Greenaway -v- Director, Department of Fisheries

[2000] NSWADT 173

CITATION:	Greenaway -v- Director, Department of Fisheries [2000] NSWADT 173
DIVISION:	General Division
PARTIES:	APPLICANT Joseph Greenaway RESPONDENT Director, Department of Fisheries
FILE NUMBER:	003179
HEARING DATES:	28/07/2000
SUBMISSIONS CLOSED:	07/28/2000
DATE OF DECISION:	11/28/2000
BEFORE:	Rice S - Judicial Member
APPLICATION:	Fisheries Management Act - fishing licence- endorsement on licence - Fishing licence - endorsement on licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Fisheries Management Act 1994
CASES CITED:	Woodward v Director General, NSW Fisheries [2000] NSWADT 143 Searl v Director-General, NSW Fisheries [2000]NSWADT 53 Virtu v Director General, NSW Fisheries [2000] NSWADT 75 Hirst-v- Director, Department of Fisheries [2000] NSWADT 158 Puglisi v Director General, NSW Fisheries [2000] NSWADT 105 Thornton v Director General, NSW Fisheries [2000] NSWADT 131
REPRESENTATION:	APPLICANT T Allan RESPONDENT C Cory, solicitor
ORDERS:	1. Pursuant to s63(3)(c) of the Administrative Decisions Tribunal Act and cl 21 4D(1)(b) of the Fisheries Management Regulation 1995:; i. The decision of the Minister to confirm, in accordance with the decision of the review panel, the determination that the applicant is not eligible for a meshing endorsement, is set aside.; ii. In substitution the decision is made to refer the matter back to the review panel for further consideration, together with a recommendation that the panel take account of the reasons of the Tribunal in these proceedings when considering the applicant's eligibility for a meshing endorsement.; 2. Pursuant to s88 of the Administrative Decisions Tribunal, no award of costs

1 This decision, as with many under the Fisheries Management Act 1994 (the Act) and Fisheries Management (General) Regulation 1995 (the Regulation), requires an understanding of the complex regime that has been put in place to create and maintain restricted fisheries.

2 I am conscious that I am engaged in an exercise of merits review, and that it is desirable that the relevant material be considered and that the correct and preferable decision be decided as quickly and simply as possible. To that end I can indicate that the part of these reasons with which the applicant Mr Greenaway is most concerned is at paragraphs 145 to 178 below.

3 This is early days in what is likely to be come a busy area of activity for the Tribunal. The legislation is complex, and the factual circumstances are technical and at times arcane. Various terms are used as terms of art, but their origins, definitions and import are scattered throughout the legislation. Many aspects of the regime combine to make it complex, including the apparent similarity of different terms and the different ways they are used, the inter-relationship between the Act and the Regulation, the reliance on policy to give meaning and effect to aspects of the legislation, and the continuing relevance of the Fisheries and Oyster Farms Act 1935.

4 Decisions to date in the Tribunal have explored some of the difficult issues in interpreting and applying the legislation, and have expounded as necessary on particular provisions.

5 I am taking this opportunity to lay out as clearly as I am able my understanding of so much of the regime as is relevant to my decision in these proceedings. I am doing this, along with similar expositions by the Tribunal in recent cases, to provide a clear basis for understanding the operation of the legislation and, I trust, to assist the parties and the Tribunal in future matters to efficiently address the same provisions.

Policy

6 I note that, in addition to the Act and the Regulation, aspects of the restricted fisheries regime are governed to a considerable extent by policy.

7 I am obliged by the s64 of the Administrative Decisions Tribunal Act to give effect to any relevant policy. The principle policy document is the NSW Fisheries Licensing Policy November 1996 (the Policy). It was a policy “in force at the time the reviewable decision was made” (s64(1) ADT Act).

Objects of the restricted fisheries regime

8 The objects of the Act:

are to conserve, develop, and share the fishery resources of the State for the benefit of present and future generations.

9 These objects, in s3(1), are particularised in subsection (2).

10 Part 4 Division 3 of the Act allows the declaration of restricted fisheries after consultation with relevant fishing industry bodies about the proposed declaration. Within a restricted fishery, commercial fishers can fish only with authorised endorsements on their licences. There are restrictions of the number of endorsed licences, and there are limitations of the transfer of endorsements.

11 Quoting from the Policy at page 6:

The objective of the licensing policy is to prevent increases in commercial fishing, and in particular to :
1. Provide transitional arrangements (etc)
2. Provide a mechanism which allows existing fishers with catch history to identify and subsequently dispose of their business
3. Allow new entrants into the industry in a manner which ensures that real fishing effort is being replaced
4. Provide a mechanism for the consolidation of smaller fishing businesses.
Restricted fisheries

12 The description which follows develops the very useful outlines by the Tribunal in Woodward v Director General, NSW Fisheries [2000] NSWADT 143 at paras 2 to 6, and in Searl v Director-General, NSW Fisheries [2000]NSWADT 53 at paras 33 to 48 and 51 to 58.

13 The Divisions Part 8 of the Regulation prescribe restricted fisheries by reference to species type, waterways type, fishing method, or geographic area:

Division 1 Sea urchin and turban shell
Division 2 Ocean prawn trawl restricted fishery
Division 2A Ocean fish trawl restricted fishery
(see, eg, Puglisi v Director General, NSW Fisheries [2000] NSWADT 105 (subject to appeal), and Searl v Director-General, NSW Fisheries [2000]NSWADT 53)
Division 2B Ocean trap and line restricted fishery
(see, eg, Thornton v Director General, NSW Fisheries [2000] NSWADT 131)
Division 2C Estuary general restricted fishery
(see, eg, Woodward v Director General, NSW Fisheries [2000] NSWADT 14; Hirst-v- Director, Department of Fisheries [2000] NSWADT 158)3)
Division 2D Estuary prawn trawl restricted fishery
Division 3 Scallops in Jervis Bay
Division 3A Inland restricted fishery
Division 4 Jellyfish
Division 4A Ocean hauling fishery
( see, eg, Virtu v Director General, NSW Fisheries [2000] NSWADT )75
Endorsements

14 The ability of a fisher to fish in a restricted fishery is dependent on them obtaining the necessary endorsements on her/his licence. Section 112 of the Act says that:

A commercial fishing licence does not authorise a person to take fish for sale in a restricted fishery unless the holder is authorised by the Minister, by an endorsement on the licence, to do so.

