Hirst v Director, Department of Fisheries

[2000] NSWADT 158

CITATION:	Hirst -v- Director, Department of Fisheries [2000] NSWADT 158
DIVISION:	General Division
PARTIES:	APPLICANT Dennis Hirst RESPONDENT Director, Department of Fisheries
FILE NUMBER:	003096
HEARING DATES:	18/07/2000
SUBMISSIONS CLOSED:	07/18/2000
DATE OF DECISION:	11/09/2000
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:	Virtu v Director General, NSW Fisheries [2000] NSWADT 75 Puglisi v Director General, NSW Fisheries [2000] NSWADT 105 Woodward v Director General, NSW Fisheries [2000] NSWADT 143 Thornton v Director General, NSW Fisheries [2000] NSWADT 131 Robertson v City of Nunawading [1973] VR 819
REPRESENTATION:	APPLICANT In person RESPONDENT C Cory, solicitor
ORDERS:	1. Pursuant to s63(3) of the Administrative Decisions Tribunal Act and cl 214D(1)(a) of the Fisheries Management Regulation, I affirm the decision of the Minister to confirm the determination that was reviewed by the review panel, to the effect that the applicant is not eligible for a Category Two Hauling endorsement; 2. Pursuant to s88 of the Administrative Decsions Tribunal Act I make no awards of costs

APPLICATION, REFUSAL AND REVIEW

1 Mr Dennis Hirst holds commercial Fishing Licence 810269, and operates Fishing Business 1688.

2 By application dated 5 October 1996 Mr Hirst sought the following endorsements on his licence:

· Meshing
· Mud Crab Trapping
· Category Two Hauling

3 By letter dated 17 February 1997 NSW Fisheries (‘the Department’) advised Mr Hirst that he was eligible for the Meshing and Mud Crab Trapping endorsements, but not for what is described in the Fisheries Management (General) Regulation 1995 (‘the FM Regulation’) as “estuary general restricted fishery – category two hauling endorsement” (‘Category Two Hauling endorsement’).

Reasons for refusal

4 The reason for the refusal to grant the endorsement is not stated in the Department’s letter of 17 February 1997. It is apparent from Mr Hirst’s evidence, and from his letter in support of an ‘Application for Appeal’ dated 17 March 1997, that between 17 February and 17 March Mr Hirst had a telephone conversation with a Departmental officer in which he was told that the reason for the Department’s refusal to issue him with the endorsement was his failure to satisfy the catch return requirements.

Statutory review

5 Clause 214A of the FM Regulation entitled Mr Hirst to request a review of the decision. On 17 March 1997 Mr Hirst lodged an ‘Application for Appeal’, by which he requested that review.

6 By letter dated 23 December 1998 Mr Hirst was advised that the Department’s review panel was not satisfied at that stage that he was eligible, and he was invited to submit further material.

7 Mr Hirst made representations by letter dated 16 January 1999, and was advised by letter dated 30 March 1999 that the Department’s review panel was still not satisfied at that stage that he was eligible. Mr Hirst was invited to make submissions to a hearing. Mr Hirst provided extensive written material and gave evidence at a hearing on 24 August 1999.

8 By memo dated 23 November 1999 the Restricted Fisheries Review Panel recommended to the Minister that Mr Hirst’s application for the endorsement be refused.

9 On 1 December 1999 the Minister approved that recommendation. Within the terms of clause 214D of the FM Regulation, the Minister, in accordance with the decision of the review panel, confirmed the determination that was reviewed by the panel. Mr Hirst was advised of the Minister’s decision by letter dated 14 December 1999.

Internal review

10 By letter dated 5 January 2000 Mr Hirst sought an internal review of the Minister’s decision under s53(1) of the Administrative Decisions Tribunal Act (ADT Act).

11 By letter dated 1 March 2000 Mr Hirst was advised that the “original” decision not to issue him with the endorsement was confirmed. While the original decision, advised on 17 February 1997, was effectively confirmed, the decision under internal review which was actually being confirmed was that of the Minister advised on 14 December 1999. The Department’s Statement of Reasons pursuant to s53(7) of the ADT Act were enclosed with the 1 March letter, and properly identified the decision which was under internal review.

12 On 20 March 2000 Mr Hirst applied to the Administrative Decisions Tribunal for review of the decision not to issue him with a Category Two Hauling endorsement.

