De Brett Investments Pty Ltd and Anor and Australian Fisheries Management Authority and Anor
[2004] AATA 704
•30 June 2004
CATCHWORDS – FISHERIES – Eastern Tuna and Billfish Fishery – conditions attached to fishing permit – condition prohibiting the possession, carrying or landing of shark fins not attached to the trunk – whether the respondent formulated a plan of management in accordance with the objections of the Fisheries Management Act 1991 – precautionary principle – decisions affirmed.
STATUTORY INTERPRETATION – meaning “threat”
Administrative Appeals Tribunal Act 1975 ss. 3, 25, 33, 37, 40 and 43
Fisheries Administration Act 1991 ss. 4, 7, 9 and 91
Fisheries Management Act 1991 ss. 3, 4, 14, 17, 21, 32, 38, 39, 40, 61, 71, 72, 95 and 165
Fisheries Management Regulations 1992 r. 51
Customs Act 1966 s. 273
Administrative Decisions (Judicial Review) Act 1977 ss. 5 and 6
Judiciary Act 1903 s. 39B
World Heritage Properties Conservation Act 1983 ss. 9 and 10
Great Barrier Reef Marine Park Act 1975
Workplace Relations Act 1996 s. 298K
Conciliation and Arbitration Act 1904 s. 9
Veterans’ Entitlements Act 1986
Nashua Australia Pty Ltd v Channon (1981) 36 ALR 215
Hughes Aircraft Systems International v Air Services Australia (1997) 76 FCR 151
Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Re Lavery and Registrar, Supreme Court of Queensland and Ors (No. 2) (1996) 23 AAR 52
Jones v Dunkel (1959) 101 CLR 298
McDonald v Director-General of Social Security (1984) 6 ALD 6
East v Repatriation Commission (1987) 74 ALR 518
Australian Postal Commission v Hayes (1989) 18 ALD 135
Mahon v Air New Zealand Ltd [1984] AC 808
Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666
Repatriation Commission v Smith (1987) 74 ALR 537
Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248
Bradley v The Commonwealth (1973) 128 CLR 557
Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353
Friends of Hinchinbrook Society Inc v Minister for Environment and Ors (No 2) [1997] 69 FCR 28
Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270
Brisbane City Council v Georgeray Contracting Pty Ltd and Ors [1995] QSC 57
North Queensland Conservation Authority and Great Barrier Reef Marine Park Authority [2000] AATA 925
Theo v Caboolture Shire Council [2000] QPE 059
Histpark Pty Ltd and Anor v Maroochydore Shire Council [2001] QPEC 59
Leatch v National Parks and Wildlife Service and Greenpeace Australia Ltd v Redbank Power Company Pty Ltd and Singleton Council (1995) 86 LGERA 143
Brunsdon v The Council of the City of Wagga Wagga [2003] NSWLEC 168
Briginshaw v Briginshaw (1938) 60 CLR 336
Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
Hardcastle v Commissioner of Police (1984) 53 ALR 593
State of New South Wales trading as New South Wales Department of Agriculture v Allen [2000] NSWCA 141
CPSU, The Community and Public Sector Union v Telstra Corporation Limited [2000] FCA 844
Repatriation Commission v Stoddart [2003] FCAFC 300
Australian Fisheries Management Authority v Graham [2003] FCA 231
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
DECISION AND REASONS FOR DECISION [2004] AATA 704
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2001/211
GENERAL ADMINISTRATIVE DIVISION )
Re DE BRETT INVESTMENTS PTY LTD
Applicant
AndAUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
Respondent
And4 SEAS PTY LTD
Party Joined
V2001/212
Re ROBERT LAMASON
Applicant
AndAUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
Respondent
And 4 SEAS PTY LTD
Party Joined
DECISION
Tribunal: Deputy President S A Forgie
Mr W G McLean (Member)
Date: 30 June, 2004
Place: Melbourne
Decision:The Tribunal , affirms the decisions dated 2 February, 2001 in relation to each of the applicants.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 2 March, 2001, each of the applicants, De Brett Investments Pty Ltd (“De Brett”) and Mr Robert Lamason, applied for review of decisions made by a delegate of the respondent, the Australian Fisheries Management Authority (“AFMA”) dated 2 February, 2001 and in substantially the same terms. In those decisions, the delegate, Mr Andrew Kettle, affirmed earlier decisions made by another delegate dated 20 October, 2000 and again in substantially the same terms. In the case of De Brett, that decision had been to impose a condition on permit numbers 402170B, 402786B and 402620B (“the permits”) that “this permit prohibits the possession, carrying and landing of shark fins that are not attached to the trunk”. Those permits related to the Eastern Tuna and Billfish Fishery (“ETBF”). In the case of Mr Lamason, the decision had been to impose the same condition on permit numbers 402218B, 402218C, 459369C, 459369D, 458772A, 458772B, 402304B, 61298C, 61298D, 402202B, 300009, 402666C, 402666D, 401431A and 401431B, which also related to the ETBF. The applications were heard together. On 13 June, 2002, 4 Seas Pty Ltd was joined as a party to the proceedings.
At the hearing, De Brett, Mr Lamason and 4 Seas Pty Ltd were represented by Mr Cosgrave of counsel and AFMA by Ms Mortimer of counsel. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) (“T documents”) were admitted in evidence together with a number of other documents to which we will refer in the course of these reasons. Mr Lamason gave oral evidence in support of his case and that of De Brett as did Mr Taylor, Mr Jusseit and Dr Young. Ms Crosthwaite, Ms Rose, Mr McLoughlin and Mr McNee gave evidence in support of AFMA’s case.
THE ISSUES
The issue in this case is whether AFMA should have imposed a condition on the permits prohibiting “… the possession, carrying and landing of shark fins that are not attached to the trunk …” (“the finning condition”).
LEGISLATIVE FRAMEWORK
Establishment of AFMA
AFMA was established under the Fisheries Administration Act 1991 (“Administration Act”) to undertake a number of functions including:
“(a) to devise management regimes in relation to Australian fisheries;
(aa)…
(b)to devise fisheries adjustment programs and fisheries restructuring programs;
(c)to consult, and co-operate, with the industry and members of the public generally in relation to the activities of the Authority;
(d)to devise exploratory and feasibility programs relating to fishing;
(da)…
(e)to establish priorities in respect of research relating to fisheries managed by the Authority and arrange for the undertaking of such research;
(ea)…
(f)…
(g)…
(ga)…
(h)the functions specified in section 9 relating to consultation;
(j)…
(k)…
(m)as provided by an associated law:
(i)to establish and allocate fishing rights;
(ii)…
(iii)functions relating to plans of management;
(iv)…
(v)to undertake, on behalf of the Commonwealth, management responsibilities in relation to fisheries management arrangements entered into with the States and Territories;
(vi)…
(ma)…
(n)…” (Administration Act, s. 7(1))
Section 9 of the Administration Act requires that AFMA may consult with persons, bodies or Governments including persons or bodies representative of the whole or part of the industry (Administration Act, s. 9(1)(a)).
Management of fisheries
The Fisheries Management Act 1991 (“the Act”), which is an associated law for the purposes of the Administration Act (Administration Act, s. 4(1) came into operation on 3 February, 1991. Pursuant to s. 17 of the Act, AFMA must either determine a plan of management for a fishery or determine that a plan of management is not warranted. Where it determines that a plan of management is warranted, it must determine the plan of management in writing only after following the procedural steps set out in s. 17 of the Act.
A “fishery” is defined to mean:
“… a class of activities by way of fishing, including activities identified by reference to all or any of the following:
(a) a species or type of fish;
(b) a description of fish by reference to sex or any other characteristic;
(c) an area of waters or of seabed;
(d) a method of fishing;
(e) a class of boats;
(f) a class of persons;
(g)a purpose of activities.” (s. 4(1))
A “fish” is defined to include “… all species of bony fish, sharks, rays, crustaceans, molluscs and other marine organisms, but does not include marine mammals or marine reptiles.” (s. 4(1))
A plan of management for a fishery may also provide for the management of that fishery by means of statutory fishing rights and other fishing concessions (s. 17(6)(b)). A “fishing right” means a “statutory fishing right” (s. 4(1)) and a “fishing concession” means a statutory fishing right, a fishing permit or a foreign fishing licence (s. 4(1)). A “statutory fishing right” means the nine rights specified in s. 21 (s. 4(1)). A plan of management may provide for one or more of those nine rights (s. 21(1A)). A “fishing permit” is a reference to a permit granted under s. 32 of the Act.
AFMA may enter arrangements with the States with respect to the management of particular fisheries and may do so under Part 5 of the Act. That arrangement may lead to the formation of a Joint Authority (s. 61) and an agreement that it manage a particular fishery in waters relevant to the State or States joining the Commonwealth in that Joint Authority (s. 71) or to an arrangement, known as an Offshore Constitutional arrangement, under s. 72 (“an OCS”). Where a Joint Authority is formed after an arrangement with two or more States, the fishery must be managed according to the law of the Commonwealth. Otherwise, Commonwealth or State management of the fishery is determined by reference to whether the fishery is wholly or partly in the coastal waters of the State or in the seaward side of the coastal waters of the State.
Fishing permits
Quite apart from any plan of management, s. 32(1) provides that, upon an application being made to it in an approved form, AFMA may grant a person a fishing permit. Subject to certain provisos dependant upon whether a boat is specified in the fishing permit or not (ss. 32(1A) and (1B)), that permit authorises the person to whom it is granted (or a person acting on his or her behalf) to use an Australian boat for fishing in a specified area of the Australian fishing zone (“AFZ”) or in a specified fishery (s. 32(1)). The boat must comply with any conditions to which the fishing permit is subject (s. 32(1C)). The fishing permit may authorise the use of a boat for various activities specified in s. 32(4) including commercial fishing generally (s. 32(4)(a)).
In addition to the conditions to which the fishing permit is subject by virtue of s. 32(5), a fishing permit is also subject to other conditions that may be specified in the fishing permit itself or prescribed in relation to fishing permits granted under s. 32 (s. 32(6)(a)). The conditions that may be specified in a fishing permit include, but are not limited to:
“(a) the fish that may be taken; or
(b)the quantity of fish that may be taken; or
(c)the rate at which fish may be taken; or
(d)the methods or equipment that may be used to take fish; or
(e)the methods or equipment that may be used to process or carry fish.” (s. 32(7))
Section 14 of the Act makes provision for regulations to be made. Those regulations may “For the purpose of conserving the marine environment, … prohibit, or make provision for the regulation of, the engaging in specified activities, or the use of specified activities, or the use of specified practices, by … persons engaged in fishing in the AFZ … and Australian boats, and persons on Australian boats, engaged in fishing outside the AFZ” (s. 14(1)). Without limiting the generality of this regulation making power, regulations may be made for a number of specific matters including “the taking, and treatment of, by-catches” (s. 14(2)).
Regulation 51 of the Fisheries Management Regulations 1992 (“Regulations”) provides that:
“(1) On a trip, the holder may take fish of a species mentioned in Part 2 of Schedule 5 from the waters only in accordance with subregulation (2).
(2)The holder must not take from the waters more than:
(a)…
(b)…
(c)20 fish of a species mentioned in Division 3 of that Part.
(3)…”
The word “take” used in r. 51 is defined in s. 4(1) to mean “in relation to fish, … catch, capture, take or harvest”. Division 3 of Part 2 of Schedule 5 of the Regulations lists:
| Common Name | Scientific name |
| Butterfly mackerel | Gasterochisma melampus |
| Shark | Subclass Elasmobranchii and Family Serranidae |
| Slender tuna | Allothunnus fallai |
| Wahoo | Acanthocybium solandri |
Once a fishing permit has been issued, AFMA may vary or revoke a condition to which it is subject by virtue of s. 32(5). It may also specify a condition or a further condition (s. 32(8)). If AFMA wishes to take either of these courses, it must give written notice to the holder of the fishing permit and it may do so at the request of holder of the fishing permit or at its own instigation.