15 In each Division in Part 8 of the Regulation is provision for the Minister to grant that authority by an endorsement. The general approach to eligibility for endorsement is the same in each Division, and for many the requirements are in almost identical terms.

16 Division 2C of Part 8 governs “estuary general restricted fishery”, and clause 191M lists the classes of endorsements available. The different classes relate to different fishing methods. Clause.191N prescribes the requirements for eligibility for each class.

17 For any class of “estuary general restricted fishery” endorsement, cl.191N(1) prescribes two “general requirements”. The first is ownership of a licenced fishing boat. The second is the submission of at least 12 estuary waters catch returns in any 4 years from 1896 to 1993, at least one of which relates to a month before 1991. I describe below the meaning of “catch return”.

Eligibility for endorsements

18 Clause 191N then prescribes specific eligibility requirements for endorsement in each of nine different classes:

sub-clause (2): handlining and hauling crew
sub-clause (3): meshing
sub-clause (4): prawning
sub-clause (5): trapping
sub-clause (6): eel trapping
sub-clause (7): mud crab trapping
sub-clause (8): hand gathering
(see, eg, Woodward v Director General, NSW Fisheries [2000] NSWADT 14; Hirst-v- Director, Department of Fisheries [2000] NSWADT 158)3)
sub-clause (9): category one hauling
sub-clause (10): category two hauling

19 Eligibility for endorsement in each class has as a threshold requirement that the two general requirements in cl.191N (1) must be satisfied. Sub-clause 8 has a further threshold requirement.

20 As well, each of the provisions, but for ‘(2) handlining and hauling crew’, has its own specific requirement as to the number of estuary waters catch returns in the period 1986 to 1993 which indicate that the particular fishing method was used.

21 But for (2) and (8) which are slightly different, a person is eligible for an endorsement if the Minister is satisfied that all of the two general requirements and the specific requirement, are met by the person.

22 All provisions clearly make eligibility for endorsement dependent on the Minister being satisfied as to the general and specific requirements. I note however cl.191N(12) which says:

In determining a person’s eligibility for an endorsement, the Minister may have regard to the records kept by the Director (including records of net registration, licence records and records of fish taken by a commercial fisher).

23 In my view the Minster could only relevantly have regard to these records so as to understand whether the general and specific requirements have been met. Whatever regard the Minister may have to those other records, they cannot substitute for the need to meet the general and specific requirements of cl.191N(1) – (11).

24 It is clear that a key concept in eligibility for any class of endorsement is that of “catch return”: each of the provisions for obtaining a class of endorsement turns on the submission of a person’s catch returns.

25 Clause.191N(11), however, allows a person who owns a fishing business to rely not on their own catch returns but on the “catch history associated with (that) fishing business”, if that catch history satisfies the endorsement’s requirements. This provision introduces a further term “catch history associated with a fishing business”, which I describe below.

26 I turn now to the meaning of the terms used in the cl.191N, and throughout Part 8 of the Regulation, on which eligibility for endorsement turns: “catch return” and “catch history associated with a fishing business”.

Meaning of ‘catch return’

27 ‘Estuary waters catch return’ is defined in cl.191N(14) as “a return under s42 of the 1935 [Fisheries and Oyster Farms] Act that relates to takings of fish in estuarine waters”. Section 42 of the Fisheries and Oyster Farms Act 1935 empowers the Minister to prescribe a form for the furnishing of returns “as to the catch, sales, output, gear used in connection with the operations, or business of such persons”.

28 Form 49 was the prescribed form from at least 1986 (which is when the period for assessing endorsement eligibility begins) until a date in 1990.

29 Form 49 did not in fact relate specifically to “takings of fish in estuarine waters”: the same form was used for fish taken in both estuarine and ocean waters, although it allowed a fisher to list the estuarine and ocean catch under separate headings. Under the Fisheries and Oyster Farms (General) Regulation 1989 the prescribed form has been, from a date in 1990, Form 19, which relates only to catch in estuarine waters.

30 An estuary waters catch return is, therefore, either Form 49 or Form 19 depending on the time being referred to. Form 49 was in use only until a date in 1990. Any reference generally to catch returns in the past will be to both Forms: 49 and 19. Any reference to a catch return since a date in 1990, particularly to a catch return completed under the Act which commenced in 1994, will be to a Form 19.

31 It would have been relatively straightforward if the definition of ‘catch return’ in cl.191N(14) had referred not to a form prescribed under a repealed regulation under a 1935 Act, but to the record a fisher is required to keep under the Act and Regulation. By a circuitous route, however, the two separately defined documents are manifest in the same Form 19.

32 Quite apart from “catch returns” in cl.191N defined by reference to the 1935 Act, s121 of the 1994 Act requires a fisher to make a “record of all fish taken”. That “record” must be in the form prescribed by the Regulation or approved by the Minister. Clause 222 of the Regulation prescribes for s121 the same form that had been prescribed under the 1935 Act, ie Form 19.

33 Thus a “catch return” in cl.191N is in the same form as a “record” in s121. To put it another way, Form 19 is both a “catch return” for purposes of cl.191N and a catch “record” for purposes of s121.

34 The obligation to submit the completed Form 19 to the Department is in s122 of the Act, where it is submitted as a catch “record”. Form 19 is drafted so as to require details relating to fishing in a calendar month, and by cl.223 the form must be submitted within 28 days of that month.

35 Form 19 as a “catch return” (cl.191N(14)) is relevant to eligibility for endorsement under cl.191N(1)-(10), as I have described above. Catch returns are not referred to in the restricted fisheries legislative regime for a purpose other than eligibility for endorsement.

36 Form 19 as a catch “record” (s121) is relevant to assessing catch history. “Catch history” is relevant, among other things in the Act and Regulation, to eligibility for endorsement under cl.191N(11) as I have described above.

37 For purposes of these proceedings, reference to ‘catch return’ is a reference to a Form 49 or a Form 19. When it is necessary to distinguish between the two forms I will refer to them by name.

Meaning of ‘catch history’

38 The Policy says that:

Catch history arises from the monthly catch records submitted by each licensed fisher on the forms prescribed by the regulations (ie Form 19, 49 etc).

