Green and Australian Fisheries Management Authority

[2008] AATA 1074

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1074

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/6254

GENERAL ADMINISTRATIVE DIVISION		)
Re		Robin Green

Applicant

And Australian Fisheries Management Authority

Respondent

DECISION

Tribunal Mr S Penglis, Senior Member

Date24 November 2008

PlacePerth

Decision The Tribunal affirms the reviewable decision dated 6 December 2007.

......(sgd) Mr S Penglis.........

Senior Member

CATCHWORDS

PRIMARY INDUSTRY – fisheries – Small Pelagic Fishery – application for fishing permit for Zone B – limited entry policy – grant of permit would constitute a departure from the limited entry/precautionary principles contained in the respondent’s management policy for Small Pelagic Fishery- no cogent reason for departing from policy – respondent’s decision to refuse application for fishing permit affirmed

LEGISLATION

Fisheries Management Act, 1991 (CTH) s 3(1) and 4(1)

CASES

Bannister Quest Pty Ltd v Australasian Fisheries Management Authority (1997) 77 FCR 503

P W Adams Pty Ltd v Australian Fisheries Management Authority (1998) FCA 18

Re Green & Australian Fisheries Management Authority (2004) 81 ALD 194

REASONS FOR DECISION

24 November 2008 Mr S Penglis, Senior Member

1.      This is the second matter that has come before this Tribunal involving the applicant and the respondent.  The first matter was heard by Deputy President Hotop; Green and Australian Fisheries Management Authority (2004) 81 ALD 194. It concerned an application for a review of a decision made by the respondent on 1 November 1999, affirmed on 27 March 2000, to refuse to grant a fishing permit to the applicant and the applicant’s company, South Coast Fishing Co Pty Ltd (South Coast), in respect of what is known as Zone B of the Commonwealth Small Pelagic Fishery (SPF).  The applicant’s evidence in that matter is set out at [16] of the Tribunal’s reasons for decision in that matter.

2.      Prior to the hearing of that matter (on 21, 22 and 23 May 2003), the applicant had initiated communications with Mr Mervyn Drew of Bremer Fish Processors Pty Ltd (Bremer Fish) to “lease” a Zone B fishing permit which had been issued to Bremer Fish by the respondent.  For reasons which will be examined in these reasons for decision, the “lease” did not proceed and the relevant license was eventually cancelled.

3. As a result, the applicant applied to the respondent for the issue of a permit pursuant to s 32 of the Fisheries Management Act, 1991 (Cth) (the FMA).  That application was refused by the respondent by decision dated 11 September 2007, which decision was affirmed on reconsideration dated 6 December 2007.  That is the decision which the applicant seeks this Tribunal to review.

The legislation

4.      Section 3(1) of the FMA obliges the respondent, in the performance of its functions, to pursue the following objectives:

(a)implementing efficient and cost-effective fisheries management on behalf of the Commonwealth;

(b)ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development and the exercise of the precautionary principle, in particular the need to have regard to the impact of fishing activities on non-target species and the long term sustainability of the marine environment;

(c)maximising the net economic return to the Australian community from the management of Australian fisheries;

(d)ensuring accountability to the fishing industry and to the Australian community in the respondent’s management of fisheries resources; and

(e)achieving government targets in relation to the recovery of the costs of the respondent.

5.      By s 4(1) of the FMA the phrase “precautionary principle” has the same meaning as in clause 3.5.1 of the Intergovernmental agreement on the environment, namely

“Where there are threats of serious or irreversible environment damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

In the application of the precautionary principle, public and private decisions should be guided by:

(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and

(ii) an assessment of the risk – weighted consequences of various options”.

The relevant afma policy

6.      The current AFMA policy regarding Zones B, C and D of the SPF is contained in a document entitled “Management Policy for Commonwealth Small Pelagic Fishery” and came into effect on 1 March 2002.  It was most recently revised on 5 December 2007. 

7.      Under the heading “the management framework” (at page 4) is the following

“Limited entry

The existing limited entry framework for the SPF should be retained, and will apply on a zone by zone basis.  No new permits are to be issued within the SPF throughout the duration of this management policy”.

8.      The AFMA policy goes into considerable detail with respect to the SPF.

The relevant authorities

9.      The relevant legal principles to be applied in this matter were not in dispute.  The relevant principles are to be found in the following passages of the following decisions of the Federal Court of Australia and of this Tribunal:

·In Green and Australian Fisheries Management Authority, Deputy President Hotop said (at [56])

“In the present case the relevant AFMA policy regarding Zones B, C and D of the SPF does not, of course, have the status of ministerial policy; nor has it been exposed to parliamentary scrutiny:  cf Re Drake (No 2) at 645.  Likewise, that policy does not have the status of policy adopted by a body such as the Australian Fisheries Council comprising the relevant Commonwealth and state ministers of the Crown: cf Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 at 380.  That policy was, however, settled and adopted by the AFMA board after consultation with key stakeholders including all existing JMF permit holders (including commercial operators), members of the Small Pelagic Working Group (SPWG), key recreational fishing representatives, relevant AFMA management advisory committees, and relevant state fisheries agencies: Ex R9, pp 58-64.  The tribunal notes, furthermore, that the SPWG is itself a broad-based representative body formed by AFMA for the purpose of providing to it “expertise based management advice on some of the more complex jurisdictional and sectoral concerns of the fishery”:  Ex R9, pp60, 102.  Having regard to these considerations the relevant AFMA policy regarding ones B, C and D of the SPF (including, in particular, the policy of “limited entry”) should be given great weight by the tribunal and should be applied by the tribunal unless it is unlawful or unless there are cogent reasons (such as the production of injustice) militating against its application in the circumstances of the particular case:Re Drake (No 2) at 645.”

