Dixon v AFMA and Executive Director of Fisheries WA and Northern Territory of Australia - [2000] AATA 442

DECISION AND REASONS FOR DECISION [2000] aata 442

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/338

GENERAL ADMINISTRATIVE DIVISION )

Re STEPHEN JOHN DIXON
Applicant

And AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
Respondent

AndEXECUTIVE DIRECTOR OF FISHERIES WA
First Third Party

AndNORTHERN TERRITORY OF AUSTRALIA
Second Third Party

DECISION

Tribunal Pamela Burton, Senior Member

Date5 June 2000
PlaceCanberra

Decision The tribunal affirms the decision under review.

...................(Sgd.)....................
Pamela Burton Senior Member

CATCHWORDS
FISHERIES – area restrictions on fishing permit – line at Latitude 34oS within S/WTBF – policy to retain line as fishing boundary until management plan introduced - precautionary principle – whether the threshold test is met – whether it needs to be for a cautionary approach to be taken - ecologically sustainable development considerations – whether policy unlawful or unwarranted – effect of retaining and removing line on AFMA's mandatory objectives – fish stock concerns – localised depletion – bycatch - the effect of activation of latent effort – economic considerations – whether there are cogent reasons for departure from policy.
Legislation
Fisheries Management Act 1991 (C'th)
Fisheries Administration Act 1992 (C'th)
Fisheries Legislation Amendment Act 1997 (C'th)
Fish Resources Management Act 1994 (WA)
Authorities
Australian Fisheries Management Authority v Adams Pty Ltd (1995) 61 FCR 314
Bannister Quest Pty Ltd v Australian Fisheries Management Authority (1997) 77 FCR 503
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366
Re Jetopay and Australian Fisheries (1993-4) 32 ALD 209
Metal Holdings Pty Limited and Australian Securities Commission (1995) 37 ALD 131

REASONS FOR DECISION

5 June 2000 Pamela Burton, Senior Member

This is an application to review the decision of the delegate of the respondent, the Australian Fisheries Management Authority ("AFMA"), which confirmed a determination not to vary the area conditions on commercial pelagic longline fishing permit 26083 ("the permit") held by Fisheries Management Strategies Pty Limited ("FMS") for 1999/2000. The applicant, Mr Dixon, is the principal of FMS, a fisheries management consultancy company. The permit allows the operators of the boat Ocean Dawn, in which boat Mr Dixon had an interest and to which the permit is attached, to fish for tuna and other specified species by pelagic longline method, south only of the parallel Latitude 34 degrees South ("the line"). Mr Dixon seeks the removal of that restriction to allow FMS to conduct fishing operations off the West Australian Coast both north and south of the line. The decision under review is dated 3 September 1999 (T18). The permit, the subject of this review, expires on 30 June 2000 (T13).
At the hearing the applicant, Mr Dixon, was represented by Dr John Griffiths, and the respondent, AFMA, by Mr Peter Hanks, S.C, and the first third party, WA, by Ms Janine Pritchard, and the second third party, NT, by Mr Simon Gillespie-Jones.
The tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975 ("the T-documents"), and various statements lodged by the parties and other research papers and material. The exhibits, including statements of the applicant and of the expert witnesses who gave evidence and other documents, are set out in attachment A to this decision.
At the time of the making of the decision under review AFMA had not as a matter of policy retained the line as a fishing boundary. Rather, the decision reflected AFMA's policy, "not to retain the 34 degree South restriction per se, but rather to retain the restriction pending the outcome of a review pursuant to consultation function under section 7 of the Fisheries Administration Act" (T18, p.60). Since that time, the Board of AFMA ("the Board") has confirmed the policy upon which the decision was based.
This occurred on 1-2 December 1999 when the Board adopted a policy which included the retention of the line as a jurisdictional management line and a fishing boundary until, but not beyond, the implementation of the proposed management plan for the fishery (Exhibit L). The effect on FMS (and hereafter, in respect of FMS's interest, I will refer to "Mr Dixon") of the Board's resolution is that the area restriction on the permit remains for the current period of the permit, rather than it being removed, as Mr Dixon hoped. In effect, the adoption by the Board of this policy constitutes part of the decision under review, in so far as it confirms and elaborates the policy upon which the decision is based.
At the hearing counsel for AFMA indicated that in the normal course fishing permits are renewed on the same conditions as originally granted, subject to any changes in AFMA's policy. The tribunal was also informed that its decision in relation to the permit the subject of this review will be applied not only to the conditions to be attached to the permit when it is renewed in June of this year, but in respect of other permits currently subject to the same area restriction which are due for renewal at the same time. The respondent therefore has a greater interest in this review than the mere impact on the fishery of a variation of Mr Dixon's permit.
Mr Dixon's interest in the outcome of these proceedings is also wider than the effect the tribunal's decision might have on the fishing operations of the Ocean Dawn. Mr Dixon has now sold the Ocean Dawn and he has lent the permit to its new owners, who, he says are friends of his, to utilise until the completion of a vessel under construction, the Ulysses, in which he has an interest. However, he does have an interest in other boats to which similarly restricted permits are attached. Further, he carries on a consultancy business in the fishing industry and has clients who would benefit from the boundary restriction being removed as a condition of the same class of permit as that which is attached to the Ocean Dawn.
Understanding the potential impact of the review of this matter by the tribunal, the third parties applied to be joined in the proceedings. The first third party, Executive Director of Fisheries WA ("WA") was joined by an order of this tribunal of 21 December 1999, and the second third party, Northern Territory of Australia ("NT") was joined by consent of the parties pursuant to a direction given on 23 December 1999. Both third parties have a management role over some species and some areas of the fishery, the subject of these proceedings.
The tribunal heard evidence of expert witnesses over a period of eight days. The oral evidence supplemented written statements tendered by the parties at the hearing. The applicant gave oral and written evidence and called expert witnesses Dr Anthony Lewis, scientist, employed as the Coordinator/Chief Scientist of the Oceanic Fisheries Programme at the Secretariat of the Pacific Community, and Mr David Collins, business and economic analyst, a partner of a consultancy business specialising in business development and analysis. AFMA called Mr John Gunn, CSIRO senior research scientist in Marine Research Division in Hobart, Tasmania, Dr Peter Young, consultant in the area of fisheries and marine science, Mr Gerald Geen, fisheries economic consultant, and Ms Mary Lack, Senior Manager, Tuna and Billfish, AFMA. WA called Dr Julian Pepperell, director of Pepperell Research & Consulting Pty Ltd, and Dr Rodney Lenanton, supervising scientist – Finfish in the Research Division at Fisheries WA. NT called Dr Nicholas Rayns, director of Fisheries with the Department of Primary Industry and Fisheries of the NT Government.
Legislative setting of Commonwealth management of the AFZ
10. The respondent, AFMA, currently regulates the Australian Fishing Zone ("the AFZ") pursuant to the Fisheries Management Act 1991 ("the FM Act"), and the Fisheries Administration Act 1992 ("the FA Act"). The AFZ is defined in section 4 of the FM Act. It includes the Western Tuna and Billfish Fishery ("WTBF") and Southern Tuna and Billfish Fishery ("STBF") which consist of those waters within the AFZ around the Australian mainland from the South Australian–Victorian border, west, north and east to the tip of Cape York, Queensland (T3), the two fisheries being divided by the line. This is depicted in the map (Exhibit D), a copy of which is reproduced in attachment B to this decision.
11. In December 1989 the Commonwealth Government issued its policy statement, New Directions for Commonwealth Fisheries Management in the 1990's (Exhibit 1, attachment B). This report led to the introduction of the FA Act and the FM Act. It recognises that "because of the difficulty in allocating appropriate individual rights to the resources, fisheries tend to attract excessive investment which results in excessive fishing capacity, resource over-exploitation and poor economic performance" (p.15). It states that in an over-exploited fishery, management must facilitate stock recovery by restraining fishing effort to a level necessary to permit stock recovery, and that fisheries should be managed to prevent stock depletion occurring in the future (p.22). It concludes (p.56) that:
The major underlying problem in most Australian fisheries is substantial excess fishing capacity. This excess capacity leads directly to the over-exploitation of fisheries and to generally low levels of profitability.

As Drummond J noted in Bannister Quest Pty Ltd v Australian Fisheries Management Authority, (1997) 77 FCR 503, at 509, the policy statement led to movement away from "input" controls to "output" controls as the predominant management tool of fisheries, in effect to control the amount of fish taken out of the fishery, as opposed to placing limits on the equipment taken in.
12. Prior to February 1992, Commonwealth Fishing Boat Licences ("CFBLs") issued under the Fisheries Act 1952 provided access to the fishery comprising the whole of the STBF and WTBF area ("the S/WTBF"). Up to 5000 operators held CFBLs and were eligible to access the S/WTBF (T15). In February 1992, the FM Act was introduced and AFMA was established by section 5 of the FA Act. Fishery specific fishing permits were then granted. Operators in the S/WTBF were generally granted access to the area of waters that they requested. This gave rise to 13 "lines on the water" which created several areas of access in the S/WTBF. There were no biological reasons for the boundaries. The line (at Latitude 34 degrees South) represented one of the internal boundaries, delineating the area of access for some operators. The process reduced the number of permits to 278 which has since been reduced to 125 (T15 p.46).
13. Under the FM Act AFMA has responsibility for management of tuna and other billfish species throughout the AFZ. It is required by section 6 of the FA Act, and by sections 3 and 16 of the FM Act, to pursue certain objectives in the performance of its functions. These include implementing efficient and cost-effective fisheries management; ensuring that the exploitation of fisheries resources are conducted in a manner consistent with the principles of ecologically sustainable development ("ESD"); maximising economic efficiency in the exploitation of fisheries resources; and ensuring accountability to the fishing industry and to the Australian community in AFMA's management of fisheries resources. The Fisheries Legislation Amendment Act 1997 amended the ESD objective to include a reference to the exercise of the precautionary principle. These objectives are set out and discussed more fully below.
14. I detail AFMA's statutory functions in similar manner as has Drummond J in Bannister Quest at 508-9. The functions include the devising of management regimes for Australian fisheries (section 7(a) of the FA Act), and this includes plans of management for a fishery (section 17(1) of the FM Act). Amongst other things, AFMA has power under the FM Act to grant statutory fishing rights in managed fisheries (ss17(6)(b), 21, 22 & 31 of the FM Act, including fishing permits, authorise the use of a specified Australian boat by a person for fishing in a specified fishery (section 32(1)), specify the conditions to be attached to such a permit (section 32(6)(a)), the permit conditions as to the fish that may be taken, the quantity, the rate at which the fish may be taken and the methods or equipment that may be used (section 32(7)), and the power to impose, or vary and revoke conditions on fishing permits (section 32(8)).
15. It is also one of AFMA's functions under the FA Act "to consult, and cooperate, with the industry and members of the public generally in relation to" its activities (section 7(c)). The consultation process requires AFMA to consult with persons or bodies representative of the whole or part of the fishing industry, with the Commonwealth and State Governments and their authorities having functions relating to fisheries and also with persons (including members of the scientific community) having a particular interest in matters associated with the industry "for the purpose of considering any matter, or obtaining information or advice, relating to the performance of its functions" (section 9 of the FA Act). Obligations to consult also appear in the provisions of the FM Act, which are set out and discussed below.
16. AFMA is authorised to establish Management Advisory Committees ("MACs") "to assist it in the performance of its functions and the exercise of its powers in relation to a fishery" (sections 54 and 56 of the FA Act). In December 1994, the AFMA Board endorsed a recommendation to establish a MAC for the WTBF (T15, para. 7). In May 1995 the Board decided to establish two MACs to provide advice in relation to the S/WTBF (T4). The Southern Tuna MAC (formerly the Southern Bluefin Tuna MAC) was given the responsibility of providing advice concerning management of tuna stocks in waters from the South Australian – Victorian border to the line. The Western Tuna MAC ("WestunaMAC") was given the responsibility of providing advice concerning management of tuna stocks (excluding Southern Bluefin Tuna, which was under the management of Southern Tuna MAC) in waters north of the line around to Cape York. At this stage the boundary at the line only delineated the jurisdictional administrative boundary between the WTBF and the STBF, some operators having access to the waters both north and south of the line.
17. It is relevant to mention that Australia is a member of the Indian Ocean Tuna Commission ("the IOTC"), which was established pursuant to a multilateral agreement in March 1996. The IOTC is charged with promoting cooperation amongst its members to ensure conservation and optimum utilisation of stocks of tuna species, thus encouraging sustainable development of the species. Australia's obligation to comply with resolutions of the IOTC impact on AFMA's management of the S/WTBF.
AFMA's legislative objectives
18. Section 3 of the FM Act sets out the objectives which must be pursued by AFMA in the performance of its functions. It provides:

