Haslam and Australian Fisheries Management Authority - [2013] AATA 841

[2013] AATA 841

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/1685
Re	Kevin Haslam
APPLICANT
And	Australian Fisheries Management Authority
RESPONDENT

DECISION

Tribunal	Mr John Handley, Senior Member
Date	27 November 2013
Place	Melbourne

The Tribunal affirms the reviewable decision dated 6 March 2013.

(sgd) John Handley

Senior Member

AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY – the applicants hold a fishing concession permitting use of a gillnet not exceeding 2520 metres – application to acquire another net of 1800 metres and amalgamate into one permit of 4200 metres – amendment of a permit is permitted under the Fisheries Management Act – application refused – fishing is undertaken in the Australian Fishing Zone – licensed to fish in Tasmanian coastal waters first acquired in 2011- concession holders are subject to the provisions of an Offshore Constitutional Settlement and a Memorandum of Understanding between the Commonwealth and Tasmania – amendment of a term of a permit requires the consent of both parties to the MOU – amendment opposed by Tasmania – objects under the Act, the MOU and the Southern and Eastern Scalefish and Shark Fishery to preserve and sustain fish stocks reflected in the policy of the Commonwealth – cooperative spirit between the Commonwealth and Tasmania should not be offended by departure from policy without cogent reason – decision affirmed.

LEGISLATION

Fisheries Management Act 1991 (Cth)ss 3, 4, 17, 24, 32,72, 74, 76, 95
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1980) 2 ALD 634

REASONS FOR DECISION

Mr John Handley, Senior Member

Introduction

In these reasons:

the DPIPWE is the Department of Primary Industries, Parks, Water and Environment (Tasmania);

the Act is the Fisheries Management Act 1991 (Cth);

the OCSis the Offshore Constitutional Settlement I (published in the Commonwealth Gazette N° S655 on 22 December 2000) being an arrangement made between the Commonwealth of Australia and the State of Tasmania, pursuant to s 72 of the Act, concerning a fishery, carried out in whole or part within coastal waters of the State, which is managed by a law of the Commonwealth;
the MOUis a Memorandum of Understanding between the Commonwealth of Australia, the Australian Fisheries Management Authority (AFMA) and the States of Victoria, South Australia and Tasmania (signed by the portfolio ministers of the Commonwealth and the States on 17 November 2000) concerning cooperation between them in the management of species of shark in waters relevant to each State;
the fisheryis the Southern and Eastern Scalefish and Shark Fishery; and
the Planis the Southern and Eastern Scalefish and Shark Fishery Management Plan 2003 (Legislative Instrument F2012C00159).