·Also in Green, Deputy President said (at [60])

“[60] Section 32(1) of the FM Act confers a discretionary power to grant a fishing permit authorising the use of an Australian boat for fishing in a specified fishery. According to the terms of AFMA’s “limited entry” policy, no new permits are to be issued (pursuant to s 32(1)) for Zones B, C or D of the SPF throughout the duration of the relevant management policy. Although (as the tribunal has found) that policy is itself lawful, it would be unlawful for AFMA (and the tribunal on review) to apply that policy inflexibly so as completely to fetter the discretion conferred by s 32(1) of the FM Act. Rather, AFMA (and the tribunal “standing in the shoes” of AFMA) must always be prepared to have regard to the merits of a particular exceptional case and, if appropriate, not to apply that policy in such a case: British Oxygen Co Ltd v Ministry of Technology [1971] AC 610 at 625, 631 (cited in Re Drake (No 2) at 641).”

·In Bannister Quest Pty Ltd v Australian Fisheries Management Authority (1997) 77 FCR 503, Drummond J of the Federal Court of Australia said (at p515)

“AFMA is, I think, correct when it submits that s 3(1)(c) of the FMA does not require AFMA to pursue the objective of maximising the efficiency of an individual operator in the fishery, without regard to positions of other operators, and that the focus of the provision is instead on the fishery as a whole.”

·Also in Bannister Quest, Drummond J said (at p521)

“It is with productivity efficiency, in the sense described by Sackville J in Adams, the s 3(1)(c) is concerned ….  In my opinion, this means that it is out of place for AFMA to have regard to the efficiency of an individual fisherman’s operation relative to that of other fisherman or to social or equity considerations, in taking any action which will have an impact on whether economic efficiency and the exploitation of the resources of the particular fishery is likely to be maximised or hindered by that action.  It is clear that the duty to pursue the efficiency objective does not require AFMA to protect or enhance the financial position of each operator: the policy statement shows that this statutory objective  is to be achieved in the course of restructuring the SEF, through the use of ITQ’s, to encourage the voluntary departure from the fishery of less profitable operators”.

·In P W Adams Pty Ltd v Australian Fisheries Management Authority (1998) FCA 18, Branson J of the Federal Court of Australia said at (p 13)

“Plainly, there is a difference between “maximising economic efficiency in the exploitation of fisheries resources” and maximising the economic efficiency of individual participants in the fishing industry.  The objectives of AFMA are objectives intended to be pursued in the public interest: they are not intended to require AFMA to pursue, assuming that it would be possible for it to do so, the separate interests of individual participants in the fishing industry are still of course, in many circumstances, the respective interests of individual participants in the fishing industry and the public interest which AFMA is required to by subjectives to pursue in the performance of these functions will be consistent.  In some circumstances they will not be consistent”.

10.     I note that section 3 (1) (c) of the FMA when considered in the above authorities read “maximising economic efficiency in exploitation of fisheries resources”.  In my opinion, the amended wording does not warrant a different approach to that which has been held to apply with respect to the former wording: and nor was any submission made to the Tribunal to that effect.  Indeed, if anything, the new wording makes it even clearer than the previous wording that focus is the net economic return to the Australian community from the management of Australian fisheries: not the net return to any particular person within the Australian community.

The applicant’s contentions in overview

11.     In essence, the applicant’s contentions were as follows

·The grant of the applicant’s application for a permit will not constitute a departure from the limited entry/precautionary principles contained in the respondent’s management policy for the SPF.

·Alternatively, cogent reasons exist for departing from the policy, namely the avoidance of an injustice to the applicant.

Is the grant of a permit to the applicant consitent with the limited entry/ precautionary principles contained in the respondent’s management policy?

12.     Stephen Bolton, Senior Manager, Co-management of the respondent, gave evidence adopting various matters stated in the witness statement provided by Dr David Alden to this Tribunal in the earlier matter heard by Deputy President Hotop including, amongst other things, in the following terms.

“14 Limiting the number of operators in a fishery (referred to below as “limited entry”) has been widely adopted throughout the world as a necessary first step in any management of fisheries resources.  Page 48 (paragraph 3.1.2(II)) of the 1997 publication of the Food and Agriculture Organisation (FAO) entitled Technical Guidelines for Responsible Fisheries 4: Fisheries Management contains the following statement in relation to placing an appropriate limit on effort: “Some degree of effort limitation by the [responsible fisheries] management authority is a pre-requisite for responsible fisheries, whatever other control measures are in place.”  A true copy of extracts from this publication (being the cover pages, Contents and pages 46 to 55) are attached and marked “B”.

