Green and Australian Fisheries Management Authority
[2004] AATA 426
•29 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 426
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2000/125
GENERAL ADMINISTRATIVE DIVISION ) Re ROBIN GREEN Applicant
And
AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Deputy President Date29 April 2004
PlacePerth
Decision The Tribunal affirms the decision under review.
..........(sgd S D Hotop).......................
Deputy President
CATCHWORDS
PRIMARY INDUSTRY – fisheries – fishing permit – applicant applied to respondent (AFMA) for grant of fishing permit for Zone B of Commonwealth Small Pelagic Fishery (SPF) – AFMA refused to grant fishing permit to applicant in accordance with its “limited entry” policy regarding the SPF – limited entry policy lawful - no cogent reason for departing from limited entry policy in applicant’s case – limited entry policy applied in applicant’s case – refusal to grant fishing permit to applicant the correct and preferable decision – reviewable decision affirmed.
Fisheries Management Act 1991 (Cth) s3, s4(1), s16(1), s32
Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366
British Oxygen Co Ltd v Board of Trade [1971] AC 610
Re Drake and Minister for Immigration and Ethnic Affairs (No2)(1979) 2 ALD 634
Stoljarev v Australian Fisheries Management Authority (1995) 39 ALD 517
REASONS FOR DECISION
29 April 2004 Associate Professor S D Hotop, Deputy President Introduction
1. Robin Green (“the applicant”) has applied to the Tribunal for review of a reviewable decision made on 27 March 2000 under s165(5) of the Fisheries Management Act 1991 (Cth) (“the FM Act”) by a delegate of the Australian Fisheries Management Authority (“AFMA”) (“the respondent”). That reviewable decision in terms “reaffirmed” a decision of another delegate of the respondent, dated 1 November 1999, to refuse to grant a fishing permit, under s32 of the FM Act, to each of the applicant and South Coast Fishing Co Pty Ltd in respect of Zone B of the Commonwealth Jack Mackerel Fishery.
2. At the hearing the applicant was represented by Mr P Ward, Lawyer, and the respondent was represented by Mr M Ritter of counsel. The Tribunal had before it the documents (“T documents”, T1-T39, pp1-313) lodged by the respondent in accordance with s37 of the Administrative Appeals Tribunal Act 1975(Cth) and the following documentary exhibits tendered in evidence by the parties:
· statement of evidence of Robin Green, dated 2 April 2001 (A1);
· bundle of documents (comprising 98 pages) filed by the applicant on 26 July 2000 (A2);
· map of Small Pelagics Fishery Management Zones (R1);
· map of Great Australian Bight Trawl Fishery (R2);
· map of AFMA Fishery Management Areas (R3);
·Fishing Boat Licence No 1946 issued by Fisheries Western Australia under the Fish Resources Management Act 1994 (WA) to Robin Ray Green for the boat “Portofino I”, dated 11 January 2001 (R4);
·Fishing Boat Licence No 1931 issued by Fisheries Western Australia under the Fish Resources Management Act 1994 (WA) to South Coast Fishing Co Pty Ltd for the boat “Kiama II”, dated 5 January 2001 (R5);
·letter from Greg Parkin, Senior Legal Officer, AFMA to Robin Green, dated 23 February 2001 (R6);
·Fishing Permit No 61126A issued by AFMA under the Fisheries Management Act 1991 (Cth) to Robin R Green for the boat “Kiama II”, dated 28 March 2002 (R7);
·Great Australian Bight Trawl Fishery Log No 297 for the boat “Kiama II”, dated 25 April 2002 (R8);
·outline of evidence of Dr D Alden, dated 22 April 2003, including Attachments A-H2 (comprising 248 pages) (R9);
·document headed “SPF Permits, Zones & Methods” (R10);
·extract of Minutes of Meeting of the Board of AFMA held on 3 and 4 April 2003 (R11);
·bundle of documents, comprising documents 1-6, filed by the respondent on 10 August 2001 (R12);
·statement of Dr P Young, dated 6 November 2001, including bibliography and curriculum vitae (R13);
·document headed “Catches for Zone B of the Jack Mackerel/Small Pelagic Fishery” for the years 1996-2002 (R14).
Oral evidence was given by the applicant, and by Dr D Alden and Dr P Young (who were called by the respondent).
The Factual Background
3. The following account of the factual background of this matter is based on a chronology of relevant events set out in the respondent’s Statement of Facts and Contentions, dated 22 April 2003, and relevant documentation in the T documents.
4. In November 1987 a document entitled “A Development Plan for the South Coast Inshore Trawl Fishery” (Fisheries Management Paper No 13) was published by the Fisheries Department of Western Australia. The Introduction to that paper contains the following background information:
“In March 1986 discussions were commenced between officers of the Fisheries Department and the Australian Fisheries Service concerning management measures for a trawl fishery in the Great Australian Bight. These measures were considered necessary as a Western Australian Company … had commenced fishing the area. Given the excess fishing capacity in other Australian trawl fisheries it was considered advisable to institute management at an early stage and control development of this deep water fishery.
Concurrent with these developments, mainly directed towards the control of larger trawlers in deeper waters, several small Western Australian trawlers operating out of Esperance and Albany had discovered promising beds of saucer scallops, especially within the Recherche Archipelago. The inshore trawl fishery generally had also been identified as a potential developing fishery by the Western Australian Fishing Industry Council during its meeting in Mandurah in April 1986. Thus as part of the development strategy for this fishery the Minister for Fisheries, the Hon J. F. Grill, MLA, endorsed a strategy to develop the inshore and deepwater offshore trawl fisheries as two separate fisheries.
As a consequence of the discovery of the south coast scallop resource, considerable interest was developing amongst Western Australian fishermen to exploit this resource. Noting the imminent release of a Commonwealth development plan for the offshore area and the trawling interest in the inshore fishery, the Western Australian Minister for Fisheries introduced a Notice to control trawling in State waters east of Cape Leeuwin. It was thought prudent to issue a Notice for this inshore area rather than a media release to discourage other owners from expending money to gear up their vessels to trawl because historically fishermen have shown they are willing to gamble on being given access to a fishery under consideration for management on the basis that they have spent money equipping their vessels, notwithstanding that a warning had been issued for them not to do so.
The Minister for Fisheries therefore approved a Notice that limited access to trawl fisheries in State waters on the south coast east of 115°E longitude. He issued a media statement on 1 July 1986 advising that a development plan was being considered and that trawling would be limited to those boats currently using trawl gear in this area, while development management arrangements were being finalised. (Attachment 1). The media statement issue date of 1 July 1986 was taken as the benchmark date for eligibility to obtain an interim endorsement. Eleven vessels were judged eligible for endorsement enabling them to trawl in State waters east of 115°E longitude.
On 15 September 1986, a joint Ministerial media statement by the Commonwealth, Western Australian and South Australian Ministers responsible for Fisheries announced the release of the Great Australian Bight Trawl Fishery Development Plan (Attachment 2). This Development Plan divided the Bight region into three zones (see map). Zone B, the inshore zone off Western Australia, would come under State jurisdiction and management while the Commonwealth would manage Zone A. Successful applicants for Zone A were announced by the Ministers on 18 May 1987 (Attachment 3) and the regime for that zone came into effect on 10 July 1987.
Effective management for the whole of Zone B awaits a formal agreement under the Offshore Constitutional Settlement (OCS) with the Commonwealth for jurisdiction to be transferred to Western Australia over demersal trawling inside the 200 metre isobath. In the interim, the Notice concerning trawling in State waters within Zone B confers effective control over this activity east of Cape Leeuwin. Negotiations to accomplish an OCS agreement are still underway. …” (Attachments omitted)
(T16, pp 87 - 88, 91 - 92, T22, pp 206 - 207)
5. Following the abovementioned media statement issued by the Western Australian Minister for Fisheries on 1 July 1986, the Director of the Fisheries Department (WA) wrote to the applicant, by letter dated 13 August 1986, requesting him to forward his current Fishing Boat Licence for the boat “Helen M” to the Department in order that the appropriate endorsement could be placed thereon permitting him to continue to fish in State waters off the south coast of Western Australia, until the relevant development management plan was adopted. (T16, p 80) The applicant’s Fishing Boat Licence was subsequently endorsed accordingly. (T22, p 198)
6. On 18 May 1987 the Commonwealth Minister for Primary Industry issued a media release regarding the “Great Australian Bight Trawl Fishery Development Plan”. That media release stated:
“Fourteen trawlers will be permitted to fish the deep water and central trawling grounds of the Great Australian Bight under a new development plan for the area.
The plan was jointly announced today by the Commonwealth Minister for Primary Industry, Mr John Kerin, the Western Australian Minister for Fisheries, Mr Julian Grill, and the South Australian Minister for Fisheries, Mr Kym Mayes.
The Ministers said an area from Cape Leeuwin off the south-west tip of Western Australia to Kangaroo Island off South Australia would be closed to all trawling except by those fishing vessels with appropriately endorsed Commonwealth fishing licences.
The Commonwealth licences would be issued in accordance with the Great Australian Bight Trawl Fishery Development Plan which was announced in September 1986.
The Ministers said a great deal of interest had been shown in the development of the fishery and a large number of applications for licences had been received.
‘The interest in the development of this fishery is part of a general revival within the Australian fishing industry and reflects well for the future prospects of the industry as a whole’, they said.”
The media release then named 6 “operators” to whom unrestricted access to “Sector A” of the Fishery would be granted, and 3 “operators” to whom restricted access to “Sector A” would be granted, and continued:
“The Ministers said that vessels authorised to fish in Sector A would be required to complete logbooks and supply all data on their activities to the Australian Fisheries Service. Their licences would be issued initially for one year with the possibility of an extension for a further year dependent on the development of the fishery. The licenses would not be transferable.
The area indicated as Sector B on the attached map would be managed separately by the Western Australian Government and applications for fishing in this area would be referred to the Western Australian authorities.
No trawling for fish would be permitted in the area designated as Sector C.”
(T22, pp 208 - 209)
7. On 28 October 1987 a Fisheries Notice by the Western Australian Minister for Fisheries was published in the Government Gazette. That Notice relevantly stated:
“…
12. A fishing boat, unless so authorised in writing by a licensing officer, shall not be used and a person shall not permit or suffer a boat to be used to operate a trawl net in Western Australian waters on the south coast of the State east of 115° East longitude.
13. (FD 81/46. A fishing boat unless so authorised in writing by a Licensing Officer shall not be used and a person shall not permit or suffer a boat to be used to take fish by means of a trawl net in all Western Australian waters lying south of latitude 21° South but excluding those Western Australian waters east of longitude 115°08’ East on the south coast of Western Australia.
…”.
8. The Commonwealth Jack Mackerel Fishery (“JMF”) was subsequently established, and, since March 2002, it has been known as the Commonwealth Small Pelagic Fishery (“SPF”). The JMF/SPF includes waters within the Australian Fishing Zone (“AFZ”) – excluding “State waters”, namely, waters within 3 nautical miles of the territorial base line – extending south of latitude 31° S off the coasts of Western Australia, South Australia, Victoria, Tasmania and New South Wales, north to latitude 28°10’ S off the coast of Queensland. For the purpose of managing the JMF it was agreed between the Commonwealth and the States that it be divided into 4 zones. In general terms, Zone A included the waters off the east and south coasts of Tasmania, Zone B included the waters off the coasts of Western Australia and South Australia from latitude 31° S to Kangaroo Island, Zone C included the waters off the coasts of South Australia, Victoria, and north-eastern Tasmania from Kangaroo Island to the middle of Bass Strait, and Zone D included the waters off the coast of Victoria, New South Wales and Queensland from the middle of Bass Strait to latitude 28°10’ S.
