Gale and Australian Fisheries Management Authority
[2005] AATA 172
•28 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 172
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2001/97
GENERAL ADMINISTRATIVE DIVISION ) Re COLIN VERNON GALE Applicant
And
AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
Respondent
DECISION
Tribunal Mr J Handley, Senior Member
Assoc Prof B Davis, MemberDate28 February 2005
PlaceHobart
Decision The Tribunal sets aside the decision under review and in substitution the application is remitted to the respondent with the Direction that quota be allocated to the applicant by selection of the three best years of the years 1992, 1993, 1994 and 2000. (Sgd) John Handley
Senior Member
FISHERIES – review of decision allocating quota – respondent adopted recommendations of an advisory panel to set quota on basis of average catch of best three years in four year period between 1994 and 1997 – increase in quota permitted if exceptional circumstances are found – discussion of meaning of “exceptional circumstances” – applicant had long history as a shark fisher with significant catches – serious illness caused reduction in effort and income – boat lost at sea – licences surrendered because of cost – work as a relief skipper – improvement in health – acquired another boat – catch returns similar to returns prior to illness – exceptional circumstances found – some years outside 1994 to 1997 be adopted on basis of allocation of quota – decision under review set aside
Fisheries Management Act 1991 (Cth) s3 and s165(5)
Fisheries Administration Act 1991 (Cth) s6
Bannister Quest Pty Ltd v Australian Fisheries Management Authority Federal Court,
14 August 1997, 819/1997)
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Skoljarev v Australian Fisheries Management Authority, (1996) 22 AAR 331
Re Skoljarev and Australian Fisheries Management Authority (1995) 21 AAR 305
Re Smythe and Australian Fisheries Management Authority [2001] AATA 677
Re Walton and Australian Fisheries Management Authority [2002] AATA 184
Re Gimbert and Australian Fisheries Management Authority (AAT 4582, 26 August 1988)
Nikac and Others v Minister for Immigration and Ethnic Affairs (1998) 20 FCR 65
Re Skoljarev and Australian Fisheries Management Authority (1995) 21 AAR 306
Government Employees’ Health Fund Ltd v Private Health Insurance Administration
[2001] FCA 322
Hicks v Aboriginal and Torres Strait Islander Commission [2001] FCA 586
Kent v Wilson [2000] VSC 98, (24 March 2000)
REASONS FOR DECISION
28 February 2005 Mr J Handley, Senior Member
Professor B Davis, Member1. The applicant applies to review a decision made by a delegate of the Australian Fisheries Management Authority (“AFMA”) pursuant to s165(5) of the Fisheries Management Act 1991 (“the Act”) The decision under review was made on 31 May 2001 which affirmed a decision made by a primary delegate and is found at T2 p3‑8 of the documents lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975.
2. The decision then made was to affirm an earlier decision (T44, pages 306 to 307) with respect to the allocation of quota of school and gummy shark which the applicant would be permitted to take from the Southern Shark Fishery (“SSF”).
3. The applicant applied to review the latter decision upon the basis that he asserted that his circumstances were “exceptional” and a larger quota should have been allocated to him.
4. This application was heard simultaneously with two other applications. All three applications sought review of decisions of AFMA with respect to quota allocations in the SSF. Each applicant was separately represented by Counsel. Mr Reed appeared on behalf of AFMA in each application. Each review was concerned with where “exceptional circumstances” existed thereby permitting an increase in quota.
5. By way of background, the SSF has been the subject of a number of management initiatives from the 1980’s. AFMA recognised that shark species were vulnerable to “over fishing” and control methods needed to be introduced to conserve the species and to provide long term viability to the shark fishing industry.
6. Initially, controls upon shark catch were by way of “imput controls” where restrictions were made upon the catch of licensed members of the SSF. In the late 1980’s and early 1990’s it became obvious that the “input controls” were not preventing over exploitation. A number of industry publications and policy statements were issued by AFMA recommending an altered approach to management of the SSF which involved the implementation of “output controls”. This practice involved an annual review of the quantity of shark stock and the imposition upon members of the SSF of a catch level known as a “total allowable catch” (“TAC”). A TAC is then allocated to each individual member of the SSF.
7. Throughout the early 1990’s AFMA continued to be concerned about the viability of shark stock. A number of meetings were held in April 1997 by the Southern Shark Fishing Management Advisory Committee (“SharkMAC”) which recommended that a system of individual transferable quotas (“ITQ’s”) should be implemented into the SSF. At the same time consideration was given to a variation of the basis upon which quotas to members of the SSF would be allocated in future years. A press release was issued on 6 June 1997 advising that upon the recommendation of SharkMAC, catches recorded after 10 April 1997 would not be considered for inclusion into an ITQ as allocated to eligible SSF members.
8. Later, SharkMAC members and AFMA staff held a number of meetings throughout Victoria, Tasmania and South Australia to promote the objective of long term viability of the shark fishing industry and to obtain feedback from SSF members. The Southern Shark Allocation Advisory Panel (“the Panel”) was established to provide advice with respect to the allocation of school and gummy shark quotas. After it consulted with shark fishers it recommended that ITQ’s of school and gummy shark in the SSF be allocated upon the basis of the fisher’s best three years of verified catch for the four year period between 1994 and 1997 inclusive. It was thought that this catch history period would “accurately reflect present relative economic positions of concession holders within the fishery”. It was also thought that any distortions within this period by reason of altered catch, weather conditions, fishing performance and seasonal fluctuations would be minimised by preserving a “relative economic position” by a formula based on consideration of catch histories for the best three of the above four years (refer proof of evidence of Margot Sachse). A decision to not have regard to shark catch after 10 April 1997 was made to prevent fishers increasing their shark catch “in the hope of getting a larger allocation of quota in the future” (refer Media Release 6 June 1997, T15 p160).
9. The Panel ultimately published its report on 15 July 1999. At Chapter 7 the members of the Panel acknowledged that one of their terms of reference was to “identify and include” (for the purposes of the system of allocation of quotas) “any exceptional circumstances which the Panel considers should be taken into account including consideration of any inequity arising from previous allocations of fishing entitlements” (T19 p206). The panel considered inequities within the Commonwealth Gill Net Sector and the Commonwealth Hook Sector but with respect to the SSF it noted that the imposition of an ITQ to fishers within the SSF would be by way of condition upon a licence permit issued under s32 of the Act. Any decision as to the imposition of conditions would be reviewable by AFMA under s165 of the Act and ultimately by the Administrative Appeals Tribunal.
10. The Panel acknowledged that there may be circumstances particular to some fishers which could be regarded as being “exceptional” and an evaluation of those circumstances might be considered over a period of years outside the period 1994 to 1997.
colin vernon gale
11. The applicant provided a combined proof of evidence and Statement of Facts and Contentions prior to the commencement of the hearing. The proof of evidence comprised 38 paragraphs which are reproduced in Italics below. A number of the paragraphs within the proof of evidence were varied or changed by the applicant in his evidence in chief. The variation or changes are also recorded below against the applicable paragraph.
1.The applicant became a professional shark fisherman in Victoria in 1966 at the age of twenty-five. The applicant is now aged 61 years. (In evidence the applicant said that he is presently 63 years of age.)
2.In about 1970 the applicant was one of the first fishermen to use the net method for shark catch. In 1972 he acquired the FV “Bass Rover”, a 36ft steel vessel. In 1973 and because of the effect on the Victorian shark industry brought about by concerns as to the mercury content of larger fish, the applicant moved to Tasmania and continued to fish for shark for both the Tasmanian and Melbourne markets. He fished as far a field as the Great Australian Bight and has crossed Bass Strait more than 300 times.
3.The applicant fished exclusively for shark with nets and longlines until 1981 when he seasonally diversified into the scallop fishery.
4.In March 1982 the applicant ceased netting for shark to concentrate on the then more lucrative scallop fishery, but continued with longlining for shark. In 1985 the applicant resumed his dependence upon the shark fishery both net and longline and he caught 23,000 kg in that year. (In evidence the applicant said that he was unable to fit his scallop gear and shark nets on his boat from 1982. To do so would have been unsafe. He retained his shark reels only. A photograph of the boat he was then using – the “Bass Rover” – was produced in evidence and it depicts the shark reels.)
5.In February 1986 the applicant sought entry to the Southern Shark Gillnet Fishery but his application was unsuccessful on the grounds he could not show sufficient historical commitment to the fishery. The applicant appealed to the AAT and on 23 December 1987 the Tribunal set aside the AFMA review decision on the ground that the applicant had satisfied the appropriate historical commitment to the fishery. The application was remitted to AFMA and a ‘B Class’ (non-transferrable) endorsement was granted. This endorsement restricted the traditional amount of shark gear the applicant was to carry on his vessel and consequently significantly reduced the amount of shark he could take.
6.AFMA appealed to the Federal Court but withdrew its appeal after six months. Attached and marked “A” is a copy of AAT decision No. T86/90 AAT No. 4051. More detail of the applicant’s fishing history and fish catch history until 1985 can be found at paragraphs 34 – 39 and 59 – 64 of that written decision.
