introduction of ITQs in place of input controls in the SSF. The Working Group consulted with SSF operators and sought feedback concerning options for providing assistance. A buy-out of SSF permits and their associated net/hook units was ultimately proposed. The Working Group recommended that a focus of the buy-out would be to reduce fishing capacity in the fishery.
23. A total of 46 operators have expressed an interest in participating in the buy-out which is expected to be completed in March 2001. At this stage the respondent is not certain that all interested operators will continue with the program nor that the appointed $2.6 million will be adequate to compensate all 46 applicants.
24. At the respondent’s request, SharkMAC has considered changes to existing gear restrictions in the SSF, including gear restrictions on SSF/SENTF gillnetters, since December 1999. Despite considerable discussion concerning the need to revise these gear restrictions in light of AFMA’s legislative objectives, SharkMAC has not been able to reach a consensus on this issue. It did however formulate an interim recommendation that until the fishery had stabilised after the introduction of ITQs there be no more nets or hooks in the SSF than currently in use as at March 2000. In making this recommendation SharkMAC noted that its indecision was caused by the presence of too many unknown factors in the current fishery including the effect of the buy-out program.
25. In August 2000, the AFMA Board agreed that SharkMAC should be advised that, upon the implementation of ITQs in the SSF, it was AFMA’s intention to set a cap for all Commonwealth gillnet operators of a maximum of 4,200 metres of gillnet and to remove the current hook restrictions for dual SSF/SENTF hook operators.
26. After its meeting in October 2000, the Chairman of SharkMac advised the AFMA Board that SharkMAC did not support this proposal as it did not want to increase the amount of net in the fishery above current levels. Further than allowing additional netting into the fishery would be very contrary to the ESD objective. Instead, the Committee recommended the implementation of a whole package transfer system for the first 12 months of ITQ management with a review of gear restrictions during this time.
27. On 8 December 2000, the AFMA Board decided that no change would be made to gear restrictions in the SSF for the first six months of 2001. This decision was arrived at in light of AFMA’s legislative objectives and consultation with AFMA management concerning imminent changes in the fishery following the introduction of ITQs, namely:
(a) trading of licences after 15 years of not being able to transfer permits;
(b)the inclusion of State operators into the fishery once Tasmanian and South Australian OCS Arrangements are finalised;
(c)gillnett and hook operators exiting the fishery as a consequence of the shark buyout program; and
(d)quota allocation results, and the initial trading in quotas at the commencement of the system.
28. The decision also followed receipt of requests from Tasmanian and Victorian fisheries departments that gear restrictions not be removed in the short term.
29. In October 1999, it was estimated that species in the SSF other than school and gummy shark make up 12% of the total annual catch of the fishery. These other species are not under quota management and include saw shark, angel shark, elephant fish and deep water dogfish. Similarly, although ITQs (Individual Transferable Quotas) have been introduced in respect of 16 species in the SENTF, there remain species not protected by quota management.
30. SharkMAC has continually expressed concern that an increase in gear entitlements in the SSF will adversely impact on non quota species due to:
(a)the potential targeting of non quota species by operators with limited shark quota;
(b)the wastage of school and gummy shark as operators with little or no shark quota target non quota species.
31. At present, there is no formal strategy in place by which AFMA can monitor and control the catch of non-quota species. However, there have been recommendations that trigger points equal to the maximum annual historic catch by all sectors of each species be introduced. These trigger points once reached, would initiate a process of detailed assessment of catch and other data by the relevant assessment groups to ascertain any stock implications of the catch levels.
The Reviewable Decision:
32. On 19 October 1999, the applicant co-authored a letter to the Minister for Fisheries, the Honourable Warren Truss. The authors requested that the Minister consider revision of the B5 dual SSF/SENTF gillnetters entitlements, which they claim places them on an anti-competitive footing in the SENTF. Further, that the imposition of net restrictions on their ability to catch their SENTF quota, placed their businesses at a disadvantage concerning economic efficiency. The authors proposed a solution whereby they would be allowed to use 10 nets in the SENTF and be on a shark bycatch of 50kg. When targeting shark they would revert to 5 nets.