9. The development of the JMF was outlined in an AFMA Internal Minute dated 21 December 1999 as follows:
“In April 1992, Registrations of Interest (ROI) in the Jack Mackerel Purse Seine and Mid-Water Trawl Fishery in Commonwealth waters were called, and operators wanting to operate in Commonwealth waters of the Jack Mackerel Fishery were invited to register with AFMA by 30 May 1992. It is understood that the call for expressions of interest was made to existing Commonwealth Fishing Boat Licence (CFBL) holders. In addition, in November 1992, an advertisement was placed in The Australian newspaper notifying that the closing date for registrations had been extended to 31 December 1992.
At the 41st Meeting of the AFMA Board held on 15 February 1996, the Board agreed to terminate the Jack Mackerel ROI. The Board also decided that once the Register was terminated no new or additional access would be granted (Attachment 4).
To achieve the termination of the Register of Interest, AFMA management recommended that all those who were entered on the Register be given the opportunity to take up their interest in the fishery, and pay the appropriate levies and fees, or be deemed to have abandoned their interest and have no further guaranteed access rights to the fishery.
On 1 March 1996, an AFMA letter was sent via certified mail to all persons on the Register of Interest, to advise that the Jack Mackerel ROI would be terminated on 1 October 1996 (Attachment 5). An article was also placed in the September 1996 edition of Professional Fisherman, advising of the termination (Attachment 6).
On 4 September 1996, another letter was sent via certified mail to all persons on the ROI reminding them that the ROI was to be terminated on 1 October 1996 (Attachment 7). It also advised that after 1 October 1996, Fishing Permit holders would not have any guaranteed access to any of the zones of the fishery other than the zones specified on their Jack Mackerel permits that they held on that date. The letter advised that any operators who wished to apply for access to additional zones of the fishery were required to do so before 1 October 1996.
Current management arrangements include a variety of jurisdictional arrangements, which in themselves complicate management of the fishery. In Zone B which lies adjacent to the south western and southern areas of Western Australia, the State of Western Australia has jurisdiction for fishing for all species other than jack mackerel using the trawl method within an area between 31°00’ south, south and eastward to 125°00’ east in a band between the high water mark extending seaward to the 200 metre isobath (Attachment 8).” (Attachments omitted)
(T19, p 167)
10. On 18 May 1999 an Order made under the Fish Resources Management Act 1994 (WA) by the Western Australian Minister for Fisheries was published in the Government Gazette. That Order, which was dated 17 May 1999, prohibited fishing for blue mackerel for a commercial purpose. (T16, p 135)
11. On 5 October 1999 two applications – one in the name of the applicant, the other in the name of South Coast Fishing Co Pty Ltd – for fishing permits for the JMF were lodged with AFMA by the applicant.
12. On 1 November 1999 a delegate of AFMA decided not to grant the abovementioned applications for fishing permits for the JMF. (T14, pp 44 - 45)
13. By letter dated 18 November 1999 the applicant requested AFMA to reconsider the delegate’s decision of 1 November 1999. (T1, pp 1 - 2)
14. On 27 March 2000 another delegate of AFMA decided to “reaffirm” the decision of 1 November 1999 not to grant the abovementioned applications for fishing permits for the JMF. (T38, pp 310 - 311)
15. On 18 April 2000 the applicant lodged with the Tribunal an application for review of the “reviewable decision” dated 27 March 2000.
The Applicant’s Evidence
16. The applicant, who described his occupation as fisherman, confirmed that he had produced a statement of evidence and he verified the contents of that statement. The applicant’s statement of evidence, dated 2 April 2001, is as follows:
“1.In about 1985 after the loss of access to Tuna resulting from the non viable quota allocations provided by AFMA I moved into trawling and my range was from 115.00E (Cape Leeuwin) to 129.00E (Eucla).
2.At that time I fished both within and beyond 3 miles from shore and held a Commonwealth licence to enable me to fish beyond the three mile State limit.
3.I actually trawled over grounds to about 117.00E mainly for scallops but I undertook some bottom fish trawling at 117.00E and had obtained fishing records from British United Trawlers (B.U.T.) which was a trawling venture which had been based in Albany and which had fished extensively in the Great Australian Bight but which no longer operated. This is how I first gained information about the known trawl grounds in the vicinity of 117.00E
4.By arrangement between the Commonwealth and Western and South Australian Governments the Great Australian Bight Trawl Fishery was established. It extended from 115.00E to 139.00E and was divided into 3 Zones.
5.Applications for endorsements to operate in the newly created GABTF were called and I applied but by letter dated 26/6/1987 I was advised by the Commonwealth DPI that my application had been refused.
6.The letter advising of the refusal acknowledges my fishing history in the area but refers to an alleged lack of demonstration by me of an ‘ongoing intention or commitment to trawling in sector A’ (of the GABTF).
7.I was based at Albany, operated a relatively small trawler and had a relatively small fishing operation which ranged along the entire B Zone of the newly created GABTF and into the westernmost part of that part of the A Zone which lies between the coast and the 200 metre line. It represented the extreme eastern limit of my range and was fished in good weather because my home Port was Albany and return to Albany required my vessel to steam into the bad weather rather than run with it.
8.The GABTF was a developmental fishery as is recognised in the letter of refusal and that being the case it is difficult to see that any participant could give a commitment to the GABTF. All fishing operations are ultimately driven by commercial considerations and the most strongly expressed commitments must be taken to be qualified by considerations of viability. It was the viability of the fishery which would determine the commitment of the fisherman.
9.The decision to exclude me from the A Zone had two material consequences:
(a)I applied for and obtained a Sector B permit. Sector B was by agreement between Governments managed by the State Fisheries Department and included both State and Commonwealth waters.
(b)I was prevented from ranging east of 125.00E which is the easternmost boundary of sector B.
10.I appealed the decision to effectively take from me that part of my customary trawling range between 125.00E and 129.00E (which represents 240 miles of longitude) and which included half of my scallop trawling grounds.
11.The appeal was won by me and entry to that fishery was granted. Thus my permitted range again extended to 129.00E. However I lost my access to sector A because I was unable to meet the ongoing commitment criteria of at least 75 days fishing in that sector.
12.My fishing effort was based substantially within sector B and my presence in that sector was disregarded for the purpose of qualifying to continue to hold my newly retained right to again fish to the easternmost limit of my range. I lost it, defeated by the cartographer’s pencil and the bureaucrat’s classification.
13.The licences which I had permitted me to fish by trawl for all species of fish (Including Blue Mackerel) within sector B.
14.In 1994 a species fishery known as the Jack Mackerel Fishery was established. It is more extensive than the GABTF as it extends, at least at its western limit beyond 115.00E (Cape Leeuwin) and turns north along the West Coast of Australia to approximately Fremantle.
15.The Jack Mackerel Fishery is divided into 2 Zones, being A and B. The B sector extends from Fremantle around Cape Leeuwin and eastward to 139.00E (which coincides with the eastern limit of the A and C sectors of the GABTF).
16.The Jack Mackerel Fishery (JMF) is a Commonwealth Fishery which consists of 5 species of small pelagic mackerel.
17.Jack Mackerel was not an expression known to Western Australian fishermen but small mackerel were generally regarded as a very low value fish. There is an abundance of Blue Mackerel in the waters off Albany.
18.The ‘fishery’ was created by calling for expressions of interest from fishermen for inclusion on a Register of Interest. Many fishermen with A sector SFRs applied for inclusion on the register and were subsequently granted Jack Mackerel Fishery concessions. This occurred without any demonstration whatsoever of commitment to that species fishery either initially or subsequently.
19.I did not notice the proposal to create a Jack Mackerel Fishery. I did not know what a Jack Mackerel was and at that time had no interest in targeting small Mackerel and did not receive correspondence about it from AFMA or from the State fisheries.
20.Even if I had been made aware of what later emerged to be the significance for me of inclusion on the Register of Interest it is doubtful that I would have acted because eligibility for the register was expressed to be available only to Commonwealth SFR holders of which I was not one because my trawl sector was B sector which was managed by the State, not Commonwealth, fisheries.
21.I already held a concession from the B sector manager to fish for all species and would have thought it unlikely that my entitlement would be diminished.
22.By notice dated the 15/5/1999 published in the Government Gazette the State Fisheries manager of the B sector of the GABTF prohibited the taking Blue Mackerel by State licence holders and at about that time but in any event without notice of the prohibition I [brought] Jack Mackerel (Blue Mackerel) ashore for sale and thus the fact of my interest in Jack Mackerel became known to the authorities when a catch was seized in July 1999.
23.Blue Mackerel are one of the species of small mackerel which are collectively known as Jack Mackerel and are in abundance in GABTF sector B but apparently not so in other sectors of the GABTF.
24.My interest in Blue Mackerel arose in the context of the realisation that fish caught close to Port and kept on ice for no more than a couple of days were of a higher quality than those kept for longer periods of time and kept frozen. The GABTF zone A boats operate many days from port and are freezer, not ice-based, boats.
25.The facts in 23 above opened the potential for a Blue Mackerel industry based on human consumption of those fish to be seriously considered. The fact that the fish would always be low value fish even for human consumption limits the extent to which they will be targeted by trawlers, if at all.
26.The collapse of the pilchard fishery in the GABTF area resulted in substitute fish being sought as food for aquaculture ranchers and for bait and pet food and in that context I landed Blue Mackerel which I had caught as a by-catch. I landed them rather than dump them at sea to be wasted.
27.I have been a bottom trawler but caught midwater species by winching my bottom trawl net up through midwater soundings of schools of fish and that resulted in discovering the Skipjacks or Trevally fishery which is now my target species. I have converted my trawlers and gear specifically to midwater trawling and have converted my boats to ice rather than freezer in order to produce a higher quality product rendered possible because my fishing method is now to range only a couple of days from port.
28.There are Jack Mackerel permits attached to boats permitted to operate in the B sector of the GABTF and so far as is known they are all restricted to the fishing method known as Purse Seining which is a method which has not proved to be successful in taking Blue Mackerel (for the reason that the schools swim too fast). There are no permits issued to B sector trawlers, for the taking of Blue Mackerel by the trawl method, that I am aware of.
29.AFMA records show that there are Jack Mackerel permits issued to GABTF A sector boats (it will be remembered, without history in the fishery and without the need to show ongoing commitment to that fishery) and while the B zone of the Jack Mackerel Fishery is co-extensive in space with the B sector of the GABTF in which I am authorised to operate, the A sector trawlers with their JMF concessions are unable to engage in fishing in the B sector of the GABTF.
30.For the reasons identified in 29 there is no effective latent effort in the hands of A sector GABTF vessels which can be brought into production in the B sector of that fishery and it is an error of reasoning to conclude otherwise.