39 I understand from this that, within the terms of cl.135(3), the records to which the Director will have regard in determining catch history are the catch returns in Forms 49 and 19.

40 “Catch history” is referred to in two ways in the Act and Regulation. “Catch history of a person” is defined in s51 of the Act and cl.128 of the Regulation. The term appears to be, but is not explicitly, relevant only to “Part 3 Commercial share management fisheries” in which shares in fisheries are allocated in the basis of catch history as defined. The term “catch history” is not used in the Act for any other purpose. The term “catch history” is used in clauses 128 and 139 of the Regulation for the same purpose as in s51. In cl.139 the use of the terms is specifically linked to s51: “catch history (as referred to in section 51 of the Act)”.

41 The term “catch history” is also used in cl.135, in the phrase “catch history associated with a fishing business”. The phrase is defined in cl.135(3), and is used repeatedly throughout Part 8 of the Regulation relating to endorsements.

42 Clause 135(3) reads:

The catch history associated with a fishing business is the historical takings of fish for sale by in connection with a fishing business. The catch history is to be determined by the Director in such manner as the Director considers appropriate, having regard to the records, kept by the Director, of fish taken for sale by any person involved in the business.

43 Whenever the phrase “catch history associated with a fishing business” is used, reference is made to the definition in cl.135(3). For “estuary general restricted fishery” endorsements the phrase is used in cl.191N(11), and the cross-reference to cl.135(3) is in cl.191N(13).

44 In my view the term “catch history” is used in two different ways in the Act and Regulation. The first is in s51 of the Act and clauses 128 and 139 of the Regulation, and is relevant to shares in commercial fisheries. The second is in cl.135 and throughout Part 8, where it occurs only in the phrase “catch history associated with a fishing business” and is relevant, in Part 8, to eligibility for endorsement.

45 Part 6.0 of the Policy is headed “Catch History”, and is referring to “catch history” in the latter context. The Policy says that “Catch history falls into two categories: (a) Personal catch history (and) (b) Boat history”, and goes on to describe both.

46 This expanded understanding of the term “catch history” means that the phrase “catch history associated with a fishing business” refers to both the personal catch history and the boat history, as defined in the Policy, associated with a fishing business.

47 According to the Policy (at 6.0), boat history does not arise in relation to estuary fishing except for prawning. An assessment of “catch history associated with a fishing business” for purposes of estuary endorsements in cl.191N(1), therefore involves only personal catch history.

48 “Personal catch history” is not referred to at all in the Act or Regulation. It is said by the Policy(at 6.0(a)) to comprise “all of (a fisher’s) catches taken from general purpose vessels between 1986 and 1993”. There is no issue in these proceedings that the catches have been taken from general purpose vessels.

49 The point to be made is that “personal catch history” is all of a person’s catches in the defined period. Nothing more is said in the Policy as to how this is determined. Clearly, however, a person’s personal catch history will be determined by the primary documents which record the catches taken: the catch returns, ie Forms 49 and 19.

50 It comes down to this: the “catch history associated with a fishing business”, for purposes of eligibility for endorsement under Part 8 and, in particular in these proceedings, for estuary waters endorsement under cl.191N, is what it is said to be in cl.135(3): “the historical takings of fish for sale by or in connection with a fishing business”. Those historical takings are assessed by reference to the Forms 49 and 19 which relate to that fishing business.

Status of computer records

51 Although the catch history associated with a fishing business is assessed by reference to the catch returns in Forms 49 and 19, the Department relies on computer summaries of those forms.

52 The Department takes details from the Forms 49 and 19 submitted by fishers, and records them as electronic data. The resulting computer records can be viewed on screen and in print-outs. The print-outs are commonly on the Department’s file relating to a licensed fisher.

53 The computer records are titled “Catch History of Fishing Operation Reports”. I am going to assume that the introduction of yet another term, “fishing operation reports”, not defined or occurring elsewhere, is merely a reference to the Forms 49 and 19. The title raises the question: what is the status of these computer records?

54 Reading cl.135(3) with the Policy at 6.0, in my view the computer records are a summary of the Forms 49 and 19, on the basis of which the Director determines the catch history. The computer records are not themselves the catch history, and cannot be. The catch history is, by cl.135(3), the historical takings, which is a question of fact to be determined. The Director’s determination of catch history has “regard to the records kept by the Director of fish taken for sale”, ie to the Forms 49 and 19, which are summarised in the computer records.

55 Simply to illustrate the point, I can put the position in terms of s50 of the NSW Evidence Act: the collection of Forms 49 and 19 for each fisher would be voluminous and complex, and they are conveniently examined in the form of a summary. That summary is the computer records. As useful as the summaries may be, a close examination of entitlement may require examination of the original records.

Transfer of catch history

56 Can a person who buys a fishing business also buy the “catch history associated with a fishing business”? This question is raised in the definition in cl.135(3):

If a fishing business is sold by a person, the catch history associated with that business is transferable only in accordance with guidelines issued by the Director from time to time.

57 From the Tribunal’s decision in Searl at paragraphs 51-58 I am aware that the guidelines for purposes of clause 135(3) are found in at least the following:

· the Policy
· an internal document of the Department ‘Briefing – Eligibility For Endorsements Following Transfer’ dated 1 July 1998
· a publication ‘General information on commercial fishing and transfer of a fishing business’ dated 15 July 1998
· a publication “Restricted Fisheries Endorsements Transfer Guidelines’ dated 12 July 1999.

58 For these proceedings I need observe only that personal catch history can be transferred with the transfer of a fishing business subject to certain requirements. In the Policy at 6.2 for example, various circumstances are described under a heading “When can I transfer catch history?”. As well as in Searl, the ability to transfer catch history was at issue in Virtu v Director General, NSW Fisheries [2000] NSWADT 75.

59 There is no argument in these proceedings that the requirements were met, and that the personal catch history of the previous owner of the fishing business was transferred to the current owner, who is the applicant for the endorsement.

Internal Review

60 Part 8 Division 6 of the Regulation provides for internal review of decisions relating to eligibility for endorsements and to determinations of catch history. Clause 214A sets out the matters in relation to which a review can be sought, cl.214B establishes the review panel, and cl.214C sets out the grounds for review.

61 The review panel forms a view regarding the correctness of the original determination and reports to the Minister. Clause 214D provides that the Minister can make a decision in accordance with the review panel’s view, or can refer the matter back to the panel.