REVIEWABLE DECISION

13 There has been some uncertainty and disagreement about the decision in the statutory regime which is the reviewable decision for purposes of the Tribunal’s jurisdiction. That is unfortunate but perhaps understandable in these early days of Tribunal deliberations under the Fisheries Management Act and Regulations. Differently constituted Tribunals have come to different views. This Tribunal is constituted differently again, but I hope to pick up and maintain some continuity in opinion in the following brief account of the deliberations to date.

14 There are at least three decisions made when an endorsement is refused: the initial decision of the Minister, under s112 of the FM Act and clause 191 of the FM Regulation, to refuse the endorsement; the decision of the review panel, under clause 214C, to recommend to the Minister that he refuse the endorsement; and the final decision of the Minister confirming the refusal, under clause 214D, after the review panel has reported to him.

15 This decision-making process has been discussed by the Tribunal in Virtu v Director General, NSW Fisheries [2000] NSWADT 75 at paragraphs 16 to 22, Puglisi v Director General, NSW Fisheries [2000] NSWADT 105 at paragraphs 10 to 15, and Woodward v Director General, NSW Fisheries [2000] NSWADT 143.

16 The Tribunal in Virtu said that the initial decision of the Minister is not the reviewable decision for purposes of the Tribunal’s jurisdiction. This view was repeated in Thornton v Director General, NSW Fisheries [2000] NSWADT 131, and agreed with in Puglisi and Woodward. That much is clear: the initial decision of the Minister is not the reviewable decision for purposes of the Tribunal’s jurisdiction.

17 The Tribunal in Virtu went on to say that the reviewable decision “is the decision to refuse . . . the endorsement” based on “one overall decision making process” (para 21). This view was repeated in Thornton (para 7) .

18 In Puglisi the Tribunal said that the reviewable decision “is the decision made by the Minister for Fisheries after receiving the recommendation of the review panel” (para 14). In Woodward the Tribunal compared the different views in Puglisi and Thornton. After a lengthy analysis the Tribunal agreed with the view in Puglisi.

19 A difficulty with the “one overall decision making process” approach in Virtu and Thornton is that this obscures the Tribunal’s powers. In a merits review process the Tribunal cannot go beyond the limitations on the powers exercised by the administrator who made the reviewable decisions( see the discussion in Woodward at para 47).

20 The decision-maker for each of the first three decisions in refusing an endorsement has different powers. Reviewing the Minister’s first decision would result in a broad-ranging merits review process (see the discussion in Puglisi at para 11). Reviewing the review panel’s decision would necessarily be limited to considering the review panel’s powers under clause 214C. Reviewing the Minister’s second decision would limit the Tribunal to the Minister’s powers under clause 214D. This demonstrates, with respect, that it is not the case as said in Thornton that “whether the correct analysis is that there was one overall decision making process or a series of separate decisions is . . . immaterial” (at para 7).

21 I respectfully agree with the analysis and conclusion in Woodward as to what is the reviewable decision. For reasons set out below, I think that the legislative scheme nevertheless requires clarification because the Tribunal is put in an unusual and, I suspect, unintended position; it is understandable that in Virtu and Thornton the Tribunal was engaged in a search for some interpretation of the Fisheries legislative scheme which resulted in the Tribunal being able to make decisive and final determinations.

22 In Puglisi the consequence of the Tribunal’s view that the reviewable decision is the Minister’s decision under clause 214D is that the Tribunal is limited to exercising the Minster’s powers under that clause. The Tribunal can only decide in accordance with the review panel’s recommendation (cl 214D(1)(a)), or refer the matter back to the panel, with comments or suggestions, for further consideration (cl 214D(1)(b)). This appears to preclude the Tribunal from putting itself in the position of the review panel and considering an applicant’s entitlement to an endorsement in light of the grounds in clause 214C.

23 The Tribunal in Puglisi therefore set aside the Minister’s decision and, pursuant to s63(3) of the ADT Act, remitted the matter to the Minister for reconsideration in accordance with the Tribunal’s decision (sic) that the Minister should refer the matter back to the review panel together with instructions (sic) that Panel take into account certain factors the Tribunal in that matter had decided should be considered by the panel under cl 214C. With respect, reference to the Tribunal’s ‘decision ’ might better be to the Tribunal’s ‘direction’ or ‘recommendation’ consistently with s 63(3)(d), and reference to ‘instructions’ to the review panel might better be to ‘comments’ or ‘recommendations’ consistently with cl 214D(1)(b).