31.It follows from 29 and 30 that any reason for refusal of my application based on considerations of the latent Jack Mackerel Fishery effort for the B zone of the JMF in the hands of A zone GABTF trawlers is flawed.
32.The existing latent effort for the area of water which is concurrent with both the B sector of the JMF and the B zone of the GABTF is limited to purse seiners and that is an inappropriate fishing method for taking Blue Mackerel.
33.If AFMA is concerned about the latent effort in the hands of the purse seiners who happen to operate in the B sector of the GABTF that latent effort may be controlled by a requirement to show a commitment to the fishery over several years past as a condition for retaining the JMF concession.
34.There is no Jack Mackerel Fishery being exploited by fishermen in the B zone of the GABTF so far as I am aware as the purse seiners can’t catch them and the B zone trawlers don’t catch them, apart from me and that is because I trawl midwater. They are caught as a by-catch and are wasted when following collapse of the pilchard fishery (through disease it seems) there seems to exist a fledgling market for Blue Mackerel as bait and also the potential for a market for low value fish for human consumption of Mackerel returned to port in good condition seems to exist.
35.I am aware from my own experience as a fisherman and from early literature that these fish are in abundance in the area. That is why I catch them as a substantial by-catch.” (original emphasis)
(Exhibit A1) In his oral evidence the applicant corrected some errors in his written statement of evidence, namely:
· the reference to “AFMA” in para 1 should be to the Australian Fisheries Service within the Department of Primary Industry (“DPI”);
· the reference to “Sector A” (twice appearing) in para 9(a) should be to Sector B; and
· the statement, “the B zone of the Jack Mackerel Fishery is co-extensive in space with the B sector of the GABTF …”, which appears in para 29, is incorrect; in fact, the area of Sector B of the GABTF falls wholly within the area of Zone B of the JMF and comprises merely a small part of the latter area.
17. In his oral evidence-in-chief the applicant spoke of his wish to be given the opportunity to develop a market for the export, principally to Japan, of Blue Mackerel prepared for human consumption.
18. The applicant said that he does not “fish trawl” in State waters – that is, within 3 nautical miles of the coastline. He said that he usually fish trawls between the 100 metre and 200 metre isobaths up to 60 - 80 nautical miles off the coast, and his target fish species is Trevally. He said that although his target is Trevally, he inevitably also catches (as a “by-catch”) substantial quantities of Mackerel which are the same size as Trevally and swim together with Trevally in schools. He said that the Mackerel, when caught, do not live very long and, because he is presently not permitted to land them, he dumps them (mostly already dead) overboard at sea.
19. The applicant said that there are presently 4 trawlers operating in his area, namely, the area formerly described as Sector B of the GABTF, although one operator concentrates on scallops rather than fish trawling. He said (referring to Blue Mackerel) that in that area there are “plenty of fish … thousands of tonnes”.
20. The applicant said that he now also has a Commonwealth Fishing Permit for Zone B of the SPF, and has “borrowed” another Permit. He said, however, that a single Fishing Permit was not sufficient to ensure continuity of supply of Blue Mackerel to a processor for export purposes. Finally, he confirmed that he was the only trawl fisherman presently capable of catching Jack Mackerel in his fishing sector.
21. In cross-examination, the applicant confirmed that he presently has 2 State Fishing Boat Licences – one for the boat “Portofino I”, the other for the boat “Kiama II” – which authorise him to operate trawl nets off the south coast of Western Australia east of 115° E longitude. Copies of those licences were tendered in evidence by the respondent (Exhibits R4 and R5). He also confirmed that those licences authorise him to fish trawl in the area up to the 200 metre isobath formerly described as Sector B in the GABTF.
22. The applicant was referred to an incident in July 1999 when his catch of Blue Mackerel was officially seized by the authorities on landing (see para 22 of the applicant’s statement of evidence in paragraph 16 above). He said that since that incident he has not targeted Blue Mackerel although Blue Mackerel continue to be a “component” of his total catch. He added that the Blue Mackerel he has since caught have not been “commercially used”.
23. The applicant also confirmed that he presently holds, in his name, a Commonwealth Fishing Permit for Zone B of the SPF. That Permit (No 61126A) was transferred to him by another holder in March 2002, and was initially designated for use in respect of his boat “Kiama II” but was subsequently, in August 2002, designated for use in respect of his boat “Portofino I” (Exhibit R9, pp 242 - 248; Exhibit R7). That Permit authorises the applicant to engage in commercial fishing by the mid-water trawl method in the nominated boat in Zone B of the JMF/SPF, subject to a condition which, in effect, limits his authority to fish to that part of Zone B which is covered by his State Fishing Boat Licence – namely, the area formerly described as Sector B of the GABTF. The applicant also confirmed that there is a pending transfer to him of another Commonwealth Fishing Permit authorising mid-water trawling in Zone B of the SPF, but he added that, under the relevant agreement between him and the transferor, that Permit will be returnable on demand. He also confirmed that the present Application for Review relates to 2 additional Permits for which he has applied to AFMA and that he would like to have a total of 4 Permits for use in respect of 4 nominated boats in Zone B of the SPF.
24. The applicant acknowledged that he was aware that there are a lot of existing Permits for Zone B of the SPF that are either not being used at all or are not being used to their maximum capacity (“latent effort”).
25. The applicant also acknowledged that, although he has considerable practical experience, he does not have scientific knowledge or expertise regarding the effect of fishing in one Zone of the SPF on fish stocks in other Zones of the SPF.
26. The applicant was referred to a report by the Bureau of Rural Sciences within the Commonwealth Department of Agriculture, Fisheries and Forestry entitled “A review of biology and fisheries for mackerel” (2001) (Pt of Exhibit R9) wherein it is stated (at p 73):
“Large modern purse seiners have the ability to rapidly remove large quantities (several hundred tonnes per day) of small pelagic fish from localised areas. Fishery managers need to carefully control purse seine activities to avoid depletion and flown-on effects on other fisheries.”
The applicant said that he did not disagree with that statement.
27. The applicant was referred to his statement of evidence (Exhibit A1 – set out in paragraph 16 above). He said that the fishing licences referred to in paras 2 and 13 of his statement were 2 Commonwealth licences, one of which had been issued to him and the other to South Coast Fishing Co Pty Ltd. He said, however, that he lost those licences in 1987 after the establishment of the GABTF. [The Tribunal infers that South Coast Fishing Co Pty Ltd is a company controlled by the applicant.]
28. The applicant was next referred to the following passage from the AFMA Internal Minute dated 21 December 1999 (T19, p 167 – set out in paragraph 9 above):
“In April 1992, Registrations of Interest (ROI) in the Jack Mackerel Purse Seine and Mid-Water Trawl Fishery in Commonwealth waters were called, and operators wanting to operate in Commonwealth waters of the Jack Mackerel Fishery were invited to register with AFMA by 30 May 1992. It is understood that the call for expressions of interest was made to existing Commonwealth Fishing Boat Licence (CFBL) holders. In addition, in November 1992, an advertisement was placed in The Australian newspaper notifying that the closing date for registrations had been extended to 31 December 1992.”
The applicant confirmed that in 1992 he did not hold a Commonwealth Fishing Boat Licence and he was not aware of the relevant advertisement in The Australian newspaper; nor was he otherwise contacted by AFMA at that time regarding that matter. He added that he was then not familiar with the name “Jack Mackerel”. Accordingly, he did not express or register an interest in the JMF with AFMA before the closure of the Register on 31 December 1992.
The Evidence of Dr D Alden
29. Dr Alden confirmed that he had prepared a statement of evidence, dated 22 April 2003, for the purpose of the present proceedings and he verified the contents of that statement. The contents of that statement (incorporating minor amendments made in the course of Dr Alden’s oral evidence) are as follows:
“…
Position and qualifications
1.In 1985 I completed a joint Bachelor of Arts degree with upper Second Class Honours in Biology and Economics at the University of Keele in the UK. In 1987 I completed a Master of Science in Management Science at the University of Manchester Institute of Science and Technology in the UK. My dissertation analysed the factors impacting on the profitability of fishing vessel owners in Grimsby, UK. In 1992 I took a Doctorate in Economics from the University of Keele. My thesis examined the relative impacts of an enhanced greenhouse effect induced climate change and trade liberalisation on world agricultural commodity markets.
2.I have held the position of Lecturer at the University of Keele 1988-1992 and the University of Melbourne 1992-1997. I lectured and researched in the areas of natural resource management and environmental economics and ecological economics.
3.In 1997 I commenced working for AFMA as a Senior Management Officer in the South East Trawl fishery. In 1999 I was appointed to the position of Manager of the Scallop, Squid, Coral Sea and External Territories Fisheries. Since April 2002 I have been the Manager of the Small Pelagic Fishery (SPF) and the Eastern Tuna and Billfish Fishery. In this role I have day-to-day management responsibility for the SPF.
4.As a senior AFMA fisheries manager I am fully cognisant of and consistently have regard to the objectives that AFMA is required to pursue in the performance of its functions. Section 3 of the Fisheries Management Act 1991 (the FM Act), in relevant part, provides:
(1) The following objectives must be pursued by the Minister in the administration of this Act and by AFMA in the performance of its functions:
(a)implementing efficient and cost-effective fisheries management on behalf of the Commonwealth; and
(b)ensuring that exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development and the exercise of the precautionary principle, in particular the need to have regard to the impact of fishing activities on non-target species and the long term sustainability of the marine environment; and
(c)maximising economic efficiency in the exploitation of fisheries resources; and
(d)ensuring accountability to the fishing industry and to the Australian community in AFMA’s management of fisheries resources; and
(e)achieving government targets in relation to the recovery of the costs of AFMA.
(2) In addition to the objectives mentioned in subsection (1), or in section 78 of this Act, the Minister, AFMA and Joint Authorities are to have regard to the objectives of:
(a)ensuring, through proper conservation and management measures, that the living resources of the AFZ are not endangered by over-exploitation; and
(b)achieving the optimum utilisation of the living resources of the AFZ;…
The need for management of fisheries resources
5.Until as late as the 1970s, fish stocks throughout the world were considered to be inexhaustible and most fisheries had ‘open access’ management arrangements; that is, anyone had the right to fish from the stock. Prior to the declaration of 200 nautical mile exclusive economic zones by most countries in the late 1970s, anyone, regardless of nationality, had access to most of the world’s fish stocks as few were contained within national boundaries. Even though the declaration of exclusive economic zones restricted access to most fish stocks to citizens of the various coastal states, within the zones there was often open access for those citizens.
6.More recently it has become clear that fisheries resources are not inexhaustible. Like any animal population, fish stocks cannot withstand ever-increasing levels of exploitation. As more and more fish are harvested, the ability of fish stocks to regenerate becomes problematic. At some point, increases in current harvests come at the expense of lower harvests in the future, and fishing takes place at an ultimately unsustainable rate; that is, ‘over-fishing’ occurs.
7.It has been recognised that the principal cause of over-fishing has been that, historically, individual harvesters have often been given ill-defined or weak rights of access to fish resources in the sense that they have not been provided with an exclusive use right to the resource. Also, fisheries management agencies have generally issued too many licences in the initial development stage of a fishery because there has been a tendency to base the initial number of licences on the number of operators in the fishery at the time the licensing regime is introduced.