62 The operation of the review panel, and the grounds under cl.214C are discussed more fully in Woodward v Director General, NSW Fisheries [2000] NSWADT 143 at paras 9 to 14, and 37-38, and Hirst-v- Director, Department of Fisheries [2000] NSWADT 158 at paras 42 to 61.

63 For reasons I give below, these proceedings do not require me to consider the grounds under cl.214C.

The issue in these proceedings

64 Mr Greenaway is a new entrant to the “estuary general restricted fishery”, and has no personal catch history. His eligibility for endorsements on his licence is dependent on cl.191N(11), by which he can rely on the catch history associated with his fishing business to meet the endorsement eligibility requirements.

65 The catch history which has to be assessed is that which was transferred to Mr Greenaway with the business. The catch history to be assessed is the personal catch history of Mr John Franks, from whom Mr Greenaway purchased the fishing business in 1996. As I say, there is no dispute that the personal catch history did transfer with the business, and I do not describe the process under the Policy by which this happened.

66 The issue in terms of cl.191N(11) is whether the catch history associated with Mr Greenaway’s fishing business - which is Mr Franks’s catch history based on his catch returns, transferred to Mr Greenaway with the transfer of the fishing business – satisfies any of the eligibility criteria in cl.191N, specifically cl.191N(3).

67 The issue in practical terms is whether Mr Franks’s catch returns meet the requirements of cl.191N(3)(b).

68 In Searl the Tribunal commented, if I understand correctly, that there is a problem with the provision in cl.191N(11) in that its terms do not enable its apparent intention. The Tribunal was there referring to “ocean fish trawl restricted fishery” provisions, which are relevantly in the same terms as “estuary general restricted fishery” provisions: cl.191N(3)(b) equates with cl.187(1)(b), and cl.191N(11) equates with cl.187(4).

69 As the same provisions are central to these proceedings, I must address these concerns.

70 The Tribunal in Searl saw that the intention of cl.191N(11) was to enable people who obtain a personal catch history by transfer to be eligible for endorsement on the basis of that catch history. The Tribunal felt however that because cl.191N(3)(b) requires the applicant for the endorsement to have submitted the relevant catch returns, catch returns transferred from another person could not, despite cl.191N(11), satisfy the cl.191N(3)(b) requirements. The Tribunal suggested that the provisions be reviewed.

71 With the greatest respect, I disagree. Clause 191N(11) is, effectively, a deeming provision. It does not require the person who is seeking the endorsement to be the person who submitted the catch returns, as do sub-clauses (2) to (10). It enables a person to use the transferred catch returns, rather than catch returns personally submitted, to meet the criteria. It operates “even if the person even if the owner did not personally take the fish for sale or submit any catch returns”. Wording to the same effect is in cl.187(4) which the Tribunal in Searl was considering.

72 In my view, despite the observations in Searl, the issue is whether the catch returns which have been transferred - in this case Mr Franks’s - meet the requirements of cl.191N(3)(b).

The meaning of ‘indicate’

73 The particular requirement for a meshing endorsement in clause 191N(3)(b) is:

the person submitted to the director at least 8 estuary waters catch returns in the years 1986 to 1993 that indicate that fish were taken from estuarine waters using a meshing net or flathead net and at least one of those returns relates to a month prior to January 1991.

74 The significance of the catch returns is that they must “indicate that fish were taken . . . using a meshing net or flathead net”. In my view, considering whether a catch return “indicates” the way fish were caught is a different exercise from merely noting what method was “listed”. The “listed” method will be the sensible starting place, and will give a very strong but not necessarily conclusive indication of the method used.

75 To understand what a catch return indicates, the catch return must be interpreted as a whole. It is insufficient to merely look at that part of the catch return which asks a fisher to mark in a box the fishing method used.

76 An interpretation of the catch returns as a whole would not be warranted, and there would be no need to look beyond the marking of the boxes, if eligibility was contingent only on the number of catch returns on which the particular method was marked or, to use the Department’s term, “listed”, in the appropriate box.

77 Rather than make eligibility dependent on what the returns “indicate”, the requirement could have been in terms which limited the relevance of the catch return to the fishing method actually marked on it. This however would have been an unjustly narrow basis for assessing eligibility, because the way Form 49 was designed, which I describe below, means that that part of the form where a fisher marks a fishing method gives an incomplete account of the fishing methods that were was used.

78 I respectfully agree with the Tribunal in Woodward when it says at para 7:

in particular cases it could be unfair to hold a fisherman strictly to what appeared on returns lodged years before they were given critical importance to his right to continue in his livelihood. Many fishermen are not proficient in clerical work, and gave the accurate completion of their returns little priority. Some fishermen cannot read and write and are dependent upon clerical assistance from others. Moreover, where eligibility criteria focus upon a few years in a long history of fishing activity, the returns for those years might not fairly reflect a fisherman's commitment to particular fishing activities, but have been distorted by short term events affecting the general viability of a type of fishing or a fisherman's own ability to engage in it.

79 The Department in some of its documentation acknowledges this to be the case. A document on the Department’s file in these proceedings (at p50), headed “Supporting Information for Your Restricted Fisheries Review”, is provided to fishers with appeals pending before the review panel. In that document the Department says:

In some instances not all fishing methods . . . have been correctly listed on catch returns, particularly prior to 1990, when the older [Form 49] catch return forms were used.

80 In that document the Department goes on to encourage applicants to analyse the species types in the catch returns to assist in verifying the methods that were used.

81 Clearly the Department looks at the catch returns as a whole to understand the fishing methods used, and it encourages fishers to do the same. The eligibility requirement in cl.191N(3), that the returns “indicate” a fishing method, means that an administrator must go beyond looking at that part of the catch return which lists the method. Assessing eligibility involves both interpretation of the whole catch return and, as the Department acknowledges, consideration of other material which will assist an understanding of what the form indicates.