15.At page 52 of this publication, it is noted that:

“World-wide experiences with fisheries and other free-range resources have shown that open access systems, where anyone who wishes has a right to exploit the resource, can have severe consequences.  In the absence of control, open access systems will invariably lead to over-exploited resources and declining returns for all participants.  This has been found to occur in virtually all fisheries under open access, from small-scale artisanal fisheries to large-scale industrial fisheries whether national or international, and been dubbed the “Tragedy of Commons”.

16.Later on the same page it is said: “Limited access is widely considered to be essential for efficient and responsible fisheries.”

17.Even where there has not been concern that over-fishing may be occurring, a limited entry policy has nevertheless generally been considered appropriate, particularly in light of what is known as the “precautionary principle”.

18.The FM Act refers to the precautionary principle as one of he objectives to be pursued in the administration of the FM Act and by AFMA in the performance of its functions (FM Act s3(I)(b)).  The FM Act provides in section 4(1) that the precautionary principle has the same meaning has in clause 3.5.1 of the 1992 Intergovernmental Agreement on the Environment, entered into by the Commonwealth, State and Territory Governments in Australia, Clause 3.5.1 reads as follows:

“Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.  In the application of the precautionary principle, public and private decisions should be guided by:

(i)careful evaluation to avoid, wherever practicable, serous or irreversible damage to the environment; and

(ii)       an assessment of the risk-weighted consequences of various options.”

19.The precautionary principle is regarded as a fundamental principle of environmental management, particularly in the management of fish stocks, which are characterised by uncertainty.  Specifically, the approach requires caution and vigilance in the face of scientific uncertainty as to environmental risk.  In relation to fisheries management, the principle is concerned with achieving a balance between exploitation and conservation of resources.  In managing fisheries, it is commonly accepted that a precautionary approach to allowing increases in fishing effort is necessary to prevent effort and catches increasing at a faster rate than scientific knowledge of the ability of stocks to sustain fishing pressure, and to prevent consequent overfishing and overcapitalisation.

20.The precautionary principle is considered to be centrally important to fisheries management worldwide.  Article 6(1) of the UN Fish Stocks Agreement (the Fish Stocks Agreement ) provides that “States shall apply precautionary approach widely to conservation, management and exploitation of straddling fish stocks and highly migratory fish stocks in order to protect the living marine resources and preserve the marine environment”.  Article 6(2) provides that “States shall be more cautious when information is uncertain, unreliable or inadequate.  The absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measure.”  Annex II of the agreement sets out the ‘Guidelines for the Application of Precautionary Reference Points in Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks’.

21.The Fish Stocks Agreement came into force in Australia on 11 December 2001.

22.In addition, the Fisheries Legislation Amendment Act (No. 143, 1999), provides that s3(2)(c) is to be inserted in FM Act.  that new paragraph provides that one of AFMA’s objectives is:

“ensuring that conservation and management measures in the AFZ and the high seas implement Australia’s obligations under international agreements that deal with fish stocks.”

23.This amendment to the FM Act came into effect on 11 December 2001.”

13.     As to that evidence previously given by Dr Alden, Mr Bolton gave the following evidence:

“Subject to paragraphs 6 to 8 below, the explanation in those paragraphs of the limited entry policy and its rationale remain accurate.

8.Since Dr Alden prepared his outline of evidence and gave evidence in the above proceedings, the limited entry policy has remained in force in the SPF as a central measure in assisting AFMA to meet its objectives under section 3 of the FM Act and section 6 of the Fisheries Administration Act 1991.

9.Annexed hereto and marked ‘A’ is the current management policy of the fishery.  At page 4 of the policy, the following is emphasised:

The existing limited entry framework for the SPF shall be retained, and will apply on a zone by zone basis.  No new permits are to be issued within the SPF throughout the duration of this management policy.

10.I also consider to be accurate the explanation of the policy in the letter of 11 September 2007 (T11) from the delegate to the Applicant notifying him of his decision to refuse the Applicant’s application for a permit, and the letter dated 6 December 2007 from the delegate to Mr Green, in which she notifies the Applicant of the Reviewable Decision (T75).

11.Further, the limited entry policy does not mean that fishing concessions may be granted on the basis that the existing number of operators in a fishery can be maintained.  To the contrary, pursuant to AFMA’s legislative objectives, the policy is also applied so as to reduce fishing effort (and hence, the take of fish) in the fisheries to which it applies over time.

12.This means that unless there are cogent reasons for departing from the policy, no new permits should be granted in the fishery, even if there has been a reduction in the number of permits in the fishery.  That is, the fact that there may have been a reduction in the number of permits in the fishery for example, by permit expiring and a further permit not being issued for the subsequent season) is an intended consequence of the policy, not a reason for departing form the policy.

13.In this respect, I consider that the view of the AFMA Board in June 2004, as stated in the Factual Brief provided by AFMA to the Independent Allocation Advisory Panel dated 22 February 2005 (at paragraph 41), referred to in paragraph 14 below, continues to apply:

The number of operators that could viably operate in the SPF is likely to be far fewer than currently permitted to operate in the fishery.  The SPF Management arrangements offer no capacity to control effort or for autonomous adjustment and there is a serious risk of overcapitalisation.  With the kind of vessels being introduced into the SPF, overcapitalisation could occur quickly.”

14.     Mr Bolton was not cross examined as to this aspect of his evidence, nor is there any other evidence received by the Tribunal inconsistent with it. I therefore accept the evidence and make findings of fact in accordance with it.