At all relevant times the applicant was a member of the partnership KT VT KR and FE Haslam. The partnership held a Tasmanian coastal waters permit number 279L, issued by AFMA, which authorised him to fish from his registered boat Erin Jay in the Tasmanian coastal waters sector of the fishery (T21, p. 124-130).
A condition of the permit, which was acquired on 21 March 2011 (Exhibit R1), authorised the use of 6 gillnets, each being 420 metres in length with a total head rope length not exceeding 2520 metres.
On 14 December 2011, the applicant applied to AFMA for another permit of 1800 metres, which he recorded was readily available to purchase (T25, p. 210-211). In his letter the applicant contended that a permit of 2520metres caused inefficiency. It was his intention, if his application was approved, to have the existing and intended permit combined. In that event he would be permitted to have 4200 m of gillnet which he would use in the fishery.
In the letter the applicant offered, in exchange for the issue of another permit, to concede one of our Tasmanian licence (sic) (vessel). Additionally, he recorded that use of a gillnet of 4200 metres would not cause an increase in his catch because he was subject to a quota. In evidence the applicant said that it would also be his intention, if his application was approved, to lease quotas from other fishers and remain within combined quota limits.
The application was characterised by AFMA as a request to combine 2 Tasmanian coastal water permits (2520 metres + 1800 metres) and be granted a new permit of 4200 metres. The application was refused on 8 January 2013 (T17, p. 111). That decision was an affirmed upon internal review on 6 March 2013 (T3, p. 13).
In her reasons, the primary decision-maker relied on the MOU which records the quantity of demersal gillnet that can be used by Commonwealth fishing concession holders in Tasmanian coastal waters is restricted to the amount recorded on either a previous state fishing concession or as agreed jointly by Tasmania and the Commonwealth. The decision, made under the MOU, reflects the concerns of the signatories to it that increasing the demersal fishing capacity in coastal waters would impact on State managed scale fish species and school shark nursery areas (MOU at [39] ‑ T30, p. 282). That concern is also reflected in AFMA’s objectives found in s 5 the Plan (T29, p. 225) and the objectives found at s 3 of the Act. Upon internal review, a delegate of AFMA adopted the reasons made in the primary decision and agreed with the conclusions.
The primary decision also recorded that the application was opposed by Mr Robert Gott, the Director (Marine Resources) of the DPIPWE on 27 June 2012 (T18, p. 121).
In a letter addressed to the respondent, Mr Gott recorded that a merging of 2 permits was not supported because it was inconsistent with Tasmanian policy. Additionally, it was considered more appropriate for the applicant to acquire a 4200 metre Tasmanian coastal water permit which he understood are available on the market.
In another letter dated 25 July 2013 (annexed to the Statement of Facts and Contentions of the respondent), Mr Gott restated his continuing opposition to the applicant’s proposal to amalgamate 2 licences. He recorded that any increase in allowable catch can only be achieved by leasing or buying a licence. Additionally, he expressed concern that whilst the quantity of nets in a Commonwealth fishery was a matter for the Commonwealth licensing authority (the respondent), the concern in Tasmania was that (if he fished in Tasmanian waters, as his licence permits with a head rope of 4200 metres), there was a risk of increased bycatch and affect upon other species in Tasmanian waters. There was also the risk of conflict between fishers in Commonwealth and Tasmania waters, the latter being considerably restricted in the length of nets permitted to be used in Tasmanian waters.
For reasons which follow, I am satisfied that the decision under review must be affirmed.