82 This is the same approach taken by the Tribunal in Thornton. I respectfully agree with the Tribunal at paras 32 and 38:

It is the eligibility of the applicant for the endorsement that has to be determined, and the records or catch history are to be examined to that end. They are not to be assessed as to their content as an end in itself.
(T)he substantive issue . . . is the eligibility of the applicant to (an) endorsement . . . ; that issue is to be determined upon all the material before me and not just the applicant's 'catch history records' as that term may be defined under the scheme of the Act and the Regulations

83 In my view however this approach does not permit reliance on material indicating that a fishing method was used if the material is irrelevant to an understanding of the catch returns. The requirements of cl.191N are clear to this extent: it is the catch returns, fully understood, which are the basis of eligibility. Eligibility under cl.191N cannot be supported by material that is not relevant to an understanding of the catch returns.

Form 49

84 It is clear that the provision for marking fishing methods in Form 49, which was the prescribed form for catch returns until a date in 1990, is inadequate by itself to satisfy anyone as to the fishing methods actually used. A Form 49 is Exhibit A in these proceedings.

85 Form 49 carried the instruction: “Indicate main fishing method used by an ‘X’”, above a list of fishing methods. A fisher might have used two, three, four or more different methods in the month, but that would not be apparent from the form.

86 Eligibility under cl.191N is not concerned at all with the relative frequency with which certain methods were used. Eligibility turns on whether a particular method was used at all. Thus to the extent that regard is had to Form 49 catch returns to determine what methods were used, the ‘X’ in the box for ‘main fishing method used’ is not necessarily helpful: it will show only one of what may have been many methods used in the month.

87 The ‘X’ in the box of a particular Form 49 catch return cannot be relied on to accurately “indicate” all the fishing methods used in the month. The ‘X’ is conclusive only as to one of the methods used. The particular catch return must be taken as a whole to understand what fishing methods it indicates, and other material may help that understanding.

88 The period for which catch returns are relevant under cl.191N is 1986 to 1993. Proportionally, therefore, for a fisher who fished throughout the period, most catch returns will be in Form 49. As well, the requirement that one of the returns showing the relevant fishing method be from before 1991 is likely to be met from a Form 49.

89 As the ‘fishing method used’ section of a Form 49 is inconclusive in indicating all the fishing methods used, the Minister must consider the whole of the catch return, and other material that helps an understanding of what the catch return indicates, to be able to form a view as to what fishing methods such a catch return indicates.

Form 19

90 Form 19 carries no instructions, but Section A9 is headed “Days fished for each method used in this estuary this month” (bold in the original), and is followed by a table listing a range of fishing methods. Thus rather than marking only one, main, method with an ‘X’, a fisher is implicitly required to enter the number of days each method was used in the month. As well, there is provision to record the number of days when more than one method was used.

91 The entry in Section A9 of a Form 19 catch return will be strongly indicative of all the fishing methods used in the month. But it is still the case that the particular catch return must be taken as a whole to understand what fishing methods it indicates; the whole form might be understood to indicate the use of a fishing method not specified in Section A9. Other material may help that understanding. The Department’s own material, referred to in paragraphs 79 and 80, concedes that even the redesigned Form 19 may not correctly list all fishing methods.

92 Although section 9A of Form 19 is strongly indicative of all the fishing methods used, the Minister must consider the whole of the catch return, and other material that helps an understanding of what the catch return indicates, to be able to form a conclusive view as to what fishing methods such a catch return indicates.

Inaccurate or incomplete?

93 The relevant part of Form 49 is always inconclusive as to the full range of fishing methods used. The relevant part of Form 19 might be inconclusive. Is it therefore the case that “the records relied on . . . . are for reasons that are not attributable to the fault of the person, inaccurate or incomplete” within the meaning of cl.214C(2)(a), which is a ground for the review panel to consider? I do not think so.

94 Any Form might be accurate, despite the misleading nature of a part of it, as long as it is understood as a whole. Only after the meaning of the particular catch return, taken as a whole, is clear, would it be possible to say whether it is inaccurate or incorrect. It is not incorrect on the basis only that a part of it is inconclusive.

95 If a fisher says that a Form, despite there being no mark in the required place, does indicate that a particular fishing method was used, the fisher is not saying the form is inaccurate. The fisher is saying that the Form, understood as a whole and not only as to part of it, is accurate.

96 The review panel would consider such a contention under 214C(1): “any circumstances that are relevant to the determination”, rather than go to the considerations in 214C(2).

97 If however the fisher concedes that, even taken as a whole, the form does not indicate the particular fishing method, they might rely on grounds under 214C(2), such as using verified records to show that the form, properly understood, is inaccurate or incorrect.

The meaning of ‘at least’

98 In my view the terms of cl.191N(3)(b) do not require the Minister to be satisfied as to 8 specific catch returns, each one of which indicates use of the meshing method. The critical issue as to which the Minister must be satisfied is that the person submitted “at least 8 estuary waters catch returns” which indicate the use of the relevant fishing method.

99 In my view, this phrase means that there is no need to identify 8 catch returns for particular months which indicate the use of the relevant fishing method. Rather, the Minister must be satisfied that among the catch returns submitted by the fisher in the prescribed period, there are at least 8 which indicate the use of the relevant fishing method.

100 If, for example, a general perusal of the documentation is overwhelming in establishing that the criteria are met, it would be enough for the Minister to say “I am satisfied that there are at least eight of the relevant returns and one before 1991”. It is not necessary for the Minister to specify eight particular returns. Conversely, if it is not immediately apparent that the criteria are met, the Minister might need to engage in an exercise of assessing specific returns to see whether the relevant method is “indicated” in the way I have described above.

101 Once a pattern is apparent such that the Minister can be satisfied that among all the catch returns there are “at least 8 and 1 before 1991”, s/he can stop the assessment. The exercise might indeed give rise to a list of eight catch returns for specific months, but it need not, as long as the Minister can be satisfied that the person submitted “at least 8” which show the relevant method including one before 1991.

102 I note that what I have said for cl.191N(3)(b) would be true for the other sub-clauses of cl.191N which are in the same terms relating to different endorsements.

The facts in these proceedings

103 A copy of the Department’s file, admitted into evidence as exhibit 1, is incomplete. The documents were provided to the Tribunal as required by s58(1)(b) of the Administrative Decisions Tribunal Act, under cover of a letter which says in part “please find enclosed three copies of the fisheries review file containing the assessment of the applicant’s eligibility for an estuary general restricted fishery meshing endorsement”.

104 Section 58(1)(b) requires the administrator to lodge:

a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal.