Section 95(1)(d) provides that the holder of a fishing permit must not contravene a condition to which that permit is subject and s. 95(1)(e) provides that he or she must not cause or permit a person acting on his or her behalf to contravene such a condition. Similarly, a person acting on behalf of the holder of a fishing permit must not contravene such a condition (s. 95(1)(f)). Contravention is an offence (ss. 95(2) – (7)). If AFMA has reasonable grounds to believe that there has been a contravention of a condition on a fishing permit, it may suspend the operation of that fishing permit in accordance with s. 38 (s. 38(1)). If the holder of a fishing permit is convicted of an offence against the Act, Regulations or any other law of the Commonwealth, Papua New Guinea or an Australian State or Territory relating to fishing, AFMA may cancel the fishing permit (s. 39(a)). It may also cancel it if to do so would be in accordance with a condition of the fishing permit relating to its cancellation (s. 39(b)).
The manner in which AFMA must perform its functions
In performing any of its functions under the Act, including that of considering whether or not to grant a fishing permit and whether or not to impose any condition, s. 3(1) provides that AFMA must pursue the following objectives:
“(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.”
In addition, it must 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;
(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.” (s. 3(2))
Role of Minister
Section 91(1) of the Administration Act provides that the Minister may give written directions to AFMA concerning the performance of its functions and the exercise of its powers and AFMA must comply with those directions. The Minister, however, may only give those directions if he has given AFMA written notice that he is considering doing so and AFMA’s Chairperson has been given adequate opportunity to discuss with him the need for the proposed direction. Even then, the Minister may only give a direction if he is satisfied that, because of the existence of exceptional circumstances, it is necessary to do so to ensure that AFMA’s performance of its powers and exercise of its powers does not conflict with major government policies. No such direction has been given with regard to shark finning.
The Tribunal’s jurisdiction
The Tribunal may only review a decision made by AFMA if it is specifically given the power to do so by either the AAT Act or another piece of legislation. This is the effect of s. 25 of the AAT Act. Section 25(1) provides that:
“An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”
The enactment must specify the person or persons to whose decisions the provision applies and may be expressed to apply to all decisions of a person or to a class of such decisions and may also specify the conditions which must be met before applications for review may be made (ss. 25(3)).
It is not enough that an enactment provide for review of specified decisions for the Tribunal must also be given power to review specified decisions. That power is given by s. 25(4) which is the necessary corollary to s. 25(1). It provides:
“The Tribunal has power to review any decision in respect of which application is made to it under any enactment.”
A reference in the AAT Act to a “decision” includes:
“(a) making, suspending, revoking or refusing to make an order or determination;
(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument,
(d)imposing a condition or restriction;
(e)making a declaration, demand or requirement;
(f)retaining, or refusing to deliver up, an article; or
(g)doing or refusing to do any other act or thing.” (s. 3(3))
Any person who is affected by a relevant decision made by AFMA under the Act may apply to AFMA for its reconsideration (s. 165(2)). A “relevant decision” includes a decision it has made under s. 32. Once AFMA has made its decision on review (i.e. its “reviewable decision”), an application may be made to the Tribunal for review of that reviewable decision (s. 165(7)).
THE WITNESSES
We will briefly summarise the experience of and position held by each of those who gave oral or written evidence in this case:
Ms Kelly Crosthwaite
Ms Crosthwaite is the Senior Management Officer of AFMA’s Tuna and Billfish Fisheries Section.
Mr Hans Jusseit
Mr Jusseit is qualified as a Master Class V Ship’s Master, a Marine Engine Driver II, a Commercial Diver and a Dive Master/Supervisor.
For eight years, he worked as a technical assistant in biology and marine biology and has a trade background of the same length of time in scientific instrumentation.
From 1984 until 1994, he owned and operated his own tuna longline vessel.
Mr Jusseit has been the Executive Director of the East Coast Tuna Boat Owners’ Association Inc. since September, 1997. For six of the past ten years, he has been a director of the Australian Seafood Industry Council (“ASIC”). He has been an industry representative on number of bodies including the Shark Advisory Group (“SAG”) and AFMA’s Eastern Tuna and Billfish Management Advisory Committee for two terms as well as a member of the By-Catch Action Plan working group for tuna during its development.
Mr Robert Lloyd Lamason
Mr Lamason is a director of Great Barrier Reef Marine Tuna Pty Ltd, which is the controlling company of a number of other companies.
He has been involved in the fishing industry for some 30 years and, since 1989, has been involved in the tuna longline fishing industry.
Mr Kevin McLoughlin
Mr McLoughlin holds a Bachelors Degree in Science majoring in mathematics and Biology. He has been employed as a field biologist in the Division of Fisheries of the CSIRO before becoming a fisheries scientist with the Bureau of Rural Sciences Australia (“BRS”) in 1988.
Mr McLoughlin has been involved in research on sharks and shark fisheries for more than 15 years. He has written several scientific papers relating to scientific shark biology and has assessed the status of the major species of shark in the targeted shark fisheries in northern Australia. As a member of research groups, he has advised the Southern Shark Fishery for over 10 years. Mr McLoughlin also prepares the chapters on the fisheries targeting shark in the BRS’s annual Fisheries Status Reports.
Mr McLoughlin supervised Ms Cassandra Rose when she was engaged by BRS to prepare the initial draft of a report entitled, A Review of Shark Finning in Australian Fisheries (“Draft BRS Review”). He was named as the second author.
Mr Andrew McNee
Mr McNee has a Bachelor of Science Degree (Hons) majoring in ecology. He is a member of the Australasian Wildlife Management Society and of the Australian Institute of Management.
He is the Senior Manager of the Tuna and Billfish Fisheries in AFMA and oversees the ETBF and the Southern and Western Tuna and Billfish Fishery (“SWTBF”) as well as the Southern Bluefin Tuna Fishery. He has ten years’ experience as an officer in the Australian Public Service working on natural resource management issues. In Australian National Parks and Wildlife, he had responsibility for marine wildlife management and in Environment Australia he had responsibility for the management of marine and terrestrial harvesting of wildlife under the Environment Protection and Biodiversity Conservation Act 1999 (“EPBC Act”).
Mr McNee has worked with a range of Commonwealth agencies regarding the management of by-catch in tuna fisheries both domestically and internationally. He has been the alternate head of Australia’s delegation to the special Food and Agriculture Organisation of the United Nations (“FAO”) consultation that finalised the text of the National Action Plan – Sharks in Rome in 1999. He has also headed the Australian delegation to the Commission for the Conservation of Southern Bluefin Tuna’s Ecologically Related Species meeting in 1997.
Ms Cassandra Rose
Ms Rose has a Masters of Applied Science and a Bachelor of Marine Science and has worked as a marine scientist for approximately 15 years. She has worked predominantly as a marine ecologist and has a background in the application of statistical analyses. While completing her Masters degree on marinas and benthic communities, Ms Rose was employed by the Australian Museum to undertake marine ecological work.
Ms Rose has been employed as an environmental consultant for a private company, WBM Oceanics Australia, to design, conduct and analyse environmental assessments. For over two years, she has worked on prawn trawlers in the Gulf of Carpentaria and the Queensland East Coast. On a voluntary basis, she spent four months of that time identifying, measuring and sexing by-catch sharks and rays for the CSIRO. Her data was incorporated in a report prepared by the Fisheries Resources Development Commission.
Since 2000, she has been engaged on a number of short term contracts as a fisheries scientist for BRS, the Department of Agriculture, Fisheries, Forestry Australia (“Department”) and the Queensland Department of Primary Industries.
Ms Rose prepared the initial Draft BRS Review.
Mr Brett Martin Taylor
Mr Taylor is the sole Director of 4 Seas Pty Ltd and is an owner/operator of a number of vessels. At the time that the applications for review were lodged, he was the director of De Brett and it held the permits.
He has never been a fisherman or a skipper on a fishing vessel but has many years experience in the seafood industry.
Dr Peter Young
Dr Young holds a PhD, BSc Hons (Zool) and ARCS Hons (Zool).
From 1990 to 1996, he was the Chief of CSIRO’s Division of Fisheries. During that period, he also held appointments as a Director of the Board of AFMA for three years (1992-1995) and as a Director of the Aquaculture Cooperative Research Centre (1994-1996) as well as an Honorary Research Professorship at the University of Tasmania (1993-1996).
From 1995 to 1997, Dr Young was the President of the Australian Society of Fish Biology. He has published widely on various aspects of fisheries and marine science and, in the years up to 1996, has been a member of a considerable number of fisheries management and advisory committees.
He is currently the Chairman of the Queensland Fishing Industry Research Advisory Committee, Chairman of the Queensland Trawl Management Advisory Committee and a consultant on fisheries and marine science matters.
BACKGROUND
In the following paragraphs of this section of our reasons, we set out those matters that are uncontroversial between the parties and with regard to which we have made findings of fact.
The ETBF and the SWTBF
The ETBF extends along Australia’s entire eastern seaboard from 142030’E at the tip of Cape York Peninsula to 1410E at the South Australian/Victorian border. It includes Norfolk Island and covers water adjacent to Queensland (but does not include the Great Barrier Reef Marine Park), New South Wales, Victoria and Tasmania.
The SWTBF actually comprises two fisheries but they are managed under the one set of arrangements. They are the Southern Tuna Billfish Fishery (“STBF”) and the Western Tuna Billfish Fishery (“WTBF”). The STBF extends westward from 1410E at the South Australian/Victorian border, across the Great Australian Bight and to 340S off the coast of Western Australia. The WTBF generally extends westward from 1420E at Cape York Peninsula in Queensland to 340S off the west coast of Western Australia.
The ETBF is a multi-species and multi-method fishery with target stocks taken by commercial, charter and recreational game fishers. Yellow Fin Tuna, Big Eye Tuna, Broadbill, Swordfish and Albarore Tuna are the main species taken by line methods. Striped marlin, pelagic sharks, rudder fish, oilfish, moonfish, rays and bream are also taken in significant quantities. Entry to the ETBF is controlled by means of annual fishing permits but also by input controls limiting entry, zoning to restrict activities, vessel size restrictions and gear restrictions. The Eastern Tuna and Billfish Management Advisory Committee is the principal forum in which matters relating to the management of the ETBF are considered. It has advisory responsibilities for tuna and broadbill species in the waters outside the SWTBF.
The SWTBF is also a multi-species and multi-method fishery with target stocks taken by commercial, charter and recreational game fishers. Yellow Fin Tuna, Big Eye Tuna, Broadbill and Swordfish are the main species taken in the WTBF but Albarore Tuna, Skipjack Tuna and striped marlin are also taken to a lesser extent. In the STBF, Big Eye Tuna, Broadbill, Swordfish and Skipjack Tuna are the main species taken. Entry to both fisheries is granted annually by means of an annual fishing permit. the Southern and Western Tuna and Billfish Fishery Management Advisory Committee (“SWTBF MAC”) ”) is the principal forum in which matters relating to the management of the SWTBF are considered. It has advisory responsibilities for tuna and tuna-like species in the waters outside the ETBF.
Tuna OCS and Tuna MOU regarding the Eastern Tuna and Billfish Fishery
On 3 February, 1995, an OCS was entered between the Commonwealth and the State of Queensland (“Tuna OCS”) (Exhibit 10). In general terms its effect was that a fishery in certain defined coastal waters and waters of the AFZ relevant to Queensland for tuna and tuna like species was to be managed in accordance with the law of the Commonwealth. Specific tuna and tuna like species were named. Also brought within the scope of the Tuna OCS were “fish taken in the exercise of a right conferred by a fishing concession granted by … [AFMA] under the Management Act allowing the taking of the …” named tuna and tuna like species (Tuna OCS, par. 2(d)). The Commonwealth and Queensland “… agree in writing to the maximum quantity of other fish the subject of paragraphs 2(d) …that may be taken from time to time under a licence or other authority referred to in those paragraphs and on matters of mutual interest to the fishery” (Tuna OCS, par. 3). A similar agreement may be reached pursuant to paragraph 4 of the OCS arrangement between the Commonwealth and Queensland in relation to the fishery for fish and other aquatic biological resources off the east coast of Queensland (Exhibit 11). That second OCS was made on the same day as the first.