8.The weakest form of access right occurs in an open access situation, where anyone may fish for the resource. Apart from the vagaries of the weather, a farmer can be reasonably certain that any crop left unharvested today will still be available tomorrow. By contrast, each operator who catches fish from a stock to which many others have access has a good reason to take as much as possible, as quickly as possible. If someone decides to leave some fish unharvested today in order to take them tomorrow, they have no assurance that they will be there tomorrow as long as others can take them in the meantime. Each operator has an incentive to take part in what has come to be known as the ‘race for the fish’.
9.Fishers invest in vessels and vessel improvements aimed at giving them a competitive advantage in the race. For example, investments may be in larger, faster vessels with greater fish storage capacity or with the ability to set more fishing gear per day. Operators, individually acting in an economically rational manner to try to increase their share of the available catch, collectively produce an economically irrational outcome: too much investment in harvesting capacity (often referred to as over-capitalisation, excess fishing effort, or over-investment), which leads to economic inefficiency and the consequent waste of scarce resources used to harvest fish.
10.The development of additional harvesting capacity also places increased pressure on fish stocks, sometimes resulting in fishery or stock collapse and consequent economic and social dislocation.
11.During the 1980s fisheries management agencies worldwide had frequently been focused on crisis management following an explosion in effort and catch in a fishery that threatened fishery and stock collapse. The FM Act was intended to usher in a new approach to fisheries management. The principal aim of this new approach was the prevention of overcapitalisation and the consequent over-exploitation of fisheries resources.
12.In managing fisheries, it is commonly accepted that a precautionary approach to allowing increases in fishing effort is necessary to give effect to the precautionary principle. The FAO [Food and Agriculture Organization of the United Nations] has recently published its Technical Guidelines for Responsible Fisheries 2: Precautionary Approach to Capture Fisheries and Species Introductions [1996], which considers the exercise of the precautionary principle in the context of fisheries management and the adoption of a precautionary approach. A true copy of extracts from this publication, (being the cover pages, Contents and pages 1 to 16) are attached and marked ‘A’.
13.At page 10 (paragraph 28) of the publication it is noted that ‘To be precautionary, priority should be accorded to restoration of already overfished stocks, to avoidance of over-fishing, and to avoidance of excess harvesting capacity’ (my emphasis). At page 13 (paragraph 47), in relation to ‘new or still-developing fisheries’ the point is made that ‘An open access fishery is not precautionary’.
Limited entry: a necessary first step in management of fisheries resources
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 Organization (‘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 has been dubbed the “Tragedy of the 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 the objectives to be pursued in the administration of the FM Act and by AFMA in the performance of its functions (FM Act s3(1)(b)). The FM Act provides in section 4(1) that the precautionary principle has the same meaning as 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, serious 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 the 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 measures.’ 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 1) 1999 (No 143, 1999), provides that s 3(2)(c) is to be inserted in the 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.
The Applicant’s application for permits
24.The respondent understands the applicant’s application to be for two permits in Zone B of the former Jack Mackerel Fishery (‘JMF’). Since March 2002, the JMF became known as the Commonwealth Small Pelagic Fishery (‘SPF’) and, accordingly, the respondent now considers the application herein to be for two permits in Zone B of the SPF. Further below I discuss the establishment of the SPF.
SPF Fishery and Stocks
25. Very briefly, the SPF (and the former JMF):
a.includes waters within the Australian Fishing Zone off the coast of Western Australia south of latitude 31° degrees South, off the South Australian, Victorian, Tasmanian and New South Wales coasts, and off the Queensland coast south of latitude 28°10’ South (refer T3). Those waters do not include ‘State waters’, that is, the first three nautical miles to sea;
b.comprises the following ‘target species’ of jack mackerels – greenback jack mackerel (Trachus declivis), Peruvian jack mackerel (T. symmetricus), yellowtail jack mackerel (T. novaezelandiae); blue or slimy mackerel (Scomber australasicus) and redbait (Emmelichthys nitidus); and
c.is divided into management Zones A to D, with management arrangements in Zones B, C and D of the SPF relying on precautionary ‘Trigger’ TCLs (total catch limits) which, if reached, would initiate a management review of the fishery. Revised management arrangements for Zone A of the SPF are currently being developed by the Commonwealth and Tasmania.
26.While the SPF (and the former JMF) are the same fisheries, in this Outline of Evidence, when referring to the JMF I am referring to the fishery prior to March 2002.
27.At present the stock status of species harvested within the SPF is uncertain. Catches in Zone A have consistently declined since their peak of more than 35,000t in the mid to late eighties to a catch of 4,782t during the 2001/2002 financial year. Some biological and stock information has been gathered mostly by scientists in Tasmania although insufficient information exists to allow reliable estimation of biomass or sustainable harvest. Outside Zone A catches have been relatively small. For example, in Zone B annual catches by Commonwealth fishers have varied between 0 and 5 tonnes per year over the last decade. Catches in Zones B – D have not exhibited any trends that are significant for the purposes of fishery assessment. [cf Exhibit R14 referred to in paragraph 35 (below) of the Tribunal’s reasons.]
28.In an effort to assist Government with management of the JMF in the face of uncertainty regarding JMF stocks, the Bureau of Rural Sciences was asked to review existing small pelagic fisheries elsewhere in the world and compare these with the JMF in an effort to identify the most appropriate management approach. Given that the JMF and SPF are the same fisheries, the main outcomes of this report apply equally to the SPF and are discussed later in this document.
Development of Management Policy for the JMF
29.The history concerning the JMF (prior to the SPF) is outlined in the Section 37 statement and in documents attached thereto. In particular, I refer to paragraphs 3 to 6 of the section 37 statement and the documents referred to within those paragraphs.
30.As outlined in the section 37 statement, from at least 1994, access to the JMF was limited to those whose names were on a Jack Mackerel Register of Interest maintained by AFMA.
31.At a meeting of the Board of the AFMA held on 15 February 1996, (see Document No 2 of the Respondent’s Relevant Documents discovered on 8 August 2001 [Exhibit R12]), the Board approved, amongst other things, the termination of the Jack Mackerel Register of Interest and the sending of the draft letter to those on the Register of Interest concerning the termination of the Register of Interest. Copies of the letters that were sent to those persons on the Jack Mackerel Register are T9 and T10. At that meeting, the Board also decided that once the Register was terminated, no new or additional access would be granted.
32.In addition to writing to all on the Jack Mackerel Register, AFMA also published an article in the September 1996 edition of the Professional Fisherman magazine (see T11) advising of the closure of the Register on October 1, 1996.
33.Limiting access to the JMF to those operators holding a permit as at 1 October 1996 was seen at the time as a means of encouraging development within the fishery whilst maintaining control on fishing capacity through the use of limited access as an input control. The key elements of this policy established a limited entry framework within four internal zones with a Total Allowable Catch for one of these zones (Zone A) and TCLs in the other three zones (B,C and D) to provide controlled expansion and timely review of fishery dependent information. As mentioned above, TCLs are a precautionary measure which, if reached, would initiate a management review of the fishery.
Management arrangement for the JMF
34.Management arrangements in the JMF included, inter alia:
·Delineation of the species and the permitted methods of harvest;
·Delineation of the Fishery area and four distinct management areas therein;
·Limited number of permits for access to these species using prescribed methods within prescribed areas;
·Total Allowable Catch limit in Zone A and trigger catch limits in Zones B,C & D.
35.These management arrangements were established following recommendations by the then Jack Mackerel Working Group (JMWG) of the Standing Committee on Fisheries (SCF): (T5). The Standing Committee and the newly formed AFMA Board endorsed this approach. Permit conditions under the Fisheries Management Act 1991 implemented these interim management arrangements. When implemented these arrangements represented a precautionary approach to management of this fishery in the face of uncertainty regarding sustainable harvest levels for various stocks.
Latent effort
36.The meaning and significance of latent effort in a new or developing fishery such as the JMF/SPF are discussed in the Statement of Dr Peter Young dated 6 November 2001 [Exhibit R13]. Briefly, the term ‘latent effort’ refers to the potential increase in fishing that could take place if those operators holding an entitlement to fish, who are not utilising, or who are under-utilising, that entitlement, began to fully utilise that entitlement.
37.The peak JMF catches of greater than 35,000t (taken in the late 1980s, as referred to in paragraph 28 herein) were taken by only a few vessels operating in what is typically a relatively short season within Zone A. Full utilisation of all 46 existing permits [for Zones B, C and D] (even if only at the peak catch rates observed in Zone A) demonstrates the potential scope for effort expansion within the existing management arrangements.
38.Moreover, the current world trend is for ongoing substantial increases in the catching capacity of newly constructed purse seine and mid water trawl vessels. Indeed there are now vessels capable of catching and storing on a single trip more than double the existing trigger catch levels in Zones B, C, & D. Briefly, purse seine nets are nets with smaller mesh size than the size of the fish being targeted. The floating net is positioned to surround the fish so that they cannot escape. The bottom of the net is pulled tight to close off the bottom of the net. Fish are then retrieved from the net close to the boat.
A Review of Management Arrangements in the JMF
39.The process of review of management arrangements for the JMF and the SPF was commenced in 1999. In 1999 AFMA commenced a review of the JMF management policy to assess whether or not the management policy and arrangements in the fishery were appropriate. The main focus of the review was to ensure that the management arrangements adequately addressed emerging management concerns following the identification of considerable latent effort in the JMF and a recognition that small schooling pelagic fisheries elsewhere in the world have generally followed a rapid ‘boom & bust’ cycle of expansion and subsequent overfishing.
40.At the 17 June 1999 meeting of the AFMA Board (refer Document Nos 3 and 4 of the Respondent’s Relevant Documents discovered on 8 August 2001 [Exhibit R12]), among other things, the Board approved a proposed process and timetable for the extension of the existing arrangements and the formulation of new arrangements for the fishery.
41.The then draft policy for the JMF retained the existing limited entry framework and included provisions for Trigger Catch Levels and, ultimately, a cap on catches within each year for all zones pending a scientific review of available information. As discussed further below, the draft policy was considered by the AFMA Board at its October 2001 meeting. Consideration of the broader elements of the revised policy by the Board in October 2001 followed its decision of 26 July 2000 to halve the existing trigger catch levels for Zones B, C & D. This action was taken as a precautionary management response, recognising the significant limitations in current knowledge of stock status and biological characteristics of JMF species in Australian waters.
42.In July 2000, the AFMA Board agreed to a reduction in the previously agreed triggers for Zones B, C and D (see Document Nos 5 and 6 of the Respondent’s Relevant Documents discovered on 8 August 2001 [Exhibit R12]). These triggers were reduced from 5,000 tonnes for the purse seine sector to 2,500 tonnes; and from 2,000 tonnes for the mid water trawl sector to 1,000 tonnes. The Board decision was made in the context of very little scientific understanding of JMF species and recognised the absence of scientifically based recommendations on future harvest or trigger levels. An increasing commercial interest in these species was also a relevant consideration.
43.At its 10 - 11 October 2001 meeting, the AFMA Board considered new management arrangements in respect of the JMF. A copy of the relevant Agenda Item, Attachment A to that Agenda Item and the relevant pages of the Minutes of that Board meeting are attached and marked ‘C1’, ‘C2’ and ‘C3’ respectively. As can be seen from ‘C3’, the Board agreed to further consider the revised policy at its meeting on 29 – 30 November 2001.