3. (1) the following objectives must be pursued by the Minister in the administration     of this Act and by AFMA in the performance of its functions:
(a)     implementing efficient and cost-effective fisheries management on behalf of the Commonwealth; and
(b)     ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development and the exercise of the precautionary principle, in particular the need to have regard to the impact of fishing activities on non-target species and the long-term sustainability of the marine environment; and
(d)     maximising economic efficiency in the exploitation of fisheries resources; and
(e)     ensuring accountability to the fishing industry and to the Australian community in AFMA's management of fisheries resources; and
(f)      achieving government targets in relation to the recovery of the costs of AFMA.

3. (2)    In addition to the objectives mentioned in subsection (1), or in section 78 of the Act, the Minister, AFMA and Joint Authorities are to have regard to the objectives of:
(a)       ensuring, through proper conservation and management measures, that the living resources of the AFZ are not endangered by over-exploitation; and
(b)       achieving the optimum utilisation of the living resources of the AFZ;
but must ensure, as far as practicable, that measures adopted in pursuit of those objective must not be inconsistent with the preservation, conservation and protection of all species of whales.

19. The precautionary principle is defined in section 4 of the FM Act as having the same meaning as in clause 3.5.1 of the Intergovernmental Agreement on the Environment, a copy of which is set out in the Schedule to the National Environment Protection Council Act 1994. Clause 3.5.1 of that Schedule reads:

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

20. Subsection 17 of the FM Act requires AFMA to consider the need to determine a plan of management in respect of each fishery under its control. It reads:

Plans of management
17. (1) Subject to subsection (1A), AFMA must, in writing, after consultation with such persons engaged in fishing as appear to AFMA to be appropriate and after giving due consideration to any representations mentioned in subsection (3), determine plans of management for all fisheries.
17. (1A) If, in all the circumstances, AFMA is of the view that a plan of management is not warranted for a particular fishery, AFMA may make a determination accordingly, including in the determination its reasons for making the determination.
….
17. (2)           Before determining a plan of management for a fishery, AFMA must prepare a draft of the plan and, by public notice:
        (a) state that it intends to determine a plan of management in respect of the        fishery; and
        (b) invite interested persons to make representations in connection with the         draft plan by a date specified in the notice, not being less than one month         after the date of publication of the notice in the Gazette; and
        (c) specify:
(i) an address from which copies of the draft plan may be obtained; and               (ii) an address to which representations may be forwarded.

17. (2A) In addition to issuing a public notice under subsection (2) and before determining a plan of management for a fishery, AFMA must notify the persons and organisations listed in the register established under section 17A, at their addresses as shown on the register, of the terms of the public notice.
…

AFMA's management action of the S/WTBF
21. In November 1994 the WTBF (as the S/WTBF was then called) was closed to further entrants as the number of fishing entitlements granted for the fishery was considered to be sufficient for the development of the fishery (Exhibit 1, attachment E). Establishment of new MACs was foreshadowed at the same time. According to Ms Mary Lack, senior manager in AFMA, between 1994 and 1997, while the total number of boats in the fishery was relatively stable, the number of active vessels fell over this period (Exhibit 1, para. 39). In 1998 to encourage development of the S/WTBF vessel length restrictions were removed (Ms Lack, Exhibit 1, para. 46) and a more lenient approach was taken to "licence splitting" effectively allowing an increase in fishing effort in the fishery (Exhibit 1, para. 45, and attachment H). Since 1998 there has been a significant rise in the total number of active boats, and particularly the active longliners. There was little improvement in knowledge of the stocks, and AFMA decided not to develop formal management arrangements for the fisheries at that time.

22. In March 1998 AFMA advised S/WTBF fishing permit holders and other interested parties of a proposal to remove the internal fishery boundaries within the fishery. This was done by the circulation of a discussion paper, Proposal to Remove Internal Fishery Boundaries (T5). WestunaMAC provided a summary of its discussions on the proposal on 6 May 1998 (Exhibit J, attachment E). AFMA management produced a paper for the Board's consideration at its meeting on 23 July 1998 in which it considered the reasons for and against the retention of the line (Exhibit J). Mr Dixon relies on AFMA's statements in support of his claim that AFMA acknowledges that the retention of the line is not consistent with AFMA's legislative objectives.
23. On 23 July 1998 the Board decided to remove all internal boundaries other than the boundary between the STBF and WTBF at the line. The retention of the line was required while the administration of the fishery was carried out by the two MACs with area responsibilities delineated by the line. The Chairman of the Board, Mr McColl, indicated that whether the line was to be retained as a boundary depended upon a review of all tuna fisheries scheduled to take place in early 1999 (T6).
24. It was not until July 1999 that the Board passed a resolution to undertake the task of determining a plan of management for the S/WTBF as a matter of priority (Exhibit W). Up to November 1999 AFMA continued to overtly encourage further development of the fishery on the basis that it was considered to be immature and its development should not be hindered (see T15, p.49, para. 23, T20, pp.77, 86).
25. Mr Dixon purchased his permit in April 1999 and proved that fishing was profitable in the STBF. Mr Dixon transferred the permit to FMS which transfer was approved by AFMA on 3 May 1999 (T9, p.26). His subsequent business activity, as a consultant, stimulated the interest of other fishers, contributing to the development of the fishery, which it seems, AFMA feels that it has to rein in until such time as a management plan is introduced.
26. On 17 May 1999 Mr Dixon wrote to AFMA to seek a review of the restriction of the permitted fishing area contained on the permit (T7). He was informed that he could not seek such a review until the permit was re-granted in June 1999 (T9). The permit was re-granted on 18 June 1999 subject to the same area condition restricting fishing to south of the line.
27. It concerned Mr Dixon that the decision was made, despite the view of Ms Lack, that the boundary represented only the jurisdiction of the two tuna MACs, and further, that some operators had access to both north and south of the line. On 13 July 1999 Mr Dixon sought an internal review of AFMA's decision to impose the condition on the permit prohibiting fishing above or north of the line (T14).
28. On 12 August 1999 Ms Lack, in an internal minute to the delegate reviewing the condition of the permit, stated that the line "does not provide an effective effort control in this fishery, has no biological basis, and therefore does not contribute to pursuing AFMA's ESD objective" (T15, para. 24).
29. On 3 September 1999 AFMA's delegate advised the applicant that the area of waters conditions for the permit were to remain pending the outcome of a review by the Board of its policy to retain the line (T18). On 16 September 1999 Mr Dixon lodged an application to this tribunal to review that decision (T1).
30. According to Ms Lack, in 1999 a review of the tuna fisheries was undertaken by the tuna MACs and AFMA management (Exhibit 1, para. 50). Following consideration of a draft paper by the tuna MACs, in September 1999 AFMA issued a discussion paper (T20) which initiated a consultation process in relation to the integration of the Australia's Tuna Fisheries and also considered the line. In November, the WestunaMAC Board, at a meeting where there was discussion of the issues raised in the discussion paper, recommended that the line remain in place until such time as a management plan was implemented (Exhibit I), having at its meeting on 2/3 June 1999 declared that it was against the line being removed (Exhibit H).
31. It seems that material presented by Mr John Gunn, CSIRO senior research scientist in Marine Research Division in Hobart, Tasmania, at a public meeting on 4 November 1999 as to the increase in catch and effort in 1999 over that of 1998 was drawn to Ms Lack's attention before the WestunaMAC board meeting held the following day (tr686, lines 2-5 and see Exhibit A, attachment H). The material indicated that catch and effort growth was accelerating and was projected to have doubled in that period. This material was presented to the WestunaMAC Board. This did not alter Ms Lack's view of the ineffectiveness of the line in controlling effort. In fact the increase in the activation of latent effort had occurred while the line was in place. Her concern was not as to the sustainability of the stock, but to ensure that "effort and overcapitalisation does not occur prior to the development of management arrangements" before the line could be removed with more confidence (tr689, lines 36-38).
32. It is reported that the members of WestunaMAC expressed concern over the activation of latent effort in the fishery both north and south of the line and, other than Ms Lack, seemed to suggest that the retention of the line would limit operators' effort in the fishery (Exhibit I). Ms Lack, as AFMA's member of WestunaMAC, did not agree with the recommendation or reasons. She expressed the view that the line did not provide an effective effort control in the WTBF, that it had no biological basis, and therefore did not contribute to pursuing AFMA's ESD objective (T15).
33. On 1 and 2 December 1999 the AFMA Board again considered its policy in relation to the role of the line in managing and operating the fishery. In making its recommendations AFMA management assessed the policy options against AFMA's statutory objectives and analysed the effect of the retention or removal of the line. The papers it had before it relevant to this policy are contained in Exhibit K. They include a summary paper by the Acting General Manager of AFMA's Fisheries Branch dated November 1999 setting out the purpose of the agenda item, the background, key items for discussion, and AFMA management's recommendations.
34. The material before the Board indicated that AFMA management considered the immediate benefits of economic efficiency and cost-effective management if the line were removed, the uncertainty about the stock status, the role of the precautionary principle, the effect of the removal of the line on the latent effort contained in permits issued for fishing south of the line, and the risk, if the line were removed, that long-term economic efficiency gains might be dissipated by the impact of over-fishing in the short-term and the adjustment necessary to remove excessive fishing capacity. Management noted that "[t]his less precautionary approach carries the greater risk to both the stocks and long-term economic efficiency". Management's advice to the Board concluded that at the early stage in developing any fishery, it was appropriate to apply a precautionary, adaptive management process using a range of management tools. The advice referred to the risk that liberalising access to the S/WTBF before undertaking the management plan process could extend that process and allow effective fishing effort to potentially reach unsustainable levels. The advice acknowledged that "if fishing effort could be effectively managed now, removing the line would pursue economic efficiency without threatening sustainability." It advised the Board that the retention of the line meant that "there will definitely be lost short-term economic efficiency gains". However, it concluded that "[o]n balance, the greater level of certainty associated with long-term sustainability of the stocks, and long-term economic efficiency of the fishery, provided by retention of the boundary for the short-term, is considered to outweigh the immediate costs (caused by the retention of the line)" (Exhibit K).
35. The Board decided to retain the line as a boundary pending the development and implementation of a management plan, reflecting the recommendations made by AFMA management. The formulation of the policy as it currently stands is contained in a resolution of the AFMA Board made at its meeting of 1 and 2 December 1999 (Exhibit L, and Exhibit 1, attachment J). It is as follows:

i.as a matter of urgency, to develop and implement a management plan that will effectively manage fishing effort, by early 2001;
ii.to retain the 34 degree S boundary until that management plan is implemented; and
iii.when the management plan is implemented, the 34 degree S boundary will be removed; and
iv.that no further licence splitting which will potentially result in increased fishing effort in the S/WTBF, to be approved until the management plan is implemented.

