Graham and Australian Fisheries Management Authority - [2002] AATA 862

DECISION AND REASONS FOR DECISION [2002] AATA 862

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V01/388

GENERAL ADMINISTRATIVE DIVISION       )
           Re      RODGER GRAHAM
  Applicant
           And    AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member Mr C. Ermert, Member

Date27 September 2002
PlaceMelbourne

Decision      The decision under review is set aside and the application remitted to the respondent for reconsideration in accordance with these reasons.
  .........Sgd. Mr J. Handley..................
  Senior Member
CATCHWORDS
FISHERIES : Respondent introduced Individual Transferable Quotas & Total Allowable Catch in to the Southern Shark Fishery - ITQ's based on best 3 years of catch between 1994 & 1997 - changed management arrangements - whether differential economic impacts on concession holders were minimised - whether permits were, in reality and in practice, transferable - whether relative economic position of concession holders affected - whether policy unjust - applicant did not fish for shark after 1990 - severe hip injury - applicant fished for cray only - nil quota allocated - whether exceptional circumstances - whether correct or preferable to set aside decision under review - application remitted to respondent with recommendations.
Fisheries Management Act 1991
Re Fischer and Australian Fisheries Management Authority
Re Drake and the Minister for Immigration and Ethnic Affairs (No. 2) 1982 ALD 634
Re O'May and Anor. and AFMA 1999 AATA 720
Re Glendon Lane Pty Ltd and AFMA 1995 36 ALD 376
Re Secretary, Department of Family & Community Services and Selke 1993 18 AAR 457
Re Secretary, Department of Social Security and Tran 1991 13 AAR 346

REASONS FOR DECISION

27 September 2002 Mr J. Handley, Senior Member Mr C. Ermert, Member

The applicant applies to review a decision made by a delegate of the Australian Fisheries Management Authority ("AFMA") made on 14 March 2001. The delegate then reviewed a decision previously made by an officer pursuant to s.32 of the Fisheries Management Act 1991 ("the Act").
The primary decision (T-33) was made in the form of a letter forwarded to Mr Graham on 19 December 2000. The first paragraph of the letter records-
"This attachment shows the trunked weight of school shark and gummy shark allowed to be taken under the authorisation of your fishing permit subject to the conditions on that permit".

