Buckland v Department of Primary Industries No. Dcaat-99-319

BUCKLAND V DEPARTMENT OF PRIMARY INDUSTRIES
[2000] SADC 147

Judge C R Lee
Administrative and Disciplinary Division

This is an appeal to the Administrative and Disciplinary Division of the District Court pursuant to s58 of the Fisheries Act, 1982. Section 58 enables a person aggrieved by a decision of the Director of Fisheries with respect to a condition of a licence to appeal to the Court against the decision.
The appellant is the holder of an annual miscellaneous fishery licence under the Act to dive for scallops for the purpose of his trade or business. Before 2 June 1999, his licence restricted him to a zone which included Coffin Bay. No other licence holder had access to scallops in that area. On 2 June 1999, the Director decided to abolish all zones but to impose a condition excluding the appellant from Coffin Bay. The decision took effect from 1 July 1999.
The appellant complains that the Director’s decision was taken without advance notice to him and consequently without his having had the opportunity to provide any input or submissions. The appellant points to the procedures for consultation set forth in s37 of the Act. Further, the appellant challenges the view which underlies the decision, and which the Director has since advanced in justification, that sustainable stocks of scallops in Coffin Bay were at risk as a result of the appellant’s commercial activity.
The conduct of the appeal is governed by s42E of the District Court Act, 1991. In terms of the section, I will have regard to the evidence which was before the Director at the time of his decision, and to the further evidence and material which I allowed the parties to put before me at the hearing. I will also give due weight to the decision being appealed against and the reasons for it, and not depart from the decision except for cogent reasons.
Management arrangements for the conservation of the State’s commercial scallop harvest were introduced in 1989 to provide for a maximum of six licences throughout the State with access according to five geographical zones. The appellant first obtained his licence to dive for scallops in Coffin Bay in 1984. Since 1989, he has been the only licence holder for Coffin Bay. As a holiday location with easy access, Coffin Bay is also fished for scallops by recreational divers, especially over Christmas and Easter.
Fishing for scallops in Coffin Bay was closed by the Department in July 1995 following an algal bloom, and opened in March 1997 following a survey in February 1997 which indicated that there had been some recovery of stocks. In June 1997, the Department of Primary Industries and Resources commenced a review of the scallop fishery and, in September 1988, released a discussion paper. The discussion paper made eleven recommendations for change to management arrangements. The recommendations reflected a concern to protect scallop stocks from over- exploitation. Recommendation 2 proposed an increase in size limit to 75 millimetres (from 65 millimetres); recommendation 9 proposed a prohibition on scallop dredging in all South Australian waters; recommendation 10 proposed a reduction in the recreational bag limit to 100 scallops per person per day; and recommendation 11 proposed that the recreational boat limit be set at 300 scallops per day. None of the eleven recommendations suggested that professional diving for scallops in Coffin Bay should be restricted, let alone excluded altogether.
On 25 August 1998, the Acting Director wrote to the Minister seeking approval to the publication of the discussion paper for public consultation. Under the heading “Background”, the Acting Director said:-
“Management arrangements for the scallop fishery were last reviewed in 1989. Recently, there has been a push from commercial and recreational fishers and other interest groups to review management arrangements for the scallop fishery.
A discussion paper on the future of this fishery has been prepared following preliminary consultation with professional and recreational fishers. The Marine Scalefish Fisheries Management Committee has had an opportunity to comment on this paper.
Further public consultation is required and it is suggested that the paper be released for a public consultation period of approximately six weeks.”
The Minister duly gave his approval and eight formal submissions on the paper were received by the Department. In paragraph 18 of his affidavit, the Acting Director summarised the submissions in this way:-
“Some submissions supported creating greater opportunity for commercial licence holders while others were concerned at greater commercial access in areas like Streaky Bay, Ceduna and Coffin Bay.”
On 16 December 1998, all licence holders received a letter with a map proposing new boundaries. In the case of the appellant, it was proposed that he be allocated an area described as “Eyre 1”. Although the area so designated reduced the appellant’s access from the West Coast and increased his access around Port Lincoln, it did nothing to deprive him from access to Coffin Bay. A footnote to a document describing the new zoning arrangements reads:-
“These arrangements will be reconsidered in 12 to 18 months. In particular the issue of further access to under utilised zones will be considered at this time.”
On the basis of the information that was available to him at that time, the appellant was entitled to assume that his licence to dive for scallops in Coffin Bay was not under threat. Yet the next development that the appellant knew about was a letter of 2 June 1999 which he and other licence holders received from the Director. To the extent that it is relevant to the appellant, the letter reads:-
“As you would be aware, the review of the scallop fishery has been proceeding since late 1997. I have recently approved a new package of arrangements for the management of the fishery, which I believe will provide greater flexibility for the existing commercial operators in the fishery, reduce the concerns for the resource in Coffin Bay and allow for some new entrants to the fishery.
In summary, I propose that the following changes be made to the management of the scallop fishery effective 1 July 1999:-
·.. all current holders of a Miscellaneous Fishery licence endorsed for scallop be given access to scallops across State waters, with the exception of Coffin Bay and other areas closed to fishing (ie MPAs);
·.. that Mr David Buckland be removed from Coffin Bay but given access to all State waters as a conscious decision to reserve the Coffin Bay scallop fishery for recreational fishers.
·.. ...”
The Director’s letter of 2 June 1999 immediately prompts the question: what happened between 16 December 1998 and 2 June 1999 to bring about such an important change in the Department’s thinking in relation to the appellant’s licence?
The Director’s affidavit discloses that he had discussions in this period with South Australian Research and Development Institute (SARDI) which led him to conclude:-