36. The background to AFMA appearing quite suddenly to perceive the need to retard increase in effort and capitalisation in the fishery seems to be as a result of Ms Lack starting "to view the Fishery in a different light" (tr87, line 2) after Mr Gunn's preparation of material which reflected the increase in catch and effort over the previous year. Ms Lack justified the Board's decision to retain the line as a measure to ensure that effort and overcapitalisation does not occur prior to the development of management arrangements, so that effort can be managed when required. She also stated that it was important that the existing arrangements, upon which existing operators in the fishery have made decisions, be retained until those arrangements are in place. At the time of the hearing she reiterated that AFMA didn't have specific stock concerns (tr689, line 36).
37. The interim policy was arrived at after wide consultation within the industry (T5, Exhibits J, H, I, K, L, M, and T20). This is supported by the statement in AFMA management's paper containing its recommendation to the Board for its 1-2 December 1999 meeting (Exhibit K) that "[t]he consultation period for the integration review has recently closed and most submissions received focused on the 34oS boundary."
38. The reasons behind the determination of the policy can be ascertained from the AFMA management's advice (Exhibit K), the Board's minutes (Exhibit L), and a letter from the AFMA Board to Brett McCallum, Chairperson of WestunaMAC, dated 21 December 1999 (Exhibit 1, attachment J). The letter read in part:

The Board is of the view that its decisions are precautionary and are directed at the long-term development of a sustainable and efficient tuna and billfish fishery off southern and western Australia. Removal of the 34oS boundary under a management plan that effectively manages fishing effort will best meet AFMA's legislative objectives both now and in the future.

39. From the Board's acceptance of the advice of AFMA management, I can safely conclude that the reasoning behind the Board's adoption of the policy in relation to the line is its acknowledgment of AFMA management's advice of concern about the level of increase in investment and effort in the S/WTBF over the previous 12 months. Considering the material before it, the Board may have had concerns about the risk of localised depletion problems and gear conflict between recreational and commercial interests, although the Board agreed that there does not appear to be a current problem with the stock. The Board recognised that there was insufficient knowledge to determine what the appropriate level of effort was in relation to sustainability of the resource (Exhibit L, p.12).
40. That the Board was concerned with the effect of latent effort that could be activated if the line was removed is indicated by the record in the Board's minutes stating "there is a significant problem within the fishery given the substantial amount of latent effort that could currently be activated and that more would be activated if the 34oS line was removed" (Exhibit L, p.12). It seems that the Board agreed with the concern of management that the potential for the inactive longline permits to be activated posed significant management difficulties for the future to warrant the need to curb to some extent, rather than to encourage, the development of the fishery. I say "to some extent" because the effect, if not the intent, of the policy to keep the status quo and retain the line pending the implementation of the management plan is to restrain the fishing effort only of those people holding permits restricted to fishing south of the line.
41. The Board considered the number of operators with concessions for the areas north and south of the line, the number with a concession for both areas, and the total effort that all operators are currently applying both north and south of the line. The Board did not have before it, as pointed out by Mr Dixon's counsel, data detailing which class of permit holders was responsible for the increased effort and catches in 1999, the extent of activity that occurred each month, and in what area the activity was concentrated.
Timing of the implementation of the Management Plan
42. Whether or not the management plan will be in place and the line removed by early 2001 affects Mr Dixon's interest in the permit. It also affects the tribunal's consideration of whether or not the policy underlying the decision under review is in pursuit of AFMA's statutory objectives. There is no doubt that the AFMA Board, with its reservations about the effectiveness of the line as an effort control and its concerns regarding its short-term effect on economic inefficiency, intended the line to remain in place in the short-term only, and envisaged that being until early 2001. The development and implementation of a management plan by early 2001 seems to have satisfied the AFMA Board's requirement that it be completed "as a matter of urgency". It is equally clear however, that its policy was not to remove the line until the management plan was in place. If it were to be removed before the management plan was in place, say as a consequence of this tribunal deciding to remove the condition from Mr Dixon's current permit, I am told that AFMA as presently advised would introduce some alternate interim effort control measures.
43. It seems to be common ground between the parties to these proceedings that the time frame originally envisaged by AFMA for the implementation of the management plan is not possible. The Board's resolution to develop and implement a management plan by early 2001 followed the advice the Board received from management, though in that same advice AFMA management acknowledged that the process of developing and implementing a management plan takes "several years" (Exhibit K). It seems that AFMA dedicated considerable additional resources to facilitate the process (Ms Lack's evidence tr654, line 20), and that a discussion paper on management options being developed for distribution to the Eastern Tuna Bill Fishery (the "ETBF") in December 1999 was to form the basis for a decision of the nature of appropriate access rights for the S/WTBF. The tuna MACs provided their views on the discussion paper which were considered by the Board at its February 2000 meeting. The Board, however, sought further advice on the discussion paper (tr54, line 36). Accordingly Ms Lack thought that it was feasible that the management plan would be in place by the end of 2001 (tr655, line 7). Ms Lack acknowledged from experience in other fisheries that "it takes a long time to get such plans in place" (tr707).
44. Mr Gunn, in giving oral evidence on behalf of AFMA, said that the chance of the management plan coming into existence by early 2001 is "zero" (tr570). He thought it would be a 2 to 3 year process and even that would be quicker than it was in the ETBF which took about 5 years (tr581, lines 29-34). Dr Peter Young, consultant in the area of fisheries and marine science and who was a member of AFMA's Board for a period of three years, gave evidence that he expected delays in the implementation of the management plan (tr427-8). The consultative process that AFMA is to carry out within the industry in accordance with section 17 of the FM Act set out above, is an onerous one and its comprehensiveness will be time-consuming. Mr Gerald Geen, fisheries economic consultant, wouldn't accept that the management plan would be implemented in a year's time (tr620).
45. On the evidence I can conclude that the management plan is not likely to be devised and put in place before the end of 2001, and possibly not for two to three years. AFMA management is aware that the envisaged timetable can not be met. Whether, as a consequence, it will advise the Board that interim control measures are required in the meantime is a matter of speculation. I must decide the matter before me on the information available. Thus, in assessing what, if any, impact the retention or removal of the line will have on the pursuit of AFMA's statutory objectives, I must assume that the line is to be retained as an interim measure for that period of time. In considering its effect on the permit, however, I must consider its effect for the duration only of the current permit. The terms of its renewal in June of this year are not the subject of this review.
The applicant's contentions
46. Mr Dixon contends that the decision under review is invalid, in that the delegate in applying the policy adopted by AFMA, applied AFMA's misconstruction of the ecological sustainability and economic efficiency objectives that AFMA must pursue in performing its functions. On his behalf it is contended that the line is arbitrary, has no biological basis, does not contribute to AFMA's ESD objective, restricts economic efficiency and is therefore inconsistent with the pursuit of AFMA's mandatory legislative objectives as set out in subsection 3(1) of the FM Act. He contends that the Board did not ascertain relevant data as to the cause of the increase in fishing effort as to which it was concerned. He contends that the policy is fundamentally flawed and does not warrant the exercise of the precautionary principle referred to in subsection 3(1) of the FM Act, and that AFMA is thereby avoiding the exercise of its statutory powers to implement "efficient and cost effective fisheries management on behalf of the Commonwealth". On his behalf it is submitted that AFMA's sudden change in attitude is "bizarre". For these reasons it is contended that the policy to retain the line is unlawful, and that in any event, the above grounds provide cogent reasons for the tribunal to depart from that policy, and that the removal of the area condition from the permit would further the objectives of AFMA.
47. In addition, Mr Dixon contends that, in any event, his particular circumstances warranted an exception to the application of the policy. His fishing operations take place from the port of Fremantle which is very close to the line, and consequently he is disadvantaged by the policy to a greater degree than are operators who fish from ports more distant from the boundary. Secondly, Mr Dixon had contended, that because he has the use of a permit which is confined to operating only north of the line, the operations of the Ocean Dawn are inconvenienced by the requirement that when fishing close to the line, it has to return to port, gain approval to change permits and return to sea each time it needed to cross the boundary. In closing submissions counsel for Mr Dixon indicated that no reliance is placed on the special or particular circumstances in that regard for the purpose of this review.
AFMA's contentions
48. On behalf of AFMA it is contended that the management of the S/WTBF must be guided by the statutory objective expressed in subsection 3(1) of the FM Act, as amplified by the objectives in subsection 3(2). Until a management plan is developed and implemented for the S/WTBF the fishery must be managed and the statutory objectives pursued by the issue of fishing permits under section 32 of the FMA Act, with permits being subject to the imposition of conditions. AFMA contends that inadequate knowledge about the biology and ecology of the tuna and billfish stocks, and other management concerns about the growth of fishing effort and investment, the economic efficiency of the fishery as a whole, and the effect of increased fishing effort on bycatch species, causes such uncertainty so as to warrant the exercise of the precautionary principle. AFMA contends that the line plays a significant role in restraining additional increases in investment and effort in the fishery.