7.The financial strain of the AAT and Federal Court processes meant the applicant was unable to pursue his claim for an ‘A Class endorsement’.
8.In 1988 the applicant was hospitalised with heart related complaints and was advised to ‘take things easy”. However, the financial burdens imposed by the ‘B Class’ only endorsement required the applicant to continue full-time shark fishing. Licence fees and levies increased from $300 to $700 to $1,500 to $2,800 to $8,500.
9.Due to the enforced reduction in effort and thus income and the significant increasing cost of participating in the fishery, the applicant’s fishing operation gradually fell into financial difficulties.
10.In evidence the applicant did not rely on this paragraph and asked that it be deleted from his evidence because he said that it added nothing to his application.)
11.In 1992/1993 the applicant’s health deteriorated with blood pressure/heart related symptoms. The applicant found it progressively more difficult to attend to fishing duties at a level to meet increasing operational expenses.
12.In 1993 the applicant was a member of the Southern Shark Fishery Working Group and Tasmanian Representative for SSFMAC, see annexure “B”. He received no financial recompense for his participation.
13.On 15 September 1993 and due to the despair in being unable to resolve his financial difficulties, especially the high levy and fees required, the applicant wrote to AFMA giving notice of his intention to withdraw from his Commonwealth Permit (Bass Strait Scallop Fishery) and notifying it of his decision to stay with his State (Tasmanian) fishing entitlements (T30) and (T31).(In evidence the applicant said that he also wrote to AFMA withdrawing from the Southern Shark Gill Net Fishery – his letter making these withdrawals is found at T30 page 269.)
14.On 7 October 1993 the applicant’s Bass Strait Scallop Permit was cancelled. At or about the same time the applicant’s daughter was able to loan him some monies to continue with his fishing operation and to pay the then current licence and levy fees to AFMA. The applicant wrote to AFMA (the applicant did not retain a copy of that letter nor is it in the respondent’s T documents) to withdraw his notice. He was informed by AFMA that his withdrawal had “gone through” and could not be withdrawn or revoked (see annexure “C”.) (In evidence the applicant said that his Shark Gill Net Permit was cancelled together with his Scallop Permit. However the applicant was issued with Permit No. 373C on 1 January 1994 permitting him to undertake hook line fishing for Gummy and School Shark until 30 June 1994. He ceased fishing for shark by all methods from that date.)
15.The applicant spoke with Geoff Rowan and Tony Pintori of AFMA about the problem and was told that the “computer could not go backwards” and “in any event we have been good to you by not appealing the AAT decision on the net entitlement”.
16.From September 1993 to October 1994 the applicant continued to fish with his State entitlements and this included fishing for shark. For the first 9 months of 1994 the applicant took 15,253kg of school and gummy shark (see the applicant’s Fish Returns for those months – to be available at the hearing).(In evidence the applicant acknowledged that the catch of 16253kg as recorded is an error. He said the catch for the period referred to in this paragraph was 15253kg.)
17.In 1994 the applicant’s health had deteriorated to a point where in September/October he was advised to give fishing away entirely for a period. The applicant was diagnosed as suffering from pericarditis and ischaemic heart disease. See report by Dr Hanson dated 30/09/1999 and 16/02/2001 attached and marked “D” and “E”.
18.In October 1994 the applicant placed his family home on the market with the intent of paying debts including a business operational overdraft of $40,000.
19.In October 1994 the applicant, to make ends meet, sold his Tasmanian scallop licence and Tasmanian fishing boat licence for $20,000. Because this was a package deal the applicant had to surrender his State shark entitlement, although he retained the shark history. Due to the non-transferability of the shark entitlement, it was relinquished. Following these transactions the applicant was left with his boat and shark history but no licences. The applicant sold only his State scallop entitlement but his shark licence was not sold, it had to be relinquished and handed back to the fishing authorities leaving shark catch history in his possession. (The applicant said in evidence that the purchaser of his scallop licence and fishing boat licence was a Mr Watts.)
20.From October 1994 to October 1995 the applicant rested as advised by his doctor.
21.In February 1995 the applicant permitted his son Rowan the use of the “Bass Rover”. The applicant had given his son the use of his fishing vessel so that he could lease a Cray licence and fish on his own.
22.From January 1995 the applicant’s wife and daughter were managing a mobile kitchen on the wharf at Strahan.
23.In March 1995 the applicant became entitled to and received a Tasmanian Shark Hook Licence (TSHL). This entitlement was put on the shelf until such time as he could afford to purchase a Tasmanian Fishing Boat Licence (TFBL). He received the TSHL as he had met State criteria. (In evidence the applicant said that in 1993 the Tasmanian Fishing Authority informed him that he would become entitled to a Tasmanian Shark Hook Licence (TSHL). He said he was informed of the entitlement because he met all entry criteria. He said that the TSHL was granted to him in 1995 permitting him to fish with 1000 hooks in Tasmanian waters only being within 3 nautical miles of the Tasmanian shore.)
24.On the 5 October 1995 the Tasmanian Department of Sea Fisheries created new rules affecting the operation of TSHL. From that time only the licence holder or a ‘designated skipper’ could fish with the relevant TSHL. To be a ‘designated skipper’, that person had to have been in charge of the vessel between July 1994 and June 1995. The applicant had no person available as a ‘designated skipper’ to operate the “Bass Rover”.
25.In October 1995 the applicant’s medical advice was that he could ease back into fishing again. He leased a shark net boat “Encounter Bay” from Guthrie & Sons from October 1995 to February 1996. He caught in excess of 16,000 kg of shark. (In evidence the applicant said he did not lease a shark net boat but rather he was the relief skipper on the “Encounter Bay”.)
26.In December 1995 the applicant was forced to sell his home to pay the bank overdraft owing in the sum of $40,000. (The applicant said in evidence that he sold his home in December 1994 not December 1995.)
27.In March of 1996 the lease on the mobile kitchen was removed by the Hobart Marine Board. The applicant and his wife lost the capital investment in the kitchen in the sum of $35,000.
28.In April 1996 the applicant advertised for a TFBL and although there was a vessel available he was unsuccessful in a loan from the Commonwealth Bank due to insufficient fixed assets and income record. Whilst some TFBL’s were available they came with other unnecessary entitlements adhered to them which meant purchasing the whole ‘package’. This was not financially possible.
29.In early 1996 the applicant’s son wrecked the ‘Bass Rover”. It was not insured. The wreck was sold for a small sum retained by the applicant’s son.
30.In May 1997 the applicant’s son, Rowan, took his life.
31.Despite many attempts (eg 1. – April 1996 advertising for and negotiating the purchase of a TFBL from Mr Poke, ultimately unsuccessful because of lack of funds:, the applicant was unable to negotiate a bank loan for the purchase of a TFBL until 1998. In May 1998 the applicant was able to afford to purchase (with the assistance of a successful bank loan) a TFBL to operate a vessel up to 10 metres in length. Finding an appropriate vessel of up to 10 metres suitable for shark fishing was extremely difficult, (eg 1 – in April 1996 the applicant negotiated the purchase of an 8 metre Hobson fishing vessel but his bank declined a loan: eg 2 – September 1999 the Tasmanian Department refused an application to place the applicant’s TFBL on the FV ‘Amanda J’ as it measured slightly in excess of 10 metres. Attached marked “F1‑4” are examples of attempts to obtain funds to purchase suitable vessels. (The applicant again said that he did not enter into a lease but rather he was the relief skipper and entered into a share of catch agreement with Hursey.)
32.Between May 1998 and February 1999 the applicant was able to fish for scallops and shark with the “Ocean Raider” which he leased from Hursey & Sons Pty Ltd. His daughter was crew on this vessel and continued as crew for her father until more recent times.
33.In March 1999 the applicant went cray-fishing with the “Tracey Lou” as skipper of the vessel for Doug Shea. The venture with Hursey & Sons and Doug Shea was that he leased their boats and licences and took a share of the catch. In November 1999 the applicant had saved enough money from both ventures to enable him to put a deposit on the FV “Jenny Sue” and continued to shark hook with catch as noted at paragraph 38/39. Photograph of FV “Jenny Sue” attached and marked “G”.(The applicant said in evidence that he did not enter into a lease but rather was engaged either as a relief skipper or undertook a share of catch arrangement with Hursey.)
34.Between 1966 and 1995, the applicant caught an average of approximately 27.5 tonne of shark in each year.
35.In about August 1999, the Allocation Advisory Panel (“AAP”) published its recommendation as to the criteria for fixing individual transferable quotas (“ITQ’S”) to be allocated to applying shark fishermen.
36.The policy provides that an ITQ will be determined by reference to any applicants verified catch history for the years 1994-1997 inclusive, but using the best three of four years, so as to allow for applicants individual circumstances. The policy also contemplates that “persons who believe that their catch history has been affected by exceptional circumstances will have the opportunity to appeal”.
37.On 5 October of 1999 the applicant applied for and paid the $530 fee for AFMA to undertake “Claim for Shark Catch History”.