33. This letter was answered by the then Chairman of the AFMA Board, Jim McColl on 17 December 1999. Whilst Mr McColl acknowledged the applicant’s frustration at the continuing delays encountered in resolving the gear restriction issue in the SENTF, he did not accept the applicant’s proposal that SENTF operators be allowed to use more gear, while restrictions continue to apply to SSF operators. Mr McColl referred tot he probability that such a proposal would lead to a significant increase in compliance costs in the SENTF and the SSF.
34. On 20 December 1999 the respondent issued the applicant with a fishing permit for SENTF. The permit was effective from 1 January to 30 December 2000 and authorised the use of the boat Nina in the SENTF, using 5 gillnets 420 metres long by 20 meshes deep, with a total length of headrope not exceeding 2,1000 metres.
35. Attachment B of the permit specified the applicant’s entitlement to quota species, being 6,642.30kg of ling, 118.39kg of blue eye trevalla and 17,981.44kg of blue warehou.
36. On 13 January 2000, the applicant requested a review of the delegate’s decision on the basis that he was being restricted to use only 2,100 metres of net whilst other fishermen could use up to 4,200 metres. He asserted this restriction had a devastating effect on his economic efficiency to catch his quota allocation and gave his competitors an advantage to catch and acquire their quota.
37. On 3 April 2000, a delegate of AFMA affirmed the decision of AFMA to grant the applicant a permit authorising the vessel Nina to carry 5 gillnets. The applicant lodged an application with the AAT on 18 May 2000, seeking review of conditions applied to the original decision to grant him a permit. Due to a number of circumstances the AAT hearing was delayed and not scheduled to be heard until early 2001. (V2000/563)
38. On 16 December 2000 the applicant was granted a SENTF permit for 2001. This permit was granted subject to the condition the Nina carry 5 gillnets 420 metres long by 20 meshes deep with a total headrope not exceeding 2,100 metres.
39. The applicant sought reconsideration by AFMA of conditions applied to the 2001 permit. He was informed on 9 February 2001 the considerations would stand and on 12 February 2001 made application to the AAT for review (V2000/135).
Facts and Contentions:
40. Both parties filed brief statements of facts and contentions. The applicant claimed that gear restrictions should be removed from B5 gillnetters, as they were being disadvantaged relative to other operators in the SENTF and SSF. He also claimed that current provisions failed to achieve the sustainable development and economic efficiency objectives of the Fisheries Management Act 1991.
41. The respondent’s principal contention was that policy applied to the applicant was consistent with AFMA’s objectives and designed to avoid the risk of undermining the successful implementation of ITQs in the SSF. Any increase in gear entitlements at this time would lead to a number of long term deleterious effects on the fishery and operators and would not be in accordance with precautionary principle, in particular on non-target species as expressed in s.3(1)(b) of the Act.
Evidence
42. As previously noted, at the Tribunal hearing Mr. Bolding represented himself, the respondent was represented by Ms Ann Dornau.
43. Mr Bolding’s evidence-in-chief was that a combination of policy decisions made by AFMA since 1988 had placed him and other B5 gillnetters operating in the SENTF and SSF at a serious economic disadvantage relative to all other operators, including A10 gillnetters. He sought removal of gear restrictions to create what he called a “level playing field”, arguing that current restrictions prevented achievement of AFMA’s ecologically sustainable development (ESD) and economic efficiency objectives. He was not opposed to some regulation, but sought a situation where it was applicable to all.
44. Pointing to thirty years experience in the fishing industry and service on a number of advisory bodies, he identified some of the problems B5 gillnetters faced:
(a)He argued that the mode by which catch histories were established as prelude to quota allocation had favoured the larger operators. When some quotas had subsequently been cut, B5 operators were disadvantaged and inequitably treated, forcing him to go to the AAT seeking redress (for the outcome see V1998/305, July 1999).
(b)He argued that the period taken by AFMA to introduce ITQ’s and consider gear restriction removal was excessive (some 12 years) and this had caused much uncertainty and economic harm in the industry. He had been waiting four years for gear restrictions on B5 gillnetters to be removed and the matter was still not resolved.
(c)B5 gillnetters had not been permitted to amalgamate and were constrained by rigid gear restrictions, when most other operators in the SENTF and SSF had been granted reprieve from input restrictions.