49. AFMA opposes Mr Dixon's application to the tribunal to remove the boundary condition from his permit before the development of a new management regime independently of any other change in the current management regime. In this context, AFMA urges that the tribunal upholds the policy which is driven by the precautionary approach until such time as research demonstrates the nature of the linkages between the species caught in the AFZ and the wider Indian Ocean and more effective management arrangements are put in place. It contends that the precautionary principle is consistent with the retention of the boundary line until either more is known about the ecology and biology of target and bycatch species or more appropriate measures for restraining investment, fishing effort and catches in the fishery are put in place.
The contentions of the third parties
50. WA is responsible for the management of fisheries within the control of the State of Western Australia, under the Fish Resources Management Act 1994 (WA). In general it supports the contentions of AFMA. On its behalf it is asserted that the retention of the line is an effective restraint on fishing effort and investment in the WTBF, and that contrary to Mr Dixon's contentions, the removal of the boundary line would not necessarily guarantee "economic efficiency". Specifically, it contends that the achievement of economic efficiency requires, among other things, a consideration of the interaction of Commonwealth and State fisheries, and the impact of changes in one fishery on operators in other fisheries. It further contends that the removal of the line prior to the development and implementation of a management plan which incorporates catch or effort controls would possibly lead to overfishing and localised depletion of some species, the risk of which warrants the exercise of the precautionary principle in pursuit of the ESD objective. WA asserts that the removal of the line is likely to affect adversely its game fishing and recreational fishing industry and it says that its overriding concern is the effect of bycatch on non-target species.
51. The NT is responsible for the management of some tuna species by all fishing methods and sectors (recreational, traditional, charter and commercial) and all tuna and billfish species taken when recreational fishing, in all waters to the boundary of the AFZ adjacent to the Northern Territory. The NT also supports most of the contentions of AFMA. It contends that until sufficient information is available on stock structure and until a statutory management plan is implemented, it is reasonable and necessary for AFMA to retain the line as a fishing boundary in pursuit of its statutory objectives. It asserts that the removal of the line may have adverse consequences for fishing by sectors for which the NT has responsibility.
The scope of the tribunal's consideration
52. This review is concerned with the conditions imposed on Mr Dixon's permit which is currently attached to the Ocean Dawn. The decision under review reflects AFMA's policy as applicable to the permit for the period of its currency. A consideration of whether the decision is the correct and preferable decision requires consideration of the lawfulness and reasonableness of the policy itself and its application taking into account the facts, matters and circumstances surrounding the decision as it relates to FMS (Mr Dixon).
53. AFMA is charged with the duty to formulate policy in accordance with its statutory objectives and processes. The tribunal should apply lawful policy "unless there are cogent reasons to the contrary" (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645). It must have good reason in the particular case, to depart from that policy, or to make an exception in the application of policy properly made in accordance with AFMA's statutory powers.
54. In the case of Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 the tribunal presided over by Justice Davies sitting with Deputy President Layton and member Pascoe, at p.378, stated:

… the function of this Tribunal is to make a decision in the particular case taking into account all relevant considerations, including any policy which has been enunciated by the primary decision-maker. The weight to be given to policy will vary according to the circumstances in which the policy was developed and the appropriateness of its application to the case on hand.

55. There is no onus of proof on the parties. I must be satisfied on the evidence and material before me that the policy underlying the decision under review is unlawful, or that there are cogent reasons to depart from it, before I can set aside the decision.
The Issues
56. Whether AFMA's policy to retain the line as a fishing boundary on the permit is unlawful, or not warranted in the light of its legislative objectives, requires consideration of the evidence of the current knowledge of the fish stock in the fishery and the wider Indian Ocean stock, and any concerns about their sustainability. The issue then arises as to the effect of retaining the line on fishing operations and whether it restrains effort in the fishery. This requires an inquiry into the effect of the retention of the line on curbing the rate of capitalisation in the fishery. Considering the evidence about the risk of the fishery becoming overcapitalised requires consideration of the experience of other fisheries, the latent effort that might be activated, and the difficulties of meeting international obligations. The policy of retaining the line to curb the rate of capitalisation has to be weighed against the short-term economic efficiency the line causes to current fishing operations. If the removal of the line is likely to result in increased capitalisation and effort in the fishery, the question remains whether the impact on the fishery demands measures to restrain further increase in effort in order for AFMA to meet its obligation to pursue its ESD objective. If the threshold test warranting the exercise of the precautionary principle is not met, the question arises as to whether it is lawful for AFMA to retain the line as an interim cautionary measure in the knowledge that the line is causing economic inefficiencies in the fishery in the short-term. If the policy is lawful, it must also be determined whether there are cogent reasons to depart from the policy underlying the decision under review.
Mr Dixon's evidence
57. I turn first to Mr Dixon's evidence, and the effect the retention of the line has on his fishing operations. Mr Dixon is an astute business man. He has a background in the fishing industry as a fisher and in management. As well as having an interest in fishing operations, he is a fishing management consultant. The permit which affects his fishing activities is presently on loan to the purchasers of the vessel in which Mr Dixon previously had an interest, the Ocean Dawn. The retention of the line affects the operations of that boat, because of its peculiar circumstances, in that it faces bureaucratic obstacles in utilising different permits that allow it to fish both sides of the line.
58. Mr Dixon holds two permits that are attached to the Ocean Dawn, one entitling the boat to fish north only of the line, which permit he does not own but leases from its owner, and the permit, the subject of these proceedings, that permits fishing south only of the line. The operator of the Ocean Dawn, utilising both of these permits, has the inconvenience and cost of going ashore to exchange one for the other, the different ownership of the permits preventing both to be displayed on the boat at the same time (see Exhibit E). The owner of the leased permit is not prepared to transfer it to Mr Dixon. Mr Dixon was challenged about his evidence that he could not negotiate the purchase of the permit for a limited period. It was put to him that it was a simple procedure to arrange for the two permits to be in the one name attached to the same boat, which would avoid the red tape of applying to change permits. He said he was unaware of a practice of permits to be purchased rather than leased, as it was a risk to the original owner that the purchaser might sell on to an innocent further purchaser and the original owner would be unprotected. The lease system was common with the owner remaining responsible for breaches.
59. As it transpires Mr Dixon now has no direct concern with the difficulties his permit causes the operators of the Ocean Dawn. He can retrieve the permit at any time for the purpose of his own use on a vessel being constructed, the Ulysses. The Ulysses is not likely to be in operation before the permit expires at the end of June of this year. Hence Mr Dixon's indication to the tribunal that he was not urging the tribunal to consider his personal and somewhat unusual circumstances as special for the purpose of an exception being made to the application of the policy to his permit. Rather, he urges that the policy, as reflected in the area condition of his permit, should be overturned because of its impact on the economic efficiency of his fishing operations, and of other fishers, and of the fishery as a whole.
60. The decision to retain the area condition that restrains Mr Dixon from fishing north of the line affects his fishing operations now and in the longer term. On behalf of NT it was submitted that Mr Dixon has no direct interest in the outcome of this application to the tribunal seeking a review of the decision the subject of these proceedings, and that his application should be dismissed. AFMA did not support this submission. The fact is that Mr Dixon is the director of the holder of the permit, and his interest in the decision under review is a valid and legitimate one, notwithstanding it is effective for only another month.
61. Mr Dixon's permit allows the taking of yellowfin tuna, bigeye tuna, longtail tuna, albacore tuna and skipjack tuna, striped marlin, broadbill swordfish, and fish of the family Bramidae, commonly known as pomfrets or rays bream by the pelagic longline method (T12). The main target species of pelagic longline tuna fishing operators are yellowfin tuna, bigeye tuna and broadbill swordfish.
62. Mr Dixon's evidence is that the longline permits are critical so far as three target fish species are concerned – yellowfin tuna, bigeye tuna and broadbill swordfish. He agrees, that while the three species are found in the S/WTBF, the yellowfin by and large are found in the warmer waters north of the line. It is common ground that yellowfin is more prevalent north of the line.
63. The effect of the line as a fishing boundary upon Mr Dixon is to impose additional costs on his fishing operations. Bigeye and broadbill swordfish are found in warmer waters and feed in the colder waters, and if there are breaks in the waters and the fish move across the line, the fish cannot be followed. Mr Dixon explained that initially, his vessel would wait at the line for the current to change and bring the fish back. Experience proved that waiting for the current to change and for the fish to come back was not productive. Budgets had to be met and the lesson was soon learned that it was better to locate other stock and fish rather than wait. Time is then taken pulling up lines and steaming out further to search for and pursue other stock. The hooks and lines then need to be reset.
64. The issue is raised as to whether time fishing is thereby reduced and fewer fish are taken out than would be if the line were removed. Mr Dixon denies this. He points to the irrationality of the retention of the line as an effort control tool in the fishery. He asserts that his inability to fish north of the line for yellowfin or to follow bigeye across the line means that increased effort has to be made south of the line to meet budgets and maintain the level of profit. According to his experience, the effect of the line on his fishing effort and investment is to increase it rather than reduce it.
65. First, Mr Dixon says that the time wasted pulling up lines and travelling further out to search for other stock necessitates longer fishing hours and more effort in order to maintain sufficient catch levels. The only effect of this is that the costs of the operation are higher than they should be, reducing profit for every unit of effort. Second, Mr Dixon invests further capital in his operation to minimise the additional costs of searching for alternative fish sources away from the line. The Ocean Dawn has installed satellite thermal imaging equipment to make searching for breaks in the current where the target fish are most likely to be found more efficient. Once the desired fishing spot is located, the boat steams to that place. However, this might take up to two days by which time the fish might or might not be there. The increased cost associated with this is covered by increasing fishing effort, by setting additional hooks on the longline, or by fishing longer, and as effort increases so does the cost. Third, Mr Dixon says that the effect of not being able to pursue and fish for yellowfin north of the line is that his boat, and others restricted to fishing south of the line, concentrate their efforts on bigeye further south, instead of yellowfin in the north. There is more concern for the state of bigeye stock than there is for yellowfin, which has a shorter life span and reproduces more rapidly allowing its stock to be replenished more readily.
66. Mr Dixon concedes that the removal of the line might increase the catch or change the nature of the catch. However, he says that the utilisation of permits presently not used will ensure that the catch of bigeye is increased to a far greater extent by the retention of the line. Further, if Mr Dixon was free to cross the line, whether to follow the fish or to target fish north of the line, it is not just yellowfin that he would catch. Both yellowfin and bigeye are more prevalent north, and he would catch both. South of the line he is able to target larger adult species of bigeye, and while the quantities are not as abundant, he says the quality is better because of the weight of the fish caught south of the line. Mr Dixon also says that swordfish are of marginally better quality south of the line.
67. Mr Dixon emphasised the point that there is no restriction on effort of fishing north or south of the line. Thus, the increased cost imposed by the boundary condition on the permit merely renders his operation economically less efficient, which he says causes him to fish harder.
68. Mr Dixon further points out that the retention of the line has not discouraged investment. He says that increased investment in the southern area has occurred as a result of the retention of the line together with AFMA's statement of its commitment to remove the line by early next year. The prospect of the line being removed has acted as an incentive to those who fish south of the line, since, while profits are to be made in the fishery south of the line, the costs of the operation will reduce once the line is removed (tr116).
69. Further, Mr Dixon says that the market value of permits (in a closed fishing area as to which no new permits are being issued for the whole area) is currently $600,000 for the whole area and $450,000 for South of the boundary (tr112). The purchase of a southern fishing permit for $150,000 less than the whole area permit in circumstances where the boundary is to be removed, encourages investment.
70. Mr Dixon's view is that when the line is removed the market value of the permits irrespective of the areas fished will come together. It was put to him that the value of the permits previously restricted to fishing south of the line would increase, and as a result of market forces, the value of the unrestricted permits would decrease. Mr Dixon denied that the value of any permit would decrease, other than possibly in the short-term, taking the view that the commercial value of all permits will substantially increase in the long run because of the profits to be earned in the S/WTBF.
71. Mr Dixon gave evidence of vessels of which he has knowledge that will start to fish, or have started fishing south of the line, activating permits previously not being used. From his evidence it seems that there has been an increase in effort by those permit holders restricted to fishing operations south of the line as realisation has occurred of the profitable fishing that exists in this developing fishery.
Fish stock concerns
72. Consideration of Mr Dixon's evidence requires broader perspective of the fishery and its resources, and the effect of the line in the context of AFMA's statutory objectives. I turn now to consider the nature of the fishery, its state of development and what is known about its fish stock and resources. The main species taken in the STBF are bigeye tuna, broadbill swordfish and skipjack tuna (Exhibit 1, para. 22). The main species taken in the WTBF are yellowfin and bigeye tuna and broadbill swordfish and to a lesser extent, albacore, skipjack and longtail tuna.
73. Ms Lack points out that tuna and billfish are pelagic species; that is they live in the sea or ocean at mid or surface levels. They are highly migratory species (Exhibit 1, para. 23). The link between the species caught in the S/WTBF and the stocks of the Indian Ocean tunas and billfish is poorly understood. However, it has generally been assumed, from what little stock assessment analysis has been done, that there is a single Indian Ocean stock of yellowfin and bigeye tuna and other highly migratory species of tuna and billfish in the S/WTBF. AFMA works on this assumption. Dr Anthony Lewis has found little hard evidence to support the view that there are two Indian Ocean stocks of yellowfin, and no challenge was made to his evidence in this respect.
74. In 1997 the total Indian Ocean catch of tunas, tuna-like species and billfish was estimated at 1,168,000t. By comparison, the S/WTBF catch in 1998, taken by about 20 active vessels, was less than 700t. This represents 0.3% of the total Indian Ocean longline catch, and 0.6% of the Eastern Indian Ocean in which the S/WTBF is located (Exhibit B, paras. 10, 11). In 1999 the catch was higher, being 1,728t (Exhibit 1, attachment G). The IOTC is indicating some concern for the bigeye tuna stock. Yellowfin is the most important species in the Indian Ocean total catch. Regardless of there being one or two stocks of yellowfin, they are considered by the IOTC to be exploited in the total Indian Ocean and in the Eastern Indian Ocean at low to moderate and sustainable levels. Mr Gunn seemed to support this view. He has seen no evidence that the IOTC holds the same concern for the yellowfin stock as it does for bigeye. Mr Gunn agreed that yellowfin are understood to be the most robust of the 3 target species. Dr Young holds a different view. He stated that the issues concerning the Indian Ocean stocks of bigeye are equally applicable to yellowfin and skipjack stocks.
75. Dr Lewis' view is that the catch in the S/WTBF is "dwarfed by fisheries in immediately adjacent areas" (Exhibit B, para. 11), and that despite the increase in the size of the catch, it is still so insignificant in comparison to the catches of other nations in areas close to the S/WTBF, for Australian fishing not to pose any risk to global stocks.
76. Dr Young, consultant in fisheries and marine science, giving evidence for AFMA, agreed that the amount of fish taken from the S/WTBF was infinitesimal in comparison to the amount of fish taken by the Indonesians in the Indian Ocean. He thought the evidence was that the rate of catch outside the AFZ was very high. However, he did not see that as relevant to the issue of the stocks in the S/WTBF. In his view, if the sustainability of a stock in the Indian Ocean is a concern, then all fishing of that stock should be restricted. He considered the real issue to be the health of the Indian Ocean stock as a whole, and not whether the Australian fishery is affecting that stock (tr420). Thus, even if the Australian fishery is not causing any affect on the stock as a whole, we are obliged to restrain and manage our fishing effort. He referred to the IOTC concerns, the significance of which I say more later.