38.In the letter from AFMA dated 31 May 2001, noting the decision as to review, it was reported that the applicant’s Claim for catch History was not processed as the applicant had not paid the relevant fee and that instead it was alleged the applicant had requested AFMA to consider ‘exceptional circumstances’.
SUMMARY OF SHARK CATCH HISTORY FROM 1982.
1982
10,000kg
(7 months)
longline
1983
16,500kg
(7 months)
longline
1984
14,750kg
(6months)
longline
1985
23,000kg
(11 months)
longline
1986/1991
records not available at time of writing but an average of 27,000kg pa is claimed
1992
34,152kg
(12 months)
longline and nets
1993
17,325kg
(11 months)
longline and nets
1994
16,253kg
(9 months)
longline and nets
1995
16,803kg
(6 months)
Sep 95/Feb96 ‘Encounter Bay’
1998
7,862kg
(4 months)
‘Ocean Raider’
1999
1,449kg
(2 months)
‘Jenny Sue’
1999
7819kg
1449kg
(2 months)
(2 months)
‘Ocean Raider’
‘Jenny Sue’
2000
15,080kg
(12 months)
This figure is higher and will be amended
2001
Quota
(The applicant in evidence acknowledged that the catch history recorded in this paragraph was taken from his own records. To the extent of the catch recorded by him differed from the catch as verified from AFMA records found at pages 328 to 330, the applicant said he would be prepared to accept and adopt the verified records of AFMA. With respect to the years 1992, 1993 and 1994, the applicant said that he fished from the vessel “Bass Rover” in State and Commonwealth waters by long line and by nets. In 1995 he was engaged as a relief skipper or on a share of catch agreement. However towards the end of 1999 he was in self employment as the Master of his own vessel the “Jenny Sue”. The catch for the 2000 year of 15080kg has been verified by AFMA.)
12. In cross-examination the applicant was referred to the catch recorded against the years 1982, 1983, 1984 and 1985. The figures recorded were suggested by Mr Reid as being an estimate and had been “rounded up”. Mr Gale said that in those years an estimate of catch only was sought by AFMA and exact weights were not required. Additionally he said that in those years the catch returns were distinguished between fish caught on hook and fish caught in nets. Mr Gale agreed that these figures were estimates and his catch in those years would have been on hooks and in nets in both Commonwealth and State waters using Commonwealth and State permits, although nets were only used from 1985 (refer paragraph 4 of proof of evidence).
13. Mr Gale agreed that he ceased fishing in the SSF in September 1993 by reason of him surrendering his shark gill net permit. He also agreed that he did not fish for shark by hook method from 30 June 1994 under the licence issued on 1 January 1994 because he did not pay licence fees.
14. For the years 1995 and 1998 Mr Gale agreed that he worked as a relief skipper and for part of 1999 on the “Ocean Raider”. However for two months of 1999 he worked as the Master of his own vessel the “Jenny Sue” where he then had a catch of 1449kgs of shark.
15. Mr Gale was then taken to paragraphs 22 and 27 of his proof of evidence where he referred to the operation of a mobile kitchen on the Strahan Wharf. Mr Gale said that the mobile kitchen was owned by he and his wife and was constructed by him from a 22 foot converted caravan. He said that it was fully plumbed and it also had two freezers, a drinks refrigerator, gas burners, a doughnut machine, a griller, a fax machine, television and hot water service all fitted. He said he constructed it at a cost of between $29,000 and $30,000. It operated for approximately 15 months at a profit but he ceased to operate it with his wife when the Strahan Shire failed to renew a lease. Mr Gale agreed that the caravan could have been moved to another site and an opportunity apparently existed to relocate it to the Wharf at Smithton. Mr Gale said however that he “did not want to be involved in it” and he preferred to return to sea as a fisherman. He said that the mobile kitchen was operated during a period of “enforced rest” as determined by his doctors. He said the mobile kitchen/caravan is presently located in his backyard. When he was asked to explain how he and his wife had “lost the capital investment in the kitchen in the sum of $35,000” (paragraph 27) Mr Gale explained that the caravan was not being used, it was not viable and therefore it did not have a capital value. He said that if it was placed on the open market at the present time it could not attract a purchase price of $35,000.
the reviewable decision
16. Ms Stone a delegate of AFMA conducted the reconsideration of the decision to impose a quota in the year 2001 and upon review she decided to affirm the primary decision. The primary decision was to grant a quota of 4867kg of gummy shark and 597kg of school shark. In her review Ms Stone understood that the policy of AFMA with respect to internal review was to satisfy herself whether the policy was valid and whether the decision under review had been made in accordance with that policy. Additionally she was of the view that departure from the policy could only be justified if she were to find “cogent reasons or special circumstances relating to [his] individual situation” (T2 p5).
17. Ms Stone decided that the decision under review was made in accordance with the policy which had been applied correctly. She did not find that there were any cogent reasons or special circumstances causing her to depart from the policy. She found that the applicant forfeited his Commonwealth entitlements in September 1993 and his State entitlements in 1994. Whilst he was granted a TSHL in 1995 it was not used until November 1999 when he acquired his own boat (“Jenny Sue”). Whilst accepting that Mr Gale did suffer from poor health from 1994, he did not return to fishing with his own boat with his own licence package for a period of five years. Accordingly the applicant did not fish during the qualifying period 1994 to 1997 for the above reasons. Additionally he did not fish because he did not have a Tasmanian fishing boat licence consequent on the sale of that licence in 1994. Ms Stone also accepted that the applicant sold his licences in 1993 and 1994 for financial reasons which she decided was a “commercial decision” as opposed to being an “exceptional circumstance”. Ms Stone also acknowledged the tragic circumstances of the death of the applicant’s son but noted that in the event that the tragedy did not occur the applicant would not have been entitled to fish in any event for the above reasons.
margot sachse
18. Ms Sachse is presently the Project Manager of the Southern and Eastern Scale Fish and Shark Fishery (“SESFSF”). She has previously held a number of management positions within AFMA and has a long history in the fishing industry. She lodged a proof of evidence which summarises the history of the development of the SSF, the introduction of ITQ’s and TAC’s, the assessment processes by AFMA from time to time, the consultation with industry and governments, and the process of verification of catch.
19. The proof of evidence also contained specific reference to the application brought by Mr Gale and it is found at paragraphs 47 to 63 which are reproduced as follows:
The applicant’s case
47.The applicant initially claimed in his application to the AAT that his allocation was unsatisfactory. In his proof and statement of facts and contentions, this is expanded to refer to exceptional circumstances and the severe threat to the livelihood of the applicant.
48.Part of the applicant’s case is set out in his proof as to the financial difficulties into which he fell. This led him to withdraw from the shark fishery. His shark licence was cancelled.
49.From September 1993 the applicant continued to fish with State entitlements only. His health continued to deteriorate so that from October 1994 he ceased fishing and sold his Tasmanian scallop licence and Tasmanian fishing boat licence. As a result of this, he had to surrender the State shark entitlement, although he retained the shark history.
50.He did not fish from October 1994 to October 1995.
51.In March 1995 the applicant received a Tasmanian shark hook licence. He could not use this because he did not have a boat.
52.In October 1995 he recommenced shark fishing and fished from October 1995 to February 1996. Since then he has not been able to obtain a boat within the history period.
53.The applicant purchased a vessel licence in May 1998 but did not activate his Tasmanian shark hook licence on this boat.
54.In November 1999 the Applicant placed his Tasmanian shark hook licence package on the vessel ‘Jenny Sue’.
Respondent’s case
Shark Fishing in Tasmanian Waters
55.Shark fishing within these waters is a highly variable and seasonal activity. Seasons usually last from 6-7 months and generally occur between the months of October to May (The seasonality of the Tasmanian Shark Fishery is illustrated at attachment 1). The reason for this is that shark’s movements are affected by water temperature. Due to variations in water temperature, sharks seasonally migrate outside of this 3nm boundary, making them inaccessible to State only operators for extended periods.
Alternative catch history years
56.No claim has been made in respect of alternative years. Mr Gale instead refers to his entire shark history from 1982. None of this is verified other than the years verified by AFMA. The history as set out in the as [sic] the summary at page 5 of the proof appears to be inconsistent with earlier statements made that he did not fish in certain years.
57.The verification process did not allow for catch to be imputed to cover periods of reduced catch, and no catch was ever imputed to take account of illness or injury. To a large extent circumstances such as breakdown, refits, illness suffered by the operator, inexperienced skippers, the previous owners performance, contractual disputes and chartering arrangements were considered to be a consequence of normal operations over the relatively lengthy period from which catch history was taken.
58.In recommending that quota be allocated using the best three of four years catch history formula, it was the intention of the AAP that the risk of distortion of an individuals relative economic position be minimised. This was designed to account for periods when circumstances, such as illness, prevented a person from fishing.
59.It is unreasonable to impute catch for any occasion when an operator has been unable to participate in the fishery. This is one of the reasons why the allocation process over a number of years has been intentionally designed to accommodate any differences between individual’s circumstances.