The attachment to that letter is identified as permit number 300214D with respect to the 2001 season. The kilogram quota for school and gummy shark under the permit is recorded (with respect to both species) as "0". Apparently that decision was made because Mr Graham was unable to demonstrate a catch history of school or gummy shark within the period 1 January 1994 and 31 December 1997. (T-32). The absence of a catch history was not disputed by Mr Graham. His application for a quota was made upon the basis of "exceptional circumstances" (T-31).
The circumstances giving rise to this review are virtually identical to those that existed with respect to another application heard simultaneously namely Re Fischer and Australian Fisheries Management Authority (V2001/387). That application and the present application by Mr Graham were the subject of lengthy hearings. These decisions will be delivered simultaneously. The history of the fishery need not be repeated in these reasons. Mr Niall who appeared also on behalf of Mr Graham adopted in the present review the submissions that he made in the application of Mr Fischer, concerning the policy giving rise to this decision.
At the commencement of the hearing Mr Niall submitted that Mr Graham previously held an A6 shark permit however because shark was not caught in the relevant years, Mr Graham was allocated a zero quota. In summary it was put that the decision to allocate quotas based on catch history was flawed. Additionally, it was submitted that the individual circumstances of Mr Graham were such that he has been exposed to an injustice which should be remedied by this review.
In evidence Mr Graham said that he had been a fisherman for approximately 35 years. In 1988 he qualified for an A6 endorsement to his Commonwealth Fishing Boat Licence and had been demonstrating a catch history of between 25 and 30 tonne of shark per year. He also held a Western Zone Cray Fishing Licence issued by the Victorian Government, which was also endorsed to his Commonwealth Fishing Boat licence.
Prior to 1990 Mr Graham said that he was principally involved in shark fishing operating out of Portland, in Western Victoria. He did so from boats owned by him namely "Galaxy" and "Saint Bernadette". He continued to catch crayfish but only during summer.
The applicant said he ceased shark fishing in 1990 by reason of a hip injury he suffered many years earlier in a motor car accident. At or about 1990 he said that he suffered severe pain and eventually he had a hip replacement. Mr Graham said the extent of the pain suffered by him prevented him from standing for long periods, in fact he said that he had "a lot of trouble just getting around". From 1990 Mr Graham has been involved only in cray fishing which he said did not require him to undertake any lifting but to drive his boat only.
By way of explanation of the differences between shark fishing and cray fishing, Mr Graham said that shark fishing involved him being away from Port for five or six days at a time and exposed him to a great deal of heavy lifting and physical exertion. As a cray fisherman he said that he would be away from port for four or five hours per day and was required to steer the ship only. He did not undertake nor was he required to undertake heavy lifting. He said it was possible as a cray fisherman to "sit and drive the boat" only whereas shark fishing was "a hands on job".
In approximately 1990 Mr Graham sold the vessel "Saint Bernadette" to another person, Terry Grist. Mr Graham also leased the A6 shark permit and the cray permit to Mr Grist for a period of 3 years. He said that Mr Grist eventually went "broke" and he purchased Saint Bernadette from him. The licences were then also returned. Within that three year period, Mr Graham owned another boat "Breakwater Bay" to which a Tasmanian Cray permit was attached. Mr Graham continues to own that permit but it is attached to another vessel "Encounter Bay" which is owned by the applicant's son.
Mr Graham said that it was not possible to engage a skipper for shark fishing because in the Portland district there were no other persons who had experience as a shark fisherman and he held the only shark fishing boat.
In approximately 1993 when Mr Graham again purchased "Saint Bernadette" he said that he understood that it was possible to sell or transfer A6 shark permits, however because he held a joint permit between shark and cray fishing he would have been required to sell both permits. He understood that he might have been able to transfer his cray pots to another cray permit in order to sell the shark licence alone but he chose not to. He was aware at or about that time that A6 permits were being sought and he understood a practice occurred where the vendor remained registered with AFMA as the permit holder, yet the purchaser enjoyed all rights under the permit. Mr Graham understood that the prices obtained for A6 licences were "something around the hundred thousand". He chose not to sell his A6 permit because it was his intention to eventually transfer it to his three sons who had expressed interest in eventually becoming fishermen. Presently his 30 year old son is a fisherman and operates the vessel "Encounter Bay". He has two other sons presently aged 19 and 17.
Mr Graham said that he never had any understanding that the failure to use his shark permit would cause him to loose it. He regarded the shark permit as being an asset which he would be able to keep "forever". He said "I didn't know I would have had to qualify two times to get - to keep it". Ultimately, he said it was his intention to transfer it to one of his children.
In cross-examination Mr Graham was referred to some correspondence that he completed in October 1991 which was attached to a statement of Mr Richardson and which was filed on behalf of the respondent.
Subject to what appeared to be ambiguity within the correspondence (which was addressed during the hearing) it appears that Mr Graham was making an enquiry of AFMA as to whether he was entitled to lease the combined shark and cray permits or whether the shark endorsement could be excised from his Commonwealth Fishing Boat Licence. In any event Mr Graham agreed that he leased the cray and shark permits to Mr Grist when 'Saint Bernadette' was sold which would have permitted Mr Grist - if he chose - to also fish for shark. Mr Graham acknowledged that he did not notify AFMA at that time that he was unable to engage in shark fishing nor did he notify AFMA when he obtained the licences back from Mr Grist in 1994 that he did not intend to undertake shark fishing because of his hip injuries. He acknowledged a suggestion from Mr Hanks that by reason of his inability to fish for shark from 1994 when the permits were returned, that he could have sought approval from AFMA to enter into a lease of the shark endorsement.
In the early 1990's Mr Graham also leased his Victorian rock lobster licence however it was returned to him in 1994 and it was then leased to another person - Ron Peters. That permit was then attached to the vessel "Breakwater Bay" and both the permit and the vessel were leased to Mr Peters. Mr Graham said that Mr Peters engaged a skipper for that vessel and it was engaged in cray fishing only. The boat was not equipped to undertake shark fishing.