77. Dr Lewis (Exhibit B), Dr Young (Exhibit 3) and Mr Gunn (Exhibit 2) speak with one voice that there is limited knowledge about the three key target species in the S/WTBF.
Concerns for local stocks
78. Where there is a wider Indian Ocean stock, the concern for local population is that it does not become depleted. Dr Julian Pepperell, director of Pepperell Research & Consulting Pty Ltd, describes "localised depletion" as the actual reduction in the numbers of fish in a relatively small area through fishing or intensive fishing, irrespective of what is happening outside that area. The inquiry has to be made about the mixing rate of the stock to ascertain how long it takes to replenish the population in that area (tr779).
79. Concern was expressed about the increase in tuna and tuna-like species caught in the S/WTBF in the period 1997 to 1999. Catches of bigeye have grown in the S/WTBF from approximately 43t to approximately 400t over the last two years. Exhibit Q shows that the fishery is taking just over 1602t which was within the range of the amount Mr Gunn predicted might be caught by 2002 prior to seeing the figures in 1999 (tr495). These new figures concerned Mr Gunn. Catches of broadbill swordfish in the same period increased from 25t to 807t. Exhibit Q also indicates that 394t of yellowfin tuna was caught within the whole fishery in 1999, of which 1.5t was caught south of the line.
80. In relation to local stocks, Dr Young said that within any area there is a certain density and fishing will fish down a population by catching the "resident" fish. More will come in, but there is a reduction in standing stock. Whether localised depletion is serious or not depends upon the rate of depletion, and the rate of replacement as to which we currently have no information. Because the Indonesian catch is very large, the replacement is slowed down, and there is less chance of replacement in that locality than other locations, causing some effect on the S/WTBF, Indonesia being on its doorstep.
81. In taking a global view of the fishery, Dr Lewis does not accept the concept of localised depletion in the context of highly migratory species, where there was one stock in the wider Indian Ocean area. His view is that localised depletion could not occur, as the local stock ultimately is replenished (tr46). However, he could not rule out some decline in catch rates occurring if effort in an area was increased, but he said that the decline would subsequently recover, and was not irreversible. He conceded, however, that the time taken to reverse a trend by management controls was, to some extent, dependent upon the activities in the fishery outside the AFZ.
Concerns for bycatch species
82. Bycatch refers to the non-target species caught by commercial fishing operations, and in this case, on pelagic longline hooks in the S/WTBF. The effect of removal of the line on bycatch is the major concern of WA. The recreational fishers off the WA coast target sailfish, and striped blue and black marlin (Exhibit TPA, para. 34). Whaler sharks are also frequently targeted by gamefishers (Exhibit A, statement dated 25 February 2000, Attachment D). They are concerned with gear conflict with the commercial fishers, and bycatch of commercial fishers of species sought by the recreational and gamefishers. Striped marlin, while included in target species by AFMA, is subject to landing prohibitions on the WA coast, imposed by the WA government, and Ms Prichard, for WA, referred throughout the proceedings to striped marlin as "bycatch", indicating that it is so regarded as far as WA is concerned. AFMA allows striped marlin to be targeted in the fishery. WA has responded by legislating to prevent the landing of any striped marlin on WA shores. The difference of opinion between WA and AFMA, as to the way in which commercial exploitation of this species should be managed, will no doubt be the subject of consultation prior to the development of the management plan.
83. Dr Pepperell points out that, while the catch of marlin is one of quite small numbers, that is to be expected as they are on top of the food chain, or pyramid and exist in smaller numbers feeding on more prevalent prey. He explains that being caught in small numbers doesn't mean that there's not a potential impact on their population (tr753, line 18). Data and observer information suggests that 50% are dead at the point of retrieval. Of those released alive their survival rate is not known (tr754, line 24).
84. AFMA holds a particular concern in relation to the effect of fishing operations in the S/WTBF on seabirds, and has planned trials and investigations in the Christmas and Cocos (Keeling) Islands (tr653-4, 702, and Exhibit 10).
85. There is a dearth of information in relation to the current catch rate of sharks in the fishery north of the line. WA had particular concerns about the incidence of the bycatch of certain species of sharks. Dr Rodney Lenanton, supervising scientist – Finfish in the Research Division at Fisheries WA, said that the adult Dusky shark cannot be exploited over 4% annually without driving below the level of sustainability (Exhibit TPB, para. 14). Dr Lewis thought that only Blue Whaler sharks were caught on tuna longlines. They are Oceanic, highly migratory, and therefore any increase in local catch would be replenished (tr258).
86. The logbooks do not reveal an excessive shark bycatch. Fishers are allowed under the Memoranda of Understanding between the Commonwealth of Australia and WA and NT to catch 20 each trip (Exhibit A, statement dated 25 February 2000, attachments A and B). Fishers are obliged to return all others dead or alive to the waters, and to log all catches and their state at release. Such information is scanty. I heard hearsay evidence of some anecdotal reports of observers suggesting that the bycatch is greater than the logbooks suggest (Mr Gunn, tr593-4). The Dusky Whaler shark is not marketable because of its mercury content (Dr Lenanton, tr726). No research has been done on their mortality rate. Resources have not permitted comprehensive observer activity on longline tuna boats. Because of the space sharks take in the boat holds where commercial fish are stored, the evidence I heard suggests that it is uneconomic to land shark bycatch, and it is likely that more sharks are returned to the waters than is logged (Dr Rayns, tr794-5). Further, for economic reasons it was thought unlikely that fishers would take the time to unhook bycatch such as shark, and instead probably simply cut the line. Dr Pepperell suggests that that might be a reasonable procedure if the fish was handled near the boat, as to pull it on board to remove the hook may be more detrimental in terms of its survival. Dr Pepperell said in evidence that in recreational competitions he has observed "quite a number of times longline hooks still in the mouth of marlin and sharks, and you can tell that the line has been cut above the hook" (tr755, line 34). I accept the possibility, if not the likelihood that the logbooks are not reliable in this respect and that not enough is known about the incidence of the catch and death rate of these species.
87. Dr Lenanton gave evidence about the concern of the exploitation of adult Dusky Whaler sharks. He said that only 4% can be taken annually without compromising the stock and therefore there was concern about any fishing operation that would take adult Dusky Whaler sharks (tr727, 729-730).He said that Whiskery sharks are currently over-fished, although they were demersal sharks and he didn't believe that pelagic longlining would be able to catch those sharks unless they fished deeper (tr731, line 15). In relation to Sandbar sharks, he had the same concern as for the Dusky Whalers. They mature late and probably live to 50 years of age, and do not handle exploitation very well. No stock assessment has yet been done. He gave evidence that they have been fished down badly in the Atlantic in a fishery that targets the Dusky Whaler sharks, tuna and broadbill swordfish (tr731, lines 18-27).
88. Mr Dixon had not heard from fishers of shark bycatch occurring. From his own knowledge he says that the Ocean Dawn, and other boats with which he has been associated, have never caught a Dusky or Whiskery shark, although the boats presently fish in the waters which these species inhabit (Exhibit A, statement 25 February 2000, para. 13). He explains that the shark species are demersal, which means that, generally, they do not inhabit surface waters where pelagic longlining occurs. He points out that these sharks are not limited to northern waters, and the removal of the line will have no additional impact on the bycatch.
89. As to Mr Dixon's lack of anecdotal evidence about the incidence of shark bycatch, he is not a hands-on fisher, and his not hearing of sharks being caught is consistent with the suggestion made during the course of the hearing of a lack of frank reporting of the incidence of sharks being caught.
The significance of the line as a biological boundary
90. AFMA has never regarded the line as a biological or fishing boundary, acknowledging that its existence arises out of historic management considerations (T15, para. 24, T20, p. 21). However, though the line is an accident of history, as are many lines in the AFZ, to some extent it demarks the warmer subtropical waters from the cooler southern waters, such that subtropical species are more prevalent north of the line. Dr Young points out that the line has biological significance so far as yellowfin is concerned, and this is not seriously disputed. Dr Lewis acknowledged that tropical fish were generally found, and were more prevalent north of the line. However, he emphasised that any line was unsatisfactory from a biological or management perspective, as not only did this line cut across the single stock of fish, but habitats are dynamic, changing from year to year, and over any ten year period, rendering a line ultimately unsatisfactory (tr253, Exhibit B, paras. 23, 26).
91. Dr Lenanton gave evidence that Dusky sharks tended to have juveniles in cooler waters, but other than when they are pupping and are found north and south of the line, the majority are found well north of the line (tr729, line 16). While Dr Lewis found this evidence hard to understand, in view of his knowledge that Dusky Whaler sharks are found all around Australia, he deferred to Dr Lenanton as having specialised experience in WA waters (tr253).
The effect of the leeuwin current
92. Mr Dixon made reference to the effect of the Leeuwin current on his fishing habits. The presence of the warm current has taken some of the target species, such as bigeye, generally found in warmer waters, further south of the line. He thought that this effect was likely to last for the next year or so, allowing good fishing south of the line, and supporting his argument that the removal of the line is not likely to have as great an impact on fish stocks as AFMA fears. Dr Lenanton, in giving evidence about the habitat of Dusky Whaler sharks, suggested their prevalence north of the line was dependent to some degree upon the strength of the Leeuwin current (tr729, line 18). Mr Dixon's evidence of the effect of the Leeuwin current supports his contention that the line has no biological significance, as the presence of the current brings the fish further south than they would otherwise be found.
93. At the WestunaMAC meeting in November 1999 members noted "[t]hat the catch rates in the WTBF had started to slow down as the Leeuwin current retreated north and that new fishing vessels were arriving on the west coast" (Exhibit I). However, Mr Gunn's evidence is that the present prediction is that the Leeuwin current will run south for at least another year or two leaving bigeye prevalent south of the line for that time (tr521).
The line – a useful biological reference
94. The line came into existence as a fishing boundary only as a consequence of the line being required for administrative purposes. It is not a fish stock boundary. The habitats of fish species change over time. The effect of the Leeuwin current in bringing some subtropical fish species further south illustrates this. The presence of the Leeuwin current is likely to continue for the duration of the period in which it takes AFMA to implement its management plan. However, taking all the evidence into account the line is a useful reference for the demarcation of the prevalent habitats of tropical species, such as yellowfin tuna, varieties of marlin and the Dusky Whaler shark. It also roughly delineates the area in which the juvenile bigeye tuna are most prevalent, though the adult species is found at present both north and south of the line.
Is the retention of the line in pursuit of the ESD objective?
95. At the outset I deal with the question of whether the retention of the line has any adverse impact on the marine environment. Mr Dixon suggested that it might, to the extent that it encourages him to turn his fishing effort to bigeye, a more vulnerable species than the yellowfin he might otherwise catch if he could pursue the fish across the line. It is acknowledged that the IOTC has more concerns about bigeye stock than yellowfin.
96. The suggestion is not soundly based. The evidence is that, if the line were removed, Mr Dixon would be free to follow both bigeye and yellowfin across it and fish both species north of the line. Juvenile bigeye are more prevalent north of the line, and the fishing down of juvenile stock poses greater difficulty for the regeneration of the species than does the fishing down of the adult bigeye. Mr Gunn confirms this and the IOTC appears to take the same view.
97. Further, while operators confined to fishing south of the line are forced to exert more effort fishing for bigeye, catches are likely to be smaller as a consequence of those operators having to spend fishing time searching for alternative fishing opportunities. Dr Young makes this point.
98. In any event, Mr Dixon does not go so far as to suggest that the concentration of effort on bigeye south of the line gives rise to a threat of serious or irreversible damage to the bigeye stock. Nor does he suggest it gives rise to the risk of localised depletion. Rather, he highlights the irony of the fact that, as a result of AFMA's decision to retain the line, fishers south of the line concentrate their efforts on the more fragile species. This is raised in support of his argument that the retention of the line does nothing to further the ESD objective in subsection 3(1)(b) of the FMA Act.
99. Mr Dixon asserts that the threshold test is not met and that the exercise of the precautionary principle pursuant to subsection 3(1)(b) of the FMA Act is not justified. He says that the retention of the line does no more than retain the status quo of economic inefficiency, contrary to AFMA's mandatory objectives contained in subsection 3(1)(a) and (c) of the FMA Act.
The Precautionary Principle