Effect of decision on TAC and ITQ
60.A departure from the policy so as to allow the allocation of quota for 1993 to be based on imputed catch based upon catch in other years would raise significant equity concerns as it would result in a reduction in the proportion of catch allocated to other operators. The quantum of the Total Allowable Catch is not in issue in these proceedings and is based upon assessments of fish stock and effort.
61.An increase in quota allocated to the applicant, or to any other operator for that matter, will necessarily result in a reduction in quota allocated to all other operators in the fishery. The Total Allowable Catch would not be affected, but the proportion of each fisher’s quota would reduce because of the introduction of additional allocation to the applicant. The TAC for gummy shark was 2,074.17 tonnes carcass weight for 2001 [T28, page 263]. It is this amount of which the Applicant has a share and his increased allocation would reduce the amount the other 196 fishers would have in the TAC.
62.deleted
Effect of IARP
63.No change arises for the Applicant from the decision of IARP as the Applicant’s fishing was confined to State waters.
20. In evidence Ms Sachse said that AFMA had decided to introduce a process of “Units” with respect to the ITQ set in the SSF. This part of the evidence became relevant because of queries raised earlier in the hearing where the notification of quota entitlement issued to Mr Bell (for example T58 p364) records the Units of catch allocated to him whereas separately (for example T58 p363) there is an allocation of quota. Ms Sachse explained that a “Unit” is a proportion of the TAC that is allocated to each fisher. She said that when a TAC in the SSF is either increased or decreased in each fishing season, the proportion of quota allocated to a fisher remains the same by a corresponding kilogram value. She said that the weight of shark is set against “truncked” weight being a shark which is beheaded and gutted but with its fins intact. This process she said ensures that fishers receive the same proportion of a TAC from year to year.
21. With respect to the current stock of school shark, she said that it is currently over fished and in recent years the “harvest strategy” of AFMA is to decrease the allocated quota for the catch of school shark. She said the reduction in quota will hope to ensure that by 2011 the stock of school shark will be at the same level as it was at 1996.
22. Ms Sachse said that the stock of gummy shark is currently at sustainable levels although it was decided in 2002 by AFMA to reduce the quota of gummy shark by about 23 per cent.
23. With respect to satisfying AFMA of a catch history (so as to permit allocation of quota) Ms Sachse said that entry into a fishery (and the consequent allocation of quota) was initially established from records in a fisher’s log book. Later, when fisheries were expanded, the allocation of quota to a fisher was on the basis of a verified catch history which was established by secondary documents mainly being the production of dockets from fish processors and other sources.
24. In cross-examination Ms Sachse agreed that from the information available to her, the applicant was a “committed fisherman” for shark from the early 1970’s until at least 1993. She agreed with a summary put to her by Mr Hay of the various licences held by the applicant, namely at 6 October 1993 he held a scallop permit and a net permit issued by the Commonwealth. On 7 October 1993 those permits were taken from him because levy fee payments were not made and the applicant withdrew from the Bass Strait scallop fishery. On 7 October 1993 the scallop permit was cancelled but when the applicant’s daughter was able to obtain moneys for him, the applicant applied on 11 October 1993 to pay licence and levy fees, in effect requesting reinstatement into the fishery. That request was refused. In January 1994 the applicant was issued with a Commonwealth hook licence to operate for a period of six months but fees and levies were not paid and the licence was not exercised. At 6 October 1993 the applicant also held a Tasmanian State Licence for 3 shark nets and in 1995 he was issued with a Tasmanian Shark Hook Licence. Until October 1994 the applicant fished in Tasmanian waters only using his State net entitlements. In October 1994 the applicant sold his Tasmanian fishing boat licence.
25. Ms Sachse also agreed that at late 1994, the applicant, having sold his State Shark Licence, was left with the vessel “Bass Rover” only and from March 1995 he had been issued with a 1000 hook shark licence issued by the Tasmanian fishing authorities which he continues to retain.
26. With respect to the allocation to the applicant of a fishing boat licence, and the consequent capacity of the applicant therefore to engage in fishing, Ms Sachse agreed from records that a Tasmanian Fishing Boat Licence was issued to the applicant in May 1998 but it could not be assigned to any vessel until November 1999. Ms Sachse agreed that in 1996 the applicant’s vessel “Bass Rover” had been destroyed and it was not until 1999 that he acquired the vessel “Jenny Sue”.
27. There followed discussion between Mr Hay, Ms Sachse and by Mr Reed who appeared on behalf of the respondent in order to clarify, and ultimately resolve, the issue of the catch figures as disclosed by the applicant. Mr Hay acknowledged that the applicant had said in evidence that the figure disclosed by him in his facts and contentions with respect to the 1994 year of 16253kg was an error and he was prepared to adopt the verified figure as released by AFMA of 15253kg for that year. It was agreed that this figure (or subject to a 2kg differential) of 15251kg for the 1994 year was the true catch as verified and as may be found in a number of documents being the Statement of Facts and Contentions of the respondent, the verified catch records found at page 281 of the T-documents and the monthly summary of the 1994 catch found at page 330 of the T-documents. Subject to the figure with respect to the 1994 year, the respondent then indicated that it did not rely upon the figures that it published in its Statement of Facts and Contentions with respect to the years 1992 to 2000 but otherwise relied on the applicant’s figures as disclosed in his Statement of Facts and Contentions, subject to the caveat that his figures, as published, are not verified. Mr Hay then conceded that the figures published by his client for the years 1995 and 1998 when he fished from the vessels “Encounter Bay” and “Ocean Raider” were not the catch from licences held by him but rather were his catch as the relief skipper of the vessels “Encounter Bay” and “Ocean Raider” which were owned by other persons and over which other persons held licences.
28. Ms Sachse was then asked to discuss the report by the Panel who, on 15 July 1999, recommended that the apportionment period would run between 1 January 1994 and 31 December 1997 (refer T19 page 197). Later in that report (page 206 to 217) the Panel referred to its Terms of Reference to consider whether exceptional circumstances should be considered in the event of inequity being found with respect to the allocation of fishing entitlements. Ms Sachse agreed that the recommendations found at page 236 (to the AFMA Board from the report of the Panel) contained two paragraphs only with respect to exceptional circumstances. She also agreed that a letter found at T23 which was forwarded to fishers within the SSF also contained concluding paragraphs with respect to the consideration by AFMA of exceptional circumstances if alleged by persons after the allocation of quota when the best 3 of the 4 year period between 1994 and 1997 was considered.
29. When Ms Sachse was asked to identify any other documents which might describe the meaning to be given to the expression “exceptional circumstances” or how that expression was to be interpreted by officers of AFMA, Ms Sachse referred to the document at T2, page 7, being part of the decision made by the review delegate. Ms Sachse said that the delegate would have been obliged to comply with the provisions of s165 of the applicable legislation and despite the use by the delegate of the expression “special circumstances”, she said that the delegate attempted to explain the decision-making process.
30. Ms Sachse also agreed that as the Manager of the Fishery she became aware of applications for review once decisions had been made. She said that she was aware of an application presently before the AAT (identified in evidence) as “Fernley” where it was alleged that the fisher did not fish between 1994 and 1997. Ms Sachse declined to comment upon that application because it was part-heard before a Deputy President of the Tribunal. Ms Sachse said that she was aware that there were other cases that had been considered by Ms Stone, as the review delegate, where she was required to consider “special circumstances” but could not – without prior notice – identify or name any such application. She said that 65 persons had applied for review over a period of 18 months. She said that there were a “small number” of cases where special circumstances were found at the internal review process but those cases principally involved a variation of the primary decision when additional catch verification material was provided to AFMA and after AFMA completed an audit of catch histories with that additional material. Ms Sachse said that she understood that there were some cases where special circumstances had been found with respect to persons who alleged ill health or (for financial reasons) an inability to engage in fishing during the qualifying years but she was not aware of any cases where “special circumstances” had been found in cases similar to that of Fernley.
31. Nonetheless, Ms Sachse agreed that AFMA’s “preferred position” in the event that Mr Gale could demonstrate exceptional circumstances would be to consider the returns from fishing in the year or years closest to the 4 qualifying years but then only applying the AFMA verification policy which would involve the adoption and interpretation of “primary verifiable documents”. In the circumstances involving Mr Gale, Ms Sachse agreed with the suggestion put to her by Mr Hay that the year 1993 could be considered, being the year closest to 1994, but she would not agree that the year 2000 should be considered because it was more than 3 years from the conclusion of the assessment period, being 1997. After some further discussion about AFMA methodology on this issue, Ms Sachse eventually agreed that in lieu of consideration of the catch returns for the year 2000, the returns for 1992 would be closer to the year of 1994. In those circumstances the years 1992, 1993 and 1994 could be considered – again subject to the catch verification process. On this issue it was agreed that the figure of 15253kg (or 15251kg – refer earlier) was the catch for the 1994 year as verified by AFMA.