24 In Woodward (paras 56-62) the Tribunal analysed the limitation on the Tribunal’s power which had confined the scope of the Tribunal’s order in Puglisi. I understand the Tribunal’s reasoning to result in the following position. The Minister would not refer the matter back to the panel for further consideration unless satisfied that there is reason for doing so. Inquiring into the existence of such a reason necessarily involves looking at the existence of grounds the panel should consider under cl 214C. If the inquiry identifies a ground, that will be a reason for referring a matter to the panel for further consideration. In such a case, the “comments or recommendations” with which the referral is made would include details of the inquiry which identified the ground justifying the further consideration.

25 By this reasoning the Tribunal in Woodward was able to do more than set aside the Minister’s decision and remit the matter to the Minister to reconsider in accordance with the Tribunal’s directions or recommendations, as had been done in Puglisi. The order in Woodward was, effectively, that the Minister’s decision be set aside, and that a decision be substituted that that the matter be referred to the review panel under cl 214D(1)(b) for further reconsideration in light of the Tribunal’s opinions on the applicant’s eligibility under cl 214C.

26 The above account reflects, I believe, the most recent position the Tribunal has taken on the identity of the reviewable decision and the scope of the Tribunal’s powers in a merits review of that decision. I will decide this matter in accordance with that understanding.

27 There are at least two problems with the position we have reached. The first is delay. If, after a full hearing and a detailed consideration of all the issues, the Tribunal disagrees with the reviewable decision, the Tribunal’s power is limited to remitting the matter for further consideration by the review panel. The panel then has to convene, consider the matter further, and make a further recommendation to the Minister. There is little joy for an applicant to be told by the Tribunal, in merits review proceedings, that there is merit in the application but that it now has to go back two steps in the decision-making process.

28 The second problem is that the process following the Tribunal’s decision will either be a waste of time and resources, or will become nonsensical.

29 It will be a waste of time and resources because it can reasonably be expected that the review panel would take account of the Tribunal’s own extensive inquiry into the grounds under cl 213C. It would be surprising if the Tribunal’s view as to eligibility for endorsement, in substitution for the Minister’s decision and expressed as a recommendation to the review panel, did not result in the review panel coming to the view the Tribunal has recommended.

30 It will become nonsensical if the review panel disregards the Tribunal’s recommendation and again reports to the Minister that the endorsement should be refused. The Minister can accept that recommendation, leading to a further application for merits review if the applicant is still alive, interested or sufficiently determined, or can remit the matter back to the panel to further consider it; in either event the exercise becomes circular.

31 Ordinarily, if the Tribunal disagrees with the reviewable decision it can set aside the decision and substitute its own (s63(3)(c)ADT Act). The powers exercised by the maker of the reviewable decision in cl 214D effectively negate the decisiveness the Tribunal can show, and raise the risk of either the pointless or the circular exercise I describe above. 32 As a result I would find it difficult to feel that, in proceedings where after inquiry I disagree with the reviewable decision , I can give full effect to the objectives of the Administrative Decisions Tribunal Act: to ensure that the Tribunal’s proceedings are efficient and effective, and that the Tribunal’s decisions are fair (s3(b)), and to foster an atmosphere in which administrative review is viewed positively as a means of enhancing delivery of services and programs. Affected applicants, and officers of the Department, might share my difficulty.

33 It is desirable that the Tribunal be clearly in a position to make decisive and final orders, in terms such those in Thornton, if it sees fit.

Reviewable decision in this case

34 The reviewable decision for purposes of Mr Hirst’s application to this Tribunal is that of the Minister advised on 14 December 1999. That decision was taken by the Minister under clause 214D of the FM Regulation in light of a report from the review panel.

35 I note that throughout the period that his application for endorsement has been subject to consideration and review, Mr Hirst has held an ‘Authority to Fish with a Category Two Hauling endorsement’. The Authority was issued first on 8 April 1997 and again on 12 January 2000, and is valid until the finalisation of the review process, including the deliberations of this Tribunal.