(d)He considered that representation on advisory committees was supposed to be based on expertise and experience, but the vested interest of large operator’s representatives influenced policy outcomes.
(e)He claimed there were numerous under-the-table quota transfers operating, but AFMA had been unwilling or unable to stop this practice.
45. Mr Bolding asserted that B5 gillnet restrictions should be removed, to the extent that they would be permitted to use 10 nets, like AI0 operators, when fishing in the SENTF. They would revert to 5 nets in the SSF until quotas in that industry were fully resolved. He regarded the two fisheries as separate and distinct, nothwithstanding AFMA’s view they were closely linked.
46. Under cross-examination by the respondent’s representative Ms Dornau, Mr. Bolding claimed his proposal would not have any significant impact on sustainability of the fish biomass. He admitted there might be supplementary bycatch, but regarded this as minor, relative to the impact the south-east trawl fishery was having on fish stocks generally and it was a relatively unregulated industry. He drew attention to the expectation AFMA had created that B5 gillnet gear restrictions would be removed once ITQ’s were established and his dismay to find they would remain until June 2001 at least, with no clarity beyond. He admitted that his claim of low potential bycatch did raise some compliance issues for AFMA, but believed these could be overcome.
47. Mr Bolding then called Mr John Barrett as witness. Mr. Barrett is a highly experienced fisherman operating in the SENTF and was able to confirm some of Mr. Bolding’s claims about frustration caused by policy delay and general conditions in the fishery. Mr. Barrett stressed the operational and financial problems small operators faced relative to larger operators and was clearly concerned about his future prospects in the fishing industry. He strongly supported Mr Bolding’s proposal that B5 operators should be permitted to use 10 gillnets.
48. Mr Bolding sought to question Mr Stuart Ritchie, a director of several fishing enterprises and a member of the Board of AFMA from its inception in February 2001. Mr. Ritchie was in the position of Acting Chairman from February to November 2000. Mr Ritchie’s evidence was given by telephone conference.
49. Mr Bolding questioned Mr Ritchie on a number of matters including the minutes of AFMA and Shark MAC meetings, reasons for delay in removing gear restrictions, the introduction of ITQ’s and AFMA policy generally. Mr. Ritchie responded, but pointed out that he had absented himself from some AFMA deliberations in order to avoid any appearance of conflict of interest when some issues were discussed.
50. In answering Mr Bolding’s questions, Mr Ritchie pointed out that many of the policy delays since 1988 had been caused by difficulties in getting the States to agree with Commonwealth proposals in finalising the Offshore Constitutional Settlement (OCS). There was also the need to consult with a wide diversity of fisheries interests when policy changes were mooted and often the parties were in disagreement. Mr Ritchie rejected Mr Bolding’s assertion that advisory committees were unduly influenced by large scale operators and argued that structural change in the fishing industry was the motive for amalgamations and the transfer of quota allocations.
51. He stated he was not in a position to answer some of Mr Bolding’s queries, either not being personally involved with events at the time or reluctant to make judgments about the actions of others where his personal knowledge was limited. He acknowledged that AFMA’s policies had changed over time, as scientific evidence on the state of the industry had necessitated, but this had occurred only after exhaustive consultation and in circumstances where difficult choices had to be made, ultimately affecting different parties in different ways. He rejected any suggestion particular groups had been favoured or targeted.
52. Mr Ritchie was briefly questioned by Ms Ann Dornau for the respondent, about correspondence from Mr Bolding to AFMA and letters or submissions made by other interested parties. Mr Ritchie stated AFMA took all such correspondence seriously and responded to it, AFMA believed such advice and comment not only reflected viewpoints it should consider, but often contained information of value in policy-making and implementation. As far as he was aware, all Mr Bolding’s queries and concerns had been responded to.
53. Mr Geoffrey Richardson, Senior Manager, Southern Fisheries of AFMA was then called as witness by the respondent. Mr. Richardson has long and diverse fisheries management experience in Australia and overseas. His current role involves the SENTF and SSF fisheries amongst others.
54. Ms Dornau put a number of questions to Mr Richardson concerning policy development by AFMA since 1998, matters relating to the introduction of ITQ’s in the SENTF and SSF, why gillnet restrictions were currently retained, how bycatch issues were being addressed and how AFMA’s statutory objectives were being pursued.