The establishment of the small pelagic fishery (‘SPF’) and management arrangements for the SPF
44.At its meeting on 29 – 30 November 2001, the AFMA Board adopted a new management policy for the SPF which came into effect on 1 March 2002. That policy is contained in the document Management Policy for the Commonwealth Small Pelagic Fishery (‘the SPF Policy’) for Zones B, C and D of the SPF (as previously indicated, since the SPF Policy came into effect, the fishery has been called the SPF). A copy of the relevant Agenda Item concerning that Board meeting, the SPF Policy and the relevant pages of the Minutes of that Board meeting are attached and marked ‘D1’, ‘D2’, and ‘D3’ respectively.
45.By November 2001, the Small Pelagic Research and Assessment Team (‘SPRAT’) had been set up by the AFMA Board to provide advice on specific issues concerning the fishery. The SPRAT was established by AFMA following the decision of the board at its 29 – 30 November 2001 meeting to agree to the SPF Management Policy. One of the matters contained in the SPF Management Policy was the establishment and functions of the SPRAT (see attachments D1 and D2). The SPRAT comprises participants from various groups including government, industry, recreational and game fishers, research and conservation interests to provide independent advice to the AFMA Board concerning the SPF.
46.In February 2002, the SPRAT met to consider and recommend a series of TCLs in Zones B to D of the SPF. The TCLs recommended to the AFMA Board represented the SPRAT’s best assessment of the risks and consequences of various TCLs being applied in each of the relevant zones. The SPRAT’s recommendations were considered at the meeting of the AFMA Board held on 14 – 15 February 2002. A copy of the relevant Agenda Item and the relevant pages of the Minutes of that Board meeting are attached and marked ‘E1’, ‘E2’, and ‘E3’ respectively.
47.As can be seen from the Minutes of the 14 – 15 February 2002 meeting of the AFMA Board (‘E3’), at that meeting, the Board agreed to the low risk TCL strategy and TCLs recommended by the SPRAT.
48.The TCLs in respect of the SPF were again reviewed by the SPRAT in February 2003 and following that review, certain recommendations were made to the AFMA Board for consideration by the Board at its meeting on 3 and 4 April 2003. A copy of the relevant Agenda Item concerning that Board meeting and Attachments ‘A’ to ‘C’ to that Agenda Item are attached and marked ‘F1’, ‘F2’, ‘F3’, and ‘F4’ respectively.
49.Management arrangements in the SPF are identical to those that were in existence in respect of the JMF and include inter alia:
·Delineation of the species and the permitted methods of harvest;
·Delineation of the Fishery area and four distinct management areas therein;
·Limited number of permits for access to these species using prescribed methods within prescribed areas; and
·Total Allowable Catch limit in Zone A and TCLs in Zones B, C & D.
Other management arrangements – licence splitting
50.To provide both flexibility and access certainty to permit holders AFMA allows full transferability of SPF permits while maintaining a limit on the total number of permits issued (ie SPF permits can be transferred by being purchased or leased by an operator seeking access to the fishery).
51.In some circumstances AFMA can and does allow what is colloquially known as licence splitting. Licence splitting is done on a case by case basis. This is seen as an additional means of providing flexibility in the market for SPF permits (and was also permitted in respect of JMF permits). In allowing such licence splits, AFMA has relaxed its general policy of not allowing a ‘package’ of permits to be split across two boats – or two owners – if this would increase effort in a fishery where the level of effort is a concern. AFMA has approved the split of packages even where this would increase actual effort in the SPF (that is, in a situation where the SPF permit was not being used while it was part of a package because the owner was instead using the boat for the other permit in the package). AFMA has done this so that the market price of SPF permits is not inflated by the value of another permit (in the same package) that a buyer may not need. Allowing this increase of actual effort is not inconsistent with the policy of not granting any new permits: allowing a controlled increase in the number of current SPF permits actually used presents no immediate threat to a precautionary approach in the Fishery, although as I have said elsewhere, any dramatic increase in activation of existing latent effort would present such a threat.
Reasons for delay in finalising management and policy arrangements (including stakeholder concern)
52.The main source of the delay in finalising the management and policy arrangements has been strong concerns raised by recreational fishing and conservation groups supporting the need for precautionary management and collection of additional information in the JMF (now SPF). This concern was precipitated by the establishment of a small pelagic fish processing facility at Eden, NSW in 2000. The process of finalising the SPF insofar as Zone A is concerned is not yet complete.
53.As part of the development of new SPF management arrangements, recent consultation with key SPF stakeholders has identified widespread concern in relation to existing levels of latent effort in the fishery. In particular recreational stakeholders are concerned about the potential for a rapid increase in catches in Zone A of the SPF in the absence of information about the sustainable harvest level. The species taken in the SPF are caught in small quantities by recreational anglers and form the basis of bait schools that are preyed upon by larger predatory gamefish (eg tuna and marlin) which are in turn targeted by recreational and charter gamefishers. Concerns about latent effort were also expressed by relevant State fisheries management agencies. In particular the possibility that future fishing effort may have adverse impacts on related State fisheries. Impacts on State pilchard fisheries were cited as a particular concern.
54.As outlined in the recent Bureau of Rural Sciences (BRS) draft report A review of biology and fisheries for mackerel [2001] (a copy of which is attached and marked attachment ‘G’), fisheries based on small schooling pelagic resources, elsewhere in the world, have typically exhibited a ‘boom & bust’ cycle. These fisheries have most often developed rapidly with little or no management constraint before failing, leaving considerable capital invested in large vessels and processing operations. While these stocks have shown a capacity to recover with time, they are among the most well known fisheries ‘collapses’ in the industrial age (eg Peruvian anchovy, Californian sardine).
55.Although total harvests of small pelagic species elsewhere in the world have been among the highest tonnages taken of any fish species, Australian fisheries for similar species are considered to be much less productive. The Gross Value of Production of the SPF for the 2000/2001 financial year was $1.012 million. The cost of undertaking research of stock status and productivity for each species in the SPF is well in excess of this amount. The cost of such research, being an FRDC [Fishery Research and Development Corporation] funded project ‘Development and evaluation of egg-based stock assessment methods for blue mackerel, Scomber australasicus, in southern Australia’ over the three year period 1 July 2002 to 30 June 2005 is in excess of $3 million.
56.The other main diversion from attention to the management policy was the consideration by AFMA of an application to trial pair-trawling for JMF species in Zone A. AFMA subsequently approved this application and established conditions for pair-trawling operations in Zone A. Mid-water pair-trawling is very similar to that of other trawl operations, in particular, mid-water trawls. However, mid-water pair-trawling operations require two vessels to simultaneously drag the one mid-water trawl net through the water, the two vessels also replace the use of otter boards to achieve horizontal spread of the trawl net. By using loop sweeps and warps, the swept area of the gear may be increased, at minimal cost in terms of drag. Altering vessel separation can easily control sweep angle of attack and gear drag. These (that is, pair-trawling) operations were approved by AFMA to assist the proponents in accessing the JMF (now SPF) resources in Zone A without breach of the limited entry management regime.
57.A synopsis of stakeholder views is contained in attachment C2.
Licence formerly held by the applicant in GAB Fishery
58.In his Statement of Facts and Contentions, the applicant referred to his having been granted access to a Great Australian Bight Trawl Fishery (‘the GAB Fishery’) following a decision of the Administrative Appeals Tribunal in 1988.
59.As the applicant admits, such access was ‘lost’ to him.
60.The position in respect of that fishery (that is, the GAB Fishery) at that time, was that all licences expired at the end of 1989 as part of a two year development program and that future access arrangements would be based on levels of fishing activity (page 97 of T documents).
61.In May 1990, the applicant was advised that his application for an endorsement to trawl in the GAB Fishery was unsuccessful (see page 98 of the T documents).
62.It is not clear to what extent (if at all) the applicant contends that his former access to the GAB Fishery is relevant to this application. In any event, the GAB Fishery is not the same Fishery as the JMF and the SPF.
Applicant currently holds Zone B permit in the SPF
63.The applicant currently holds a Zone B permit in the SPF. This permit was transferred to him from Messrs Benson and Mouchemore in March 2002. A true copy of the Application for Transfer of Permit and of the applicant’s current fishing permit are attached and marked ‘H1’ and ‘H2’ respectively.
64.Accordingly, the applicant has access to the SPF. It should be noted that by letter dated 3 April 2000 to the respondent (T39), the applicant stated that if he was able to purchase a jack mackerel fishery [permit] from any zone and alter it to a midwater trawl permit, he would ‘accept the [AFMA’s] decision [to not grant him a permit]’.
…”.(attachments omitted)
(Exhibit R9)
30. In his examination-in-chief Dr Alden was asked to elaborate on certain parts of his statement of evidence.
31. As regards para 13 of his statement, he confirmed that he agreed with the statement in the FAO document that, in the case of new or developing fisheries, “(a)n open access fishery is not precautionary”. He explained:
“An open access fishery where anyone can access the fishery without limit can lead to over-fishing and a race for fish; people trying to get to the fish as soon as possible, which then tends to lead to an increase in the size of vessels and capacity to take … those fish as soon as possible. This leads to uneconomic use of economic resources to do the fishing. … Neither of which are a precautionary way of taking those fish.
(Transcript, p 126)
32. As regards the number of existing fishing permits for the SPF (referred to in para 37 of his statement of evidence), Dr Alden was referred to a document headed “SPF Permits, Zones & Methods” which, he confirmed, lists the existing permit numbers and specifies the Zone(s) of the SPF covered by each permit and the fishing method(s) authorised thereby. According to that document there are 30 existing fishing permits for Zone B of the SPF – 6 permits authorise trawl fishing only, 18 permits authorise purse seine fishing only, and the remaining 6 permits authorise both trawl fishing and purse seine fishing. Dr Alden confirmed that Fishing Permit No 61126A, which has been issued to the applicant, authorises trawl fishing only. The abovementioned document was tendered in evidence by the respondent (Exhibit R10).
33. Dr Alden confirmed that the management policy for Zones B, C and D of the SPF, adopted by the AFMA Board in November 2001 with effect from 1 March 2002, as referred to in para 44 of his statement of evidence, is, subject to some subsequent variations regarding TCLs referred to in his statement, still current. He confirmed, in particular, that the “limited entry” aspect of the policy is still current. Asked to explain the practical application of the “limited entry” policy, Dr Alden’s evidence was as follows:
“What does it mean, in practice, the limited entry policy? --- It means that no one can fish in the fishery unless they have a permit to do so, and there’s a limited number of permits available.
What does it mean with respect to somebody applying for another permit to be issued? --- We would refuse that application.
In doing so would you have regard as well to the individual facts and circumstances of the person? --- We would.”
(Transcript, p 129) In response to questions from the Tribunal Dr Alden’s evidence was as follows:
“So is what you are saying that the number of permits that have already been issued is the maximum? In other words, no more permits above the ones that have already been issued, is that the – in other words, the maximum has been reached? Is that - - - ? --- The maximum has been reached. But, as mentioned, if anybody applies for a permit we need to look at that application on its merits in the context of the policy of limited entry, but also in the context of the individual circumstances.