15.     It was submitted by Mr Dyer, the applicant’s lay-advocate, that “because the permit wasn’t transferred, basically nothing has happened in this subsection of B Zone and the reasons for that are quite clearly that the only person who can deal with this is Mr Green”.

16.     Mr Dyer submitted  “in effect, Green is the South Coast Trawl areas only SPF operator. Basically if you don’t have a state trawl licence you can’t go there. Nobody else can go there to trawl. There is a possibility of somebody purse seining in that area, but it’s remote. Various operators have tried and failed .”

17.     Mr Dyer further submitted that “another benefit of having one operator in a zone, or a small number, is that you don’t have that latent effort effect that Mr Bolton spoke of. There’s no capacity for anybody else to start fishing who isn’t already fishing. It’s already at its maximum capacity. Therefore one of the central tenants of the limited-entry and proportionary principle will not be broken if Mr Green was given another licence to operate. It would still be the one operator. All that would happen would be that his catch would increase.”

18.     It was also submitted on behalf of the applicant that “in the case of the South Coast trawl zone it’s unusual, because you’ve only got Mr Green there, without him there is going to be absolutely nothing happening: no one benefits. By giving Mr Green this additional permit something will happen. The flow on to the community will be extensive. I think in a lot of the other cases you have a number of fishermen vying for a catch of fish and therefore to give somebody greater access than somebody else would be unfair. In this case there is not anybody else catching this fish, a failure to have Mr Green doing it will result in – in the short term anyway – nobody doing it because they can’t”.

19.     In response, Nr Niall submitted on behalf of the respondent that the SPF is being managed as a whole and that the respondent’s policy relates to the whole of the SPF. He submitted that Zone B must be considered as a whole, not by reference to separate geographical parts within the zone.

20.     It was further submitted that the permit sough by the applicant was a Zone B permit and that permit would authorise fishing in the whole of Zone B, not just dependant upon what seasonal permits the holder of the Zone B permit holds. Accordingly, whilst a Zone B permit held by the applicant would only entitle the applicant (as a result of other permits held by him) to fish in the Western Australian Fishery within Zone B, the permit could immediately be sold by him to someone else holding a different permit which would thus entitle that other person to fish in an entirely different part of Zone B.

21.     Mr Niall submitted that the question before the Tribunal is whether the grant of a new Zone B permit will constitute a departure from the limited entry/precautionary principles and, if so, whether cogent reasons exist for a fresh Zone B permit “to be put back into the fishery” notwithstanding that to do so would constitute departure from the respondent’s Management Policy for the SPF.    

22.     Although very capably argued by Mr Dyer on behalf of the applicant, the assertion that the grant of the permit sought by the applicant would not constitute a departure from the respondent’s Management Policy for the SPF must be rejected.

23.     I accept the submissions made on behalf of the respondent that in order to determine whether a grant to the applicant of the permit he seeks would be consistent with the limited entry/precautionary principles contained in the respondent’s Management Policy, the matter must be approached on the basis that the permit applies to the whole of the Zone B (and not merely to limited geographic portion of the same) and could be used by the applicant (or any transferee holding the permit) to fish anywhere in Zone B that they are permitted to fish depending upon what other State or Commonwealth licences they hold.

24.     I note that it was submitted on behalf the applicant that if I were persuaded of that fact, the applicant would be content for the permit to be endorsed “not-transferable”. That, however, does not address the fact that ,if the  applicant were to be issued the licence he seeks, it would then be open to applicant to expand his operations elsewhere in Zone B (subject to him obtaining  the necessary State, or other Commonwealth, licence needed to compliment the permit which he seeks).  The fact that the applicant does not presently have such an intention is not to the point.                 

25.     I note that as part of the applicant’s case tendered in evidence were copies of correspondence passing between Dr Nick Raynes, Executive Manager of Fisheries of the respondent, and Dr Tim Ward of the South Australian Aquatic Sciences Centre. The correspondence related to the future spatial management of the SPA and, in particular, Dr Ward’s recommendation “that the AFMA Board consider separating the SPF into 3 zones that reflect current biological and ecological knowledge and will ensure that future assessment and management of the fisheries is efficient and effective as possible. These 3 zones could usefully be called the western, southern and eastern zones and could be separated by lines established through 124 degrees E and 146 degrees E”. Whatever be the virtues of such an approach, the fact is that it has not been adopted as part of the respondent’s Management Policy and is thus irrelevant to the determination of the issues before the Tribunal.

26.     Also provided to the Tribunal as part of the evidence in support of the applicant’s case was a written statement of Dr Lindsay Joll, the Manager, Northern Bioregions of the Western Australian Department of Fisheries, regarding the approaches of the Western Australian Department of Fisheries to the management of trawl fisheries in Western Australia. In his statement, Dr Joll gave evidence as to “how input controls are used so that the use can be understood in the context of Robin Green’s issues”. Dr Gall’s evidence was not challenged on behalf of the respondent and I therefore accept it unreservedly.

27.     However, I do not consider Dr Gall’s evidence as to the management of trawl fisheries in Western Australia to be of any real assistance in determining the issue before the Tribunal, namely whether the grant of a Zone B licence to the applicant would be consistent with the limited entry/precautionary principles contained in the respondent’s management policy for the SPF.  