The Food and Agricultural Organisation of the United Nations in 1996 (Exhibit 1, Attachment C) described the purpose of the precautionary approach as recognising:
that changes in fisheries systems are only slowly reversible, difficult to control, not well understood, and subject to changing environment and human values.

It stated that:

the precautionary approach involves the application of prudent foresight.

Warwick Gullett, in Environmental Protection and the "Precautionary Principle": a response to scientific uncertainty in environmental management, p.52 regards the precautionary principle as essentially:
a new legal response to the scientific uncertainties surrounding the capacity of the environment to cope with the increasing demands placed upon it.

He argues that activities should not be permitted where there is uncertainty regarding their effects and there is reason to believe harm may result (p.55). He concludes:

Thus, once an activity is identified as posing a potential threat, decision-makers should be risk-averse and wait to be convinced that the risk is acceptable before allowing it. Also where there is existing potential for environmental harm, the principle requires anticipatory remedial measures to be undertaken.

Gullett distinguishes the precautionary principle from the preventive principle (p.57):

The precautionary principle lies in the requirement of prevention not only where there is "significant risk" of harm, but also where there is uncertainty whether harm will result. … The preventive principle requires risk and causation to be scientifically proven: the precautionary principle extends the preventive requirements of due diligence where there is uncertainty as to environmental outcomes.

The precautionary principle is to be exercised in pursuit of the ESD objective. No reference is made to it in AFMA's other objectives. However, if there is a risk to overcapitalisation occurring in the fishery, the risk of serious or irreversible damage may occur to the marine environment in the longer-term. In those circumstances the action or inaction that permitted the development of such overcapitalisation could be contrary to the ESD principle. The precautionary principle is to be exercised to avoid the risk of such a consequence.
Onus of proof
Dr Young referred to the imperative of the reverse onus of proof in relation to the exercise of the precautionary principle (tr420). He argues that it should be applied where it is not established that there is no serious or irreversible damage to a species, rather than it applying only where it is so established. That is, the precautionary principle places the onus on the fishers to show its exercise is not required, and not on management to show that it is.
Counsel for WA brought the tribunal's attention to an article by Charmian Barton, The status of the precautionary principle in Australia: its emergence in legislation and as a common law doctrine, Vol.22 Harvard Environmental Law Review, p.509. The author opens with the proposition:
The precautionary principle, which places the burden of proof on proponents of change to show that their actions will not cause serious or irreversible environmental harm, has emerged as a new tool for environmental management. Its emergence follows growing disillusionment with traditional environmental policies that predict environmental impacts based on the assimilative capacity approach.
Accepting the reverse onus of proof, AFMA would be entitled to retain the line until other controls are in place, unless it is established that the removal of the line will not cause a risk of serious or irreversible damage.
Is the threshold test met
Dr Young, the expert witness with the most concern about the state of the target stocks in the fishery, thought it is difficult to determine if the threshold for the precautionary principle is reached. He points out that on one view a "threat" might always exist, and he recognises the legitimate fear that the threshold might be so high that no fishing can take place until more or full knowledge is available to establish that there is no threat. Another view is that there is no known threat until there is evidence of the serious or irreversible damage having occurred. He refers to the threshold as a continuum. He says that from a management point of view there has to be an agreed general acceptance of what poses a threat. He asserts that agreement has generally been reached in the international forum (tr432-3).
Mr Gunn concurs. He says that, from a management point of view, notice should be taken of the IOTC's opinion of whether there is reason for caution in the management of the S/TWBF. There are strong indications that the IOTC is concerned about global fish stock of species which are to be found in this fishery.
It is clear from the evidence that, so far as the main pelagic longline target species are concerned, at present the target stock is abundant and there has been no indication of any localised depletion. Even if localised depletion occurs as a result of an increase in fishing effort, which on the evidence is unlikely in the short-term, the evidence suggests that it will make an imperceptible difference to the size of the whole stock in the fishery.