So the maximum hasn’t been reached? So is there an absolute fixed upper limit? Or is it discretionary having regard to the policy? I mean, are you prepared to issue permits, are you, or not? --- The policy of limited entry applies to all of our fisheries, I think, in total. Having said that, when an application comes in we do look at it in relation to not only the policy, but also in the application.
So I think consistently with that, that there’s no absolute limit that’s set in concrete anywhere. Would that be a fair way of putting it? --- There’s no limit set in legislation. The policy indicates the limited entry policy and that number is specified in the policy.”
(Transcript, p 130) [The Tribunal notes that the abovementioned AFMA policy will be set out later in these reasons.]
34. By way of addition to the information contained in para 48 of his statement of evidence, Dr Alden said that the AFMA Board, at its meeting on 3 - 4 April 2003, increased the TCL for Blue Mackerel from 3,500 tonnes to 5,000 tonnes and the TCL for Jack Mackerel from 2,500 tonnes to 4,000 tonnes, for the 2003 - 2004 fishing season in Zone B of the SPF. The relevant extract from the Minutes of the AFMA Board Meeting of 3 - 4 April 2003 was tendered in evidence by the respondent (Exhibit R11).
35. By way of correction of the information regarding annual catches in Zone B contained in para 27 of Dr Alden’s statement of evidence, the respondent subsequently prepared, and tendered in evidence (Exhibit R14), a document setting out the quantities of catches in Zone B of the JMF/SPF for the years 1996 - 1999, and 2001 - 2002. Those catches (expressed in kilograms) were as follows:
Greenback Jack Mackerel and Peruvian Jack Mackerel Yellowtail Jack Mackerel Blue Mackerel 1996 - 198 9,885 1997 - 536 25,321 1998 - 2,046 9,373 1999 326 1,685 48,316 2001 - - 1,499 2002 - - 9,550
Mr Ritter (for the respondent) informed the Tribunal that, according to AFMA records, no catch returns for the year 2000 were submitted and, accordingly, the catch for the year 2000 is recorded as, NIL (Transcript, p 193).
36. In cross-examination Dr Alden was questioned about the Register of Interest in relation to the JMF that was established in 1992. He said that he was unaware of the reason why access to that Register was limited to existing Commonwealth Fishing Boat Licence holders; nor was he aware whether or not consideration had been given to the position of State licensed fishermen who were then operating in the area described as Sector B in the GABTF.
37. Dr Alden described the size of the Blue Mackerel fishing industry in Zone B of the SPF as “very small” and he acknowledged that AFMA is not presently concerned about “actual excess pressure” on the fishing but is concerned about “latent effort”. He agreed that “very little use” is actually made of the 30 Fishing Permits that have been issued for Zone B of the SPF.
38. Dr Alden was asked whether the fishery in Zone B of the SPF would be “imperilled” by issuing to the applicant a Fishing Permit authorising him to fish only in that small part of Zone B that was formerly described as Sector B in the GABTF, and to catch only Blue Mackerel in that area. Dr Alden responded as follows:
“As one of AFMA's legislative objectives is effective and cost efficient management, one of the approaches to pursue that objective is to manage permits in a way that have a consistency across the area in which the permits were granted for. So, when we move to introduce the current policy for the small pelagic fishery that was introduced in 2002, March of last year, the effect was to expand within Zone B itself permits that had sub-areas within that zone to be consistent through the whole area of the fishery. Up until that point, various permits had various area restrictions placed upon them in a sort of patchwork quilt.
Piece meal, yes? --- Exactly. So, part of the policy approach to pursuing the cost effective and efficient management was to ensure that when dealing with the administration of those permits, the authority wasn't - AFMA, the authority management agency was needing to consider linkages between individual permits, maintaining and updating permits independently of one another, and ensuring that future management measures applied across the whole zone to all permits.
… So that, in part, addresses the area restriction aspect of your question. In terms of the species specific restriction proposal that you are putting forward, my understanding is that a species that are managed under the small pelagic fishery, the five species, are found in varying quantities and in varying concentrations across the whole area of the different zones, A through to D. So, in pursuing in a fishing operation small pelagic species, it's likely in that fishing - those fishing operations, a fisher would come across more than one of those species during their fishing operations. Given that those species are managed as part of the policy as a whole, it would be unduly restrictive, I think, to limit the ability for a fisher to target one of those species when you will recall one of the other objectives of the Fisheries Management Act is to ensure the pursuit of maximising the economic efficiency of the fishery. So, while fishing and pursuing small pelagic species under a small pelagic fishery permit within Zone B, AFMA would be reluctant to restrict a species which that person could access when it could contribute to a catch and the profit for that individual permit holder. So there's two components to that.”
(Transcript, p 175)
39. Dr Alden was also questioned about the “limited entry” policy applied by AFMA. He referred to the relevant statement in the policy document adopted by the AFMA Board in November 2001 and continued:
“When reviewing the application of Mr Green, AFMA, I believe, took into account not only this policy and how it specifically - how the position in relation to limited entry, but also the specific circumstances of Mr Green.
Well, the bit I read says, and is underlined, says, ‘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’. I don't read anything about individual circumstances altering that? --- Okay. That's the policy, but when AFMA receives an application to do anything, it needs to consider that policy in relation to the application. It needs to consider whether that policy is appropriate, consider [whether] there are cogent reasons to depart from that policy, given the individual circumstances of the application.
THE D.PRESIDENT: So your understanding is, there is a preparedness to depart from the policy in individual circumstances? --- Absolutely.
Revised management arrangements for zone A of the fishery are currently being developed by the Commonwealth and Tasmania. These arrangements are likely to operate under a Joint Authority Management Plan with day to day management responsibility for the zone A fishery resting with Tasmania.
AFMA’S LEGISLATIVE ENVIRONMENT
In managing the Commonwealth SPF, AFMA is required to pursue legislative objectives and management functions specified within the Fisheries Management Act 1991, and the Fisheries Administration Act 1991. These are identified in detail at Attachment B.
THE STRATEGIC MANAGEMENT ENVIRONMENT
Key Management Goal
The principal management goal for AFMA in its management of the SPF is to facilitate the development of an ecologically sustainable, and economically efficient commercial fishing sector.
–In pursuing this objective, the requirements of other stakeholders who rely on productive small pelagic fisheries are recognised.
Fishery Specific Management Objectives
AFMA’s fishery specific management objectives for the SPF are:
–Ensuring management arrangements facilitate the Ecologically Sustainable Development of the SPF, and promote the productivity and efficient conduct of the commercial, recreational, and ecological components of the fishery;
–Adopting a strategic approach to management of the SPF, developing and maintaining fisheries management best practice, including recognising and embracing the need for ecosystem based management;
–Managing the SPF resource on behalf of the Australian community, and in doing so ensuring that management arrangements are consistent with the requirements of key stakeholders, including other management jurisdictions; and,
–Within the life of this policy, developing a set of performance criteria by which the effectiveness of SPF management arrangements can be measured.
It should be noted that a review of Commonwealth fisheries policy is currently in progress. Until this review process is complete, there will be some uncertainty in relation to future Commonwealth policy and management imperatives. This SPF management policy may be altered to meet future objectives arising from the Commonwealth fisheries policy review, or to meet other management requirements.
THE MANAGEMENT FRAMEWORK
Limited Entry
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.
Latent Effort
Latent effort in the Commonwealth SPF is of significant management concern, and will be monitored carefully throughout the life of this policy. Specific management measures to reduce latent effort have not been applied in this policy. In addition to limited entry, Trigger Catch Levels (TCLs) will apply to constrain catch and effort, whilst allowing for sustainable and precautionary development of the fishery.
Subject to developments within the SPF, the future introduction and allocation of Statutory Fishing Rights (SFRs), representing a management tool to adjust either fishing effort or catch, and offering a high degree of access security to permit holders and other stakeholders, may be necessary.
Licence Splitting
Licence splitting of SPF permits from other licence packages may be permitted where this is consistent with AFMA’s legislative objectives. Other jurisdictions will be consulted during any such consideration.
Total Allowable Catch (TAC) and Trigger Catch Levels (TCLs)
TAC and/or TCL strategies for the SPF are designed to initiate management responses that will best pursue AFMA’s legislative objectives. For the SPF, TACs or TCLs will be considered to have been reached when the total commercial catch, including landed and/or discarded catch, from the purse seine and mid water trawl sectors, reaches the relevant TAC or trigger level for that management zone.
Setting TACs and/or TCLs
AFMA will be precautionary in setting and reviewing TAC/TCLs for SPF species.
TACs and/or TCLs will be set on a species specific basis for blue mackerel, and redbait. A combined species TAC/TCL will be set for the various jack mackerel species (Trachurus spp). TACs or TLCs will be reviewed annually by the Small Pelagic Research and Assessment Team (SPRAT), and as necessary to meet any requirements arising from the trigger response process detailed below.
The following table identifies the TCL arrangements that apply in each of zones B, C, and D, of the SPF.
Species
Zone B (tonnes)
Zone C (tonnes)
Zone D (tonnes)
Blue Mackerel
3,500
3,500
3,500
Yellowtail Scad
100
100
100
Jack Mackerel
(Peruvian, greenback)
2,500
2,500
2,500
Redbait
1,000
1,000
1,000
Management Response to the TAC level being reached
Zones of the SPF that are subject to a TAC will be closed when the TAC is reached. The SPRAT will then review the circumstances under which the TAC has been reached, and provide a subsequent recommendation to the AFMA Board in accordance with the process outlined below.
Management Response upon reaching a TCL
Upon reaching the agreed trigger points, AFMA will initiate the following response:
a)A meeting of the SPRAT with an independent Chair will be convened as soon as possible. The purpose of the SPRAT meeting is to, within 30 days of the TCL being met:
i.review the available catch/effort data by time and area, as well as species composition of the catch;
ii.assess the risk to stocks, based on available information; and
iii.recommend appropriate management responses to the Small Pelagic Working Group (SPWG) and the AFMA Board including consideration of:
–whether a cap should be placed on either effort or catch;
–alternative approaches that manage the impacts of ongoing catch on other users, or from an ecosystem perspective; and
–any additional research or data collection activities that should be implemented.
b)The AFMA Board is to then decide on the most appropriate management response within 15 days of receiving the advice of the SPWG/SPRAT.
Should the total of reported catches/discards exceed the TCL by 25% or greater, before any management response is decided, the relevant zone/s shall be closed to further commercial fishing. The trigger review process outlined above, with subsequent recommendations to continue or cease fishing, will then be completed.
Duration of this Management Policy
This Management Policy will remain in force for five years from the date of commencement.
It is important to note that AFMA may be required to amend the SPF Management Policy from time to time to meet legislative and other requirements. AFMA may, at some time in the future, introduce a statutory management plan, and allocate a form of Statutory Fishing Rights (SFRs) for the SPF.
Duration of SPF Fishing Permits
The SPF will continue to be managed through the use of fishing permits, granted for a period of one year. Conditions in relation to the grant of fishing permits are specified in Section 32 of the Fisheries Management Act 1991.
For the 2002/2003 fishing year, and thereafter, SPF permits will be issued to remain in force over the period 1 July until 30 June for the year of issue.