55. Mr Richardson contended that AFMA’s policies were not only intended to safeguard fishstocks to ecologically sustainable levels (the ESD objective), but in pursuing economic efficiency there was a statutory requirement to do so for the industry as a whole, rather than any individual operator. AFMA was also required to adopt the precautionary principle and not make dramatic changes in policy, unless the implications were clearly understood.
56. Mr Richardson then recounted details of the introductions of ITQ’s, the protracted debate about removal of gear restrictions, the wide consultation involved in all of this and AFMA’s response to ongoing correspondence from Mr Bolding. Mr Richardson stressed the close linkage between SENTF and SSF matters and hence the necessity for permit conditions to be consistent and mirror each other for dual SSF/SENTF operators. Although there had been an expectation gear restrictions on gillnetters would be removed once ITQ’s were introduced in the shark fishery, there were concerns about bycatch and no intention to remove such restrictions instantly. After protracted consultation and deliberation it had been agreed that current input controls would be retained in the SSF for the first six months of 2001, during which time a comprehensive review of controls would be conducted, including the scoping of various options and identification of some of the impacts of permit buyouts and the advent of ITQs.
57. In response to Mr Bolding’s proposal that gear restrictions should be modified for B5 gillnetters, to permit them to use 10 gillnets in the SENTF, revert to 5 in the SSF, and have a shark bycatch limit, Mr Richardson said this would pose a series of administrative and compliance difficulties, as well as several bycatch problems and had been firmly rejected by the Board of AFMA. All of these matters would be considered during the review of SSF options during the first half of 2001.
58. Mr Richardson was closely cross-examined by Mr Bolding, particularly in relation to the Southern Shark Fishery (SSF) and bycatch matters. Mr Richardson pointed out that both Shark MAC and relevant State authorities had urged AFMA not to increase gear entitlements without knowing the outcome of structural changes in the fishery currently occurring, including permit buyback arrangements, likely quota transfers now ITQ’s had been adopted and other issues relating to bycatch. Although quota restrictions had been introduced for school and gummy shark there were many other vulnerable species and it would be contrary to the precautionary principle for these to be opened to exploitation without the implications being explored.
59. Mr Richardson also argued that comparisons with the South-East Trawl Fishery (SETF) were misleading. Removal of gear restrictions there had led to increased effort, but with some negative effects on non-quota species and the benthic environment in that fishery. This was indicative of the dangers of rapid changes in gear restrictions without fully assessing the potential impacts on both fishstocks and operators.
60. Mr Richardson suggested that the Tribunal should not overturn AFMA policy unless there were compelling reasons for doing so. Current policy had been difficult to establish and any change would affect the interests of all involved, only one of whom was represented before the Tribunal. Consideration of natural justice would require that if a change was mooted, all others likely to be affected would have to be heard.
61. In final addresses both the applicant and respondent attempted to reinforce many of the key points made above.
Legislative and Policy and Framework:
62. 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.
63. 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.
(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 (Australian Fisheries Zone) are not endangered by over-exploitation; and
(b)achieving the optimum utilisation of the living resources of the AFZ;
(c)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.”
64. 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.”
65. In its deliberations the Tribunal noted the transcript of Mr Bolding’s previous hearing before the AAT (V1998/305) and a number of earlier judicial determinations concerning the precautionary principle and fisheries matters:
Schedule 2 of the Fisheries Legislation Amendment Act 1997 (No. 120 of 1997)
AFMA v P W Adams Pty Ltd (1995) 60 FCR 387 and 39 ALD 481
Drummond in Bannister Quest Pty Ltd v AFMA (1997) 77 FCR 503 and 48 ALD 53
Dixon v AFMA and Executive Director of Fisheries WA and Northern Territory of Australia (June 2000) AATA 442.Discussion
66. It is common knowledge that commercial fisheries throughout the world are undergoing structural change due to depletion of fish stocks and the need to reduce catch effort, as well as move towards sustainable development. Australia is not immune from such forces and from evidence presented to the Tribunal it is apparent that AFMA has been struggling for more than a decade to adjust its policies, while trying to maintain the viability and economic efficiency of the Australian fishing industry. This has involved some awkward choices and tradeoffs, with differential effects on particular categories of fisheries and operators. It is clear that no sectors have been immune, but AFMA has generally adopted a step-wise approach, attempting to identify implications before taking action and evaluating outcomes before proceeding further. In this process the Commonwealth has also had to recognise State fisheries policies as much as its own rights and obligations.