32. Discussion then followed concerning the basis for conversion from verified catch into quota entitlement, the entitlement being represented by allocation of “units”. Ms Sachse explained that the process originated by Mr Gale making a “claim for shark catch history” (T35). That document includes a disclosure by the applicant of his returns from fishing by designated species for the years 1994 to 1997. Upon receipt of that application Mr Gale was visited by an AFMA officer on what is described as a “verification visit” (T36). A verified shark catch history is then completed by AFMA and from that history an “interim” quota entitlement was determined by AFMA for the 2001 fishing season (T42). That entitlement gave Mr Gale 4267 units of quota for gummy shark and 575 units of quota for school shark. Ms Sachse explained that the process of unit allocation as applied to Mr Gale and others was found to be incorrect (according to a formula adopted by AFMA) and all applications were again processed. On 5 December 2000 the units of quota allocation to Mr Gale were amended and he was allocated 4849 units of gummy shark and 592 units of school shark (T43). Ms Sachse also explained that a permit issued on 28 June 2001 (6 months later) allocating a quota of 8867kg of gummy shark and 597kg of school shark reflected the acquisition of Mr Gale in the interim by either lease or purchase of a further 4000kg of shark quota.
33. Ms Sachse then explained the process of converting quota into units. She said that a formula adopted by AFMA involved the division into the TAC of the total verified catch of all members of the fishery which resulted in an “allocation factor” which applied to every fisher. By way of example the TAC for gummy shark in the 2001 year was 2159 tons. (That figure varied from year to year having regard to estimated numbers of species and whether a harvest strategy had been implemented by AFMA). In the 2001 year, having regard to the TAC, the allocation factor that applied to every fisher was .351. It therefore followed on this formula that for every 3kg of catch history that had been verified there was approximately 1 unit allocated. (More precisely the unit allocated for each 3kg is 1.053). Ms Sachse described “units” as “the proportion of the pie, or the TAC”. It therefore followed that if the TAC increased, or decreased, the number of units allocated would increase or decrease. It also followed that if there was a decision to increase the quota allocated to the applicant it would result in a proportional decrease in the number of units allocated to other members of the fishery.
34. Mr Hay then returned to his examination of Ms Sachse with respect to the findings of exceptional circumstances in the case of Fernley. He drew Ms Sachse’s attention to paragraph 3k of the applicants Statement of Facts and Contentions which, in his contention as to his circumstances being exceptional, it is recorded:
k.the applicant is aware of other instances where the respondent has granted ITQ’s on the basis of exceptional circumstances and utilising catch history both prior to and after the qualifying period. The applicant cites the application by Fearnley [sic]. In that case the applicant had no catch history at all between 1992 and 1999 and he had no Commonwealth Permit to fish between 1993 and 1997. He had no lawful permit to fish in the shark fishery until 1997, when a permit was granted. That applicant was granted (by reason of special circumstances) 15,786 kg of quota based upon catch history for the years 1992, 1999 and 2000. The reasons for invoking “special circumstances” were noted as: - “you were unable to generate a valid catch history during the period 1994 – 1997.” and “Over the years you have had considerable difficulty in obtaining a fishing boat which has also contributed to your difficulties with building up catch history”.
35. Ms Sachse expressed concern as to whether she was permitted to speak about the Fernley application because she regarded it as being a “private matter” and related to “another internal review decision”. She said that it was AFMA practice not to speak publicly about matters being internally reviewed in the absence of authorisation from the person concerned. Mr Reed, on behalf of AFMA, then took objection to this questioning. After a short adjournment, where he apparently held discussions with Mr Hay (refer transcript dated Thursday, 5 August 2004, page 15), Mr Reed said:
I am instructed to state this and it can be stated provided my learned friends immediately to my left agree in all three cases – but I know it is agreed in the Gale case. In a case where the fisherman was not able to generate a valid catch history by reason of AFMA’s administrative error in failing to issue a permit exceptional circumstances were found by the review officer and the years 1992, 1999 and 2000 were used for catch history.
36. Mr Hay said that he was content with that explanation and did not pursue the matter with Ms Sachse.
submissions
37. Subsequent to the conclusion of the hearing, the representatives in each of the three applications simultaneously heard under review, lodged written submissions. Mr Reed on behalf of AFMA in all three applications lodged submissions which applied generally and concluded by written submissions which applied specifically to each of the three applications.
38. Generally it was submitted that the Tribunal should have regard to s6 of the Fisheries Administration Act 1991 (“the Administration Act”) with respect to the functions and objectives of AFMA and should have regard also to s3 of the Act with respect to the functions and objectives of AFMA. To the extent that the expression “economic efficiency” is referred to in both sections of the foregoing legislation, it was submitted (by reference to Bannister Quest Pty Ltd v Australian Fisheries Management Authority Federal Court, 14 August 1997, 819/1997)) that this concept should be interpreted as an “increase in the aggregate profitability of the whole body of operators in a particular fishery that is, maximising total profit. Relative efficiency of individual operators and social and equity impacts have been held to have been extraneous to maximising economic efficiency”. Additionally it was submitted that any variation in the allocation of quota to a fisher will have an affect on other members of the SSF and those consequences should be taken into account.
39. Whilst it was submitted that there was no direct challenge by either applicant to AFMA policies, it was submitted that there were relevant policies which should be considered with respect to the allocation of quota, namely, the report of 15 July 1999 with respect to the apportionment and allocation of school and gummy shark (T19), the report of the Independent Allocation Review Panel of the SSF of October 2003, the report entitled “Allocation of Fishing Concessions Where Management Arrangements Change” (FMP 8) issued in September 1997 (T17) and the Catch Verification Policy of AFMA found at T24.
40. It was submitted that in all applications before the Tribunal neither applicant had established any cogent reason to warrant any departure from the above policies and in the interests of consistent decision making, the policies should be applied.
41. The quota allocation policy of 15 July 1999 was submitted as not offending the relative economic position of a fisher when the best three of four years between 1994 and 1997 are considered. It was submitted that such a period would take account of “personal vicissitudes” and the risk of distortion in catch history would be lessened.
42. The Independent Allocation Review Panel report of October 2003 was advanced in support of AFMA’s case because it was submitted that the economic position of fishers in the Commonwealth sector of the SSF had a permit which attracted a value based on entitlement to fish which in turn was based on catch history.
43. FMP8 was advanced because it was submitted that this policy honoured adherence to applicable legislation in the event of management changes in a Fishery and the minimisation of differential economic impact upon allocation of quota. That stated, it was conceded, that “it may not be possible to design an allocation system with absolutely no impact on the relative economic position of individual operators”.
44. The Catch Verification Policy of AFMA extends to inspection of both primary and secondary documents. It is the policy of AFMA that log books alone are not appropriate to establish catch history and a number of examples were recited in the written submissions, based on the practices of other fishers, suggesting that log books – in the absence of other documentation – were unreliable as sources of information and did not always reflect the true extent of catch.
45. The expression “exceptional circumstances” was the subject of submissions by Mr Reed. It was submitted that AFMA does not have an “exceptional circumstances” policy and does not define the phrase in its policy documents. It was submitted that this expression has been used by fishers to argue against the application of policy and has a reference generically in some AFMA documents. It was acknowledged that it has been the subject of interpretation by the Tribunal in other decisions. Mr Reed drew attention to the use by AFMA officers of other expressions such as “special circumstances” and “cogent reasons” and submitted that on occasions the expressions “exceptional circumstances”, “special circumstances” and “cogent reasons” have been used “interchangeably” in the application of the discretion available to decision makers when not applying policy. Mr Reed referred to the decision of Brennan J in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 and to the decision of the Tribunal in Re Skoljarev and Australian Fisheries Management Authority (1995) 21 AAR 305 and Skoljarev v Australian Fisheries Management Authority, (1996) 22 AAR 331. It was submitted that there has not been any consistent interpretation of either of those three expressions and a number of Tribunal decisions were recited. On balance it was submitted that the decision of Brennan J, in Drake, should be followed (as it was in Skoljarev).
46. Mr Reed submitted that “in addressing the question of cogent reasons, the correct questions in respect of an application before the Tribunal” were whether by the consideration of the best three catches between 1994 and 1997, any distortion to relative economic position was caused and whether the applicants’ circumstances amounts to “cogent reasons” or “special circumstances” for not strictly applying the quota allocation policy.
47. It was submitted that on the occasions where AFMA had found “cogent reasons” to depart from the allocation policy, it did so by substituting one or more years from the qualifying period set up by the Panel and those substituted years were chosen as close to the qualifying period as was possible, in order to accurately represent the applicant’s “relative economic position” between 1994 and 1997 and in order to minimise any differential impact between fishers resulting from substitution.
48. It was submitted that substitution of years in the 1970’s or 1980’s would be inappropriate because of the different state of the Fishery compared to the period 1994 to 1997 and the decline in school shark stock. Additionally it was submitted that use of years after 1997 was inappropriate because warnings had previously been given to fishers of changed policy. It was submitted that none of the applicants before the Tribunal has established any “cogent reasons” to cause a departure from the Catch Verification Policy and on that basis, the Catch Verification Policy should be applied in each case.
49. With respect to the application brought by Mr Gale it was submitted that the applicant consciously decided to surrender his licences by reason of his own economic performance and by his inability to afford licence fees. Those circumstances, it was submitted were not exceptional. Additionally it was submitted that the applicant chose not to fish as an owner of a licence, but rather as a skipper, and in those circumstances a catch history was not relevant.