On 10 February, 1995, a Memorandum of Understanding with respect to the Fishery for Tuna and Tuna Like Species (Exhibit 9) (“Tuna MOU”) was entered between the Commonwealth and the State of Queensland. It was entered as a consequence of their having entered, among others, the two OCS to which we have referred and was intended to complement them. The Tuna MOU described the working relationship between AFMA and the Queensland Fish Management Authority with regard to a number of matters including the control of by-catch of fish species otherwise managed in one of two ways. One is under the jurisdiction of Queensland or a Joint Authority but taken by fishermen operating under a fishing concession for tuna and tuna like species in all waters off Queensland. The other is under the jurisdiction of the Commonwealth but are taken by fishermen operating under a fishing concession for species other than tuna and tuna like species in those waters (Tuna MOU, cl. 1). A “fishing concession” means “any State or Commonwealth statutory fishing right, permit, licence or authority allowing participation in a fishery” (Tuna MOU, cl. 4). The word “bycatch” is defined to mean “… any fish or aquatic life that is taken with the authorised gear being used to fish for the target species” (Tuna MOU, cl. 4).
Under the Tuna MOU, the Commonwealth and Queensland undertook certain obligations. Among those, the Commonwealth undertook that it would:
“In pursuit of the objectives of this Memorandum, … manage the following trip limits to Commonwealth fishing concession holders:
…
Trip limit of no more than 20 fish in total
Slender tuna Allothunnus fallai
Wahoo Acanthacybium solandri
Butterfly mackerel Gasterochisma melampusShark subclass Elasmobranchii and family Serranidae” (Tuna MOU, cl. 14)
The Commonwealth has met its obligation by making r. 51 of the Regulations to which we have referred (see paragraph 12 above).
Limits on shark catch in other fisheries and by the States
Until the beginning of the 2001 season, no more than 100 sharks were permitted to be caught each trip in the Northern Prawn Fishery but, since then, there has been an industry approved ban on the retention of all shark products including fins, trunks, fillets, teeth and sawshark rostrums.
Since June, 1999, fins must be attached to any shark landed in New South Wales. A similar condition applies in Victoria. In Tasmania, no portion of a school or gummy shark measuring less than 450 millimetres can be taken, sold or possessed. As fins of school and gummy shark are less than 450 millimetres, their fins may not be landed and so finning is banned for all practical purposes. In Western Australia, all body parts of the shark other than its head and guts must be retained until it is landed.
AFMA’s actions
When the Minister’s decision was conveyed to AFMA, Mr McNee, Senior Manager of the Tuna and Billfish Fisheries, wrote an internal minute stating that revised permit conditions would be needed to prevent all Commonwealth Tuna and Billfish concession holders from possessing, carrying and landing shark fins that are not attached to the trunk of a shark. The conditions would not prohibit operators from heading and gutting sharks while at sea and would not be needed in target shark fisheries. Existing enforcement arrangements would need to be reviewed to ensure compliance. It applied to holders of permits for the Eastern, Southern and Western Tuna and Billfish Fisheries and the Christmas and Cocos (Keeling) Islands Inshore and Offshore Tuna Fisheries.
Permit holders, including the applicants (T documents, pages 211-212) were notified that the condition did not prohibit the heading and gutting of sharks at sea. No condition was imposed in fisheries targeting shark. They were notified of the variation in a letter dated 20 October, 2000 (T documents, page 211). An attachment to the letter advised permit holders that the decision to ban finning at sea in Commonwealth tuna fisheries was an interim measure pending the development of medium and long term arrangements.
The permits on which the condition was imposed related to the year 1 July, 2000 to 30 June, 2001. It was also imposed on those permits for the following year but, for that year, the condition read:
“All sharks are to be landed headed and gutted with their fins on. The tail may be cut off at the sub-terminal notch, the caudal lobe must be left attached, pelvic fins and claspers may be removed or left attached.”
Final BRS Review
In June, 2001, Ms Rose and Mr McLoughlin completed a further version of the report entitled Review of Shark Finning in Australian Fisheries and dated June, 2001. This was not given an exhibit number at the hearing but was referred to in the evidence of Mr Jusseit. The final version of the report dated November, 2001 (“Final BRS Review”) was also not given an exhibit number but was available to the parties.
A SELECTION OF EVIDENCE
In this section, we will set out a cross section of the evidence that was given but do not purport to set it out in its entirety but have had had regard to all of it in reaching our decision.
Draft BRS Report and the Minister’s decision
The Minister for Agriculture, Fisheries and Forestry instructed his Department, through the BRS to examine the extent of shark finning. In October, 2000, Ms Cassandra Rose and Mr Kevin McLoughlin of the BRS prepared the Draft BRS Review and the subsequent revisions of that document, the June BRS Review and the Final BRS Review. That report used the word “finning” to refer to the following practice:
“… In recent years there is evidence of a growing trend in world fisheries for sharks taken as bycatch to have their fins removed from the body with the remainder of the shark discarded back to sea – a practice known as shark finning. …” (T documents, page 29)
The term “finning” is less applicable where use is made of the meat as well as the fins and that occurs in commercial fisheries targeting shark. Even in those fisheries, fins may be taken and meat not marketed.
The BRS found that:
“Shark finning and its associated trade in Australia have been largely unrecorded and unregulated. As such there is very little available data on the quantity of fins landed in Australia from the practice of finning. Where this information is available there are doubts regarding its accuracy as it is considered that where fins are recorded the reported figures are often an underestimate.” (T documents, page 30)
The authors noted that they had used data where available but it had been very difficult to obtain data from those involved in the shark fin trade i.e. fishers, fin buyers and fin processors. Where possible, they verified each piece of information from at least three independent sources. At least seven fin dealers and fin processors were interviewed together with 20 fishers from fisheries that fin shark. Representatives from major trawl fishing companies and seafood wholesalers were also interviewed and conservation and marine scientific organisations and professional fishing lobbies were contacted to include their position on the issue of finning. Data was also collated from sources such as cruise reports from onboard observers, logbooks where the recording of fin landings is required and import and export data regarding shark fins.
On 5 October, 2000, the Minister wrote to AFMA summarising the report as showing:
“… that the bycatch and finning of sharks is far more widespread than previously thought, and occurs almost exclusively in Commonwealth tuna longline fisheries. As well as highlighting cruelty and wastage issues, the report raises serious concerns over the sustainability of sharks taken as bycatch as well as the impact of this level of non-target catch on target shark fisheries legislation.” (T documents, page 206)
He formed the view:
“… that urgent action was needed to deter and prevent the finning of sharks. The most immediate and effective measure by which to achieve this policy is to require sharks to be landed whole before being finned, a restriction which will provide an incentive to release sharks alive while at sea. …” (T documents, page 206)
and decided:
“… that pending the development of more enduring management arrangements, an immediate ban on the finning of sharks at sea in Commonwealth tuna fisheries needs to be pursued. …” (T documents, page 206)
From discussions with officers of his Department and AFMA, the Minister formed the view that:
“… the best means by which to impose such a ban is to amend the existing conditions imposed on tuna fishing permits, which allow the incidental take of 20 sharks, to require these sharks to be landed whole. …” (T documents, page 206)
The Minister announced his decision in a Press Release dated 5 October, 2000 (T documents, page 208). He described it as an “interim ban” and said that he had instructed his Department to establish a SAG to help prepare a National Plan of Action for the Conservation and Management of Sharks. In addition, the fishing industry, he said, was working closely with AFMA to implement the Commonwealth By-catch Policy and that will play a key role in managing by-catch of shark and other species over the longer term. The finning ban was designed to ensure better compliance with existing by-catch limits and to deter the practice of shark finning by encouraging sharks to be released alive while at sea.
Operating in the tuna longline fishing industry
Mr Lamason said that his vessels are purpose built for tuna longline fishing and are as efficient as he knows how. They have brine tanks immersed in chilled water on board, freezers, a bait room equipped with well in excess of 1,000 hooks of nylon, a means of shooting that line, accommodation and modern navigational equipment. The decks are kept as clear as possible but the hook boxes take up a considerable amount of room as do the bins for the snoods and the ropes. Somewhere between 8 and 12 tonnes of fish can be kept in the brine tanks and another four in the freezers. On board, there are usually a skipper, three deck hands and a scientist or a friend of one of the crew there for the fun of it.
Mr Lamason’s vessels’ home port is Cairns and they travel from there up to 500 nautical miles up and down the eastern seaboard. It can take a vessel as long as two days to get to the fishing grounds or as little as five to ten hours. Fishing is carried out in quite high winds and weather.
The gear used on each of his vessels is much the same. Attached to the main line are snoods. Each snood has a clip that is attached to the main line and is approximately 10 metres in length. At a point approximately four metres along its length is a 38 gramme leaded swivel and a 30 centimetre wire is attached a further five metres along its length. At the end of the wire is a 3.6 Japanese circle tuna hook (Exhibit O). The hooks are separated by approximately 50 metres and, every ten hooks, there is a branch line and every 20 hooks there is a radio directional beacon fitted with floating lights for night fishing. If the main line is short, it is hauled in more than once each day. If a longline with a 1,000 hooks, it is hauled in once each day. It takes the crew about two hours to put out a 500 hook main line. The main line is usually left in the water for four hours before being brought in. A 500 hook line generally takes three hours to haul in but it depends on the number of fish on it.
The main line is lifted rather than dragged out of the water. The snood is unclipped and clipped on the rail. If there is a fish on it, the vessel stops. If it is a big fish, it is shot through the centre of the brain. The fish is then gilled and gutted very quickly, placed in a plastic bag and immersed in cold brine. This happens with any fish that they catch and keep. If they do not keep them, they are discarded back into the ocean. Mr Lamason said in giving evidence that big fish fight, struggle and kick. They damage themselves and cause considerable damage to the deck people. Therefore, even large tuna are shot, he said. Sharks are usually shot. Some are kept and some discarded. Mr Lamason said that he was speaking about practices before the finning condition.
Later, in cross-examination, Mr Lamason said that sharks are a pest when tuna fishing but that they still have value. He denied that his real complaint about the finning condition was a complaint about the 20 shark limit. He agreed that he had said that if the sharks were not killed they ate the tuna but he was not worrying about the 20 shark limit at this stage. Even with the finning condition, he said, it is still possible to hide fins if a person wants to.
In cross-examination, Mr Lamason said that he goes out for day fishing trips on occasion and went for a two month trip a couple of years ago. He said that he does not directly tell his skippers what they can and cannot do but he gives them guidelines when they start fishing. When asked whether he was relying on what his skippers told him, he said that it was virtually impossible to bring a shark on board that was alive as it twists and turns so much. A shark that is not dead cannot be brought on board. It is not filled with bullets but just has one or two in the head. There is no point in shooting it elsewhere as it keeps struggling and the head is thrown away anyway. When the sharks are kept, they are gilled and gutted as well as trunked i.e. the head has been removed. Some sharks are discarded and that means that they are thrown back in the water. When he had said in his previous evidence that all were shot, he had been referring to pre-finning days, Mr Lamason said. The current practice is that sharks are not brought on board if there are more than 20 on board. They are cut off the line and not shot. Mr Lamason said that he was sure that was the case even though he agreed with Mr Jusseit’s evidence that releasing sharks alive means that tuna are damaged. If that has to be done, it has to be done, he said.
Mr Lamason was asked why the finning condition made any difference to the 20 by-catch limit. He replied that sometimes the crew will not pull large fish on board to do it. Mr Lamason said that his crew do not pull in sharks simply to retrieve the hooks and, if they already have 20 shark, they cut the others off the line and lose the hook. He agreed that it was a very expensive exercise but the crew is not paying for the hook; he is. Mr Lamason said that his crew can “pretty well” identify shark species but he has never identified fins and matched them with their species. He said that he does not tell the crew what shark to target. Some are more valuable than others but, even though he receives half of their value, he does not give any instructions. They may decide to take small sharks because the body is more valuable or may decide not to take 20 sharks at all.
Mr Lamason rejected the suggestion made in an attachment to a minute to the Minister and received by him on 6 October, 2000 that 85% of sharks are alive when hauled on board (Exhibit I, page 4, par. 14 and see also Draft BRS Review). He said that was not the case on his vessels.