Reasons for Decision

Section 40 of the Plan provides:
Fishing permit for Tasmanian Coastal Waters Sector
(1) AFMA must, on receiving an application from a person, grant to the person a first fishing permit for the Tasmanian Coastal Waters Sector if, immediately before the end of the period specified in a notice published in relation to the fishery under section 24 of the Act, the person was the holder of a fishing permit (the OCS permit) that:
(a)was granted by AFMA in accordance with the OCS arrangement between the Commonwealth and Tasmania; and
(b)authorised the person to fish in the coastal waters of Tasmania.
(2) A fishing permit granted under subsection (1) must authorise the person to use only the same fishing gear as the person could use under the OCS permit.
Prior to the implementation of the Plan in 2003, the applicant did not hold a permit, issued under the OCS, to fish in Tasmanian coastal waters. His authority to fish in those waters commenced in 2011 when he purchased Permit number 279L. That permit, restricts him to use of 6 nets each at 420 metres being a total of 2520 metres.
The applicant presently is lawfully permitted to engage in commercial fishing in the Australian Fishing Zone (the AFZ) because he is the holder of a fishing concession which authorises him to engage in commercial fishing within it (s 4 and s 95 of the Act).
The AFZ is defined as waters within the outer limits of the exclusive economic zone adjacent to Australia and each external Territory but does not include the coastal waters within the limits of a State (s 4 of the Act).
Section 72 of the Act records that the Commonwealth may enter into an arrangement with a State with respect to a fishery relevant to that State, including a fishery wholly or partly in the coastal waters of that State, to be managed in accordance with the law of the Commonwealth.
If such an arrangement does exist, s 76 of the Act provides that a fishery within the coastal waters of a State, are taken to be within the AFZ in relation to that part of the fishery.
The OCS is an arrangement between the Commonwealth and the State of Tasmania in relation to the school and gummy shark fishery which is to be managed under Commonwealth law in waters relevant to Tasmania. Accordingly, the shark fishery in coastal waters adjacent to Tasmania is managed under the provisions of the Act and by force of s 76, it is within the AFZ. Therefore, it is subject to the Plan and the provisions of the MOU existing between the Commonwealth and Tasmania.
The MOU is critical in comprehending the relevance of the decision made by Mr Gott on behalf of the DPIPWE and its influence on the (Commonwealth) decision maker. Paragraph 6 of the MOU provides (T30, p. 274-285):
The parties acknowledge that this Memorandum supplements the OCS Arrangements for school shark and gummy shark in waters relevant to…. Tasmania… and that any departure by any parties from the terms or spirit of this Memorandum may fundamentally alter the overall management arrangements for these fisheries and trigger consideration by the other parties of initiating either a withdrawal or variation of the OCS Arrangements.
Paragraphs 36 and 37 of the MOU authorise the respondent to restrict Commonwealth shark fishing concessions to the area of access stated in previous State and/or Commonwealth fishing concessions and the amount of demersal gillnet, which can be used by Commonwealth fishing concession holders in Tasmanian coastal waters, will be restricted to the amount stated in previous State fishing concessions or as agreed by both parties.
The applicant did not ever hold a previous state fishing concession. His authority to fish in Tasmanian coastal waters existed only from 2011. That permit allows for 2520 metres of gillnet. Any increase in that length can only be by agreement by both parties, that is, the Commonwealth and Tasmania. Such an agreement does not exist because Tasmania opposes him having 4200 metres of gillnet.
The application to acquire another licence and, in effect, amalgamate both and have one single licence of 4200 metres is permitted, by s 32 (8) of the Act, if the respondent (the Commonwealth) amended the applicant’s permit which was issued to him in 2011. However, such a decision, if made unilaterally, would offend the objectives and spirit underpinning the MOU. The Commonwealth acknowledges the right of Tasmania to oppose the application and it does so in the spirit of cooperation it has undertaken and memorialised at paragraph 4 of the MOU.
The objective guiding the MOU is found at paragraph 39 where the Commonwealth and the DPIPWE acknowledge that restrictions concerning entry into and catch taken out of the AFZ are required to ensure:
...that there be no increase in demersal fishing capacity within coastal waters, due to the potential impact an increase could have on stocks of State managed scale fish species and potential impacts on the school shark entering nursery areas.
Having regard to the provisions of the Act and the Plan, it is clear that the objectives of preserving and sustaining fish stock, and of course preserving the species are fundamental to the management of the fishery.
It was conceded by counsel for the respondent that the MOU is not legally binding on the Commonwealth. However, very cogent reasons would be required to justify a departure from it. Unilateral decisions to amend permits held by the holders of a fishing concession would undermine the cooperative arrangement under which the fishery is managed (Transcript, p. 28).I agree.
This application is not a review of the decision made by the DPIPWE to refuse its consent to the applicant’s proposal. It is a review of a decision by the respondent, the Commonwealth, being charged with responsibility for management of the fishery in accordance with Commonwealth law to honour its obligations to the terms and membership, with Tasmania, of the MOU.
In effect it has determined, as a matter of policy that the terms of the MOU shall guide its management objectives of the fishery. Any departure from its obligations under the MOU will offend the terms and spirit of it and could cause Tasmania to consider withdrawing or seeking a variation of the OCS arrangements (MOU at [6]).
The correct or preferable decision would be to affirm the decision made by the respondent. I am satisfied that the policy of the Commonwealth to be guided by the terms of the MOU is appropriate. Equally, I am satisfied that there are no cogent reasons to the contrary justifying any departure from it (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1980) 2 ALD 634 at 645). The applicant is entitled to purchase or lease another gillnet from a concession holder. It will not cause greater fish stocks to be removed. Rather the applicant will be restricted to the quota applicable to the concession as acquired.

Decision

The decision of the respondent under review is affirmed.

I certify that the preceding twenty- nine (29) paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member

(sgd) Olympia Sarrinikolaou

Associate

Dated 27 November 2013

Date(s) of hearing	6 November 2013
Applicant	In person
Counsel for the Respondent	Mr R. Niall SC
Advocate for the Respondent	Mr D. Dal Piva
Solicitors for the Respondent	Australian Fisheries Management Authority, Legal Services, Corporate Governance Branch