Transferability of Fishing Permits
In accordance with AFMA’s existing Business/Licensing Policy, fishing permits granted in the SPF are transferable unless stated otherwise in individual permit conditions. SPF permits may be surrendered at any time, and if surrendered will be cancelled. Permits that have been cancelled will not be re-issued.
To support the integrity of other managed trawl fisheries, SPF mid water trawl permits may only be transferred to licence packages that also permit access to the relevant managed trawl fishery (for example the Great Australian Bight or South East Trawl Fisheries).
Permitted Methods in the SPF
Fishing in the SPF is currently limited to the methods of Purse Seine and Mid-Water Trawl only. Consideration will be given to amending permit conditions on a case by case basis to allow for the trial of other methods provided these methods are consistent with AFMA’s legislative objectives.
Target Species
Target species for the SPF are limited to greenback jack mackerel (Trachurus declivis), peruvian jack mackerel (T. symmetricus), yellowtail jack mackerel (T. novaezelandiae), blue or slimy mackerel (Scomber australasicus) and redbait (Emmelichthys nitidus).
By-product Considerations
Management of SPF Species caught in other Commonwealth Fisheries
AFMA – in consultation with relevant stakeholders – will determine as soon as possible appropriate catch limits for SPF species taken by operators in other Commonwealth/State fisheries.
Collection of SPF species for use as bait in other fisheries
Access to SPF species to be used as bait in accordance with existing Commonwealth permit conditions is to be maintained under this policy.
Bycatch Considerations
A formal Bycatch Action Plan (BAP) for the SPF is mandatory under the National Bycatch Policy. The revised SPF Management Policy is also required to meet the guidelines for sustainability of Commonwealth Fisheries. These are provided as Attachment A to this policy, and will form the basis of a Strategic Assessment for the SPF (including the need to meet export accreditation requirements), that is necessary to meet obligations imposed by the EPBC.
AFMA, in conjunction with the SPWG, will develop a BAP for the SPF by December 2002.
Localised Depletion
In addressing the perceptions of, and potential for, localised depletion arising from fishing activities for SPF species, AFMA will adopt the following strategy (preferences outlined below from most to least desirable):
–SPF operators in conjunction with key stakeholders develop and adopt an agreed code of conduct to reduce the risks and impacts of localised depletion and sectoral conflict
–AFMA – through the SPWG process – develops an agreed code of conduct to minimise localised depletion and sectoral conflict
–AFMA declares areas that are closed to commercial fishing for SPF species.
Existing Management Zones
The existing SPF management zones comprising zones A, B, C, and D, shall be retained under this policy. An indicative map of the areas of the Commonwealth SPF is provided at Attachment C to this policy.
SPF research strategies currently being developed will attempt to develop a better understanding of stock and ecosystem boundaries. Should such information become available, new fishery areas or management zones may be defined in the future.
Within existing zones there is some variation to individual permits with respect to the areas of waters that may be fished. To remove ambiguity, and facilitate cost effective management, the area of waters for all SPF Permits in each zone will be standardised. These areas will be based on the existing fishery areas, recognising Offshore Constitutional Settlement (OCS) arrangements between the Commonwealth and relevant States. New fishery areas will be given effect through permit conditions when permits are re-granted under this policy.
Management Levies
The need for rigorous assessment of the sustainability of Commonwealth fisheries, linked with clear requirements to deliver transparent management decisions on the basis of the best possible scientific information available, is likely to increase research and management costs for the SPF.
These management costs will be recovered through levies for SPF permit holders in accordance with AFMA’s existing cost recovery policy.
Compliance
Stakeholder compliance with management arrangements is fundamental to achieving cost effective and efficient management of the SPF. As part of the introduction of new management arrangements, AFMA will prepare a compliance risk assessment to precede the development of a compliance operational plan for the SPF.
JURISDICTIONAL ARRANGEMENTS
The OCS/MOU Framework
Whilst there may, at times, be some divergence between State and Commonwealth management objectives for small pelagic species, the development of robust and well considered OCS agreements will continue to be an effective framework to pursue management consistency across jurisdictions.
Through a mechanism of OCS agreements, State representation on the SPWG, and continued liaison at a working level, AFMA will pursue the development of complementary management arrangements across jurisdictions.
Regional and Shared Management Responsibilities
In recognising the variety of environmental and human influences on the productivity of fisheries, many of which exist outside the scope of commercial fishing operations. AFMA will pursue a multi-sectoral approach to its consideration of management issues.
AFMA will maintain a list of interested parties who may from time to time be consulted, or invited to attend SPWG meetings as observers, so they may contribute to effective management of the Commonwealth SPF.
RESEARCH/DATA COLLECTION
Data Collection in the SPF
There is a limited understanding of stock structure, basic biology, and the impacts of various environmental influences on the target species for the Commonwealth SPF. In addressing these limitations, accurate catch and effort data recorded through AFMA’s existing logbook programme is essential. This approach will be maintained under this policy.
A Small Pelagic Research and Assessment Team (SPRAT) is currently being developed. This group will operate in a similar way to AFMA’s existing Fishery Assessment Groups (FAGs). The SPRAT will have a lead role in the development and implementation of research and monitoring strategies. This group will also provide advice to management for TAC and TCL setting within the fishery.
Data Collection from Related Fisheries
The collection of accurate catch/effort data in relation to the harvest of SPF species across all catching sectors is fundamental to the maintenance of effective management strategies for these species.
AFMA has recently reviewed logbooks for the pelagic longline fishery and will soon review logbooks for the tuna pole and purse seine fisheries to ensure that appropriate data on bait captures (including SPF species) is collected. Subject to commercial privacy considerations, AFMA will continue to provide Commonwealth catch/effort data for SPF species to other jurisdictions as necessary.
Note: It is important to recognise that the ability of research to resolve key knowledge gaps in relation to the biology and management of SPF species is limited. This is due largely to the complexity of environmental influences on stock abundance and availability, as well as the migratory, and low value nature of small pelagic fisheries like the SPF. In this context, management, and further development of the SPF will continue to be based on a precautionary approach.
CONSULTATION
Small Pelagic Working Group (SPWG)
Stakeholders, in general, recognise that the low value nature of the SPF at present will not sustain a full Management Advisory Committee (MAC) process. In the absence of a MAC, the current Small Pelagic Working Group will be continued. This group will be reviewed with membership determined to allow for an appropriate balance of expertise based advice to AFMA management.
Under this policy meetings of the SPWG will be forecast at least 2 months in advance, and will be open to permit holders or their representatives, members of key stakeholder groups or their representatives, and members of the public where possible.
Participants will be expected to fund any of their own travel, meal, and accommodation expenses that are associated with these meetings.” (Attachments omitted; original emphasis)
(Exhibit R9, pp 69-78) Since the adoption of the abovementioned policy the AFMA Board has reviewed the TCLs and, at its meeting on 3-4 April 2003, increased the TCLs for Blue Mackerel and Jack Mackerel (see paragraph 34 above).
The Submissions
The Applicant
53. Mr Ward (for the applicant) acknowledged at the outset that the abovementioned AFMA policy regarding the SPF – in particular, the “limited entry” aspect of that policy – is a relevant consideration to which the Tribunal must have regard and, furthermore, attach a “reasonable degree of weight”, and that the Tribunal should exercise “some degree of caution … before departing from the policy”. He submitted, however, that there are “exceptional circumstances” in the applicant’s case which would justify the Tribunal’s departing from the respondent’s “limited entry” policy and granting the 2 fishing permit which are the subject of the present Application for Review. Those alleged “exceptional circumstances” were summarised in the applicant’s Statement of Contentions filed in this matter and were elaborated in Mr Ward’s oral submissions. In essence they are as follows:
·prior to the establishment of the JMF, the applicant was entitled, by reason of his holding State Fishing Boat Licences, to catch and land Blue Mackerel in Sector B of the GABTF;
·because the establishment of the JMF would affect that entitlement, the applicant should have been given the opportunity by AFMA to preserve that entitlement by being invited by AFMA to apply for inclusion in the JMF Register of Interest created and maintained by AFMA so that he would be eligible to obtain a Fishing Permit for that part of Zone B of the JMF formerly known as Sector B of the GABTF;
·the applicant was never given that opportunity and was accordingly denied the opportunity to apply to AFMA for a Fishing Permit in order to preserve his existing entitlement to catch and land Blue Mackerel in the relevant part of Zone B of the JMF, with the result that that entitlement was lost;
·to grant the present applications for 2 fishing permits for Zone B of the SPF would not be inconsistent with precautionary management of the SPF because:
–the applicant’s expected catch of Blue Mackerel would have no significant effect on the biomass of Jack Mackerel in Zone B of the SPF;
–other operators in the SPF, whether trawlers or purse-seiners, are unlikely to target Blue Mackerel in Zone B of the SPF and, accordingly, should not be regarded as “latent effort” which is likely to be converted into actual effort as regards the catching of Blue Mackerel in Zone B of the SPF in the event that the present applications for 2 Fishing Permits were granted;
–if the present applications for 2 Fishing Permits were granted and the applicant’s proposed venture to market Blue Mackerel for human consumption was very successful, it would nevertheless be unlikely that that would trigger a “race for the fish” by the permit holders resulting in over-fishing in Zone B of the SPF.
The Respondent
54. Mr Ritter (for the respondent) made extensive oral submissions the essence of which is as follows:
·the Tribunal, in reviewing the reviewable decision and making the correct or preferable decision in this case, should apply AFMA policy – in particular, the “limited entry” policy – formulated with respect to Zones B, C and D of the SPF, unless there is a “cogent reason” not to do so;
·there is no “cogent reason” to depart from that policy in the present case by granting the present applications for 2 Fishing Permits – or even one of those applications – for Zone B of the SPF having regard, in particular, to the fact that the applicant has, according to his own evidence, already acquired one Fishing Permit, and has arranged for the transfer to him of another Fishing Permit (although returnable on demand), for Zone B of the SPF, thereby enabling him to pursue his proposal to develop a market for the human consumption of Blue Mackerel;
·as regards the “exceptional circumstances”, or cogent reasons, referred to in the applicant’s submissions:
–the establishment of the JMF in 1992 did not affect any existing entitlement of the applicant to catch and land Blue Mackerel because at that time he had no entitlement to take Blue Mackerel in Commonwealth waters beyond the 3 nautical mile limit in that area which became Zone B of the JMF;
–access to the newly-established JMF was initially limited to existing Commonwealth Fishing Permit holders and the applicant did not hold such a Permit at that time;
–the grant of both, or even one, of the present applications for Fishing Permits would have a significant impact on fish stocks in Zone B of the SPF in that Blue Mackerel would then be the “target” species for existing Permit holders, having regard also to the significant “latent effort” represented by existing purse seine Permits and mid water trawl Permits for Zone B, and other Zones, of the SPF;
·further reasons why AFMA’s “limited entry” policy should be applied in this case include:
–the level of mixing of the stock between Zones in the SPF is currently unknown and, therefore, the impact of increasing catches in one Zone upon the stock in other Zones is not known;
–the current level of exploitation of the populations of all the species caught in the SPF is not known and the lack of knowledge about stock mixing prevents an estimation of the proportion of available stock which is represented by catch in each of the Zones;
–Jack Mackerel stocks in Zone A may be fully exploited or over-exploited and the linkages between populations in this Zone and other Zones (including Zone B) are unknown;
–the fishing mortality produced by the current level of Australian fishing on all species in the SPF is unknown, as is the inceased level that might be expected if all fishing entitlements in the SPF were fully activated;
·for the above reasons it would be contrary to the “precautionary principle”, and contrary to the mandatory objective specified in s 3(1)(b) of the FM Act, to grant both, or either, of the present applications for Fishing Permits for Zone B of the SPF.