Before the finning condition came into force, Mr Lamason said, the sharks brought on board would be finned. If they were large, their teeth were kept. If they were edible and small enough to keep for further processing, they were stored in the brine and their fins in the freezer. If a lot of tuna had been caught, the sharks were stored in another tank where they would sit on the floor and not damage the tuna but it was not always possible. Mr Lamason said that he did not catch Grey Nurse, White Pointer Shark or Whale Shark. They can easily be identified when they are running alongside the vessel. If sharks are very vigorous, they are sometimes cut off at the hook.
Mr Lamason said that seine sharks are bagged in perforated plastic bags for the chilling process. As sharks are covered in spikes, the bags assist in preventing them from rubbing one another. In general, water movement alone will rub the skin off.
Mr Lamason said that his skippers do not keep any Marlin. They rarely catch a Spear Fish and most of the time they are returned. They do not keep Sail Fish either.
Mr Lamason agreed with Ms Mortimer that the word “take” is defined in s. 4 of the Act to mean “… in relation to fish, … catch, capture, take or harvest”. He also agreed that this is a difficulty if he cannot stop the sharks from getting on his hooks. The practical approach to adopt is to cut them off the line. As an operator, he hopes that the crew is keeping the catch and discards up to about 20 per trip. Sometimes, he said, they do not catch that many. As to the number he has caught and the discards, he is usually happy to take AFMA’s word for that. The word “discards” refers to those caught and thrown back and the word “caught” to those caught and taken back to port.
Ms Crosthwaite had collated the fishing activities and catch and effort data for both De Brett and 4 Seas Pty Ltd in the ETBF on the basis of information held by AFMA. She had extracted information from databases and files relating to the permits and recording the information included in logbook returns submitted to AFMA in accordance with the conditions on the permits (Exhibit 5). Mr Lamason agreed that Ms Crosthwaite’s collation of the figures for 2000-2002 for permit numbers 402202 B and C at Attachment 4 showed very few sharks discarded i.e. caught and thrown back. Mr Lamason described the collation as an “eye opener” and said that he needed to re-educate the skipper. When it was suggested to him that he was catching a lot of tuna and that his statement that he loses 30% to sharks is not consistent with the absence of sharks shown in the data, Mr Lamason replied that “some does; some doesn’t”. The percentage of sharks usually caught is in the order of 10% but he agreed that the figures for 2001/2002 did not support that and blamed a new skipper who probably cut off every shark.
The data collated in relation to his other permits at Attachment 4 were also the subject of comment. The catch of Bronze Whaler exceeded even Blue Shark for permit number 45369C and D and Mr Lamason agreed that both its flesh and its fins had value.
In his letter to the Minister on 5 June, 2002, Mr Lamason said that there were ten million hooks in a two million square mile area. That equated with five hooks per square mile per year and did not represent a great deal of effort. Despite that, he wrote, they were “…only allowed 20 sharks per trip, 10 dolphin fish and 20 wahoo. The sharks have to be brought in with fins attached, and the carcas (sic) then taken to the tip. …” (Exhibit 6). Mr Lamason confirmed that his letter represented his understanding of the position. He ensures that his crew is kept up to date by placing a full copy of the permit on the vessel. He does not have meetings but he instructs his skippers by telephone.
When asked about what income he derived from shark finning, Mr Lamason replied “up to $800,000”. When asked about his turn over from tuna, he replied that the year had not been good and nor had the previous year. He had lost $800,000 two years previously, Mr Lamason said. He had made $400,000 one year previously and would probably make money in the current year. He said that it seemed to him that there was some underestimating in the figures that had been given to AFMA. He would have to look at all of the data and where it came from. He would have to embark on an education programme. Mr Lamason did not provide any evidence contradict AFMA’s figures.
The impact of the finning condition on fishing practices
In cross-examination, Mr Taylor said that the present practice was to kill immediately any shark landed on the vessel. Once 20 had been caught, he believed that the remainder that were caught on the line were cut off and allowed to swim on.
Since October, 2000 when the finning condition came into force, Mr Lamason said, there have been considerable changes in the practices on board his vessels. To bring sharks on board, fin them and get rid of them is simple and easy. Now that the crew have to gill and gut them, they must spend considerable time doing so. The sharks must then be lifted into the tank and they are very hard to handle. Even though they may be the same weight as tuna, they are two to three times more difficult to handle, he said. Sharks sag in the middle and require two men with one in the middle. Their skin is thick and coarse like sandpaper and they do not slide easily. If a person brushes past them, his or her skin is torn and the wound usually becomes septic. A lot of crews do not like doing all that work for nothing, Mr Lamason said. People onshore do not like handling them either, he added.
Criticism of the manner in which the finning condition was imposed
In his evidence, Mr Taylor criticised AFMA for not giving notice that it intended to impose the condition on the permits and for not consulting with industry before it did so and for not giving a clear explanation as to why it had done so.
In his second outline of evidence, Mr Jusseit said that the Draft BRS Review “… should not have been used to make the decision to ban shark finning. …” (Exhibit S, par. 11). He maintained this position and said that he meant that it banned shark finning at sea. Mr Jusseit said that the direction the fins could be cut off and attached to the carcass caused concern in that, once a fin was cut off, it was not attached. He also maintained his view that it was incorrect to base a decision to ban the practice when the Draft BRS Review has little factual information and incorrect to implement such a decision without any risk assessment. By risk assessment he meant a study on the biological and economic impacts of the decision.
Why are pelagic sharks finned and how?
Mr Jusseit said that pelagic sharks are finned in the ETBF for three reasons: “increase the utilisation of the resource that is sustainable and part of an ecosystem”; assist in the storing and handling of sharks and their products and fins that are separate from the carcasses are more valuable (Exhibit P, par. 6). In addition, if they are not already dead when they are caught, they are killed immediately to prevent cruelty to them and, more importantly, injuries to the crew. He sees no difference in the reasons before and after October, 2000. Later, Mr Jusseit said that he did not mean to convey the idea that sharks are shot or that they are not released alive.
The Draft BRS Review canvasses the ways in which finning occurs. It found that pelagic longlining operations take the greatest amount of shark as by-catch and described their activities. There has been a move from targeting Yellow Fin Tuna to Big Eye Tuna and Swordfish and that has brought a change in the gear used to catch them. If monofilament leaders are used, there are many more shark bite offs than if wire leaders are used. Sharks are usually landed when wire leaders are used. The hook is retrieved and the fins can be removed. When a filament is used, the monofilament can be cut to release the shark even though it means the loss of the hook and the leader, both of which must be replaced.
Economic impact of finning condition
Before the condition was changed, he said, fishers could bring in the fins alone and now have to bring in 20 sharks with the fins attached. In most cases, the flesh in the shark body has very minimal value. The result is that the carcasses have to be discarded but as they have to be unloaded at a commercial wharf before they can be discarded, that means that there is an additional cost to the fisher. At an unloading cost of 35 cents per kilogramme, 20 sharks add an additional 1,000 to 2,000 kilogrammes of weight. There is then the cost of carting the carcasses to the tip and the tip’s fee. The additional cost per year from disposing of the shark carcasses is approximately $12,000 but is more likely to be up to $20,000 per vessel.
In cross-examination, Mr Taylor said that he sometimes pays the cost of unloading directly to the slipway operator but, on other occasions, it is paid by the processor to whom he sells his catch and the cost is deducted from the price he would otherwise receive from the processor. He said that the average catch on a vessel is in the order of 8,000 to 10,000 kilogrammes each trip and that the cost of unloading is approximately $3,500. Mr Taylor also said that he is charged $1.30 per kilogramme by the processor. That sum includes the unloading charge and handling charge.
The majority of sharks that are discarded and used as landfill, Mr Taylor said, are Blue Shark as their flesh is not palatable. They make up to 70-80% of the sharks caught on the vessels of 4 Seas Pty Ltd. Therefore, they make up 70-80% of the carcasses used for landfill. Even if they are minded to sell the shark, they cannot in some States because of its mercury content.
Mr Taylor also expressed concern about the storage of shark carcasses with other fish as their fins can damage that other fish by protruding into their flesh. In cross-examination, he said that he had observed the fish in the fish rooms on the vessels. He was unaware that there had been an option given to operators in the July, 2001 to store the fins in the carcass cavity if they wished to continue finning at sea. Now that he was aware of it, Mr Taylor thought that there could still be a problem as there are quite sharp edges where fins have been removed. Those sharp edges could cause bruising to other product. In most cases, there is no option to store the sharks separately from the other product and it is almost impossible to protect the tuna.
In giving evidence, Mr Taylor said that the majority of his catch is represented by Yellow Fin Tuna, Big Eye Tuna and Swordfish. Both tuna and swordfish are more valuable than shark. Tuna in particular have a very soft flesh that can be damaged quite easily. One tuna could be worth $4,000 to $5,000. The tuna and other fish may also be damaged by ammonia that leaches from the shark and particularly from its stomach lining.
Mr Taylor said that, with the new restrictions, the chances are that skippers of the vessels will not take the risk of bringing the sharks in. That is so because the value of the fins will not be realised. Killing the sharks and taking their fins is a much quicker option than having to store the carcass where it may have an adverse effect on the rest of the catch.
In cross-examination, Mr Taylor estimated the gross sales of fish to be in the order of $1m to $1.2m for each of his vessels. After deducting expenses, the net profit before tax for each of his vessels is somewhere between $50,000 to $200,000. He was unable to answer how much he had earned from fins before the imposition of the finning condition. His reason was that he had not owned any of the vessels in that period. In cross-examination, Mr Taylor explained that his estimate of before tax net profit took into account depreciation.
He had not been a skipper of any of the boats at the time and could not answer how many sharks had been caught on the vessels, he said. When asked how many sharks were caught per 1,000 hooks, Mr Taylor answered “how long is a piece of string” and that it could be none or 30 or 40 in an extreme case. He could not respond to the statement in the Draft BRS Review that approximately 10 sharks were caught per 1,000 hooks as he did not have the facts. Mr Taylor said that he had not thought it relevant to find out what the shark catch was on his vessels but he said that, in conversations over the previous year or so, the skippers of the vessels had told him that 70-80% of sharks caught were Blue Sharks. The basis of their assessment was their experience. When asked about the other species caught, Mr Taylor said that he did not know how frequently they were caught but the more common species were whales, Mako Shark and Blue Shark. Mr Taylor said that his skippers do not use wire tracers. He could not comment on whether 80% of the sharks caught on the line are pulled up to the vessel alive.
If the finning condition were not in place, Mr Taylor said, an income between $40,000 and $50,000 could be expected. As it is, a lot of the skippers are now not bringing the fins in at all. Mr Taylor said that he sold to a fin trader but he did not know whether fins were sold from his vessels to anyone else. When asked whether that would be in the knowledge of his skippers but not his, he replied, “Could be”. When asked whether fins were sold for cash and not declared for the purposes of GST, he replied that he is not involved in the practice. When asked if he had heard of it happening, he replied that he heard a lot at the wharf but did not know if it was true or not. He could not say whether crew on his vessels receive money for fins. When asked how the crew chooses the sharks they keep, he said that it was not his decision. When asked whether he knew whether they take the first 20 or whether they take the biggest, he said that he did not know and could not answer. His estimate of the vessels bringing back 1,000 kilogrammes of sharks on each trip was based on what he saw on the wharf, he said.
Mr Lamason said that the reduction of the by-catch limit to 20 sharks has meant that his crew is not prepared to do the extra work to bring them in. There had been a small market for shark bodies. If they were not bringing in sharks, those sharks were eating a lot of their tuna and will continue to do so, Mr Lamason said. Up to 30% of the tuna were damaged by sharks or marlins eating them. He has ten vessels and each vessel is worth, on average, $1.6m.
Mr Lamason said that it is very difficult to store sharks with their fins on and that is particularly so when the sharks are large. The easiest way to store them is to cut the fins off. The fins are either stored in the freezer or bled after cutting them from the torso of the shark for otherwise their value is reduced. Shark fins are a very valuable product. Sharks are very stiff and hard to bend when they are cold. It is possible to get them in the brine tanks that have an opening 900mm square. It is one thing to do that when they are soft but another to get them out when they are cold and hard. In addition, he said, it is very hard to bag a large shark. The plastic bags are not large enough and too slippery. Usually, the sharks are not bagged and then they “rough up” the tuna and also dent it so considerably lowering its value. Big Eye Tuna are worth from $70 or $80 to $100 per kilogramme in the auction houses in Japan. If they are squashed, he is lucky to get $30 per kilogramme. The average size of tuna is 20 kilogrammes but they can range from as little as 12 or 13 kilogrammes to 100 kilogrammes.