“that the stocks of scallops in Coffin Bay were in decline as a result of over-exploitation, both from recreational and professional fishing and that changes to the management arrangements were necessary in order to protect these stocks in accordance with the objectives of the Fisheries Act (1982) of “ensuring the sustainability” of aquatic resources within the State”.
The Director’s affidavit also discloses that similar concerns were expressed to him by other parties including recreational fishers in the area, Mrs Liz Penfold, Member for Flinders, and the Recreational Fisheries Committee for the Eyre Peninsula region. In a letter of 31 May 1999 to the Minister, Mrs Penfold said in relation to scallop stocks in Coffin Bay:-
“Anecdotal evidence suggests that stocks have been seriously depleted and are not regenerating, as they should. I have received this same complaint from a number of other constituents.”
Notwithstanding the concerns that were expressed in this period, there is no evidence of any attempt by the Department to investigate or test the anecdotal evidence, nor of any suggestion to the Department that commercial fishing for scallops in Coffin Bay should be banned altogether. At the very least, one would have expected the Department to convey the concerns to the appellant for comment. Indeed, the Director told me that he had assumed that the appellant had been invited to comment. The appellant’s first hand experience of fishing in Coffin Bay would have been revealing. Monthly returns produced by SA Research and Development Institute (SARDI) show that he had maintained if not increased his daily average catch in 1997 and 1998, despite having confined his fishing activity to eight or so days per month throughout the period. The extent of the recreational catch in Coffin Bay was and remains unknown.
The oral evidence of the Acting Director discloses that the decision to exclude the appellant altogether from Coffin Bay arose from discussions within the Department. Yet three internal memoranda dated 16 February 1999 (Exhibit A8), 27 March 1999 (Exhibit A9) and 9 April 1999 (Exhibit A10) all deal with the topic of scallop licences, but none refers to any proposal or suggestion that the appellant be excluded altogether from Coffin Bay.
The failure of the Director to provide the appellant with the opportunity of commenting upon the concerns in advance of the decision to exclude him from Coffin Bay amounts in my judgment to a breach of the principle of procedural fairness reflected in s37 of the Fisheries Act. The section provides:-
“37.(1) Subject to subsection (2a), the Director may upon granting a licence, or at any other time, impose a condition of the licence, being a condition —
(a).... directed towards conserving, enhancing or managing the living resources to which the fishery relates; or
(b)     related to any other matter prescribed by the scheme of management for the fishery.
(1a)   The Director may impose a condition of a licence notwithstanding that the effect of the condition is to prevent for a specified period-
(a).... the taking of one or more species of fish that could otherwise be lawfully taken pursuant to the licence; or
(b)     the use of any device or equipment that could otherwise be lawfully used to take fish pursuant to the licence.
(2)     Subject to subsection (2a), the Director may, at any time, revoke or vary a condition of a licence.
(2a).. The Director must not—
(a)     impose a condition that has the effect described in subsection (1a)(a) or (b); or
(b)     vary a condition so that it has that effect,
except with the approval of the Minister.
(2b)   Before giving his or her approval under subsection (2a), the Minister must—
(a).... give the holder of the licence and the prescribed fishing industry body notice in writing setting out the condition to be imposed or the manner in which a condition is to be varied, as the case may be, and the reasons for the proposed action; and
(b)     not later than 14 days after giving notice, consult or use his or her best endeavours to consult with the holder of the licence and the prescribed fishing industry body in relation to the matter.
(2c)   In subsection (2b)—
“prescribed fishing industry body" means—
(a)     the South Australian Fishing Industry Council; or
(b).... if the Council ceases to exist, such fishing industry body as is prescribed by regulation for the purposes of this definition.
(3) .....
(4) .....”
Before arriving at his decision, the Director did not seek the approval of the Minister in terms of subsection (2a), and so the Minister did not engage upon the notice and consultative process required by subsection (2b).
Counsel for the respondent contended that these provisions do not apply to the Director’s decision, because subsection (1a)(a) contemplates a statewide prohibition of the taking of one or more species of fish rather than, as we have here, a prohibition confined to a particular area.
I can find no reason in the words of the sub-section why its operation should be confined in that way. The Minister’s second reading speech in Parliament does not directly confront the issue. If there is any ambiguity, it should be resolved in favour of an interpretation which will best ensure the attainment of the objects of the Act (s22, Acts Interpretation Act). Section 20 of the Fisheries Act provides:-
“20 In the administration of this Act, the Minister, the Director and management committees have as their principal objectives:
(a).... ensuring, through proper conservation, preservation and fisheries management measures, that the living resources of the waters to which this Act applies are not endangered or overexploited; and
(b) achieving the optimum utilisation and equitable distribution of those resources.”

I have underlined the key words for present purposes.

In the result, I hold that the Director’s decision was not arrived at in conformity with the provisions of s37 of the Fisheries Act, and in consequence was unlawful.
Section 42F of the District Court Act provides:-
“      The Court may, on an appeal —
(a)     affirm the decision appealed against;
(b).... rescind the decision and substitute a decision that the Court considers appropriate;
(c)     remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.”
I uphold the appeal, and invite counsel to address me on the order which would best achieve a removal of the condition which the appellant has successfully impugned.

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On 14 February 2001, his Honour made the following orders:-

The decision of the Director of Fisheries dated 26 July 1999 by which the appellant’s licence conditions were varied is hereby rescinded.

It is ordered that in substitution for the decision appealed from the decision be that the applicant be issued with a licence to take scallops in the current licencing year in terms as agreed between the parties on or before 23 February 2001 or failing agreement in the same terms as appearing in exhibit A14.

That the respondent do pay the applicant costs of the appeal to be taxed if not agreed.

[2000] SADC 147

15 December 2000