28.     For the sake of completeness I note that during the course of his cross-examination, the applicant agreed that one of his arguments as to why if he were to be issued with a Zone B permit it would not be a departure from the respondent’s Management Policy for the SPA was because it would allow him to maximise his economic efficiency and exploitation of fisheries resources. However, in his closing submissions on behalf of the applicant, Mr Dyer did not advance such an argument in light of the authorities of Bannister Quest and P W Adams to which Mr Niall had referred during the course of his submissions to the Tribunal. Mr Dyer was right not to make such a submission on behalf of the applicant given that the decisions in Bannister Quest and P W Adams Pty Ltd, being decisions of the Federal Court of Australia and thus binding upon the Tribunal, make it clear that maximising the economic efficiency of an individual participant in the fishing industry is not what the FMA speaks of (and in this regard I refer to and repeat what I have said in paragraph 10 of these Reasons).    

29.     I thus find that to grant to the applicant to Zone B SPF permit which he seeks would constitute a departure from the limited entry/precautionary principles contained in the respondent’s Management Policy for the SPA.

30.     I therefore turn to consider whether, notwithstanding that conclusion, cogent reason exist for departing for the policy, namely the avoidance of an injustice to the applicant.

Will the application of the policy to the applicant’s application for a permit produce an injustice?

31.     Whilst the applicant was cross examined at some length by Mr Niall, counsel for the respondent, in the end there was effectively no dispute between the parties as to the principal facts of the matter.  In this regard I note that various propositions were put to the applicant in cross examination, which the applicant rejected, but that, during the course of the respondent’s closing submissions, the Tribunal was not invited by counsel for the respondent to make findings in accordance with said propositions.  I consider it was proper for counsel for the respondent to put those matters to the applicant, but that it was also proper for him not to pursue them in his closing submissions on behalf of the respondent as the evidence could not justify such adverse findings being made against the applicant. 

32.     I set out below the findings of fact that I make in regard to this aspect of the matter.  As I have said, in the end, they did not appear to be contentious.

33.     South Coast was a company which, at the time, was owner controlled by the applicant and his wife.

34.     Through discussions with Mr Mervyn Drew, the applicant learnt that Bremer Fish held fishing permit number 26644 which allowed it to carry out commercial fishing in the SPF by way of inter alia trawling.  At the time, Bremer Fish was not using the permit: indeed no boat had been nominated for it.

35.     In or about March 2003, South Coast and Bremer Fish entered into a “permit lease agreement” wherein the parties agreed to nominate the vessel “Kiama II” as the boat for small pelagic fishery permit number 26644.  “Conditions of lease” were as follows:

“1Transferred for an uncertain period of time. Bremer Fish Processors may take back small Pelagic Fishery permit No 26644 any time at it’s own discretion.

2South Coast Fishing Company agree to sign all necessary transfer forms to permit the return of small Pelagic Fishery Permit No 26644 to Bremer Fish Processors upon request.

3Lease agreement – No charge – Developing fishery.

4In the event the permit is cancelled as a result of the breach or any other action by the lessee during the period of lease, the lessee will pay the lessor an amount equal to the market value of the permit.  A value assessed and performed by a boat broker agreed upon by both parties.”

36.     In cross examination the applicant agreed that this arrangement could be terminated by Bremer Fish at any stage and that, in essence, it constituted nothing more than South Coast “borrowing” the permit.

37.     By letter dated 6 March 2003, received by the respondent on 10 March 2003, the applicant forwarded to the respondent a cheque and “various application forms”.  The “applications forms” included:

·“application for transfer of permit(s)” from Bremer Fish to South Coast;

·“application for transfer of permit(s)” from South Coast to Bremer Fish;

·boat nomination application form.

38.     The reason why a transfer form from South Coast back to Bremer Fish was executed by the parties and provided to the respondent was so that Bremer Fish could facilitate an immediate re-transfer of the permit back to itself in the event that the “permit lease agreement” was terminated (in accordance with its terms or otherwise).

39.     With respect to the boat nomination form, the applicant’s evidence was that he submitted the same duly completed save that he did not complete sections 1 and 2, providing for the full name of the applicant, the applicant’s ACN/ABN number and the fishing permit number.  He said he did this because the description on the top of section 1 was in the following terms “details of applicant (to be completed by the current fishing permit holder)”.  He said that as he was not the holder of the permit, he did not consider it was for him to complete that section.

40.     The applicant said that, whilst he was somewhat unclear about it, it was likely that the respondent returned that form to him for the purpose of having sections 1 and 2 filled out.  He said that sections 1 and 2 were then filled out on behalf of Bremer Fish by someone (he was not able to identify who) inserting that company’s name, ACN number, ABN number, and the relevant permit number.  The form was then returned to the respondent.

41.     On 11 March 2003 Daniel Dal Piva, Assistant Licensing Officer of the respondent, sent a fax to the applicant in the following terms “the boat nomination application form that you sent in has incorrect details for “South Coast Fish Co Pty Ltd”.