Mr Lamason said that the trunk weight of a shark (i.e. without the head) depends on the species. Allowing for those variations among species, he accepted the figures given in the Draft BRS Review regarding value as reliable. The crew choose to keep those sharks that have value. Those that do not have value are gilled and gutted and taken to the rubbish tip. He said that his crew were always given half of the value of shark fin. That was in addition to their being paid 40% of the catch less costs and so approximately 33% of the catch. The costs included fuel and bait and a nominal amount for fishing gear. It may be that other crews did not put fin through their books but he did. Some of the crews on other vessels might be given all of the shark fin and not just half. Mr Lamason said that he would regard a crew member who sold fins as a person who stole from him. He would no doubt find out from the fin buyer.
Mr Jusseit said that Yellow Fin Tuna brought approximately $12 per kilogramme and the value of each fish was in the order of $300. Big Eye Tuna and Broadbill vary in price but are in the range of $300 to $600 per fish. Sharks are worth only $100 to $150. When regard is had to that and to the fact that they wreck gear and are difficult to handle, the economies of targeting them do not make sense. Mr Jusseit said that he was not aware of any formal study of the losses caused through shark attack.
Mr Jusseit said that the reason for finning was to increase the return of product caught on the fishing line. It may not be economical to bring in the whole shark carcass on the line because it is either unpalatable or its mercury content is too high and so is unsaleable. The fisherman gets some return out of the resource and avoids some of the costs of just cutting the sharks free. He does not have to repair the line and does not lose hooks. Finning also assists in storing and handling sharks. Sometimes they can be very bulky and the fins very rigid. Depending on the storage available on the vessel, they generally protrude into other product such as tuna and can bruise and abrade that other product. Bruises and abrasions affect the appearance of the tuna and so influence its market price. In addition, the protrusions on the shark can be a safety hazard for the crew as they can fall over those protrusions. There is a belief that shark fins that have been removed do not become tainted by the flesh of the shark. The fins are generally stored in the freezer, put on ice or hung out to dry. The method is determined by the facilities on the boat. Most vessels have ice but, if there is a concern about cross contamination, they may be hung out to dry.
Mr Jusseit said that he had heard others speaking of their efforts to find markets for shark meat. Some told him that they had tried to freeze it and send it overseas but with little success. They do not seem to have been able to establish an economical way of transporting and handling it overseas and there is a limited market there in any event.
In cross-examination, Mr Jusseit said that he saw no evidence that the fins, rather than the carcass, were the dominant product. Without there being a study, there could be no such assumption made. Carcasses are now used more than they were. Only two operators were represented in this case and they were two out of 120 in the fishery.
Mr McNee said that it had been recognised that sharks with their fins attached can damage other fish in storage. Therefore, AFMA had not identified how the fins were to be attached to the whole carcass and had advised operators accordingly. Since then, fins have been attached by methods involving wire or tape or have been inserted into the shark’s mouth or body cavity. Some operators have partly cut through the fin so that it can be folded.
The sale of fins
In cross-examination, Mr Taylor said that the earlier practice had been that fins were not unloaded at the processing plant but were kept separate from the fish. It was “probably the practice” that they were taken away and given to the person who bought them but Mr Taylor said that he did not know what that person did with the fins. He never personally received any documentation regarding the sale of the fins and never received either cash or a cheque for them as he never directly sold them. For a very limited period and in relation to one of his vessels, the amount paid for fins was taken into account as part of the remuneration of the skipper and crew. Mr Taylor said that he left it to the skipper and crew as to whether they caught the limit of 20 sharks and whether they finned at sea or not. When asked whether it is possible that the practice still continues, Mr Taylor said that it could not as he had, some four or five months previously, given a written directive to all of his skippers that it not. In that directive, he had told them that it was illegal to trade in fins in excess of those from 20 sharks and that it was illegal to bring them if they were not attached. Breach of his instruction would lead to instant dismissal. He made no adjustment to the remuneration paid to the skipper and crew as a result of his directive.
A copy of a directive dated 12 February, 2002 and issued by Mr Taylor was produced (Exhibit R). It reminded skippers that finning sharks at sea and selling shark fins was a breach of the permit conditions. Mr Taylor reminded skippers that any skipper or crew member caught selling fins would be instantly dismissed and that he regarded their doing so as stealing from him. All shark fins would be collected by 4 Seas Pty Ltd and 50% of the proceeds returned to the skipper to distribute how he pleased.
Mr Taylor said that some six to eight months previously, he had spoken to the person who purchases fins and made his position clear should he be offered any fins by his, Mr Taylor’s, skippers or crew. At that time, he was checking with the purchaser whether any of his skippers or crew were selling fins to him but he was told that they were not. Since he issued his directive, he has asked the fin purchaser on a couple of occasions whether he has been offered any fins from his vessels and has been told that he has not. There are very few sharks coming in, Mr Taylor said, other than those already stored in his freezer. Somewhere between 50 to 100 kilogrammes of green undressed fin was stored in his freezer and it had a value of $40 to $50. He had not sold any fin since the finning condition was introduced.
Mr Lamason said that he sells fins wet to his own company, Great Barrier Reef Tuna, and that company sells them. He sells 90% to Sea Fresh and the remaining 10% to Chinese purchasers. He did not have much interaction with other operators and did not know what they did. A document has been prepared over the name of Mr Mark Lewis and headed, “Shark Fins Received from Great Barrier Reef Seafoods (02 Oct 02) # 39” (Exhibit 7). It shows the rate paid for trunks and for fins from Blue Shark, Thresher Shark and Mako Shark and also categorises the waste, four categories of sizes and the total received. The total was $13,252.84 and the average price per kilogramme was $77.46. The most that was paid for shark fin was $115 per kilogramme for XXL Black but Great Barrier Seafoods did not supply any of that quality in the period.
Biological issues
Mr Jusseit said that he was concerned about the ecological implications of protecting sharks alone as well as about the consequences doing so may have for biologically sustainable development taking into account social and economic bases. Looking just at the ecological issues, he said, he was concerned with the trophic effect of protecting an apex predator such as the shark. Taking the cod fishery in the northern hemisphere as an example, Mr Jusseit said that the recovery of the fishery has been severely hampered, if not halted, by protection of the apex predator, which is the fur seal. The cod fishery had been made commercially extinct due to a range of factors but primarily overfishing. Fishing was stopped to allow the fishery to recover but, at the same time, fur seal were protected. There was a lack of understanding regarding the link between the cod and the fur seal and the fur seal increased to such an extent that they prevented the recovery of the cod.
Mr Jusseit said that he was a member of the Tuna Fisheries By-catch Action Plan Working Group in 2000 (“BAPW Group”). He said that it was a group of people representing government, fishing industry and non government interests and it provided guidance on the development of by-catch action plan consistent with the government’s policy. In a minute sent to the Minister, it was said that the BAPW Group had acknowledged the need to impose interim measures to ban the finning of sharks at sea in tuna fisheries (Exhibit I, pars. 5 and 20). A statement was made in that minute that “… Mr Hans Jusseit, Executive Officer of the East Coast Tuna Boat Owners’ Association, suggested that a sensible and very effective interim measure would be to adopt the very same measure being proposed here.” (Exhibit I, par. 20). Mr Jusseit did not believe that it was correct to say that the BAPW Group had acknowledged the need to impose a ban and did not make the statement attributed to him. In his second outline of evidence, Mr Jusseit noted that the June BRS Review had corrected the statement to indicate that it had been made by the Australian Tuna Boat Owners Association but that was not the case either.
Mr Jusseit said that there was a higher by-catch of sharks in tuna fisheries than in any other fisheries other than those that target shark. The reason for that lies in the fact that tuna and shark target the same pelagic fish species i.e. fish that are found in the mid water range. A lot of sharks mix with tuna and the tuna industry use bait that attracts both sharks and tuna.
Criticism of Draft BRS Review
Mr Lamason criticised the Draft BRS Review on the basis that it assumes a lot of material and is based on opinion. He challenged the estimate made in the report that export figures indicate that 92 tonnes of dried shark fin was exported from Australian fisheries in 1998-99 and that it was valued at more than $5.5m (Executive Summary, T documents, page 26). As it is valued at $278 per kilogramme wet, it should be valued in the order of $9.2m. That was his primary criticism of the Draft BRS Review but he did query its use of the word “wasteful”.
Mr Lamason referred to a paper prepared by Robert Campbell, Wade Whitelaw and Geoff McPherson and entitled Domestic Longline Fishing Methods and the Catch of Tunas and Non-Target Species off North Eastern Queensland (1st Survey: October-December, 1995) (Exhibit V) (“Campbell Report”). It was a report to the Eastern Tuna and Billfish MAC of AFMA and dated April, 1997. That paper focused on an area off north-eastern Queensland in an area closed to Japanese longliners. A domestic longline fishery targeting Yellow Fin Tuna and Big Eye Tuna does operate in the area and does so out of Cairns. There was potential for interaction between domestic longliners and recreational fishers in the area. As there was very little data on which to base management decisions, a survey was undertaken by using electronic monitors, temperature depth recorders and hook timers. Fishing practices were recorded and hooks observed. Mr Lamason said that the Campbell report had been used to assess Yellow Fin Tuna and Big Eye Tuna and the same approach could be adopted with regard to shark.
Mr Lamason noted that the Campbell Report recorded that, of 1,467 fish caught during the study, 198 or 13% were shark. They comprise the fourth largest group caught. A total of 875 fish, or 60% of the catch was retained. Of those retained, 99 (mostly sharks) were finned and five kept for consumption on board. They comprised 13% of the total catch. There were 13 different species of sharks and 50% of them were finned. The fins were placed in the vessels’ freezers and the rest of the shark discarded. On one vessel, all Dusky Sharks less than 1.5 metres were headed, gutted and finned with the trunks placed in plastic bags and immersed in brine. Of the 592 fish not retained, 276 were landed and returned to the water and 284 were either cut free of jerked themselves free. (Exhibit V, page 24) Mr Lamason considered that the same sort of study should be made in relation to sharks in the ETBF and the SWTBF.
Mr Jusseit criticised the Draft BRS Review as based on few or no facts, drawing conclusions from assumptions based on estimates, which are in turn based on assumptions with little or no foundation.
Mr McLoughlin said that the June BRS Review and its successors were not intended to present information about the sustainability of shark stocks. Sustainability is to be the subject of other documents being prepared under the National Plan for Sharks. The report, Mr McLoughlin said notes that the most common species caught in tuna longline fisheries is the Blue Shark. It also notes that this is a more productive species of shark than some others and so is more resilient to fishing pressures. He acknowledges that no information is given in the June BRS Report on their prevalence in Australian waters.
In addition, Mr McLoughlin acknowledged that the June BRS Review does not provide any information from which AFMA can estimate the effect on shark stock sustainability in the tuna fisheries or in the AFZ as a whole of permitting the finning of sharks at sea by operators in the ETBF or the SWTBF. In the outline of his evidence, he answered the question whether there are any reasons related to ecologically sustainable development of shark resources and the precautionary principle supporting a decision to lift the prohibition on finning sharks at sea and retaining the permit condition prohibiting the landing of shark fins not attached to the trunk in the following way:
“ Insufficient data is being collected in most fisheries that take shark as a byproduct or bycatch. Shark catches in these fisheries are often not recorded. When there is recording of shark catch the information is often of poor quality, for example, the species being taken are not identified. There is little attempt at verification of shark catches in these circumstances. This is likely to improve with the introduction of bycatch action plans by AFMA. In the absence of appropriate information on which to base assessments of shark stock status, the precautionary approach would suggest that shark stock catches should be limited and there should be deterrents to the finning of shark at sea. For these reasons, applying bycatch limits on shark in the tuna fisheries and requiring that fins be attached to the trunk is appropriate.” (Exhibit 14, pages 3-4)
Dr Young disagreed that banning finning at sea will in any way minimise the impact of fishing on by-catch over and above that obtained by the by‑catch limits already in place. He considered that it was sufficient to enable the operators to keep the fins from 20 sharks and rejected any suggestion that finning at sea encourages fishermen to catch more sharks, kill live sharks that might otherwise be released and enable the retention of more fins than would otherwise be allowable.