105 Despite the requirements of section 58(1)(b), the file does not show Mr Greenaway’s application for endorsements, the decision made in relation to his application, or some of the correspondence. It is obvious that those documents were once in existence but are not on the file. There might be other material, of which I am unaware. I have gleaned the following summary from the file notes and documents on the file.

106 Mr Joe Greenaway owns fishing business FB563 which he purchased from Mr John Franks in 1996. Because FB563 is a “recognised fishing operation” as defined in cl.135 of the Regulation, Mr Greenaway is entitled to and does hold a commercial fishing licence.

107 When he purchased FB563, Mr Greenaway obtained the catch history associated with that business in accordance with the Department’s guidelines.

108 It appears that Mr Greenaway applied in November 1996 for two endorsements, a ‘category one hauling endorsement’ and a ‘meshing endorsement’. It appears that in March 1997 he was refused both. He later obtained the ‘category one hauling endorsement’ and that is not the subject of this application.

Original decision

109 It appears from documents on the file prepared for the review panel process that the original decision was that Mr Greenaway was not eligible for a meshing.

110 It appears that the reason for the decision was that Mr Franks’s catch returns, on which the catch history which transferred to Mr Greenaway was based, showed only 7 catch returns which satisfied cl.191N(3)(b), and not eight as required. Thus cl.191N(11) could not be satisfied. No other reason for the refusal was referred to in any documents relating to the review panel, or in the proceedings before the Tribunal.

Statutory review

111 Clause 214A of the Regulation entitled Mr Greenaway to request an internal review of the decision. On 17 December 1997 he did so.

112 By letter dated 14 July 1998 Mr Greenaway was advised that the review panel was satisfied that he could establish “7 catch returns listing (sic) meshing as a method”. The review panel noted that other catch returns which do not “list” meshing as a method nevertheless list species which could have been caught by that method. The review panel gave Mr Greenaway the opportunity present evidence which might establish that that was the case.

113 From this point on in the chronology, if not earlier, Mr Greenaway was represented in his dealings with the Department by his father-in-law Mr Ted Allan. Mr Allan made representations to the Department in relation to the meshing endorsement in an undated letter which seems to have been written at some time between 14 July 1998 and 27 January 1999.

114 By letter dated 27 January 1999 Mr Greenaway was advised that the Department’s review panel was still not satisfied at that stage that he was eligible for the meshing endorsement. Mr Greenaway was invited to make submissions to a hearing.

115 The first notice of hearing was sent to Mr Greenaway on 28 April 1999. A file note shows that Mr Allan responded by twice telephoning the Department to say that he was obtaining evidence as requested by the review panel in anticipation of a hearing. On 3 May Mr Allan sent a letter to the same effect, and a file note shows that on 18 May Mr Allan telephoned the Department to confirm he would be at the hearing.

116 A file note shows that Mr Allen appeared at the hearing on 25 May, representing Mr Greenaway, but that hearing was adjourned to 27 May “for evidence from Bradbury”.

117 There is no record of why a hearing did not proceed on 27 May. A file note shows that Mr Allen appeared, and that the hearing was adjourned to a date to be fixed. A file note shows that on 22 June Mr Allan attended the Department and agreed to a hearing date of 25 June.

118 There is no record of why a hearing did not proceed on 25 June. Both Mr Greenaway and Mr Allan were advised by letter of a hearing on 27 July.

119 By letter dated 12 July the Department advised that that hearing was rescheduled to 29 July.

120 There is no record of why a hearing did not proceed on 29 July. A file note shows that Mr Allen appeared, and that the hearing was adjourned to 19 October “for finalisation”.

121 The next document on the file is an undated letter signed by John Gray, one of the witnesses to be relied on by Mr Greenaway. It appears to have been submitted to the Department by Mr Allan at some time between 29 July and 12 October 1999.

122 By letters dated 12 October 1999 the Department advised both Mr Greenaway and Mr Allan that “the hearing previously set for 19 October 1999 . . . is no longer available due to unforeseen circumstances”.

123 By letter dated 30 December 1999 to Mr Greenaway, copied on 6 January to Mr Allan, the Department advised that a hearing was scheduled for 31 January 2000.

124 On 31 January 2000 the Restricted Fisheries Review Panel recommended to the Minister that Mr Greenaway’s application for the meshing endorsement be refused. The recommendation in full reads:

In view of the applicants failure to appear today or to respond to registrar’s correspondence of 6 January 2000, 12 October 1999 and 12 July 1999 the Review Panel deems the applicant’s request for review of his Estuary General Restricted Fishery Meshing endorsement application abandoned.
The Review Panel is not satisfied that the applicant meets the eligibility criteria for an Estuary General Restricted Fishery Meshing endorsement and recommends to the Minister that that application be refused.

125 On 21 March 2000 the Minister approved that recommendation. Within the terms of clause 214D of the Regulation, the Minister, in accordance with the decision of the review panel, confirmed the determination that was reviewed by the panel. Mr Greenaway was advised of the Minister’s decision by letter dated 2 May 2000.

126 I share the reservations expressed by the Tribunal in Woodward at paragraphs 26 to 28 regarding the manner in which the review panel and the Minister have made clear their reasoning processes.

127 On 26 May 2000 Mr Allan lodged, on Mr Greenaway’s behalf, an application for review to this Tribunal.

Reviewable decision

128 There has been some uncertainty and disagreement about which decision Part 8 of the Regulation is the reviewable decision for purposes of the Tribunal’s jurisdiction.

129 In Hirst v Director General, NSW Fisheries [2000] NSWADT 158 I discussed the cases to date and decided that the correct view, although one leading to perhaps an unintended result, is that the reviewable decision in the legislative scheme for restricted fishery endorsements is that of the Minister under clause 214D of the Regulation.

130 The reviewable decision for purposes of Mr Greenaway’s application to this Tribunal is therefore the Minister’s decision of 21 March 2000, taken by the Minister under clause 214D of the Regulation in light of a report from the review panel, to affirm the original decision.

‘Authority to Fish’

131 I note that Mr Greenaway holds an ‘Authority to Fish’ with a meshing endorsement which is valid until the finalisation of the review process, including the deliberations of this Tribunal.

132 Because the reviewable decision is that of the Minister under cl.214D, this Tribunal, if it disagrees with the decision, cannot substitute a decision which finally determines the application. The decision-making process must continue at least as far as a further consideration by the Review Panel.