Between 1994 and 1997 Mr Graham was engaged in the Tasmanian Cray Fishery where his catch returns showed fishing activity between January and August and between November and December for each year. Apparently the fishery was closed between September and October. Mr Graham said that he operated on the West Coast of Tasmania, out of King Island, using the vessel "Saint Bernadette". He said that was a vessel being 53 feet in length which had a wheel house in which he could sit to steer the vessel. He had a crew of one person. Mr Graham said he did not "explore the option" of hiring a skipper which would have permitted him to continue to be engaged in shark fishing. He said there were no persons in Portland who were qualified and it was not an option to engage a person from another district because that person would not be familiar with the waters between Portland and Apollo Bay where principally he fished for shark. It follows that his principle income in the 1990's was from cray fishing.
Conclusion & Reasons For Decision
As we recorded at the outset, the circumstances giving rise to the allocation of nil quota to Mr Graham are identical to those that applied to Mr Fischer. That is to say, there was a change in the management structure of the Southern Shark Fishery where by reference to catch history of the best 3 of 4 years between 1994 and 1997 AFMA decided to introduce Individual Transferable Quotas ("ITQs") against an imposed Total Allowable Catch ("TAC") for the Southern Shark Fishery. By reason of Mr Graham not being engaged in shark fishing during the above period he could not demonstrate any shark catch at all.
Mr Collins who gave evidence in the Fischer application spoke at length of the value, which exists in a permit, which is not being exercised. He held this opinion because a permit creates the opportunity to fish which in turn creates a stream of income. Additionally, the permit has a capital value which is capable of being realised.
In the Fischer application we decided that we preferred the evidence of Mr Collins and we found that the fishery should be regarded as having transferable permits prior to 1 January 2001. It followed that the imposition of ITQs based on catch history was a flawed decision.
In the present application Mr Graham told us that he continued to hold his shark licence, despite not being able to exploit it, because it was an asset that he eventually wanted to transfer to his sons who expressed interest in becoming fishermen. Additionally, he never had any understanding that the failure to use his shark permit would cause him to lose it which necessarily has occurred by reason of the changed management structure concerning the SSF. Indeed Mr Graham said that the permit was regarded by him as an asset which he understood that he would be able to keep "forever". Clearly the relative economic position of Mr Graham is considerably worse subsequent to 1 January 2001 than it was previously because if the decision under review is allowed to stand, Mr Graham has in fact lost an asset which denies him a stream of income should he wish to exploit it or denies him the opportunity to sell it or to transfer it to his children.
For the reasons given in the Fischer application we believe that the decision made in the present application should also be set aside and the application remitted to the decision maker for reconsideration.
Additionally, in the present application Mr Graham said he was unable to fish because of his hip injuries which constituted exceptional circumstances.
No issue was taken by Mr Hanks as to the extent of the applicant's injuries and the medical reports filed within the T-documents would indicate that Mr Graham does have a hip injury of considerable severity. We are satisfied and find as a fact that by reason of the physical nature of shark fishing he would be unable to undertake it, yet we are satisfied that he has been able to undertake cray fishing which did not and does not expose him to the rigour or effort involved in shark fishing.
We again adopt the conclusions of His Honour Brennan J in Re Drake and the Minister for Immigration and Ethnic Affairs (No. 2) 1982 ALD 634, particularly at 645 where His Honour concluded-
"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 a particular case will be considered but cogent reasons will have to be shown against this application, especially the policy shown to have been exposed to Parliamentary scrutiny".
It is our view that the present decision under review does "tend to produce an unjust decision in the circumstances of a particular case". The reasons advanced by Mr Graham that saw him continuing to undertake cray fishing and not undertake shark fishing are, in the circumstances, sound.
Additionally the decision under review is made having regard to the imposition of a catch history during a period of time when Mr Graham was not engaged in shark fishing activity (because of his hip injury) and where he was not put on notice that the absence of being able to demonstrate a history of shark fishing would result in him being denied a shark fishing quota when the management practices changed. We regard that as unfair. We accept his explanations of the inability or impracticality of engaging a skipper on one of his boats to engage in shark fishing.
The Panel considered 'exceptional circumstances' (p. 206) as it was obliged, having been directed by the Terms of Reference (p. 223). The expression 'exceptional circumstance' is not defined by the report of the Panel - or the Fisheries Management Act 1991. The Panel was however mindful that there may be circumstances of permit holders which should be taken into consideration. The right to review decisions concerning ITQ's as allocated, was also reported.
The Tribunal has considered the meaning of 'exceptional circumstances' in Re O'May and Anor. and AFMA [1999] AATA 720 and in Re Glendon Lane Pty Ltd and AFMA (1995) 36 ALD 376. It was also considered in Re Secretary, Department of Family & Community Services and Selke (1993) 18 AAR 457 & Re Secretary, Department of Social Security and Tran (1991) 13 AAR 346. In summary, I am satisfied 'exceptional circumstances'; means to 'form an exception; unusual instance; extraordinary'. The circumstances of Mr Graham are within this ambit and they are therefore 'exceptional'. We regard Mr Graham as a witness of truth and his allocation of an ITQ should be reviewed.
For all of the above reasons we are of the view that the decision under review should be set aside. For the reasons also given in Re Fischer the matter is remitted to the decision maker for reconsideration in accordance with these reasons.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley and Mr C Emert.
Signed:         Katherine Navarro..............................
  Associate
Date/s of Hearing   19, 20 and 21 February 2002 and 4 April 2002
Date of Decision   27 September 2002
Counsel for the Applicant         Mr Niall
Solicitor for the Applicant          Fitzpatrick Teale
Counsel for the Respondent    Mr Hanks
Solicitor for the Respondent    Ladbray Consortium