50. To the extent that the applicant operated a mobile kitchen, it was submitted that he chose not to relocate it elsewhere when his lease at Strahan expired and additionally he had chosen not to sell it. It was submitted that the applicant had a modest catch history because he was absent from the Fishery for most of the relevant years and his possession, now, of a boat, should not entitle him to quota because his circumstances during the relevant period were not exceptional.
51. On behalf of Mr Gale, Mr Hay lodged extensive written submission. He submitted that the issues relevant to this review were whether the quota for Mr Gale should be increased notwithstanding a lack of catch history for a substantial part of the qualifying period and whether the reasons for the lack of catch history constitute exceptional circumstances thereby permitting an increase in quota.
52. It was submitted that the proof of evidence relied upon by Mr Gale was largely uncontested and should be accepted as the factual basis for the review. It was also noted that much of the proof of evidence of Ms Sachse was not contested but there were parts of her proof which – it was submitted – constituted submissions as opposed to evidence. In so far as her proof of evidence was consistent with the evidence of the applicant it was submitted that there should be a finding that the applicant held a Commonwealth Shark Hook entitlement between January 1994 and June 1994 and that the applicant purchased a Tasmanian Fishing Boat Licence in May 1998 but did not then have a vessel to activate that licence until November 1999 when he purchased “Jenny Sue”. Mr Hay submitted that those parts of the evidence of Ms Sachse – couched as submissions should be rejected because the applicant does claim that some alternative years of catch history should be used in calculating increased quota in the event that exceptional circumstances are found. It was submitted that long term illness or financial “disaster” are not normal exigencies of commercial life but are outside that concept and therefore constitute exceptional circumstances. Additionally it was submitted that the evidence of Ms Sachse to the extent that she asserted that it would be unreasonable to impute a catch history where a fisher has been unable to participate is inconsistent with the decisions made by the AFMA delegate and with other decisions of the Tribunal.
53. Mr Hay relied on previous Tribunal decisions in Re Walton and Australian Fisheries Management Authority [2002] AATA 184 in its discussion of the meaning of the expression “exceptional circumstances”. It was noted in the Tribunal decision of Re Smythe and Australian Fisheries Management Authority [2001] AATA 677 where it was found that exceptional circumstances did not exist where a fisher lost a vessel, his illness was not of a severity to threaten livelihood, where he worked for other licence holders in cray fishing for equal periods of time as shark fishing and the sale of a vessel was a domestic arrangement. It was submitted that in the application of Walton the fisher had no catch history between 1994 and 1997 and did not have a permit between 1994 and April 1996 and subsequently suffered illness preventing him from being able to fish. These circumstances, it was submitted, were found to be exceptional. Mr Hay referred to the Tribunal decision of Re Gimbert and Australian Fisheries Management Authority (AAT 4582, 26 August 1988) where in that application the fisher was financially incapacitated, he had a serious illness and difficulty finding a replacement boat but had a substantial historical commitment to the Fishery. The Tribunal found that the fisher’s circumstances then were exceptional.
54. It was submitted that in the exercise of a discretion to examine whether exception circumstances exist, it should be understood that the discretion is broad and must have regard to fairness and consistency in the administrative process. Further it was submitted that anomalies in the relevant plans/policy of themselves may constitute exceptional circumstances. To the extent that other fishers were allocated quotas when they did not catch fish during the qualifying period and did not hold entitlements was inconsistent with the objective of fairness and equity in the allocation of quota to his client.
55. It was submitted that exceptional circumstances should be found in the present application. Mr Gale, although having surrendered his Commonwealth Permit and suffered extreme financially difficulty and serious illness, retained his commitment to the Fishery because being aware that he would receive substantial Shark Hook benefits by TSHL entitlements, he eventually returned to the Fishery upon an improvement in his health and financial circumstances. Further the applicant was unable to re-enter the Fishery at an earlier time despite, recovery from illness, because his vessel had been lost and his continuing financial incapacity. Despite this he retained a connection with, and a commitment to the Fishery, by undertaking employment with other permit holders. When he became financially more secure, he purchased a Tasmanian Fishing Boat Licence in May 1998 and had been attempting to purchase an appropriate vessel since April 1996. The applicant did not learn until September 1999 that the relevant criteria years would be between 1994 and 1997.
56. It was submitted that the Memorandum Of Understanding between the Commonwealth and the States of Tasmania, South Australia and Victoria contemplated special circumstances applying in consideration of the impact of changes upon a Fishery with respect to small vessel operators in Tasmania no less the limitations on non-transferable and non-accumulative B Class Shark Hook entitlements where Mr Gale and others similar to him could not be regarded as “high flyer” shark fishermen.
57. It was noted that the Panel did not deal with the issue of exceptional circumstances but in its recommendation that three of the best four years during the relevant period be considered it suggested that the personal vicissitudes of a fisherman could be likely to affect aggregate catch, thereby distorting a relative economic position. It was submitted that that analysis, as found within the report of the Panel, infers exceptional circumstances but confines it only to the “usual personal vicissitudes” being (as stated) illness and loss or serious damage to gear or vessel, yet those vicissitudes may not necessarily be exceptional.
58. The decision made by AFMA that the sale by Mr Gale of his Commonwealth fishing entitlements constituted “a commercial decision” was submitted by Mr Hay as being flawed because it failed to take account of the need by Mr Gale to sell his licence because of financial limitations upon him, having regard to increased fees and levies, increasing operating costs and declining health. It was submitted also that the delegate failed to consider the impact upon Mr Gale of the loss of his vessel which was regarded (as submitted) as being an irrelevance because fishing concessions were no longer held.
59. In terms of financial hardship suffered by Mr Gale, Mr Hay referred to the evidence of the price of gummy shark being in the vicinity of $7.00 per kilo and the average cost of leasing a quota being $2.00 per kilo or 30% of the gross catch price.
60. It was submitted that the catch returns of Mr Gale were well known to AFMA and were not in dispute. It was submitted that the leasing by Mr Gale in recent years of quota from other fishers permitted him to meet the majority of operating expenses because in 2003 he was able to lease 7198 kilos of shark. However his present quota is 3925 kilos of gummy shark and 387 of school shark providing him with an income, before expenses, below that of the accepted minimum family income of other Australian persons. It was submitted that the applicant has no other source of income and his current quota allocation does not permit him to remain financially viable. It was submitted that had the applicant been able to fish within the qualifying period his income would be approximately four times greater than current income and his fishing operation would be viable.
61. Accordingly it was submitted that if it was decided to impute catch to Mr Gale the impact upon other operators in the Fishery would be negligible.
62. It was submitted that AFMA did not dispute the accuracy of the applicant’s catch history as recorded in his proof of evidence and in the event that exceptional circumstances are found, AFMA should take account of three of the four years being 1992, 1993, 1994 and 2000 when allocating quota. Alternatively it was open to AFMA to average the applicant’s monthly catch in 1994 and multiple it by 36 thereby representing three years of catch. It was submitted that this would have created certainty upon a verified catch history and did not require an extensive verification process and was a process which was fair and equitable. Alternatively it was submitted that this Tribunal could make its own assessment and allocate a quota having regard to existing policies and other decisions of the Tribunal (although it was conceded that there was insufficient evidence before the Tribunal to make its own recommendation of quota).
63. In reply Mr Reed lodged brief written submissions. He submitted that the applicant could not benefit by the decision in Walton. It was submitted that in that application the fisher was incorrectly classified as a B Class fisherman whereas the Tribunal found, upon review, that he should have been granted an A Class permit. In the present case Mr Gale obtained a B Class permit upon the successful review of his entitlement in a contested Tribunal hearing. It was submitted that at no time has the applicant argued that he had an entitlement other than a B Class permit and the entitlement attached to that permit had been voluntarily surrendered by him.
64. It was submitted that it was sound policy by AFMA not to notify members of the Fishery until late in 1997 of the proposed changes to the Management Plan because fishers could “ramp up catches” to generate a greater catch history thereby putting species at risk and could cause modification of log books and other supporting documentation.
65. The submissions with respect to alternative methods of allocating greater quota to Mr Gale were rejected. It was submitted that the use of the year 2000 would create inequity. It was submitted that use of the year in 1994 ignored seasonal variability of school and gummy shark. Additionally it was submitted that this Tribunal should not make its own assessment of the applicant’s catch as there was no evidence of a verified catch history.
66. The reliance upon the Tribunal decision in Zalups by the applicant was submitted as being misconceived because the Tribunal did not decide that substituted years be adopted in calculating quota but rather the Tribunal directed AFMA to impute catch during the qualifying period having regard to the catch of previous years.
67. Mr Hay in reply to the response of Mr Reed submitted that his client sold his Commonwealth Licence by reason of illness and an inability to undertake fishing having regard to the physical exertion associated with it. In order to remain financially viable the applicant and his family constructed and operated a mobile kitchen.