42.     The actual attachment to the facsimile could not be located and thus was not put into evidence.  The applicant was unclear whether what was sent back to him had the name “Bremer Fish Processors P/L” deleted from section 1, or whether he did that himself.  In any event, the applicant wrote the name “South Coast Fishing Co Pty Ltd” in the appropriate space in section 1 of the form and then returned it (or that page) to the respondent.  The ACN/ABN numbers for South Coast were not inserted, nor were the ACN/ABN numbers of Bremer Fish removed.  That form was returned to the respondent by facsimile on 12 March 2003.  On 13 March 2003, Bremer Fish faxed a copy of the permit to the respondent.

43.     By facsimile dated 24 March 2003, Jason Hoyland, a Licensing Officer employed by the respondent, wrote to South Coast, marked to the attention of the applicant, referring to the applications to transfer the license and to nominate the vessel “Kiama II” to the permit.  He wrote “Please be advised AFMA is waiting on advice from WA Fisheries regarding the above and that the vessel “Kiama II” is currently nominated on a permit held by another client.  It is important to note that if the above vessel is not removed from the permit it is currently on you will be in breach of the following boat nomination condition”.

44.     The facsimile concluded in the following terms “Notwithstanding this advice, if you wish AFMA to proceed with the aforementioned boat nomination, please contact me on …”.

45.     Permit 26644 was endorsed as being “non-transferrable”.  The applicant knew this.  He therefore recognised at the time that, for the applications he had submitted to be processed, it would be necessary for the respondent to resolve to amend the permit to remove the restriction of it being “non-transferable”.

46.     On 20 May 2003 the respondent wrote to Bremer Fish, with a copy to South Coast, in the following terms:

“I refer to our telephone conversation regarding Small Pelagic Fishery (SPF) permits # 26643 and 26644.

You have applied to transfer permit # 26644 to South Coast Fishing Co Pty Ltd However, both of these permits currently have a non-transferable status.

Following a review of he area of waters and conditions on both of you SPF permits, AFMA management has decided to amend your permits to remove the current restrictions.

In regards to permit # 26644.  AFMA proposes to remove the non-transferable status of this permit and then approve the transfer to South Coast Fishing Co Pty Ltd.  once transferred, I will invite South Coast Fishing co Pty Ltd to surrender the permit on the condition they will be issued a new permit with standard Zone B SPF Fishery access and conditions.

In regards to permit # 26643.  AFMA invites you to surrender this permit on the condition you will be issued with standard Zone B SPF Fishery access and conditions.  The non-transferable status will also be removed form this permit.

Please forward the original permits to AFMA with a letter of surrender if you to choose to proceed.

If you have any questions regarding the above please call me on [phone].”

47.     On 6 June 2003 the applicant wrote to Professor David Alden, Manger of Small Pelagic Fishery of the respondent, applying to

“mid-water pair trawl blue mackerel in Commonwealth waters west of 125 degrees east and in the 200 metre isobath”…

There can be no interaction with other SPC permit holders as there are no other SPC permit holders authorised to trawl in this zone…”

48.     After a follow up letter from the applicant dated 13 August 2003, on 3 September 2003, Dr Alden wrote to the applicant in the following terms:

“Thank you for your application to use mid-water pair trawl method in the Small Pelagic Fishery (SPF) and your further letter dated 13 August 2003.  You may recall AFMA’s letter to all permit holders in the SPF dated 15 April 2003.  We informed you that prior to endorsing the use of pair trawl method, the AFMA Board requested the AFMA Management to seek comments from various fishery management advisory committees about the impacts the pair trawl method have on their respective fisheries.

We are still awaiting for advice from one of the management advisory committees.  As soon as this advice is received, we will finalise the policy on the use of the use of the pari trawl method in the SPF.  We will then immediately inform you of the results of your application.

If you have further questions, please do not hesitate to contact me on ….”

49.     Some time in late 2003, Mr Drew visited the applicant and said words to the effect “It is all happening Greeny, can you do the fish returns?”

50.     By letter dated 28 July 2004, the applicant wrote to the respondent in the following terms “Kiama II SPF no 26644 did not operate from January to July this year…returns have been posted today”.  The applicant continued to provide the fishery returns in respect of license no 26644 throughout 2005 and into 2006.

51.     By notice dated 13 August 2003 from the respondent, Bremer Fish was advised by the respondent that permit no 26644 (as well as permit no 26643 which applied to the vessel “Reikie Jo”) had expired on 30 June. 

52.     In fact, on 23 July 2003, the respondent had received an application for the grant of a fishing permit on the expiring of an existing fishing permit from Bremer Fish.  Nothing turns on this, save that both the reminder notice and the application form (which had been generated by the respondent) referred to “Kiama II” as being the vessel to which the license applies.

53.     Indeed, “Kiama II” was described as the vessel to which the permit applied when it was renewed on 30 September 2003 (expiring 30 June 2004).  The relevance of “Kiama II” appearing as the vessel to which the permit applied on these documents is a matter to which I will return.

54.     Although renewed, the permit for the period 30 September to 30 June 2004 was not actually sent to Bremer Fish (or anyone else for that matter).  It remained on the respondent’s file with the stamp “admin only” thereon.  Also, the letters “WA” where they appeared under the heading “State issues” were circled with the hand written notation “remove on transfer” appearing alongside.  In this regard, Mr Bolton gave evidence (which was not challenged and which I accept) as follows:

“a permit stamped “admin only” is an original permit, but a permit where an error has been detected before sending the permit out to the permit holder, or for some other reason it has not been sent because it needs to be amended. Sometimes a “admin only” permit is signed because it was signed before the error was noted.”