The applicant submits that AFMA's decision to retain the line as a boundary condition on his permit is a misconstruction of its ESD objective and economic objectives. On his behalf it is submitted that the policy is fundamentally flawed, and does not warrant the exercise of the precautionary principle, and that AFMA is thereby avoiding the exercise of its statutory powers to implement "efficient and cost-effective fisheries management".
First, I have already set out my reasons for finding that the application of the precautionary principle is not unlawful by reason of the threshold test not having been met (if that be the case). It might, nevertheless, be unlawful if retaining the line in pursuit of the ESD objective ignores AFMA's economic efficiency objectives, or is inconsistent with those other mandatory objectives.
The Full Court of the Federal Court in Australian Fisheries Management Authority v Adams Pty Ltd (1995) 61 FCR 314 considered AFMA's obligation to address each of its statutory objectives. The Court held that the use of "must" in relation to the section 3 objectives, and the linkage of the five objectives with "and" meant that each objective must be pursued by the Minister and AFMA. The failure to pursue one of the objectives at all gives rise to a breach of duty.
Weighing the competing short and longer term effects of the line on economic effficiency effort and capitalisation
Mr Dixon says that there is no justification for the Board's choice of sacrificing the certainty of short-term economic inefficiency in order to give absolute priority to the uncertainty of potential risks to long-term economic efficiency. The Board's policy reflects its view that the pursuit of the longer-term economic objectives of avoiding overcapitalisation is preferable to pursuing a policy which would avoid certain short-term economic inefficiencies. AFMA submits that this is consistent with a cautionary approach in the pursuit of both its ESD and economic objectives.
Drummond J in Bannister Quest Pty Ltd v Australian Fisheries Management Authority, (1997) 77 FCR 503, at 515, considered the concept of economic efficiency, noting that the economic efficiency objective requires AFMA:
to manage each fishery so as to bring about a situation in which the maximum aggregate profits that can be generated by the body of operators working in a particular fishery, being a level of profits which will be maintainable in the long-term from the resources of the particular fishery, are achieved.
I accept that the retention of the line does not bring about cost-effective management or economic efficiency for the whole of the S/WTBF. On the contrary, in the short-term, it is a source of economic inefficiency not only for Mr Dixon's operations, but also for the whole of the fishery. However, AFMA's policy of retaining the line until the management plan is in place tends to curb, rather than encourage, the further activation of latent effort and investment in the fishery. AFMA management believes, and the Board decided, that to the extent that the inefficiencies caused by the line act as a disincentive to the activation of the not insignificant latent effort, the line contributes to the long-term objective of avoiding overcapitalisation. It weighed the inefficiency it causes against the longer-term need to control whatever further capitalisation it could.
Further, the retention of the line, on its own not being a measure in pursuit of AFMA's mandatory objectives, is a measure calculated to aid and facilitate the successful implementation of a management plan. The major aspect of the policy to develop and implement a management plan, is unarguably in pursuit of all of AFMA's objectives.
The Board's minutes of its 1-2 December 1999 meeting (Exhibit L) reveal that it did consider all of its objectives in declaring the interim policy in relation to the line. AFMA management and the Board clearly carried out a weighing exercise of the competing economic considerations. What weight it gives to each of the objectives depends upon the facts and circumstances of the fishery at the time (Metal Holdings Pty Limited and Australian Securities Commission (1995) 37 ALD 131, at 144). In the present situation AFMA considers that the risk of long-term efficiency gains may be dissipated by short-term over fishing, and thereby justifies the retention of the line in the short-term.
The Board took into account AFMA management's acknowledgment that in the short-term the retention of the line is economically inefficient and not cost effective. That is recognised by the decision that the line is to be removed on the implementation of the management plan. Its decision to retain the line in the interim was guided by the advice and material before it that it was likely to have some, rather than no, effect on the rate of capitalisation of the fishery. I see no evidence that AFMA placed undue weight on the ESD objective to the sacrifice of other objectives. Rather, the Board's decision recognised that the ESD objective was best served by any measure that could retard the rate of capital growth in the fishery. It decided to retain the inefficiencies the line produced in the fishery in the longer-term interest of retarding, to the extent the line might, the rate of investment in the fishery.
Having found that AFMA weighed the short and long-term considerations of retaining the line as an interim control measure, it follows that AFMA did not avoid its statutory duty to pursue its economic efficiency objectives. AFMA legitimately regarded the retention of the line as in pursuit of its economic efficiency objectives. Thus, the application of the precautionary principle is not unlawful by reason of the ESD objective having been given undue paramountcy over those mandatory objectives.
Is the policy unlawful for other reasons?
Mr Dixon submits that the policy to retain the line ought not to be followed if the evidence shows that it is entirely misconceived or proceeded on a wholly erroneous basis (In Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 at 380). He submits that the policy is unlawful for the further reasons with which I deal below, and in the alternative that there are "cogent reasons" (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645) to depart from the policy.
I summarise the matters upon which Mr Dixon relies in support of these contentions, and deal with them in turn:
(a)that the line historically has no biological basis and does not contribute to AFMA's ESD objective;
(b)that the Board's reasons for its policy could not be ascertained;
(c)that AFMA's sudden change in attitude is bizarre and unsupported by AFMA management's own views and the information available;
(d)that the Board did not ascertain relevant data as to the cause of the increase in fishing effort as to which it was concerned;
(e)that the policy is discriminatory.
The line is arbitrary
I have already made a finding that while the line historically was arbitrary and had no biological basis, the reality is that by and large more highly migratory, somewhat fragile, subtropical fish are more prevalent north of the line than south of it. The same could be said of it if the boundary was to some degree further north, or further south of the line. As an arbitrary line it is an unsatisfactory fishing boundary. However, the fact that those fishers holding permits restricted to fishing only north of the line have no grievance about their inability to follow the fish south, and that the line causes concern only to those who are restricted to fishing south of the line, speaks for itself. Without the line, there is likely to be a tendency for more fishers to concentrate their efforts north of the line, fishing in the area where the bycatch is more fragile and the juvenile bigeye, yellowfin, and skipjack tuna are more prevalent.
No evidence of the reasons behind the policy
With regard to whether the policy behind the decision is lawful and consistent with the FM Act, the decision-maker must not exclude relevant considerations or base it on irrelevant considerations. Counsel, on behalf of Mr Dixon, says, for this reason, Mr Dixon is entitled to test the Board's reasons for the policy of retaining the line. In Bannister Quest, evidence was given from Board members at the hearing. In the present case no person present at the December meeting was called to give evidence. For example, Counsel for Mr Dixon submits that the basis of the Board's findings that there "may be localised depletion problems" (Exhibit L) is unclear.
There is sufficient evidence before the tribunal to indicate that the Board was presented with sufficient material to reasonably come to the conclusions it did in relation to the policy it declared at its December 1999 meeting. I have referred to the material which was before the Board at that meeting, and the advice given to it by AFMA's management (Exhibit K). A consideration of this material and the Board's minutes (Exhibit L) supports the finding that the policy it formulated was rationally based on relevant considerations.
There is little evidence to indicate the basis upon which it found that there was a risk of localised depletion of some fish stocks, and no evidence that it considered the question of whether or not the threshold test was met to warrant the exercise of the precautionary principle. However, the evidence before me supports AFMA's contention that there is uncertainty as to what impact further rapid investment in the fishery might have on local fish stocks. It is clear that AFMA took into account the difficulty it would have of implementing the required controls if the level of investment in the fishery reached over capacity.
Bizarre change of mind
Mr Dixon argues that the supposed foundations for AFMA's current policy are illogical and bizarre and contrary to the expressed belief of its senior management up to the time it was declared. He says that there was a remarkable change of attitude on the part of AFMA management. As late as August and September 1999 it seemed that management favoured the removal of the line as it hindered efficient and cost-effective management of the fishery (T15, para. 24 and T20 p. 21). Ms Lack explains that she had cause to alter her position on whether the line should be removed. On the whole of the material available to the tribunal Ms Lack's change of heart is explicable, and the Board's policy decision a reflection of AFMA management's legitimate concern.
The impact on AFMA management, and on the Board, of the figures produced by Mr Gunn cannot be overlooked. While the realisation of the rapid growth in fishing effort and increase in catch did not cause Ms Lack to have concerns about fishing stock, it gave rise to concerns about the inability to effectively manage the fishery and preserve its stock when the need arises. The foreshadowed restrictions on catch that the IOTC might require is also an important consideration.
Lack of data
Mr Dixon raises the lawfulness of the Board making its policy decision without critical and relevant data before it. In particular he asserts that the decision to retain the line was made without regard to the category of permit holders in the S/WTBF who were primarily responsible for the recent increased effort in the fishery. Information is available from which data could be obtained to enable the Board to identify the source of any increase in catch history, which Mr Dixon asserts is required before an informed decision could be made as to whether or not to retain the line. Mr Gunn thought the required data could be assembled within a week from logbooks and other information (tr512). This was not done.
At the hearing the applicant called on the respondent to produce material indicating the fishing area in which the increased fishing effort, capitalisation and investment in the fishery has occurred. Some additional data was put together during the course of the hearing, but the data indicating the amount of fishing effort exerted by vessels fishing north as against south of the line is scanty. The data reveals how many vessels were active on at least one occasion in any month in the particular sectors of the fishery, but it does not show how many days in the month each vessel was active.
I accept AFMA's submission that the Board didn't need that degree of detail to conclude that further growth in the S/WTBF is undesirable. The Board's decision to retain the line is to discourage what growth it can discourage until better controls are devised. It is conceded by AFMA that it has little control on growth overall until a management plan is implemented, or until other controls are put in place.
The lack of data means that no one can really predict when, and if, overcapitalisation will occur in the presence of the line pending the implementation of the management plan. In the short-term the line is retained as a precautionary measure. The Board had sufficient information to tell it that the greatest potential for further investment in the fishery is the latent effort existing with the inactive permits restricted to fishing south of the line. This is supported by Mr Gunn's interpretation of the information available; that is, that the line seems to have slowed activation of those permits that restrict fishing to the southern sector. Mr Gunn is an independent expert witness highly regarded by all parties for his experience and expertise, and the only witness who attempted to assess the nature of the latent effort and the extent to which it might be activated if the line were removed.
Discriminatory
Mr Dixon argues that the policy is unfair and discriminatory, in that it involves unequal treatment of some permit holders. Even Mr Geen described the effect of the line on operators such as Mr Dixon as having "one hand tied behind their back" (tr617, line 34). The retention of the line on its own does little to further AFMA's objectives. It might in fact have only a marginal effect in assisting AFMA in achieving a successful implementation of a management plan. Mr Dixon argues that its unfair and discriminatory effect on him, which, if not unlawful, provides a cogent reason for the tribunal not to apply the policy to retain the line as a fishing boundary on the permit.
In the case of Re Jetopay and Australian Fisheries 32 ALD 209 at 231, at 233, Purvis J considered the fairness of the operation of the policy of applying a formula to allocate individual catch quotas. His Honour found that it had been applied uniformly over a number of participants. He found that the applicant's circumstances were not so particular as to indicate that the rigid application of the policy formula by which individual quotas were applied, will work so harshly or unfairly as to call for modification of the formula by way of a special grant of quota or otherwise.
Mr Dixon holds a permit subject to the same area condition as many of the other permits in the fishery. The area condition of the boundary and the inefficiencies it causes to his operations, applies uniformly to that category of permit holders. Mr Dixon's permit has always restricted him to fishing south of the line. He has made his investment decisions in that knowledge (though speculating that the line is likely to be removed) and his evidence is that there are profits to be made south of the line. This is particularly so while the Leeuwin current is present, and the evidence that the current is likely to flow south of the line for the next year or two supports his claim fishing south of the line will continue to be good in that time frame. It seems then, that while the line perpetuates economic inefficiencies upon Mr Dixon's fishing operations, it does not operate so unfairly or harshly so as to warrant an exception being made to the application of the policy.
In support of his claim that the policy as applied to the permit is discriminatory, Mr Dixon drew the tribunal's attention to the fact that AFMA did in one recent instance, make exception to its policy by issuing to a holder of a permit that restricted fishing to south of the line, the right to fish north of the line. It transpires that the permit containing the area condition was initially issued in error, the fisher having historically attained rights to fish both north and south of the line, and the supposed departure from the policy was by way of correction of AFMA's error. Mr Dixon also raised the fact that AFMA intended to issue further unrestricted permits, contrary to its policy, for the purpose of permitting certain fishers to operate off the Christmas and Cocos (Keeling) Islands. Ms Lack explained that no such permits have in fact been granted as yet, the purpose of the plan having been to obtain needed information about the rate of bycatch of seabirds in that area (see Exhibit 10). Neither of these instances establishes discrimination against Mr Dixon.
Is the policy unlawful?
The policy underlying the decision under review is not unlawful, despite it being acknowledged by AFMA that the retention of the line in the short-term is not cost-effective from a management point of view and that it causes economic inefficiencies. The policy does not envisage the line being retained. It envisages it being removed. The only issue is whether the policy to defer its removal until the management plan is in place, should be departed from so far as it applies to the decision under review in relation to the permit.
Are there cogent reasons to depart from the policy?
I have considered the totality of the evidence and the submissions put on behalf of Mr Dixon. I do not find any compelling or cogent reasons to warrant departure from the policy that was applied in determining the conditions of the permit. The incorporation of the line as a fishing boundary on the permit reflects a part of a policy plan that AFMA has decided to implement in the fishery. The development and implementation of a management plan requires extensive consultation within the fishing industry. The removal of the line before that process is completed, or before alternative interim controls are put in place, could render less effective the implementation of the management plan.
In Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366, at 380, the tribunal was concerned with a decision relating to the catch quota of southern bluefin tuna allocated to the applicant under a scheme which limited the taking of tuna and had been adopted pursuant to the FM Act 1952. As in the matter before me, the policy could only be developed after consultation with the industry. The tribunal noted that it was not itself accountable politically and had no means of proceeding by obtaining industry consensus. Consequently, it had to give the policy great weight.
I have found on the evidence that there has been rapid growth in the S/WTBF despite the existence of the line; that the retention of the line is likely to have a limited effect on the future growth of the fishery; and that if the line is removed it is likely that there would be only a marginal impact on the fishery's resources north of the line. These findings are, however, insufficient to constitute cogent reasons for departing from the policy to retain the line as a fishing boundary on the permit.
What is clear from the evidence is that the state of development of the S/WTBF warrants a cautious management approach and the urgent implementation of a management plan. The increase in the investment in the fishery over the last year, the experience in other fisheries, and IOTC concerns about some fish stocks indicate this. The lack of evidence pointing to any serious or irreversible threat to the marine environment is a product of the lack of knowledge about the main target species of longline fishers, and about bycatch species. The line, though not intended originally as a fishing boundary, effectively has some biological significance. AFMA's policy to retain it, is not inconsistent with any of its mandatory objectives, and is likely to assist to some extent in the pursuit of all of its objectives in the context of its decision to develop and implement a management plan for the S/WTBF.