67. Mr Bolding and his fellow B5 gillnetters are unfortunate, in that a series of decisions have left them with little room for manoeuvre and concern about their future viability. But they are not alone in this; other sections have had to face significant change as well. He does appear to have a legitimate complaint about the time taken to achieve ITQs in the SE Non-Trawl Fishery and Southern Shark Fishery, but AFMA itself has expressed frustration in this regard. In terms of natural justice the Tribunal has found no evidence the applicant’s pleas and requests have been ignored, there is a steady stream of correspondence to demonstrate that his views have been given due consideration, with reasons explained.
68. The applicant’s principal contention is that gear restrictions on B5 gillnetters should be immediately removed. The minutes of Shark MAC and AFMA meetings provide clear proof that this issue has been thoroughly explored and there is a current intention to remove such restrictions once the outcomes of introduction of ITQs in the SSF become clear, with an anticipated review date by June 2001. In these circumstances the Tribunal must weigh the implications of policy change now; clearly this would cut across agreements reached after considerable industry consultation and in a situation where Mr Bolding’s aspirations are likely to be achieved in the near future. This is not persuasive of Tribunal intervention.
69. In response to Mr Bolding’s claim that a simple solution would be to permit B5 gillnetters to use 10 nets in the SENTF, 5 nets in the SSF, with a low by-catch limit permitted in the shark fishery, the respondent made a number of objections. In particular AFMA pointed out this would have administrative and compliance costs, moreover they were worried about by-catch implications for non-quota species. The applicant was not able to produce any convincing evidence to the Tribunal this would be beneficial to the industry as a whole, other than to say he thought AFMA had overstated the problem. Having examined the evidence, the Tribunal believes AFMA’s assessment is correct, although it would be more helpful to all interested parties if by-catch limits were specified for more non-quota species. But this is case where insufficient scientific evidence may currently be available to define such limits and only experience with ITQs will tell.
70. As to the applicant’s claim that current measures in the B5 gillnet sector are not meeting AFMA’s ESD and economic efficiency objectives, it is clear AFMA is highly conscious of such statutory obligations, and trying to achieve them. Mr. Bolding’s views are those of an operator in a small sector of the Australian fishing industry, but who has commendably attempted to work for the benefit and viability of that sector. AFMA’s response has been to introduce ITQs, institute a buyback scheme, permit trading of licenses after 15 years of not being able to transfer permits, include State operators once Australian OCS arrangements are finalised and announce that gillnet restrictions will be removed once a review is conducted of impacts of the above. AFMA has also identified by-catch limits for several non-quota species. They have also pointed out there is a statutory obligation to pursue the precautionary principle, having regard to the impact of fishing activities on non-target species as expressed in s.3(1)(b) of the Act. It is hard to see how they could have done more to pursue their statutory objectives while bearing Mr Bolding’s situation in mind.
71. The Tribunal is required to stand in the shoes of the decision-maker and make the proper or preferable decision, notwithstanding what has gone before. But in so doing, the Tribunal must have regard to statutory provisions and past judicial determinations and not overturn substantive policy unless there are compelling reasons for doing so. In any event the Act and subsequent outcomes of a range of judicial tests make it clear that the economic efficiency objective must be pursued on the basis of the industry as a whole and not any particular sector or individual operator.
72. For the reasons outlined in paragraphs 66 – 71 above, the applicant does not succeed in persuading the Tribunal to change the decisions under review.
Decision:
73.The decisions under review are affirmed.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Assoc. Prof. B W Davis AM (Part-time Member)
Signed: .....................................................................................
Personal AssistantDate/s of Hearing 13 and 14 February 2001
Date of Decision 23 March 2001
Solicitor for the Applicant Applicant on his own behalf
Counsel for the Respondent Ms A Dornau
Solicitors for the Respondent Labray Consortium
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