55.     For each of licenses 26644 and 26643 there was a levy payable by Bremer Fish to the respondent of $3,792.00 (totalling $7,004.00). The applicant said that Mr Mervyn Drew requested the applicant to pay the license fee for 26644, which the applicant declined to do on the basis that the license had not yet been transferred to him.

56.     A letter dated 29 April 2004, from Bremer Fish to the respondent, outlined a “payment schedule” whereby Bremer Fish would pay the sum of $7,704.00 in 2 instalments in May 2004 and a further 2 instalments in June 2004. That proposal was accepted by the respondent by letter dated 4 May 2004.

57.     By notice dated 30 June 2004, the respondent wrote to Bremer Fish advising that permit 26644 had expired. 

58.     By notice dated 3 August 2004, the respondent advised Bremer Fish that permit 26644 had expired “1 month ago”.

59.     By notice dated 30 August 2004, the respondent advised Bremer Fish that license number 26644 had expired “2 months ago”.

60.     By notice dated 30 September 2004, the respondent advised Bremer Fish “you are no longer eligible for a fishing permit” in respect to permit number 26644.

61.     By facsimile 11 October 2004, Mervyn Drew of Bremer Fish sent a facsimile to the respondent in the following terms:

“Good afternoon,

Regarding the transfer of Zone B – Jack Mackerel Permit Number: 26643 from Fishing Vessel “Reikie Jo” LFB A260 to South Coast Fishing.

**Could you please disregard the earlier request to transfer this permit.”    

62.     Thereafter nothing happened until February 2006, some 18 months later, when the applicant said that, “out of the blue”, he learned that permit 26644 “had not been renewed”. On 17 February 2006 the applicant wrote to the respondent in the following terms:       

“As requested I have enclosed written permission from Bremer Fish Processors to talk to you regarding SPF Permit No 26644.

It came as a complete surprise two days ago to learn that SPF Permit No 26644 had not been renewed.

I have spoken to Bremer Fish Processors who realize the importance of having a SPF permit attached to a south coast tr4awl license and they agreed to transfer the permit to South Coast Fishing Co Pty Ltd.

On 20^th May 2003 (enclosed) AFMA agreed to amend the SPF purse seine permit to a SPF trawl permit to suit this area on behalf of South Coast Fishing Co Pty Ltd.

On the 11^th August 2005 AFMA remitted a levy cheque to me for $3,162.

If possible I would appreciate being able to retrieve SPF permit No 26644 which I believe was attached to my vessel, Kiama II, License No 1931.”

63.     The “written permission” referred to therein was a facsimile to the respondent from Mervyn Drew of Bremer Fish in the following terms:

“On behalf of Bremer Fish Processors Pty Ltd, please allow Mr Robin Green to have access to information on a Jack Mackerel permit that we handed back to AFMA, being Permit No 26644”.

64.     By letter dated 20 February 2006 to the respondent, the applicant wrote:

“Further to the letter posted on the 17^th February 2006, I wish to make payment of all outstanding management and levies in respect of SPF Permit No. 26644 to allow us to start fishing as soon as possible.

If you are able to accept payment of this account I will arrange immediate payment for the full amount.  Please advise at your earliest convenience”.

65.     By letter dated 9 May 2006, the applicant wrote to the respondent in the following terms:

“Please find attached cheque for $300 for the transfer of Fishing Permit 26644 … The last ‘transfer’ to the ‘Kiama II’ was obviously never completed properly, otherwise South Coast Fishing Co would have been aware”.

66.     On 9 May 2006, Bremer Fish applied for the issue of a new permit, which application was refused by the respondent on 30 June 2006.

67.     In both his evidence to the Tribunal and the submissions made to the Tribunal on his behalf, the applicant was highly critical of the respondent’s failure to process the transfer from Bremer Fish to South Coast on a timely basis and at all. For the reasons which follow, I find that the applicant’s criticism of the respondent in this respect to be largely without foundation. 

68.     Prior to 30 June 2003, the respondent did not process the transfer application because the original permit had not been provided to it by Bremer Fish so as to facilitate the transfer.  That is unexceptional.  

69.     The onus of monitoring the progress of the matter lay with Bremer Fish, South Coast and the applicant, not the respondent.  There was no internal policy of the respondent requiring it to do so, nor can there be any criticism of the respondent for either not having such a policy or not in fact doing so. 

70.     Contrary to the submission advanced on behalf of the applicant, the fact that, some years later, the respondent adopted a policy to keep persons informed of the progress of matters does not constitute an admission that it had (or has) a general obligation to do so or that it was previously deficient for not having such a policy.

71.     I see no justification for putting the onus on the respondent to have to chase up persons for information that has been requested but not provided in order to facilitate a transaction requested by such persons.  If by way of policy the respondent (or some other Government agency) wishes to assume the burden of doing so, so be it: but there is otherwise no obligation upon it (or any other Government instrumentality) to do so, and there can be no criticism or the respondent (or any other Government agency) for not adopting such a policy.  Generally speaking, it must be for those who seek to have the respondent process applications to comply with such requests for information as may be made from time to time of them by the respondent and there can be no criticism of the respondent for not repeating such requests of the parties.