ELIGIBILITY FOR ENDORSEMENT

36 To be eligible for a Category Two Hauling endorsement on his fishing licence Mr Hirst needs first to satisfy the general requirements for any endorsement in respect of the Estuary General Restricted Fishery. These requirements are in clause 191N(1) of the FM Regulation. The Department agrees that Mr Hirst satisfies the general requirements.

37 Mr Hirst then needs to satisfy the particular requirement for a Category Two Hauling endorsement. This requirement is in clause 191N(10)(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 by the method of hauling and at least one of those returns relates to a month prior to January 1991.

38 A ‘catch return’ is a report of what a fisher caught in a month, completed on a prescribed form, which fishers submit to the Department as required by sections 121 and 122 of the FM Act, and clauses 222 and 223 of the FM Regulation.

39 The significance of the catch returns which are considered under clause 191N(10)(b) in order to establish an entitlement to a hauling endorsement is that they must “indicate that fish were taken by the method of hauling”.

40 After representations from Mr Hirst, the Department determined that he had three relevant catch returns which indicate the hauling method. The Department later accepted that the catch identified in a fourth return indicated that the hauling method had in fact been used, although it was not specified in the return. Mr Hirst can therefore show four relevant catch returns, four fewer than the requisite eight.

41 Mr Hirst agrees that he does not satisfy the clause 191N(10)(b) requirement of eight catch returns. He agrees that on that basis he is not eligible for the relevant endorsement. Mr Hirst relies however on the review panel’s power in clause 214C(2)(c)(iii) of the FM Regulation to decide that he is or should be eligible. Clause 214C(2)(c)(iii) enables the review panel to be satisfied that:

For other significant reasons (that are not attributable to the fault of the person) the person was unable to satisfy the eligibility criteria.

42 The clause also requires that the person was engaged in fishing during the period. The Department does not contest that Mr Hurst was so engaged.

43 Mr Hirst’s eligibility for a hauling endorsement turns therefore on the existence or not of “other significant reasons” to explain why, judging by the catch return history, he used the hauling method in only four months and not in at least eight, in the years 1986 to 1993 as required.

“OTHER SIGNIFICANT REASONS”

44 Mr Hirst says that he was unable to satisfy the eligibility criterion requiring he show use of the hauling method in at least four further months in the period 1986-1993 because of two significant reasons.

45 The first is his personal circumstances. He says that he lost fishing time due to, and his management of time and state of mind was affected by, both his family situation in the period 1986 to 1991 and his father’s death in September 1989.

46 The second is his lack of relevant knowledge. He says that he was unaware of the effect on his future endorsement entitlements of choices he made in use of fishing methods before 1993.

47 Clause 214C(2)(c)(iii) requires a causal link between the significant reasons and the inability to satisfy the eligibility criteria; it must be “for other significant reasons” that “the person was unable to satisfy the eligibility criteria”.

IDENTIFYING THE FISHING METHOD USED

48 Within the range of methods permissible with a Category Two Hauling endorsement, Mr Hirst has only ever used bullringing for garfish. Bullringing is a form of hauling. That is the only method he has used under the licence, and the only one he intends to use. He has a net registration for a bullring net.

49 Thus it is possible to assess when Mr Hirst did and did not use the hauling method by looking at the recording of ‘garfish’ on Mr Hirst’s catch returns. This is what the Department did to credit Mr Hirst with four relevant returns, and this was the exercise undertaken during the hearing when the catch return was analysed during Mr Hirst’s evidence.

IDENTIFYING WHEN THE HAULING METHOD COULD HAVE BEEN USED

50 The issue of when garfish can be caught in the area Mr Hirst fishes is important to the analysis that follows. Mr Hirst’s evidence on this point is uncontested.

51 Mr Hirst is an experienced fisher with a long and demonstrated history of catching garfish. He gave evidence about the availability of garfish directly and openly. He could have given the evidence in such a way as to favour his own interests but he did not. I accept his evidence on this point, and rely on it in my decision.

52 Mr Hirst’s evidence is that catching garfish is seasonal, and that in the area where he fishes they are usually caught for only two or three months of the year – August and September, and possibly July. He wouldn’t use the bullring net other than at these times, he says, because he wouldn’t catch anything.