The tribunal in Re Aston cited the principle stated by Justice Brennan in Re Drake (No 2), (1979) 2 ALD 634 at 643:
If the Tribunal applies Ministerial policy, it is because of the assistance which the policy can furnish in arriving at the preferable decision in the circumstances of the case as they appear to the Tribunal. One of the factors to be considered in arriving at the preferable decision in a particular case is its consistency with other decisions in comparable cases, and one of the most useful aids in achieving consistency is a guiding policy. An appropriate guiding policy should thus be applied, …
The present case does not concern ministerial policy, but rather, policy made by the Board of a statutory body in accordance with its statutory power. The proposition still applies, that if the tribunal is satisfied the policy development is guided by the objectives required to be pursued in the management of the fishery, it should not be departed from in the absence of cogent reasons to do so.
Conclusions
The thrust of the Board's decision which underlies the decision under review as to the area condition on the permit, is that a management plan is to be developed and implemented as a matter of urgency. The decision to retain the line in the interim is an aspect of the major decision designed to avoid the risk of undermining the successful implementation of the management plan.
On the material before the Board it was reasonable for it to adopt that policy. I have had the advantage of hearing from highly qualified and experienced experts in the field. That evidence provides support for the Board's decision. That is not to say that it adopted the best policy. As to that time will tell. The line is a partial control measure and might do little to retard further capitalisation. It seems, however, that short of implementing some interim measures, AFMA has no effective way of controlling the investment decisions of those permit holders not restricted by the line.
Whether the Board's policy decision would have been the same had it known in December 1999 that the management plan was not likely to be implemented for some two or three years, is a matter of speculation. The tribunal has the benefit of that knowledge. Ms Lack, representing AFMA senior management, does not think that is good reason for the policy as to the line to change. Nor do Dr Young, Mr Gunn and Mr Geen.
In light of the evidence before me, one would hope that, when the extent of the delay in the development and implementation of the management plan is realised, and if the way in which the fishery develops warrants it, interim controls will be put in place. Given the evidence AFMA has adduced about the problems to which unrestrained increase in fishing effort and investment might give rise, Mr Dixon's questioning of AFMA's current adherence to its policy to retain the line instead of implementing more effective interim control measures is understandable.
However, it is not for the tribunal to recommend a change in policy or declare that it should be reviewed (Metal Holdings Pty Limited and Australian Securities Commission (1995) 37 ALD 131). My role is to consider whether it ought properly be applied to the decision under review. In that context I am only to look at the effect the line has on Mr Dixon's fishing operations up to the end of June this year. Whatever AFMA decides after that time is not the subject of this review.
Whether that policy can continue to be justified in the future is not a question which needs to be addressed now. AFMA will no doubt monitor the state of development of the fishery while the management plan is being developed. The underlying reasons for applying its current policy to Mr Dixon's permit may or may not be valid when he applies this year or next to renew his permit.
At present, the removal of the line in the absence of other controls would not further all of AFMA's statutory objectives. The temporary retention of the line until some alternative controls are put in place is consistent with all of AFMA's objectives. The position might change if there is undue delay before the required action is taken, or if insufficient action is taken, such that AFMA is in breach of its statutory obligations.
I heard evidence about the effect of the removal of the line on the values of the various longline-fishing permits. It is expected that with the implementation of a management plan the difference between the values of the permits that allow fishing north of the line or in the whole fishery, and those that restrict fishing to south of the line will come together. Mr Dixon is confident that in the longer-term all permits will increase in value in any event because of the profits to be made in the fishery. The possible effect in the short-term on the permit values of the removal of the line is not material to my decision in this matter.
In terms of the concerns of WA and NT in relation to bycatch, the lack of information about the impact of longline fishing activities on some species of shark is disturbing. There is simply not enough information to be reassured that there will be no adverse effect on bycatch of sharks and other subtropical species by an increase in concentration of effort north of the line. To err on the side of caution and restrain additional effort north of the line is consistent with AFMA's ESD objective.
In coming to my decision I also bear in mind that if developments in the fishery so demand it, the line condition can easily be removed from the permit conditions in the future. If the condition is removed now, it could not so easily be reinstated if its removal proved to affect adversely the rate of investment in the fishery.
On the whole of the evidence and material available to me, I conclude that the retention of the line as an interim measure, at least for the duration of the present term of the permit, is lawful and consistent with the pursuit of all of AFMA's objectives. There is no compelling or cogent reason not to be guided by that policy in coming to a decision about the conditions of the permit, the subject of this review.
Decision
The tribunal affirms the decision under review.

I certify that the 217 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member
Signed:         Eva Dimopoulos           .....................................................................................
  Associate
Dates of Hearing  28 February 2000 - 7 March 2000;   21 March 2000
Date of Decision  5 June 2000
Counsel for the Applicant  Dr John Griffiths
Solicitor for the Applicant  Clayton UTZ
Counsel for the Respondent  Mr Peter Hanks SC
Solicitor for the Respondent  Australian Government Solicitor
Counsel for the First Third Party              Ms Janine Pritchard
Solicitor for the First Third Party               Crown Solicitor's Office, WA
Counsel for the Second Third Party         Mr Simon Gillespie-Jones
Solicitor for the Second Third Party         Gillespie-Jones & Co

ATTACHMENT A

APPLICANT'S EXHIBITS

EXHIBIT    DESCRIPTION
A        Two statements of Mr S Dixon dated 18 February 2000 (inc. attachments A-Q) & 25 February 2000 (inc. attachments A-E)
B        Statement of Dr A Lewis dated 21 February 2000 (inc. attachment A)
C        Two statements of Mr D Collins dated 4 February 2000 (inc. attachment A) & 18 February 2000 (inc. attachment A)
D        Map of the area surrounding the line at Latitude 34o South
E        Letter Australian Government Solicitor to Clayton UTZ dated 25 February 2000
F         R Campbell, G Tuck, J Pepperell & J Larcombe, "Synopsis on the Billfish Stocks and Fisheries within the Western AFZ and the Indian Ocean, September 1988
G        WestunaMAC Chairman's Summary, 5 November 1998 and Minutes of WestunaMAC7, 5 November 1998
H        Chairman's Summary of WestunaMAC meeting, 2/3 June 1999

Chairman's Summary of WestunaMAC meeting, 4/5 November 1999
J         Board Papers for AFMA Board Meeting, 23 July 1998
K        Board Papers for AFMA Board Meeting, 1/2 December 1999
L         Minutes of the AFMA Board Meeting, 1/2 December 1999
M        Documents before AFMA when preparing Board Reports for the ½ December 1999 meeting
N        Documents concerning permits allowing fishing around the Christmas and Cocos Islands
O        Letter from AFMA to FMS dated 19 November 1999
P        Documents concerning an additional permit allowing access to the S/WTBF issued in December 1999
Q        Statistical information prepared by AFMA concerning activity in the S/WTBF and Summary thereof
R        AFMA News, Volume 3, Issue 8, December 1999
S        Mr D Collins' cost scenario diagram
T         Extract from AFMA Annual Report 1998-99 - page 254
U        FERM – Background Paper for AFMA Board entitled "Re-allocation of Fishing Concessions – where management arrangements have changed" June 1997
AFMA Fisheries Management Paper Series No. 5 entitles "Exploration of fish resources", May 1999
W Minutes of AFMA Meeting, 22 July 1999 and Board Papers
Letter from Ms M Lack to Mr SJ Dixon dated 1 August 1999
Y        AFMA Compliance Budget for 1999/2000
Z         Article by CA Simpfendorfer entitled "Demographic Analysis of the Dusky Shark Fishery in Southwestern Australia", 1999
AA      Letter from NT to AFMA dated 22 July 1998
BB      Mr D Collins' diagrams – A, B, C, D

RESPONDENT'S EXHIBITS

EXHIBIT DESCRIPTION

Statement of Ms M Lack dated 8 February 2000 (inc. attachments A-M)
Statement of Mr J Gunn dated 21 January 2000 (inc. attachment A)
Statement of Dr P Young dated 4 February 2000 (inc. attachment A)
Statement of Mr G Geen dated 4 February 2000 (inc. attachment A)
Table of figures – current and S/WTBF Permits by method
Active Longline Permits in the S/WTBF 1999; Active Longline Permits in the S/WTBF 1997-1999
Australian Fisheries Surveys Report 1996
Mr G Geen's diagrams 1 & 2
Mr G Geen diagram 3
Statement of Ms M Lack dated 16 March 2000 (inc. attachment A)

FIRST THIRD PARTY'S EXHIBITS

EXHIBIT    DESCRIPTION
TPA Statement of Mr J Pepperell dated 4 February 2000 (inc. attachments A-D)
TPB    Statement of Dr R Lenanton dated 4 February 2000 (inc. brief CV)
TPC    Extracts from BRS Report by A Harris & P Ward entitled "Non-Target Species in Australia's Commonwealth Fisheries: A Critical Review"

SECOND THIRD PARTY'S EXHIBITS

EXHIBIT DESCRIPTION
TP1 Statement of Mr N Rayns dated 4 February 2000 (inc. attachments A-O)

ATTACHMENT B