72.     It was submitted on behalf of the applicant, and accepted on behalf of the respondent, that upon the issue of the 2003/2004 licence in September 2003, the respondent then had all that it needed in order to effect the transfer.  Notwithstanding, it did not do so.

73.     On the other hand, at no stage during that period did either the applicant or anyone from Bremer Fish enquire of the respondent as to the progress of the transfer. 

74.     I therefore find that, in a practical sense, from 30 September 2003, it was open to all of the parties to facilitate the transfer: the respondent of its own volition or by the applicant, South Coast or Bremer Fish enquiring of the respondent as to its progress in the matter.  In that sense I find all parties equally responsible for the fact that the transfer was not effected during that period.

75.     Nor can there be any valid criticism of the respondent for having not effected the transfer after 30 June 2004 given that on that date the permit expired as a consequence of there being no application to renew the same.  That was wholly as a consequence of Bremer Fish failing to lodge the necessary renewal application with the respondent despite various reminder notices being provided to it by the respondent. 

76.     In such circumstances I find that no injustice will be done to the applicant by not departing from the policy when considering his application for a new permit.  At no time did the respondent do anything that caused the applicant to think that the transfer had been processed.  Indeed, at no time did the applicant in fact think the transfer had been processed.  Therefore this is not a case where an injustice has arisen as a consequence of a person acting to their detriment as a consequence of some misleading conduct on the part of the respondent.  There was no misleading conduct by the respondent, nor was the applicant misled.

77.     Whilst that is sufficient to dispose of the matter, there are other reasons why no injustice will result as a consequence of the applicant of policy to this matter. They include:

·The applicant did nothing to ensure that Bremer Fish did not allow the licence to lapse.  In this regard I note that there was nothing in the “Permit Lease Agreement” obliging Bremer Fish to do so.  Whilst it is understandable why, as he did, the applicant assumed that Bremer Fish would not allow the permit to be forfeited (given that it was a thing of value), the fact is that he did nothing to ensure that the licence was not forfeited by Bremer Fish.

·The practical effect of the agreement between Bremer Fish and South Coast was no more than South Coast “borrowing” (to use the words of the applicant) Bremer Bay’s licence given that the arrangement was capable of being terminated by Bremer Bay at any time.  Accordingly, the fact that the transfer was not processed by the respondent did not operate to deny the applicant of a statutory right to a licence; it operated only to deny the applicant an entitlement to use the licence on loan from the owner of the permit.

78.     I therefore find that nothing which the respondent did or omitted to do has created a situation where an injustice will be caused to the applicant if the respondent’s management policies are applied in determining whether or not to grant the applicant’s application for the issue of a fresh permit.  I therefore find that no cogent reason exists to depart from the management policy and that, accordingly, it ought be applied when considering whether or not to grant the applicant’s application.

79.     For the sake of completeness, I return to the fact that the “Kiama II” was noted on various forms and documents produced by the respondent, some of which were provided to Bremer Fish.  It was submitted on behalf of the respondent that the fact that the respondent had processed the Nomination of Boat form was indicative of the general failure of the respondent to properly deal with the matter.  In this regard, the applicant specifically points to the following:

·     the nomination was processed notwithstanding that the original permit had not been provided to the respondent:  the provision of the original being noted on the application form as being required by the respondent in order to process the application;

·     the respondent processed an application that had been executed by a person other than the holder of the permit. 

80.     I accept (and thus find) that there were irregularities surrounding the respondent’s processing of the application to nominate the Kiama II as a vessel to which permit 26644 applied.  It is clear that South Coast was not the holder of the permit and thus had no standing to make an application to nominate a vessel to the permit then held by Bremer Fish.  Moreover, the application should not have been processed until the original permit had been supplied to the respondent (so that the respondent could amend the permit from a “no boat nomination” to a permit nominating Kiama II as the vessel to which it applied.

81.     That finding, however, does not take the applicant’s case anywhere because:

·     I have already held that the respondent could have, but did not, process the transfer application between September 2003 and 30 June 2004.  For the reasons I have already given, that fact (either alone or in conjunction with any other matter) does not constitute a “cogent reason” to depart from the management policy;

·     the processing of the application “Nomination of Boat” form did not in any way influence the conduct of the applicant, South Coast or Bremer Fish.  With respect to the applicant and South Coast, there is no evidence of them being aware of the fact that the respondent had processed the application. Nor was there evidence before the Tribunal of Bremer Fish doing or omitting to do something as a consequence of that application having been processed.

82.     Accordingly, whilst I accept the applicant’s submission that the processing of the nomination by the respondent was irregular, it does not get the applicant to the result he seeks.

Conclusion

83.     For the reasons I have given I find:

(a)To issue the applicant the permit he seeks would be to depart from the limited entry/precautionary principles contained in the respondent’s management policy;

(b)No cogent reason exists to depart from the respondent’s management policy in this matter;

(c)The application for a permit must therefore be refused.

(d)The review decision must therefore be affirmed.

I certify that the 83 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior Member

Signed: ....(sgd) T Freeman...................
  Associate

Dates of Hearing  30 and 31 October 2008
Date of Decision  24 November 2008
Applicant’s representative        Mr Dyer
Counsel for the Respondent     Mr Niall
Solicitor for the Respondent     Deacons