53 In any calendar year therefore, Mr Hirst would only be able to submit, at most, three catch returns showing he used the hauling method. Those catch returns would be for the months July, August and September. It is in fact the case that Mr Hirst’s four catch returns which show the hauling method are in those months: August 1989, August 1990, July 1991, and September 1992.

54 The Tribunal’s inquiry as to when Mr Hirst would have used the hauling method but for his personal circumstances can focus therefore on those months in each year.

55 Further, the inquiry is limited to the period prior to 1992. Mr Hirst’s family situation resolved after 1991, at least to the extent that it did not adversely impact on his fishing, and his father’s death was in 1989.

56 In summary, the months for which Mr Hirst says that but for his personal circumstances there could have been catch returns showing the hauling method are July, August and September in each of 1986, 1987, and 1988; July and September in each of 1989 and 1990; and August and September in 1991 (‘the relevant months’).

CAUSAL LINK BETWEEN PERSONAL CIRCUMSTANCES AND USE OF FISHING METHOD
Loss of fishing time

57 Mr Hirst says that due to his personal circumstances he lost fishing time in the relevant months, and when he did fish it was difficult to use the bullring net. Within the terms of Clause 214C(2)(c)(iii), Mr Hirst says that his personal circumstances were significant reasons that resulted in his being unable to satisfy the eligibility criteria.

58 For the reasons given below, the Tribunal is of the view that the necessary causal connection in relation to personal circumstances does not exist. Taking his personal circumstances at their highest, and assuming for the sake of argument they constitute “other significant reasons” within the meaning of clause 214C(2)(c)(iii), it is not possible to say that it is by reason of his personal circumstances that Mr Hirst was unable to satisfy the eligibility criterion.

59 It is therefore not necessary to describe in any detail the personal circumstances on which Mr Hirst relies, nor to decide what if any special meaning the word “other” brings to the phrase “significant reasons” in clause 214C(2)(c)(iii).

60 As to fishing time lost due to personal circumstances, it is clear from Mr Hirst’s catch history that he usually fished at least 20 days a month. In the years 1986 to 1993 inclusive he fished an average of between 20 and 23 days a month for every year except 1989 when the figure was 19 days. The average does not in this case is close the mode, that is to the number of days he usually worked in each month. In 82 of the 96 months (85.4%) Mr Hirst fished 20 or more days.

61 The following table shows whether and when Mr Hirst appears to have lost fishing time in the relevant months:

Month/year	Days Fished	Month/year	Days Fished
July 1986	20	July 1989	24
August 1986	22	September 1989	10
September 1986	20
July 1990	26
July 1987	22	September 1990	10
August 1987	22
September 1987	20	August 1991	10
September 1991	24
July 1988	26
August 1988	10
September 1988	20

62 Mr Hirst fished fewer than 20 days in each of August 1988, September 1989, September 1990 and August 1991. This is consistent with Mr Hirst’s evidence that he lost fishing days due to his family situation until 1991, and due to his father’s death in September to December 1989, although in other months in the same period he worked 20 or more days.

63 Even if it is assumed that the lost days were due to Mr Hirst’s personal circumstances, it does not follow that he would have used the bullring net had he fished on those days. The evidence shows that it is at least as likely that he would not have done so.

64 Each of the following considerations weighs against an inference that he would have used the bullring net had he fished on the lost days:

· catching them?”, Mr Hirst answered “No, not necessarily”.
· The catch history shows that in 1986, 1987 and 1993 Mr In his evidence, in answer to the question “Whenever the garfish were there to catch, generally speaking were you out there Hirst did not use the bullring net even though he worked his usual number of days in July, August and September.
· When unaffected by personal circumstances Mr Hirst used the bullring net in only one relevant month in 1992, and not at all in 1993.

65 It is not possible reasonably to infer from the evidence that, even if the personal circumstances relied on by Mr Hirst did cause him to lose fishing time, he would have used his bullring net on the days lost.

Difficulty in using the bullring net

66 Mr Hirst says however that on the days when he did fish, quite apart from causing him to lose time, his personal circumstances had an impact on him such that it was difficult for him to use the hauling method.

67 Mr Hirst describes the period until 1991 as “Living alone . . . overall it was a pretty bad period of time, and pretty hard.” His evidence is that he was distracted from his work, and that he did only what was “most convenient to survive”. He was living alone, doing his own shopping, cooking etc. As the mesh nets were on board all the time it was most convenient to mesh net. Mr Hirst’s evidence is that looking for garfish became a luxury, a seasonal activity that fell by the way. This adverse effect on his state of mind was compounded, he says, when his father died in September 1989, resulting in him having to take care of his father’s business until December of that year.