133 The terms of the ‘Authority to Fish’ do not encompass this outcome. They say that the authority is valid only until the finalisation of the Tribunal proceedings. It is desirable that the terms of such an authority are amended so that they extend the validity of the authority to the finalisation of the original application for endorsement and any associated review process.

Issue for decision

134 The issue for decision by the Tribunal is whether the Minister, in confirming the determination reviewed by the panel that clauses 191N(11) and (3) had not been satisfied, made the correct and preferable decision.

135 The Minister had only two options open to him: to confirm the original determination in accordance with the review panel’s recommendation, or to refer the matter back to the panel for further consideration, with comments or recommendations.

136 As the Tribunal said in Woodward, the Minister would not be expected to refer the matter back for further consideration without being satisfied that there is reason for doing so. Thus this Tribunal must decide whether referring the matter back to the review panel for further consideration is the correct and preferable decision, as against merely accepting the review panel’s recommendation. To decide this, the Tribunal will itself consider the matters which the review panel would have to address in any reconsideration.

Review panel’s recommendation

137 Before considering any material, it is clear to me from the very terms of the review panel’s recommendations in light of the history of this matter, that at the very least the matter should be referred back to the review panel so that they do actually conduct a review as required by cl.214B(3):

The panel is to review the determination the subject of the review request . . .

138 The review panel in its recommendation to the Minister on 31 January treated the endorsement application as “abandoned”. The panel decided this “(i)n view of the applicants failure to appear today or to respond to registrar’s correspondence of 6 January 2000, 12 October 1999 and 12 July 1999”.

139 The correspondence of 6 January 2000 and 12 October 1999 was merely notifying of a hearing date, and required no response other than attendance at a hearing. As it happened, the October hearing was vacated by the Department. The correspondence of 12 July 1999 similarly required no response other than attendance, although Mr Allan did respond on Mr Greenaway’s behalf both by providing a signed statement of a witness, and by attending the hearing on the notified date.

140 Neither Mr Greenaway nor Mr Allan attended on 31 January 2000, but that can not reasonably be taken as an abandonment of the application in light of the history of this matter and Mr Greenaway’s long-standing interest and involvement in it through his representative Mr Allan.

141 The review panel’s recommendation is ambiguous in that it treats the application as abandoned, but goes on to say that the panel “is not satisfied that that applicant meets the eligibility criteria”. As I noted in paragraph 126 above, it is not at all clear that the review panel did actually turn its mind to the determination which was the subject of the review request, or take into account the material it had requested and which had been provided in writing.

142 Without having to have regard to anything more than the terms of the panel’s recommendation, the correct and preferable decision which should have been taken by the Minister at the time was, at least, that the matter be referred back to the panel for further consideration, with a recommendation that the material provided be taken into account and that the applicant be given a reasonable opportunity to be heard.

143 My observations here are consistent with those of the Tribunal in Woodward at para 26 and Puglisi v Director General, NSW Fisheries [2000] NSWADT 105 at paras 16 to 18. To the extent that the review panel continues to operate, I am obliged by the objects of the Administrative Decisions Tribunal Act at s3(e)-(f) to take the opportunity of identifying ways in which the Department’s process of internal review could be improved.

144 The applicant has now had the opportunity to be heard, and to have additional material considered, by the Tribunal. I am now able to decide what the correct and preferable decision is having regard to the relevant material before me.

Evidence of eligibility for endorsement

145 Pursuant to s71(1) of the ADT Act Mr Greenaway was represented at the hearing by his agent Mr Allan. Mr Allan’s entitlement in this regard was not disputed by the Department.

146 When I refer to Mr Greenaway’s satisfying (or not) the requirements of cl.191N(3), I am effectively referring to his satisfying (or not) these requirements by reliance on Mr Franks’s catch returns.

147 The Department agrees that Mr Greenaway satisfies the general requirements for any Estuary General Restricted Fishery endorsement in cl.191N(1).

148 Mr Greenaway then needs to satisfy the particular requirement for a meshing endorsement in clause 191N(3)(b):

the person submitted to the director at least 8 estuary waters catch returns in the years 1986 to 1993 that indicate that fish were taken from estuarine waters using a meshing net or flathead net and at least one of those returns relates to a month prior to January 1991.

149 The Department says that Mr Greenaway has seven catch returns which indicate the meshing method, one fewer than the requisite eight to satisfy clause 191N(3)(b).

150 Mr Greenaway, through Mr Allan, says that other catch returns “indicate” that the hauling method was used. If this is accepted, he would satisfy clause 191N(3)(b).

151 Mr Greenaway does not say that the catch returns are inaccurate or incomplete. He says that the Department incorrectly interpreted the catch returns at the outset: where the Department says that there are only seven catch returns “that indicate that fish were taken . . . using a meshing net”, Mr Greenaway says that additional catch returns, properly understood, also “indicate that fish were taken . . . using a meshing net”.

152 Mr Allan gave evidence for Mr Greenaway. Mr Allan’s evidence is that he has 15 years’ experience as a commercial fisher in estuarine waters, completing monthly catch returns. In that time he has used hauling and meshing methods as conditions dictated. He has knowledge of the use made of meshing, and the likely catch from it, based on that experience.

153 The Department did not question Mr Allan’s experience, nor did it lead any evidence to contradict Mr Allan’s evidence based on this experience. I accept that Mr Allan’s experience qualifies him to give evidence of the general practice of fishers in relation to completing catch returns, and to the use made of meshing and the likely catch from it.

154 Mr Allan could have given his evidence in such a way as to favour the interests of his son-in-law whom he was representing. The Department did not suggest to Mr Allan or to me that Mr Allan might have coloured his evidence in any way. Nothing in his evidence, or in any other evidence before me, gives me reason to doubt that that I can confidently give full weight to Mr Allan’s evidence.

155 Mr Anthony Eden also gave evidence for Mr Greenaway. Mr Eden’s evidence is that he has been a commercial fisher for 21 years, and that he crewed before then for both Mr Franks and Mr Bradbury, joint owners of FB563. He had 13 years’ experience hauling and mesh netting in Botany Bay from 1980 to 1993. The Department did not question his experience, nor did it lead any evidence to contradict his evidence based on this experience. I accept that Mr Eden’s experience qualifies him to give evidence of the general practice of fishers in relation to completing catch returns, and of meshing.