Mr McLoughlin went on to express other concerns that he considered relevant:
“ Sharks are generally susceptible to overfishing and there is growing international concern over the status of shark stocks due to increases in shark catches. The information available on the status of pelagic shark resources in Australian waters is poor. We cannot conclude whether or not they have been over-exploited. Blue shark are the most commonly caught species and are more productive than many others but even for these we cannot conclude whether or not current levels of fishing are reducing the population. We have a poor picture of what total catches are for blue shark in Australian waters. While blue sharks are abundant, widespread throughout the world’s oceans and among the faster growing elasmobranchs, they are also the most heavily fished sharks in the world. The red list assessment of the shark specialist group of the International Union for Conservation of nature states:
‘The impact of an annual fisheries mortality (mainly of bycatch) of an estimated ten to 20 million individuals is likely to be having an effect on the world population, but monitoring data are inadequate to assess the scale of any population decline.’
The information available on other shark species is more sparse. Our knowledge of basic-life is fragmentary, with even the important population parameters of age, growth and annual fecundity poorly known. Resilience to fishing pressure is almost certainly lower when compared to blue sharks.
I note that the applicant refers to industry observation showing that shark populations are increasing on the east coast due to the number of shark damaged tuna caught on the lines. I could not discount this as a possibility, but with the information available it would not be possible to distinguish between increases in shark populations or changes in the distribution of sharks in relation to longline fishing. Increased shark damaged tuna caught on longlines could also result from an environmental event bringing more sharks into Australian waters in recent years, fishers may be moving to new areas where sharks are more abundant or sharks may have become habituated to the presence of food associated with longline fishing some areas.
The bycatch limits that have been agreed are not based on an assessment of the resources and the potential impact of all vessels taking their bycatch allowance is not known. Based on estimates of the number of landings, the revised draft of the BRS report indicates that current bycatch limits would allow the landing of more than 60 000 shark in the Eastern Tuna and Billfish Fishery and more than 19 000 shark in the Southern and Western Tuna and Billfish Fishery. The impact of these potential catches on the various shark stocks is unknown.” (Exhibit 14, pages 4-5)
Dr Young questioned the figures on which Mr McLoughlin relied and said that they were not collected in a manner that is scientifically defensible. Instead, they were based on anecdotal evidence, the by-catch records of Japanese longline fishermen fishing with different gear and in different locations and perhaps different depths while targeting Southern Bluefin Tuna, which is a different species. In addition, the Draft BRS Review took no account of species specific differences in ratios of dry and wet weight of fins to carcass or whole fish. Finally, the Draft BRS Review ignored the confidence levels in the estimates and did not distinguish between estimates based on fact and estimates base on opinion.
By-catch and by-product
Mr Lamason drew a distinction between by-catch and by-product. He said by-catch is that which cannot be used and is discarded and by-product is that which is used. He said that the first 20 sharks are now by-product because they can be used and the next 20 are by-catch because they cannot be used.
Information regarding shark stocks and the extent of shark finning
Ms Rose said in her outline of her evidence and in the Draft BRS Review that the review was prepared within the following objectives:
“(i) Examine the extent of shark finning in Australian waters by collating available information and identifying how finning threatens shark populations relative to other threatening practices;
(ii)Describe the regulatory arrangements under which shark finning occurs and understand how regulation provides either an incentive or disincentive to continue the practice; and
(iii)Review the various international mechanisms used to manage the practice and provide a guide to possible options.” (Exhibit G at 1-2)
Among the reasons on which funding was approved for the project, was concern over the sustainability of shark resources both in domestic Australian and international waters. Domestically, the Commonwealth has protected Grey Nurse and Great White Sharks from deliberate take and other jurisdictions have taken similar action. Concern for sustainability was said to be heightened by what was seen as a growing trend in those fisheries where sharks are a by-catch and where their fins are removed before their carcasses are discarded in the sea.
Ms Rose said in the Draft BRS Review that she undertook her research for the Draft BRS Review by: reviewing currently available information, including scientific publications and grey literature; analysing the current regulatory regimes governing shark finning around Australia; formally requesting information from all bodies which may be custodians of information relating to shark finning (e.g. fisheries agencies, customs and peak fishing lobbies as well as the Marine and Freshwater Resource Institute and the CSIRO); analysing the data received; and visiting selected ports to meet with fishers, who included owners and crew and deckies, as well as fin buyers and fin processors.
The Draft BRS Review and the Final BRS Review acknowledge that the information that Ms Rose was able to gather regarding shark catches is inadequate. Her reason for there being inadequate information is that there is a poor recording of shark catches to the species level in target shark fisheries let alone in those fisheries where it is caught as by-catch. There are very few observers on board tuna longline vessels in the ETBF and collection of shark information has not been a priority.
The status of the majority of shark species in Australian waters is poorly known, the Draft BRS Review acknowledged, and set out the information that was known at the time. The Draft BRS Review states that:
“Records of shark bycatch by tuna fleets are generally of very poor quality, mainly due to the low economic value of sharks historically. The increase in the demand for fins and their value over the last decade has increased the incentive to kill and fin sharks that are caught on longlines. Anecdotal reports indicate some vessels target shark for their fins when the tuna catch is low. Although Australian domestic vessels are issued with logbooks that, over the last few years, have included a section for shark bycatch recording, the accuracy of this data is not known. However, anecdotal evidence suggests that catches of sharks recorded in logbooks are significantly underestimated.
Sustainability of the shark catch is cause for concern due to the life history and migratory characteristics of these species. Many of the shark species in the longline bycatch are oceanic and highly migratory making it impossible for individual countries to control catches that are likely to impact on the sustainability of stocks. Furthermore, regional fisheries management organisations (RFMOs) that deal with pelagic species focus on management of tunas and billfishes fisheries and do not include sharks within their mandate (Stevens and Wayte 1998). …” (T documents, page 67)
This is supported later in the report by reference to reports by Campbell et al., Domestic longline fishing methods and the catch of tunas and non-target species off north-eastern Queensland. 1st survey: October – December 1995, report to Eastern Tuna Billfish Fishery Management Advisory Committee and the 2nd survey of the same name for May-August 1996 (T documents, pages 69 and 199).
The Draft BRS Review notes that there are five species of shark that have some level of protection under the EPBC Act: White Shark, Grey Nurse Shark, Glyphis spp, Sawfish and Whale Shark. White Shark are closed to all fishing in Australian waters, except catch and release game fishing activities and protective beach meshing operations. The Carcharias Taurus species of Grey Nurse Shark is totally protected in Commonwealth waters and those of the States other than South Australia and the Northern Territory. Like the White Shark, the Carcharias is listed as vulnerable. Odontaspis ferox has been a protected species in New South Wales waters since 1984 but is rarely encountered as it inhabits deeper waters than the Carcharias Taurus species. Glyphis spp. is fully protected in Commonwealth waters as they are listed as vulnerable. There are five species of Sawfish. Four of the five are listed as endangered and one as vulnerable. Whale Shark are not finned in Australian waters but they are finned internationally. They are protected in Western Australian and Tasmanian waters and in Commonwealth waters under the EPBC Act as a migratory species.
Other Australian species of shark that the Draft BRS Review found may be finned are Dusky Shark, Sandbar Shark, Whiskery Shark, School Shark, Silky Shark, Oceanic Whitetip and Thresher Shark. None is protected. The authors expressed concern that the stocks of the Dusky Shark are depleted and that trade from their products is contributing to their decline as there is a demand for their large and good quality fins. Juvenile Dusky Shark are taken in significant quantities by directed commercial shark fishers and adults are caught as by-catch in longline and other fisheries. They are also caught, the Draft BRS Review concluded, by shark control programmes and recreational fishers. The conservation status of Lower Risk has been given to the Sandbar Shark on the basis of its slow growth and low reproductive potential and a number of threats. The species, the Draft BRS Review continued, is susceptible to exploitation from directed commercial shark fishing in Western Australia as well as from finning in the tuna longline fishery where it is taken as by-catch. The Whiskery Shark and the School Shark have been assigned a status of Lower Risk.
None of the members of the Court of Appeal found any error in the way in which Armitage CCJ had approached his task. His Honour had reviewed a number of authorities and continued:
“What emerges from these authorities I think is that this is not a trial of which scientific theory is correct in relation to the carcinogenicity of DDT or arsenic, or for that matter any other substance to which the deceased was allegedly exposed. That is a debate which must be conducted in scientific rather than in legal circles upon the basis of scientific proof. The law does not call for that standard of proof, but rather proof on the balance of probabilities on the whole of the evidence, both scientific and lay, and as the decision of the High Court in Ramsay v Watson (supra) [(1961) 108 CLR 642] demonstrates, a tribunal of fact must not abdicate its task to the scientific and/or medical experts, albeit being guided by their evidence alongside the lay evidence in the case. Further, a conclusion naturally suggesting itself to a mind uninstructed in pathology (to paraphrase Sheller JA in MLA Holdings [MLA Holdings Pty Ltd v Smith (1996) 13 NSWCCR 224]) ie my own in this case, may legitimately be drawn from the lay as well as the scientific evidence, even though the scientific or other expert evidence alone may not form a sufficient basis for it on the balance of probabilities. That is a very different and contrasting situation from that which prevails in scientific circles in relation to proof of a hypothesis, but it is nevertheless the correct legal basis upon which to approach the causation questions in this case.” (quoted by Powell JA at 100)
What is a “threat”? It is commonly used in the sense of a declaration of an intention or determination by one person to inflict some form of harm on another or in the sense of intimidation by one of another. That is the sense adopted by the Federal Court in interpreting provisions such as that in s. 298K(1) of the Workplace Relations Act 1996 which prohibited an employer, for reasons including a prohibited reason, from threatening to do such things as dismiss an employee, injure an employee in his or he employment or alter an employee’s position to that employee’s detriment. An earlier but related prohibition was found in s. 9 of the Conciliation and Arbitration Act 1904. Both provisions were considered by Finkelstein J in CPSU, The Community and Public Sector Union v Telstra Corporation Limited [2000] FCA 844 when he said:
“… Although the language of the section has changed from time to time, its overall thrust remains the same. Broadly speaking, s 298K is designed to protect an officer, delegate or member of an industrial organisation against discrimination by his employer. One objective of s 298K is to ensure the threat of dismissal or discriminatory treatment cannot be used by an employer to frustrate an employee's right to take the benefit of awards or certified agreements reached through arbitration, collective bargaining or conciliation.” (par. 7)
Finkelstein J went on to consider what amounted to a “threat” within the meaning of s. 298K:
“19 To succeed it is necessary for the applicants to show that there has in fact been an injury to, or an alteration in the position of, employees engaged under awards or certified agreements or that there has been a threat to that effect. I can immediately dispose of the allegation that there has been a relevant threat. In the context of this legislation, there will not be a threat of proscribed conduct unless the employer communicates to his employee that proscribed action will be taken. One meaning of the word "threaten" is to menace or warn beforehand of an intention to inflict harm. That is the meaning that should be given to the word in s 298K. It is the meaning that was adopted for the ancestor provision in the Conciliation and Arbitration Act: see Gietzelt v Craig-Williams Pty Ltd (No 1) (1959) 1 FLR 456. It is the meaning that accords with one of the objects of s 298K which is to prevent employers bullying employees by reason of matters connected with their terms and conditions of employment or the performance of their work.”
The word “threat” has also been considered in the context of certain Statements of Principle (“SoP”) made under the Veterans’ Entitlements Act 1986. On occasion, a SoP requires determination of whether a person has experienced a severe stressor. The expression “experiencing a severe stressor” is defined to mean “…the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror”. What is meant by “threat” in that context has been considered by the Full Court of the Federal Court in Repatriation Commission v Stoddart [2003] FCAFC 300 (Carr, Finn and Sundberg JJ) when it said, in part:
“The definitions did not require there to be an actual threat judged objectively and with full knowledge of all the circumstances. To adopt the Full Court’s paraphrase (at para 139) [in Woodward v Repatriation Commission (2003) 200 ALR 332]:
‘the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, “experiencing” should be construed as having at least this partially subjective connotation.”