Consideration and Findings
AFMA Policy regarding Zones B, C and D of the SPF
55. The relationship between government policy and the Tribunal’s review and decision-making functions was explored at length by Brennan J (President) in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640-645.After discussing the relevant issues Brennan J concluded (at 645):
“These considerations warrant the Tribunal’s adoption of a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary. If it were shown that the application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice. …
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice.
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, nor 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.”
In Stoljarev v Australian Fisheries Management Authority (1995) 39 ALD 517 (affirmed on appeal: (1996) 41 ALD 481), the Federal Court of Australia (Davies J) addressed that issue in a context not unlike that of the present case. Davies J said (at 522-523):
“Policy does not constitute a binding rule, unless a statute so provides, as does s 17(1) of the 1991 Act. Absent a statutory provision requiring compliance with policy, a decision-maker may depart from policy and, in an appropriate case, should do so. It is impossible to define or delineate the circumstances in which departure from policy is justified. Much depends upon the nature and context of the decision to be made, the nature of the policy to which regard is to be had and the nature of the individual circumstances to which attention is directed. In Re Drake (No 2), Brennan J said at 645 that, because of the part which policies play in fair administrative decision-making, the AAT should apply a lawful policy ‘unless there are cogent reasons to the contrary’ such as ‘injustice in a particular case’. In Re Evans and Secretary, Department of Primary Industry (1985) 8 ALD 627, Davies J and Mr R A Sinclair spoke of ‘special or unique circumstances’. No term will in itself adequately express that point. The decision must be made having regard to the decision and its context, the nature and ramifications of the policy and the nature and consequences of the individual circumstances which are relied upon.
When, in Drake (No 2), Brennan J spoke of ‘injustice in a particular case’, his Honour did not have it in mind that the matter should be governed entirely by the hardship to the individual. At 645, his Honour said:
‘Injustice, in the context of ss 12 and 13 of the Migration Act, must mean a disproportion between the detriment suffered by those affected by the execution of a deportation order and the benefit which might reasonably be expected to result to the community at large or to particular individuals in the community if the order were affirmed.’
Necessarily, each matter must be judged by weighing up the particular circumstances of the case in the light of the part which the policy plays in the overall context of the decision to be made. In Discretionary Powers, at 169, Galligan spoke of the optimum balance between ‘settled standards’, whether they be stipulated in advance or developed incrementally, and ‘the particular case’, and went on to mention how difficult it can be to find that optimum balance.
The issue has often arisen in relation to management plans for fisheries. It was discussed at length in Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366. The tribunal said at 376:
‘In contrast to the operations of ss 12 and 13 of the Migration Act 1958 (Cth), which required consideration of “the unique circumstances of each case”, to use Justice Brennan’s expression, the achievement of the end sought by the policy of the Australian Fisheries Council did require the taking of decisions pursuant to broad and relatively binding rules rather than the assessment of each particular case. The resolution of the Australian Fisheries Council sought to achieve a restructuring of the SBT industry in accordance with the principles which it laid down. That is not to say, however, that no room was left for the exercise of discretion or judgment should special or unique circumstances arise for consideration’.
At 380, the tribunal said:
‘There being no special circumstances which affected the Astons, this is pre-eminently the type of matter in which the policy adopted by the primary decision-maker ought to be applied by this tribunal. The policy affected an industry. It was a policy decided upon at the highest level, being resolved upon by the Australian Fisheries Council comprised of the six relevant Ministers of the States and the Federal Minister for Primary Industry and the Federal Minister for Science and Technology. It was a policy which could only be developed in the political arena after consultation with industry. The tribunal, which is not accountable politically and which cannot proceed by obtaining industry consensus, must give such a policy great weight. Moreover, the policy has been given effect and following its implementation the number of fishermen holding licences has been reduced from 143 to 57. Justice to others demands that Mr and Mrs Aston should be treated on a basis similar to that which has been applied to SBT fishermen generally unless there are special circumstances to be taken into account in their favour.’
As was there pointed out, it is relevant that the management plans for fisheries have tended to be plans arrived at after considerable consultation and often with the approval of a body representing fishermen in the fishery. …”
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 (Exhibit 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 for the fishery” (Exhibit R9, pp 60, 102). Having regard to these considerations the relevant AFMA policy regarding Zones 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.
Is the relevant AFMA policy lawful?
57. Although the applicant did not contend that the relevant AFMA policy regarding Zones B, C and D of the SPF – including, in particular, the “limited entry” aspect of that policy – is itself unlawful, it is appropriate that the Tribunal consider that issue and, in particular, whether the “limited entry” policy is inconsistent with any of the mandatory objectives specified in s 3(1) of the FM Act or with any other provisions of that Act.
58. According to AFMA’s “limited entry” policy regarding Zones B, C and D of the SPF:
“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.” (original emphasis)
The process of development of that policy was traced in the evidence of Dr Alden and the consistency of that policy with the “precautionary principle” (see paragraph 51 above) was explained in the evidence of Dr Alden and of Dr Young. The Tribunal accepts the evidence of Dr Alden and of Dr Young and, on the basis of that evidence, finds that AFMA’s “limited entry” policy regarding Zones B, C and D of the SPF is consistent with the “precautionary principle” and with pursuit of the objective specified in s 3(1)(b) of the FM Act. Having regard also to the contents of the relevant policy document (see paragraph 52 above) and to the process of its development (as traced in Dr Alden’s statement of evidence and evidenced in attachments thereto (Exhibit R9)), the Tribunal is satisfied, and finds, that that policy is also consistent with pursuit of the objective specified in s 3(1)(c) of the FM Act, and was formulated and adopted by AFMA having regard to the objectives specified in s 3(2) of that Act. The Tribunal is also satisfied on the basis of the material before it, and finds, that that policy is not inconsistent with the pursuit of any of the other objectives specified in s 3(1) of the FM Act or with any other provisions of that Act.
59. Accordingly, the Tribunal finds that the relevant AFMA policy regarding Zones B, C and D of the SPF (including the “limited entry” policy) is lawful.
The application of the “limited entry” policy in the circumstances of the applicant’s case
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 Board of Trade [1971] AC 610 at 625, 631 (cited in Re Drake (No 2), at 641).
61. In the present proceedings the applicant has presented evidence, material and submissions to the Tribunal in support of the proposition that the circumstances of his particular case are indeed exceptional and constitute a cogent reason for the Tribunal to depart from AFMA’s “limited entry” policy and to grant the 2 applications (or at least one of them) for a fishing permit which are the subject of these proceedings. The Tribunal has had regard, and given careful consideration, to the applicant’s evidence, material and submissions but it is not satisfied that the circumstances of the applicant’s case are such as to warrant a departure from AFMA’s “limited entry” policy regarding Zone B of the SPF in his case.
62. In the first place, the Tribunal is not satisfied, on the basis of the evidence and material before it, that any injustice was done to the applicant by reason of his not being invited by AFMA to apply for inclusion in the JMF Register of Interest, or otherwise given the opportunity by AFMA to apply for a fishing permit for Zone B of the JMF upon its establishment. The Tribunal accepts that, prior to the establishment of the JMF, the applicant had held a Commonwealth fishing permit entitling him to fish in Sector B of the GABTF (which subsequently became part of Zone B of the JMF/SPF), but such permit had expired prior to 1992 so that the applicant did not hold a Commonwealth fishing permit when the JMF Register of Interest was created by AFMA in 1992. According to the applicant’s evidence, he was in fact catching Blue Mackerel prior to 1992 in Sector B of the GABTF but, although he was entitled to do so within State waters by reason of State fishing boat licences which he then held, whether he had any entitlement to do so at that time in the area of Sector B beyond the 3-nautical mile limit (that is, outside State waters) is very doubtful. No official documentary material establishing such entitlement was presented to the Tribunal by the applicant and, in the absence of such documentary evidence, the Tribunal is not satisfied that the applicant was legally entitled to catch Blue Mackerel in the area of Sector B of the GABTF outside State waters (that is, beyond the 3-nautical mile limit) at the time of the establishment of the JMF. That being the case, the establishment of the JMF in 1994 did not of itself deprive the applicant of any existing legal right to catch Blue Mackerel. The applicant did, on the other hand, continue to have the right to catch Blue Mackerel within State waters by reason of his State fishing boat licences, at least until May 1999 when the State Minister for Fisheries made an Order under the Fish Resources Management Act 1994 (WA) prohibiting commercial fishing for Blue Mackerel (see paragraph 10 above). This was followed by an official seizure of his Blue Mackerel catch in July 1999. Only thereafter, in October 1999, did the applicant and his company, South Coast Fishing Co Pty Ltd, make application to AFMA for 2 fishing permits (the subject of the present proceedings), the grant of which would entitle them to catch Blue Mackerel in Zone B of the JMF/SPF.
63. The Tribunal notes, furthermore, that the applicant is not prevented, by AFMA’s “limited entry” policy, from otherwise gaining access to Zone B of the SPF by acquiring one or more fishing permits from existing permit holders. Indeed, according to his own evidence, he has already done so – he has acquired one such permit, and has arranged for the transfer to him of another permit (although returnable on demand).
64. Having regard to the considerations referred to in paragraphs 62 and 63 above, the Tribunal is not satisfied, either that the applicant was previously done an injustice by reason of his not being invited by AFMA to apply for inclusion in the JMF Register of Interest in 1992 or otherwise given the opportunity by AFMA to apply for a fishing permit for Zone B of the JMF upon its establishment, or that the applicant would now be done an injustice by the refusal, in accordance with AFMA’s “limited entry” policy, to grant him a fishing permit for Zone B of the SPF.
65. The Tribunal, on the other hand, is satisfied that there are cogent reasons (fully explained in the evidence of Dr Young and Dr Alden) why AFMA’s “limited entry” policy in respect of Zones B, C and D of the SPF should be applied in the applicant’s case, and should continue generally to be applied, in accordance with the “precautionary principle”. It follows, in the Tribunal’s opinion, that the correct and preferable decision in the present case is, in accordance with AFMA’s “limited entry” policy regarding Zones B, C and D of the SPF, to refuse to grant a fishing permit, under s 32(1) of the FM Act, to each of the applicant and South Coast Fishing Co Pty Ltd in respect of Zone B of the SPF.
Decision
66. For the above reasons the reviewable decision of a delegate of the respondent, dated 27 March 2000, is affirmed.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President
Signed:............(sgd V Wong)............................................
AssociateDate/s of Hearing 21-23 May 2003
Date of Decision 29 April 2004
Counsel for the Applicant Mr P Ward
Solicitor for the Applicant Peter Ward, Lawyer
Counsel for the Respondent Mr M Ritter
Solicitor for the Respondent Ms A Ciffolilli
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