156 Mr Allan’s evidence is that up until 1990 fishers didn’t bother too much with the accuracy of their catch returns as far as recording the method used. Nothing, he said, turned on that particular record for the fisher. Mr Allan’s evidence is that fishers would try to remember at the end of the month what the main method had been over the past month. Mr Eden agreed, saying that the fishers were not that concerned with the paper work.

157 The catch return form then in use was Form 49 (exhibit A). As I have said above, clearly that part of the Form 49 catch return cannot be relied on to show all the fishing methods used in the month.

158 Mr Allan agrees that the new catch return, Form 19 (exhibit B) which was introduced in 1990, enables fishers to record more than one method for the month.

159 Mr Eden agrees that he changed his reporting practice with the new forms, motivated by rumours at the time as to the effect the returns would have on future entitlements. He started to show “heaps of meshing returns”.

160 Mr Allan says however that the then owner of FB563, John Franks, had no reason to change his approach to recording fishing methods. Unlike many other fishers, says Mr Allan, Mr Franks was not concerned with maintaining entitlements to fish in future, as he intended selling his business. It was not important to Mr Franks, says Mr Allan, whether the fishing methods were recorded properly or not.

161 While Mr Franks’s intentions or practices in this regard are relevant to my understanding of how to read Mr Franks’s catch returns, I can place little weight on Mr Allan’s evidence in this regard. Though plausible, it is only his speculation.

162 Mr Eden gave evidence of his own knowledge of Mr Franks’s fishing practices. Mr Eden fished with Mr Franks before 1979. From 1985 until 1993 he fished at the same time and on the same waters as Mr Franks, but on a different boat. He says that Mr Franks knew about meshing, and that he saw Mr Franks meshing. He said that meshing is commonly undertaken at night and that he saw Mr Franks out at night many times.

163 Mr Allan and Mr Eden agree that meshing is commonly undertaken in the winter months, usually instead of hauling. Mr Eden gave evidence that in the particular estuarine waters this application is concerned with – those in and associated with Botany Bay – meshing would also be used in summer, in conditions such as prevail in Woolooware Bay.

164 The catch returns, as well as showing the fishing methods used, show the species caught. Mr Allan relied on an analysis of the species caught to indicate the likelihood that, despite Mr Frank not listing meshing on Form 19 along with other methods used, he had in fact used that fishing method.

165 He noted catches of mullet and mulloway, both of which are commonly caught by meshing; only small quantities would be caught as by-catch with the hauling method. In the return for January 1991 Mr Allan noted a large catch of sea mullet which he says would have been caught in a mesh net.

166 It was put to him by the Department that the sea mullet could have been by-catch from the hauling method used in the same month to catch a large amount of trumpeter. Mr Allan disagreed, saying that sea mullet do not swim in the deep water in which the trumpeter would have been caught.

167 It was put to Mr Allan in the alternative that the sea mullet could have been caught by the beach haul method shown for that month. Mr Allan agreed that it was possible, but that 285 kilos would be an exceptionally large catch with a beach haul net, and that he had never in his experience had such a catch.

168 Finally, Mr Allan relied on written statements from a co-owner of FB563, Mr Bradbury, and a crew member of Mr Franks, Mr Gray, at pages 29 and 22 respectively of he Department’s file.

169 If the issue under Cl.191N was whether there is to be found, in addition to the seven relevant catch returns already identified, an eighth relevant catch return for an identified month, then the statement of Mr Bradbury has little probative value, and Mr Gray’s none at all.

170 Mr Bradbury is refers to “the years 1986-1993”, which is the relevant period, but says “we used the mesh net a number of times between the years 1986-1993 however the precise number of times and specific months cannot be recalled”. This would be of little help if the inquiry was concerned with identifying a precise month.

171 Mr Gray refers only to a time when he “worked with the former owners”. As this could have been at any time and for any period up until 1996, anything he says could as well relate to a time outside the relevant period of 1986-1993 as to a time within it. This would be of no help in an inquiry concerned with identifying a precise month in a defined period, and of little help otherwise.

172 As I have said above, however, the inquiry is whether there are “at least 8 catch returns that indicate” use of meshing in the relevant period. Towards that more generally-framed inquiry, Mr Bradbury’s statement has some weight. Taken with the evidence of Mr Allan and Mr Eden, Mr Bradbury’s statement supports a contention that at least one return in addition to the seven identified by the Department indicates use of meshing as a fishing method.

Decision

173 The catch returns taken as a whole, with the inferences to be drawn from the species of fish caught, the evidence of Mr Allan and Mr Eden, and the statement of Mr Bradbury, would, if it were for me to decide, satisfy me that the disputed eligibility requirement in cl.191N(3)(b) has been met in this case That material would satisfy me that “the person (Mr Franks) submitted to the director at least 8 estuary waters catch returns in the years 1986 to 1993 that indicate that fish were taken from estuarine waters using a meshing net . . . and at least one of those returns relates to a month prior to January 1991”.

174 That being the case, I would be satisfied that the requirements of cl.191N(11) have been met, and that Mr Greenaway is eligible for endorsement under cl.191N(3).

175 I find that the catch history associated with Mr Greenaway’s fishing business FB563 satisfies the eligibility criteria set out in clause 191N(3)(b) of the Regulation, and on that basis Mr Greenaway is eligible for a meshing endorsement.

176 Having regard to the relevant factual material and the applicable law, I have decided that the correct and preferable decision is that, in terms of cl.214D(1)(b) of the Regulation, the matter be referred back to the panel for further consideration, together with a recommendation that the review panel take account of these reasons when considering Mr Greenaway’s eligibility for a meshing endorsement

ORDERS

177 I make the following orders pursuant to s63(3)(c) of the Administrative Decisions Tribunal Act and cl 214D(1)(b) of the Fisheries Management Regulation 1995:

The decision of the Minister to, in accordance with the decision of the review panel, confirm the determination that the applicant is not eligible for a meshing endorsement, is set aside.

In substitution the decision is made to refer the matter back to the review panel for further consideration, together with a recommendation that the panel take account of the reasons of the Tribunal in these proceedings when considering the applicant’s eligibility for a meshing endorsement.

178 Pursuant to s88 of the Administrative Decisions Tribunal Act I make no award of costs.