The Tribunal misdirected itself. In consequence it did not address whether the “threat” perceived by the respondent was in the circumstances capable of satisfying the requirements of the definition, notwithstanding there was no actual threat as such.” (par. 30)
As to the meaning of “threat”, Mansfield J in the Court below had held that it:
“… extended to an event or events which:
‘judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (ie are subjectively experienced) the risk of death or serious injury or to physical integrity.’ Emphasis added.
Further, his Honour accepted that the meaning conveyed by ‘threat’ in its SOP contexts was ‘an indication of probable evil to come; something that gives indication of causing evil’.” (par. 32)
The Full Court said that:
“Similarly, we do not consider that the primary judge impermissibly refocussed the definition of threat. The dictionary definition he adopted – ie ‘an indication of probable evil to come: something that gives indication of causing evil or harm’ – is the proper and appropriate one in the setting of the SOPs for the reasons given by his Honour: Reasons at para 52.” (par. 36)
The meaning adopted by the Full Court in Repatriation Commission v Stoddart is one of the ordinary meanings of “threat” (Macquarie Dictionary, 3rd edition, 1997). What is clear from all of the authorities to which we have referred is that the precise meaning given to the word “threat” is dictated by its context.
In this case, that context is two fold and the first brings us back to the precautionary principle itself. It is clear from the authorities to which we have referred that its interpretation is not quite as clear as was perhaps the case when Stein J decided Leatch v National Parks and Wildlife Service. His Honour said in that case that “It is directed towards the prevention of serious or irreversible harm to the environment in situations of scientific uncertainty”. This was echoed by Sackville J in Friends of Hinchinbrook Society Inc v Minister for Environment and Others (No. 2). Both preached caution when there is scientific uncertainty but preaching caution is a step or two short of blocking activity where there is scientific uncertainty. For all that, Cowdroy J has taken those steps in Brunsdon v The Council of the City of Wagga Wagga and has, in effect, interpreted the precautionary principle to mean that where there are uncertainties regarding the impact of activities on certain aspects of the environment, those activities should not be permitted. That is an interpretation that favours environmental interests. Perhaps the reason for his doing so lies in the requirement in the LEP that “The principle requires decision-making to give the environment the benefit of the doubt.” That qualification does not appear in legislation considered in the other cases. It is not an interpretation that sits comfortably with the approach adopted by Pearlman CJ in Greenpeace Australia Ltd v Redbank Power Company Pty Ltd and Singleton Council when he was not required to consider such a qualification. He stated that the precautionary principle “…does not require that the greenhouse issue should outweigh all other issues”. It is not an interpretation that sits comfortably with the approach adopted by McLauchlan QC DCJ in Theo v Caboolture Shire Council or by Robertson DCJ in Histpark Pty Ltd and Anor v Maroochydore Shire Council. Both were of the view, as expressed by McLauchlan QC DCJ that “… the principle is not concerned with bare possibilities of such damage, but with situations where such damage can reasonably be said to be threatened”. Unlike the earlier cases and putting to one side the case of Brunsdon v The Council of the City of Wagga Wagga, the cases of Theo v Caboolture Shire Council and Histpark Pty Ltd and Anor v Maroochydore Shire Council both appear to be underpinned by notions of “threat” and the standard of proof required to establish that threat. They would seem to have built upon earlier authorities so that the precautionary principle is still regarded as requiring that caution be exercised but only in situations in which it is established, on the balance of probabilities, that serious or irreversible environmental damage can reasonably be expected if a certain course of action is taken.
The second part of the context comprises the manner in which the decision-maker must have regard to the precautionary principle in the decision-making process both alone and as one of a number of objectives in s. 3(1) of the Act. When considering it alone, he or she must undertake a “careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment” (Intergovernmental Agreement on the Environment, s. 3.5.1(i)) (emphasis added). The words “wherever practicable” show that Parliament has recognised that there will be occasions when serious or irreversible damage will flow to the environment. This indicates that the approach in Brunsdon v The Council of the City of Wagga Wagga is not the approach intended under the Act.
We have already touched on the way in which the objectives in s. 3(1) may be balanced. At one level, they could be said to touch on a wide range of interests that could be expected to be affected by regulation of a fishery to any extent. They could be said, for example, to range from maximising economic efficiency in exploiting fisheries resources to having regard to principles of ecological sustainability. At another level, they could be said not to extend over a range at all but to relate to the one matter for without ecological sustainability, the economic efficiency in exploiting fishery resources cannot be maximised. Whatever the correct view, the fact that regard must be had to them indicates that it would not be correct, under the Act, to adopt an interpretation of the precautionary principle that required us to prevent activities whenever there are uncertainties regarding the impact of those activities on certain aspects of the environment. Such an interpretation would not allow us to have regard to all of the objectives in s. 3(1) of the Act.
Having regard to the context in which it appears, we consider that the word “threat” means “… an indication of probable evil to come; something that gives indication of causing evil or harm …” (Macquarie Dictionary). That is to say, where there is a threat of serious or irreversible environmental damage, there is some aspect that gives an indication that there will be serious or irreversible environmental damage if a certain course is followed. That aspect needs to be established on the balance of probabilities for, in the absence of any contrary indication in the Act, it is the civil standard of proof that is adopted in decision-making be it in a civil proceedings in the courts or merits review of an administrative decision in the Tribunal. Just as the civil standard is not a fixed standard in all cases but adapts according to the seriousness of the issue under consideration in accordance with the principles in Briginshaw v Briginshaw so too does the standard of proof where the precautionary principle is concerned. As Mackenzie J said in Brisbane City Council v Georgeray Contracting Pty Ltd and Ors, albeit in a different context, “…if the kind of risk is drastic and obvious less detail will suffice than in a case where the degree of risk is less obvious and its causation more subtle”.
At the practical level for us, the precautionary principle means that we must assess whether there is an indication that there will be some serious or irreversible environmental damage if a certain course is followed, including the course of taking no action at all. That means that we must assess the possible consequences and gravity of those courses’ being followed together with the risk of those consequences’ occurring. That assessment must be carried out having regard to all sources of evidence; it is not limited to scientific evidence. If the assessment leads to us to conclude on the balance of probabilities that there is a threat of serious or irreversible damage to the environment that is not a bare possibility, full scientific certainty in the sense we have explained that concept should not be used as a reason for postponing measures to prevent environmental degradation. Caution should be exercised. The outcome of our assessment in applying the precautionary principle must be weighed with the other objectives in s. 3(1) of the Act and a decision reached.
Maximising the economic efficiency in the exploitation of fisheries resources
Section 3(1)(c) of the Act requires AFMA to maximise economic efficiency in the exploitation of fisheries resources. This objective was considered by Ryan J when he said in Australian Fisheries Management Authority v Graham [2003] FCA 231:
“Those objectives were considered by Branson J in P W Adams Pty Ltd v Australian Fisheries Management Authority (1998) 49 ALD 68 where, at 76-77, her Honour said:
‘... Neither s 6 of the Administration Act, nor s 3(1) of the Management Act, can, in my view, be construed as intending to impose on AFMA an obligation to ensure that every action or step that it takes is one which, standing alone, can be characterised as an action or step taken in pursuance of its objectives. Such a construction of the two Acts would make the administration of AFMA virtually impossible. ...
...
Plainly, there is a difference between ‘maximising economic efficiency in the exploitation of fisheries resources’ and maximising the economic efficiency of individual participants in the fishing industry. The objectives of AFMA are objectives intended to be pursued in the public interest; they are not intended to require AFMA to pursue, assuming that it would be possible for it to do so, the separate interests of individual participants in the fishing industry. Of course, in many circumstances, the respective interests of individual participants in the fishing industry and the public interests which AFMA is required by its objectives to pursue in the performance of its functions will be consistent. In some circumstances they will not be consistent.’
37 Her Honour's observations are plainly correct. The provision is exhortatory, and each objective cannot be pursued with equal vigour at one and the same time. The objectives enumerated in s 3(1) impose no duty on AFMA to advance the economic interests of individual fishermen. However, to say that is far from supporting a construction which entails that the economic AFMA in the management of a fishery.” (par. 36)
The policy
In accordance with the principles expressed in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 (Brennan J, President), AFMA:
“… is equally free, in point of law, to adopt such a policy in order to guide him in the exercise of the statutory discretion, provided the policy is consistent with the statute.” (page 640)
The reason for a body such as AFMA’s adopting a policy in relation to its decision-making in relation to applications were explained by Brennan J:
“… It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.” (page 640)
While acknowledging the importance of policy, Smithers J in Drake v Minister for Immigration and Ethnic Affairs (Bowen CJ, Smithers and Deane JJ) said:
“ In the performance of the Tribunal’s function it is essential that a policy adopted by an administrator should be under review to the same extent as his evaluation of relevant matters and his general process of reasoning, not for the purpose of deciding whether it was reasonable for the administrator to make the decision he did, but for the purpose of deciding whether, by the objective standard of good government it was the right decision to make.” (page 80)
The views of Smithers J were consistent with those of Bowen CJ and Deane J (at page 70) and developed by Brennan J in Re Drake (No. 2):
“ Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute (see Murphyores Incorporated Ltd v The Commonwealth (1976) 136 CLR 1; Drake’s case, supra, at 589, and the cases there cited). …
That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the Minister usually applies. There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion intact while guiding the exercise of the power. (see British Oxygen Co v Board of Trade [1971] AC 610 at 625 and 631). Lord Denning referred to the distinction in Sagnata Investments Ltd v Norwich Corporation [1971] 2 QB 614 at 626, where he said:
‘I take it to be perfectly clear now that an administrative body, including a licensing body, which may have to consider numerous applications of a similar kind, is entitled to lay down a general policy which it proposes to follow in coming to its individual decisions, provided always that it is a reasonable policy which it is fair and just to apply. Once laid down, the administrative body is entitled to apply the policy in the individual cases which come before it. The only qualification is that the administrative body must not apply the policy so rigidly as to reject an applicant without hearing what he has to say. It must not “shut its ears to an application”: see [1971] AC 610, 625 per Lord Reid. The applicant is entitled to put forward reasons urging that the policy should be changed, or saying that in any case it should not be applied to him. But, so long as the administrative body is ready to hear him and consider what he has to say, it is entitled to apply its general policy to him as to others.’” (pages 640-641)
Should the finning condition have been imposed?
While it may be said that the decision to impose the finning condition complements the earlier decision to impose a by-catch limit, the earlier decision is not the decision whose merits we are reviewing. The two decisions are quite distinct. In the case of the finning condition, the by-catch limit is already in place and has been put in place by r. 51 of the Regulations. The decision to impose the by-catch is not something that can be reviewed but it forms part of the context in which the finning condition is reviewed. Although generally described as permitting 20 sharks to be taken as by-catch, we note that r. 51(2)(c) actually provides that a “… holder must not take from the waters more than … 20 fish of a species mentioned …” (emphasis added) in Division 3 of Part 2 of Schedule 5 of the Regulations. The species that are mentioned are not only shark species for they include Slender tuna, Wahoo and Butterfly mackerel as well as sharks. We have emphasised the words “take from the waters” because, taken with the definition of “take” in s. 4(1) of the Act, the effect of r. 5(2)(c) is that the holder of a permit must not catch, capture, take or harvest from the waters more than 20 of those fish. The parameters of the restriction were not explored at the hearing but there is room to do so in an appropriate case. Does it mean, for example, that the holder must count fish that are brought on board the vessel as having been taken from the waters even if he or she discards them as unsuited for his or her needs? Are they taken from the waters if they are caught on the line but cut free before they are taken on board? These are issues that were merely touched upon by the parties but not explored at any length. We do not intend to do so either but touch upon them ourselves to illustrate that the parameters of the by-catch limit are not, to our minds, entirely clear.