68. It was acknowledged that Mr Gale did make a conscious decision to work as a skipper or in employment on other boats but it was not a decision of choice but of necessity because he was no longer the owner of a vessel. It was not asserted that the catch history generated by him as a skipper of other vessels has relevance to his claim for special circumstances but rather his employment as a skipper is evidence of his commitment to the Fishery.
exceptional circumstances
69. On 6 June 1997 AFMA issued a Media Release notifying operators in the SSF against increasing catches following a recommendation made at a SharkMAC meeting in April recommending in principal that a system of ITQs be implemented.
70. AFMA then decided to appoint the Panel to provide recommendations to AFMA concerning the apportionment of a TAC of school and gummy shark and a formula for the allocation of ITQs for school and gummy shark in the SSF. AFMA clearly recognised that any allocation system might expose operators in the SSF to inequity because (specifically) one of its recommendations to the Panel was to:
Identify and include in that allocation system any exceptional circumstances which the Panel considers should be taken into account including consideration of any inequity arising from previous allocations of fishing entitlements. (T‑documents page 214)
71. The Panel consulted extensively and on 14 July 1999 issued the report of its findings. The Panel however decided “to defer a full report . . .” with respect to the exceptional circumstances that should be considered or taken into account in the system that it recommended. Whilst it found that allocations of quota in the Commonwealth Gill Net and Hook Sectors between April 1988 and January 1994 per se did not give rise to inequity or constitute exceptional circumstances, it did not determine whether entitlements in that period, in those sectors, offset by a system of weighting in favour of gear classifications against catch history would cause inequity (page 206).
72. The AFMA Board met in August 1999 to consider the report of the Panel and apparently in recognition that some applicants for an ITQ will be disappointed when quota is allocated under the recommended methodology of the Panel, the Minutes recorded:
It is likely that those operators with little catch history as a result of limited fishing or lack of legitimate receipts for their catches, will be most disappointed by the allocation method chosen. (page 233).
73. Although the Panel did not make recommendations as to what constituted an exceptional circumstance, AFMA clearly was prepared to consider such a phenomena in its policy of ITQ allocation because it notified fishers in September 1999 that catch history “to a large extent” affected by exceptional circumstances had been addressed by the recommendation that the best three of the four years between 1994 and 1997 would be taken into account in allocating quota. Nonetheless, in the letter to fishers of September 1999 (page 240 to 243), operators were advised that appeal rights existed against the quota as allocated.
74. An appeal against a decision of AFMA to this Tribunal must follow the procedures outlined in s165 of the Act. It provides that a person affected by a decision of AFMA must initially request reconsideration by an AFMA delegate. Any appeal to this Tribunal must be to seek a review of the reconsidered decision of the delegate.
75. This appeal proceeds only upon the basis that the applicant seeks a greater allocation of quota by reason of his asserted “exceptional circumstances”. No review is sought against the particular policy of AFMA concerning the allocation of ITQs.
76. Throughout this review the AFMA delegate and the parties and their representatives, from time to time, have referred to the decision under review as requiring an examination into either the “exceptional circumstances” or “special circumstances” or “any cogent reasons” justifying departure from policy.
77. For our part we propose only to examine whether the applicant can demonstrate “exceptional circumstances” as that expression is found within the AFMA policy. Whatever might be understood or meant by that expression will in our view be confused if it is understood to mean “special circumstances” or “any cogent reasons”. Those latter two expressions are not found in either the terms of reference of the Panel or in the deliberations of the Panel or in the acceptance of the AFMA Board of the Panel’s recommendations. It may or may not have different meanings. We do acknowledge that the expression “cogent reasons” appears to have its origin in Re Drake by Brennan J adopting that expression to explain the nature of circumstances that may justify departure from policy. Deputy President McMahon used the same expression in Re Skoljarev and Australian Fisheries Management Authority (1995) 21 AAR 306 (“Re Skoljarev”) despite the policy then applicable using the expression “special or unique circumstances”. Davies J similarly discussed this issue on appeal in Skoljarev at 339‑340 and whilst he thought that “special or cogent reasons” might limit or restrict the circumstances that may justify departure from policy he decided on balance that the “correct principles” had been applied in the examination of the applicant’s circumstances. AFMA has indicated that it will depart from its policy if “exceptional circumstances” are demonstrated. As we now stand in its shoes, we will focus on that expression.
78. The expression “exceptional circumstances” is not defined by the legislation nor is it defined by AFMA within the ITQ policy. Assistance as to its meaning is therefore to be obtained from decisions of Courts or Tribunals in other applications or from dictionary meanings.
79. Hopefully the following decisions will indicate that there must be regard, on the one hand, between the subjectivity and context of the circumstances asserted by an individual as exceptional and the preservation of the objectives and intent of legislation and policy on the other hand.
80. In Nikac and Others v Minister for Immigration and Ethnic Affairs (1998) 20 FCR 65 Wilcox J heard an appeal under the Administrative Decisions (Judicial Review) Act 1977 concerning a decision made by the Minister for Immigration and Ethnic Affairs to deport a non-citizen. In his Honour’s review of the decision of the Minister regard was had to a Ministerial policy (“The Government’s Deportation Policy”) that recommendations of the AAT should only be overturned by the Minister in exceptional circumstances and then only when strong evidence could be produced to justify the decision. In the review of the Minister’s decision, His Honour decided that it was not “devoid of plausible justification” and concluded that (paragraph 56):
the term “exceptional circumstances” postulates a criterion which is both vague and subjective. Every case is different, so that there are always some aspects of a case which may be regarded as exceptional. The question inevitably arises: exceptional compared with what? Even if it be conceded that there is nothing very exceptional about drug offences appearing upon a list of convictions, there will always be differences in the circumstances of those offences. For example, I would not myself have thought that the particular offences committed by Nikac were of such a nature as to constitute a reason for taking the unusual step of declining to accept the recommendation of the tribunal, by whom both the offences and all the other relevant circumstances were considered. But it is impossible to categorise a different view as being devoid of plausible justification. Like beauty, “exceptional circumstances” lies in the eye of the beholder.
81. The above decision and analysis of the concept of “exceptional circumstances” was examined by a Full Federal Court in Hicks v Aboriginal and Torres Strait Islander Commission [2001] FCA 586. The Full Court decided (paragraph 21):
We accept the correctness of the approach taken by Wilcox J in Nikac to the use in a legislative or quasi-legislative instrument of the notion of "exceptional circumstances" and consider that approach applicable to the principle.
82. In the context of the Commonwealth Health Insurance Policy, the concept of “exceptional circumstances” was examined in Government Employees’ Health Fund Ltd v Private Health Insurance Administration [2001] FCA 322. That appeal concerned decisions made by the Private Health Insurance Administration Council refusing an adjustment by way of a payment of re-insurance to a registered health insurer. The defined policy of the PHIAC was to make “adjustment payments” if a fund could demonstrate “exceptional circumstances”. To that end the Council decided that in order to ascertain whether “exceptional circumstances” existed, a health fund “must demonstrate that its circumstances were different to those that applied to other organisations and that they were beyond the control of the organisation”. In its review of that part of the policy the Full Court concluded (paragraph 43):
It may be accepted that the Council was entitled to adopt a policy that reflects the concerns apparently underlying rules 4 and 5. It was reasonable for the Council to take account of difficulties that might be caused to other organisations with respect to delayed adjustments, and to weigh the part the organisation requesting the re-calculation played in contributing to the error. A policy which reflected those concerns, and was informative of the standards and values which ought usually be applied in deciding whether to permit further adjustments, would not be unlawful since it would not seek to control the decision-making: see Drake at 641. It is, however, another matter for a statutory decision-maker to adopt a policy which excludes from consideration, as "exceptional circumstances", all circumstances that do not reflect these concerns. The process undertaken by the Council in this case involved substitution of different and narrower criteria for the criterion specified in rule 5.
83. The Court ultimately concluded that in applying a “rigid policy” the PHIAC had erred because it “caused its discretion to miscarry”.
84. In the decision of Kent v Wilson [2000] VSC 98, (24 March 2000) a decision of Hedigan J in the Supreme Court of Victoria, his Honour heard an appeal under the Victorian Sentencing Act 1991 as to whether a prisoner should be released from custody to serve the balance of sentence in the community. We readily acknowledge that the criminal law would require different considerations to the civil law – particularly the Fisheries Management Act – nonetheless his Honour was critical of a Magistrate who found that “exceptional circumstances” were circumstances that were “not typical”. His Honour concluded (paragraph 24):
The magistrate's dictionary definition remains shrouded in mystery, if not doubt. My resort to the Shorter Oxford Dictionary and the Macquarie fails to find "not typical" (the key part of the magistrate's construction of "exceptional circumstances") as finding a place in the definition of exceptions. By and large "exceptional" is defined as being "unusual, or an unusual instance or extraordinary".
85. His Honour quoted part of a decision previously delivered by him where he was also required to examine the concept of “exceptional circumstances” (refer Owens v Stevens an unreported decision of 3 May 1991). His Honour then decided (paragraph 22):
On that occasion I stated,
"The use of the phrase 'exceptional circumstance' is not unknown in the legal lexicon. Section 13 of the Bail Act is a well-known example.