We will begin our consideration of the finning condition with the precautionary principle. That means that we must consider whether there is a threat of serious or irreversible environmental damage and so the courses of action that are available, the consequences of those courses of action and the risk of those consequences’ occurring. As the courses of action and possible consequences all relate to sharks, we begin with the shark stocks. On the basis of the evidence in the BRS Review in each of its forms (“BRS Review”), we are satisfied that there is some level of protection in Australian waters for the White Shark, Grey Nurse Shark, Glyphis spp, Sawfish and Whale Shark. Putting aside the by-catch limit, there is no protection for Dusky Shark, Sandbar Shark, Whiskery Shark, School Shark, Silky Shark, Oceanic Whitetip and Thresher Shark. Blue Sharks are not protected at all.
All of the witnesses were also in substantive agreement regarding shark stock and we make our findings in light of that. The evidence regarding shark stocks in the AFZ is patchy and inadequate. There are a number of reasons for this and the emphasis given to those reasons varies a little from witness to witness. There is common agreement though, and we find, that it is partly due to there being inadequate observers on board the domestic fishing fleet and partly due to there having been inadequate resources devoted to the study of shark stock to date. That is not a criticism but a finding of fact for present purposes.
As to whether the log books provide an adequate record of sharks taken as by-catch in the ETBF or the SWTBF is a matter on which Dr Young on the one hand and Ms Rose and Mr McLoughlin and the BRS Review generally on the other take different views. Having heard from Mr Lamason and Mr Taylor, we favour the evidence of Ms Rose, Mr McLoughlin, Mr McNee and the BRS Review. That evidence is to the effect that fishermen have a low interest in recording their catch accurately as they have historically had a low economic value. In view of the evidence regarding the manner in which some crews are paid, we find that, while their value to the operator may have been low, they had an economic value to the crew who generally retained either all or a percentage of the shark fins taken. It is evidence implicitly supported by Mr Lamason who acknowledged that, based on the logbook data, he would not earn anywhere near the $800,000 he actually earns each year. That very much suggests under-reporting of catch in the logbooks kept by his skippers and supports the findings in the BRS Review that there is under reporting of shark by-catch. Similar findings were set out in the draft Shark Assessment Report – Overview prepared by SAG in March, 2001. Mr Lamason’s evidence also illustrated the uncertainty as to the meaning of how to count the 20 fish that may be taken from the waters under the by-catch limit. He hoped that his crew kept the catch and the discards to 20 but he did not express any sentiment above hope. We find on the basis of Mr Lamason’s evidence that he has a high turn over of skippers from time to time. Mr Taylor, we find, relies on his skippers for his information as to what happens on his vessels and is not in a position to add anything to the debate. Mr Taylor was not asked about the turnover of his skippers. Based on the evidence of the BRS Review and of Mr McNee, which is supported at the practical level by Mr Lamason’s and Mr Taylor’s acknowledging that they left identification to their crews, we find that the accuracy of the species identification of those sharks that are recorded in the logbooks is open to question. In our view, the weight of evidence favours our finding, and we do find, that the information regarding the number of sharks caught as by-catch in the AZF generally and the ETBF in particular is unreliable.
That brings us to the effect that the finning condition may have on shark stocks. We find, on the basis of the BRS Review as well as on the basis of the evidence of Mr Lamason, Mr Taylor and Dr Young, we find that 70 to 80% of the shark that are caught in the ETBF are Blue Shark. Apart from that, the figures as to shark stock are unknown and as to catch are unreliable. The level of mortality of those sharks caught on the line and cut off without being taken on board is unknown although estimates appear in the Draft BRS Review of up to 100% (T documents, page 192). Based on Mr McLoughlin’s evidence, we find that knowledge of other important aspects of sharks such as their longevity, growth and annual fecundity is poorly known. This is a matter for concern but it leaves us in a position in which we are unable to form a view as to the consequences of imposing, or not imposing, a finning condition. We cannot assess the consequences that are likely to follow either course or the risk of their doing so for we simply do not have the information. That means that we cannot assess whether there is a threat of serious or irreversible environmental damage within the meaning of the precautionary principle.
That, however, is not an end of the matter for the objective that we ensure that the exploitation of the ETBF is consistent with the exercise of the precautionary principle is but one part of one of the objectives set out in s. 3 of the Act. Part of the objective in s. 3(1)(b) and that in s. 3(2)(a) are concerned with similar concepts even though expressed in different language: the first is concerned in part with ensuring the long term sustainability of the marine environment; and the other in part with ensuring that the living resources of the AFZ are not endangered by over-exploitation. Given the context in which they appear, those concepts are not considered in isolation but in the context of, among other objectives, the management of fishing resources. Looking at them in isolation for the moment, though, we find that the finning condition complements the by-catch limits. As we have said, the by-catch limit is not reviewable by us. It has been set by r. 51 of the Regulations and that regulation has been made pursuant to s. 14. Assuming for the moment that its validity could be attacked in the Tribunal with any consequence, it has not been attacked. We have presumed that, even though it has been made as a consequence of an MOU, or more than one, with the States, it has also been made within the ambit of the regulation making power in s. 14 and so for the purpose of “… conserving the marine environment …”. That brings us back full circle to those parts of the objectives in ss. 3(1)(b) and (2)(a), to which we have referred.
In reviewing the decision to impose the finning condition, we have found the following additional facts. Based on the evidence of Mr McNee and of the BRS Review and its authors and of Mr Lamason and of Mr Taylor, we find that there is, on the balance of probabilities, likely to be significant under-reporting of the by-catch of sharks in the ETBF and generally and not simply misreporting of it. Our reasons are similar to those for finding that the logbooks are inaccurate but we would add that Mr Lamason’s admission that he earns more than his logbooks reflect and the reluctance of either him or Mr Taylor to produce evidence of their income from fishing activities generally or sharks in particular is a further factor. It suggests that either or both of them are concerned that their doing so would show under-reporting of their catch and, in this case of their catch of sharks. That would then leave them vulnerable to a suggestion that either or both have been in breach of the permit conditions. Whether or not either or both of them is in breach of their conditions is not a matter on which we make a finding. Their omission to give evidence is, however, a matter that we have taken into account.
Based on the evidence of Mr Lamason, Mr Taylor and Mr Jusseit, we find that sharks are considered to be pests to tuna fishermen or at least to impede their efforts to catch the optimum number of tuna from their fishing effort and in the best condition possible. That flows from the fact that tuna and sharks mix and both enjoy similar food to that enjoyed by tuna. Consequently, sharks are attracted to the tuna and then to the bait intended for the tuna. That means that they either feed on or damage the tuna caught on the line or become caught on the line themselves. If caught on the line themselves, they have to be cut off and a hook is wasted. Just who bears the cost of the lost hook is unclear but we are satisfied that, on Mr Lamason’s vessels at least, the crew have some amount for gear deducted from their remuneration. In view of that, we find that there is some incentive to retrieve the hooks rather than to cut off the sharks. Based on Mr Lamason’s evidence, we find that a hook could only be retrieved if the sharks were shot first. Just how great the crew’s incentive to retrieve the hook may be we are unable to ascertain for it may be that the cost of the hook must be weighed against the cost of the bullet or bullets.
We also find that the value of a shark varies according to its species. This finding is supported by all who gave evidence. Some have value in both their flesh and in their fins but others in their fins alone. The value of the fins varies according to the species of shark from which they came and according to size.
If we were to decide that the permit holders were not required to comply with the finning condition but could possess on their trip sets of fins belonging to up to 20 sharks, we are not satisfied that there would be any practical and relatively cheap and efficient way of ascertaining whether or not those 20 sets of fins came from the same number of sharks. We find that, if there were to be 20 full sets there would be eight in each set (1st dorsal fin, pair of pectorals, lower lobe of tail, 2nd dorsal fin, pair of ventral fins and anal fin). Mr Lamason conceded that there can be some difficulties in identification and the BRS Review supported by Ms Rose and Mr McLoughlin said that there are difficulties. Dr Young accepted that the retention of the carcass facilitates the matching of the fins to it. On the basis of his evidence, we find that there are ways of identifying fins and matching them to a carcass by means of mitochondrial DNA, PCR and protein fingerprints of shark fillets and fins. We also find, again on the basis of his evidence, that identification in this manner is difficult and time consuming.
We find that identification of the various shark species taken in by-catch in the ETBF and SWTBF is one important part of the work that is proceeding towards identifying the shark stock and in identifying and studying the ecological impacts on various shark species. That work dovetails, we find, into the work that Australia is undertaking as part of its international obligations regarding shark management. Its work includes a national risk assessment of shark.
On the basis of the evidence of Mr Lamason, Mr Taylor, Mr Jusseit and Mr McNee as well as the BRS Review, we find that there can be some damage to tuna if sharks are not finned and are stored in brine with the tuna. That damage is brought about by hitting and rubbing against the tuna with their rough skins and with their fins. We find that damage from the protruding fins may be avoided by removing them and attaching them to the carcass in some other way or placing them in the carcass’s cavities as permitted by AFMA’s interpretation of the word “attached” in the finning condition. Even then, there may be sharp edges on the carcass at the point where the fins were removed. Some of the damage from the rough skin and sharp edges may be avoided or reduced by bagging the shark in perforated plastic bags but not entirely for even the motion of the brine may cause damage let alone the rougher flesh of the shark. Only Mr Taylor seemed particularly concerned about ammonia leaching from sharks into the tuna catch. He does not have the practical experience of Mr Lamason and Mr Jusseit as a fisherman and we have made no findings that damage from ammonia or from shark flesh is a major concern to fishermen in the tuna industry.
Mr Lamason and Mr Taylor both referred to economic loss from the loss of the sales of shark fin. At the same time, they did not produce evidence on which we are satisfied of the extent of any economic loss they may have suffered as a result of the imposition of the finning condition. Certainly, they gave evidence of the cost of landing and disposing of shark carcasses. There is, however no evidence of the number of edible sharks that each landed and the number that were sold rather than disposed of. There is no evidence of the type of sharks that are being landed. On the wider view of he effect of the finning condition on the economic efficiency of those engaged in the ETBF and SWTBF, we are not satisfied on the evidence that we have that any adverse effect has been established.
Finally, we find that the finning condition has been imposed as an interim measure by AFMA. That is clear from the notice dated 12 October, 2000 sent by Mr McNee to all permit holders. We also regard it as an interim measure and as something that will be reviewed from time to time. Having regard to all of the objectives in s. 3 of the Act as well as to the background against which the finning condition was imposed, we consider that it is an appropriate decision to impose. The uncertainty of the state of shark stocks and of the factors that have an impact upon those stocks may not activate the precautionary principle but, taken with the findings we have made, leads us to conclude that the finning condition is correctly imposed at least in the short term. The ETFB and the SWTBF, for example, cannot be managed with maximum economic efficiency in the exploitation of its resources and be exploited in a manner that is consistent with the principles of ecologically sustainable development if AFMA does not have knowledge of the shark stock and the impact of fishing activities and other factors on that stock. The finning condition complements the by-catch imposed to limit the number of sharks and other fish that may be taken from the waters. It does so by taking a step towards ensuring that the by-catch is adhered to and it is a step that is cheaper and more easily and quickly enforced than reliance on more sophisticated testing. Our findings regarding logbooks persuade us that they are not currently a tool that can be used to ensure compliance. On the basis of the BRS Review, we are satisfied that other tools that might be used to capture information about such matters as the numbers of sharks, their identification, catch composition, catch per unit effort and trade as well as the means of verifying that information are not yet reliable. If the by-catch is adhered to, that has a role to play in the work that Australia is undertaking to ascertain its shark stock and the ecological impacts upon it and ultimately a role to play in ensuring that the fisheries’ resources are exploited with the maximum efficiency but in a manner that is ecologically sustainable.
For these reasons, we affirm the decisions dated 2 February, 2001 in relation to each of the applicants.
I certify that the one hundred and eighty preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie
Mr W G McLean, Member
Signed: ........................................................
R. Crook Associate
Date of Hearing 11, 12, 13 June, 2002,
28, 29, 30 October, 2002and 11 April, 2003
Date of Decision 30 June, 2004
Counsel for the Applicants
and Party Joined Mr P J Cosgrave
Solicitor for the Applicants Fitzpatrick Teale
and Party Joined
Counsel for the Respondent Ms D S Mortimer
Solicitor for the Respondent Ladbray Consortium
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