Exceptional is defined, contextually, in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning 'unusual, special, out of the ordinary course'. This does mean any variation from the norm.
The facts must be examined in the light of the Act, the legislative intention, the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation.
Courts have been both slow and cautious about essaying definitions of phrases of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors."
86. In a review of a decision allocating quota, the objectives of a policy must be considered. Any finding of “exceptional circumstances” which may result in an increase of quota may offend the statutory and policy objectives. This issue however must also be considered with a need for justice to an individual (refer Davies J in Skoljarev). In Re Drake, Brennan J decided that “if it were shown that the application on ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice”.
87. In Re Drake His Honour decided at (page 645):
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.
The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.
The general practice will require the Tribunal to determine whether the policy is lawful, not in order to supervise the exercise by the Minister of his discretion, but in order to determine whether the policy is appropriate for application by the Tribunal in making its own decision on review.
conclusion and reasons for decision
88. In this application Mr Gale seeks to vary the decision made by the respondent. He asserts that his circumstances were exceptional and an increased allocation of quota should be made to him.
89. Briefly the applicant’s circumstances may be summarised as follows. Mr Gale is presently 64 years of age and has been a professional shark fisherman since the age of 25. He was innovative in his catch methods when he resided in Victoria but moved to Tasmania in 1973 because of concerns about the mercury content in shark in Victorian waters (Mr Gale estimated that he has made more than 300 crossings of Bass Strait). Thereafter he sold to the Melbourne markets and sought shark as far from Tasmania as the Great Australian Bight. In 1981 he decided to fish for scallops but continued to catch shark by long lines. He resumed shark fishing in 1985 and then caught 23,000kgs. He refitted his boat exclusively for shark fishing and in December 1987 successfully appealed to the Administrative Appeals Tribunal and was ultimately granted a Class B licence. Shortly thereafter he was diagnosed with a cardiac illness and was advised by his doctors to reduce fishing effort. Nonetheless, Mr Gale continued to fish but with reduced effort which consequently resulted in reduced income. Licence and levy costs had increased to $8500 per annum and he began to experience financial difficulty. By 1992 and 1993 the applicant’s cardiac illness had deteriorated and his economic position continued to worsen. Because of increasing financial hardship, Mr Gale was unable to meet the costs associated with fishing and he withdrew from the Commonwealth scallop and shark fishery. He found at that time that he was unable to continue to afford licence costs. He retained his Tasmanian shark entitlements. Four days after being advised by the respondent that his scallop and shark licences had been cancelled, Mr Gale approached AFMA with a request to reverse its decision because moneys had been loaned to him by his daughter (which would have allowed him to meet the cost of licences). AFMA refused his request. Mr Gale then fished for shark for approximately six months in the first half of 1994 and together with a Tasmanian shark licence, continued to fish for shark until October 1994. The applicant’s cardiac health continued to deteriorate and he was advised by his doctors to cease fishing. (Medical reports annexed to the applicant’s Proof of Evidence from the Scotsdale Doctors Surgery supported this evidence). The applicant’s financial condition continued to deteriorate and in December 1994 he sold his home to meet outstanding debts of $40,000 and sold his scallop and boat licence for $20,000. He was consequently required to surrender his Tasmanian shark entitlement. He later sought and would have otherwise qualified for a Tasmanian shark licence but for his inability to identify a “designated skipper” between July 1994 and June 1995. In October 1995 he decided to ease back into fishing, initially as a relief skipper and later as a lessee of a fishing boat. In 1996 the applicant’s boat “Bass Rover” which had been operated by the applicant’s son, was lost and was not insured. The applicant sought to purchase another boat and despite having found one of an appropriate size he was declined a bank loan. When finance eventually became available and another boat was located the Tasmanian fisheries authorities refused to endorse it.
90. The applicant impressed us as a witness of candour and truth. He did not seek to embellish or exaggerate his circumstances and we are satisfied by his long history as a fisherman that he is committed to the fishing industry and, despite his age remains committed. In addition to his activity as a fisherman he has also served on industry panels and his effort and time has been acknowledged by AFMA (refer letter from AFMA dated 24 May 1993 – Attachment B to applicant’s Proof of Evidence).
91. It was submitted by the respondent that the applicant consciously decided to surrender or sell his licences either for commercial reasons or by his inability to continue to meet licence renewal costs. It was submitted that those circumstances were not exceptional. It was also submitted that the loss of the applicant’s boat was not of itself an exceptional circumstance because at that time the applicant did not have any licences to which he could attach to the boat.
92. In our view the applicant’s circumstances are exceptional. It seems to us that on any close analysis of the applicant’s history, the cardiac illness - first diagnosed in 1998 - was the genesis of the difficulties the applicant subsequently endured. Until that time he was actively engaged as a shark fisherman, he served on industry panels and was able to obtain a substantial annual catch. By reason of the diagnosis of his illness he was advised to reduce effort which he did but consequently there was a resulting reduction in income. At or about that time there was a significant increase in licence and levy fees thereby exacerbating the applicant’s financial plight. There continued to be deterioration in the applicant’s health, a consequent further reduction in effort and therefore a continuing reduction in income. Licences and permits were sold but only upon the application’s evidence of an inability to meet the costs of renewal. When the applicant eventually was loaned funds to meet the costs of licences (four days after cancellation), AFMA refused renewal.
93. It seems to us that illness of itself is a circumstance unfortunately suffered by many persons and might not be regarded as being exceptional. But if it is of such a profound extent as to cause a reduction in effort in a person who is self employed, who has ongoing costs and reduced income, those circumstances take on, in context, the character of “exceptional”. We think it is harsh that the respondent has regarded the disposition by the applicant of his licences and permits as being a conscious commercial decision because to do so fails to recognise the applicant’s illness for many years prior to 1993 (refer paragraph 49 of Proof of Evidence of Ms Sachse), his attempts to continue to catch shark, his reduced income and his inability to meet licence costs.
94. In 1988 when the applicant was first diagnosed with coronary illness he would have been 48 or 49 years of age. In a person who was otherwise fit and hardworking and committed to self employment in the fishing industry, that diagnosis would have been beyond reasonable anticipation or expectation (refer Owens) and by reason of the applicant’s age, reasonable anticipation of such a diagnosis would have been unusual (refer Kent).
95. The Panel recommended that aggregate catches during the four year period expiring on 31 December 1997 be the basis for determining quota by selection of the three best years within that four year period. The Panel recognised that the “personal vicissitudes of a fisherman’s life such as injury or other illness . . .” could be likely to affect aggregate catch thereby distorting the relative economic position of the fisher. It was thought that by selecting the best three years of the four year assessment period that the distortion would be lessened.
96. No doubt that analysis is sound but it does not take account of a shark fisherman in self employment having a substantial financial investment in the shark fishing industry being either partially or totally incapacitated for more than one year where the consequences of that incapacity extend also beyond more than one year.
97. Because we have decided that the applicant’s circumstances are exceptional, it would be wrong in our view to direct that in the allocation of quota to him that the three best years between 1994 and 1997 only be selected.
98. We accept the argument advanced by AFMA in these proceedings that in any other years substituted in lieu of that period that they be as close to that period as is reasonably possible to avoid the risk of distortion of the fisher’s relative economic position. We agree that consideration of catch returns in the 1970’s and the 1980’s would be wholly inappropriate because to do so would bear no resemblance to the prevailing conditions to which shark fishers were exposed in the SSF between 1994 and 1997. However substitution of years as close as possible to that period would, in the circumstances of this application, be appropriate because to regard only the years between 1994 and 1997 would be unfair and would not have regard to the exceptional circumstances of the applicant.
99. Mr Hay, on behalf of Mr Gale, submitted that we should have regard to the applicant’s returns for the years 1992, 1993, 1994 and 2000. He submitted that the three best years of that period be considered in the reallocation of quota. In our view those submissions are sound and are to be preferred.
100. The applicant’s returns and the period of his ability to seek shark in the years 1995, 1996, 1997, 1998 and 1999 were either non-existent because of the above “exceptional circumstances” or were so far removed from the reality of the applicant’s position prior to 1992 as to cause us to be confident that those years should not be regarded.
101. During the hearing there was agreement between the parties as to the applicant’s returns in the years 1992, 1993, 1994 and 2000 subject to verification (although we do note from the evidence that the return for the 2000 year has been verified). Because we have decided that the above years should be considered in assessing an increase in allocation of quota, we trust that some certainty will be offered to the parties in the calculation of quota and imputation of catch will not in the circumstances be necessary.
102. For all of the above reasons it is our view that the decision under review should be set aside, and the application be remitted to the respondent with our Direction that quota be allocated to the applicant by selection of the three best years of the years 1992, 1993, 1994 and 2000.
I certify that the 102 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member; and
Professor B Davis, MemberSigned: Grace Carney
AssociateDates of Hearing 3, 4 and 5 August 2004
Date of Decision 28 February 2005
Counsel for the Applicant Mr G Hay
Counsel for the Respondent Mr Reed
Solicitor for the Respondent Australian Government Solicitor
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