68 Even if it is assumed that on the days he fished he was unable to use the hauling method because of his personal circumstances, it does not follow that he would have used the bullring net had he not been adversely affected by those circumstances. The evidence again shows that it is at least as likely that he would not have done so.

69 Each of the following considerations weighs against an inference that he would have used the bullring net on days when he fished even had he not been adversely affected by personal circumstances:

· In 1992 Mr Hirst worked at least 20 days in each of July, August and September but used the hauling method in only one month, although unaffected by the adverse personal circumstances.
· In 1993 Mr Hirst worked at least 20 days in each of July, August and September and did not use the hauling method at all, although unaffected by the adverse personal circumstances.
· The previous two observations are consistent with Mr Hirst’s evidence that whenever the garfish were there to catch he was not necessarily out there catching them.
· In August 1990, when Mr Hirst worked only 16 days and was affected by adverse personal circumstances, he nevertheless did use the hauling method.

70 It is not possible reasonably to infer from the evidence that Mr Hirst would have used a bullring net even if he had not been affected by personal circumstances.

71 I therefore find, within the terms of Clause 214C(2)(c)(iii), that there is not the necessary causal link between Mr Hirst’s personal circumstances and his inability to satisfy the eligibility criteria.

CONNECTION BETWEEN STATE OF KNOWLEDGE AND USE OF FISHING METHOD

72 In the alternative, Mr Hirst says that had he been aware, in the period 1986 to 1993, that the Department would, sometime after 1993, determine eligibility for future endorsements on the basis of his use of fishing methods in that period, he would have fished differently.

73 Within the terms of Clause 214C(2)(c)(iii), Mr Hirst says that his lack of knowledge of future eligibility requirements was a significant reason that resulted in his being unable to satisfy the eligibility criteria. The lack of knowledge he refers to is the fact that during the period 1986 to 1993, which in the FM Regulation is the relevant period, he did not know that his activity at that time would later determine his eligibility for endorsements.

74 Mr Hirst agrees that he was aware of pending reforms to fisheries, and of the introduction of the concept of restricted fisheries. He says in his evidence however that he hadn’t taken a lot of notice of the Department’s literature, having been “pre-occupied with other things”. “I’m probably guilty there of not taking a lot of interest in that”, he says.

75 Mr Hirst agrees that he knew that continued fishing under the restricted fisheries regime would be based on historical participation. He understood “from other fishermen” that the relevant activity on his part for purposes of preserving his fishing entitlements was recording the number of days fished: “we were all under the impression that that’s what it was going to be based on, the amount of effort . . . you put into it”.

76 Whatever it was in fact that the Department advised fishers, it is clear in this case that Mr Hirst’s knowledge was limited and inaccurate due to his own lack of attention. I find that if his lack of knowledge of the consequences of his use of fishing methods is an “other significant reason” within clause 214C(2)(c)(iii), then it is “attributable to the fault of the person”, ie Mr Hirst, and so the clause does not apply.

‘Back-dated’ requirements

77 Mr Hirst refers in his application to this Tribunal to “the back-dated criteria period and back-dated requirements”.

78 The eligibility requirements should not be mistaken for retrospective legislation. The FM Act is legislation with future operation based on past events. It “merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future” (Robertson v City of Nunawading [1973] VR 819 at 824).

79 The restricted fisheries regime was established in 1995 by the FM Act and the FM Regulation. That regime takes account of antecedent facts and circumstances – type and frequency of fishing methods in the period 1986 to 1993 – as the basis for prescribing future eligibility to fish.

80 It is understandable that Mr Hirst feels aggrieved. Mr Hirst could not have known during the period 1986 – 1993 that his conduct then would have particular future consequences. At different times in that period Mr Hirst used some fishing methods and not others, either deliberately or without deliberation, unaware that in the future the methods he had used would determine the way in which he could continue to fish. He says that if he’d known there were consequences attached to the frequency with which he used some fishing methods and not others, he would have managed his use of the fishing methods differently. In this Mr Hirst is in the same position as many if not most of those fishers applying to this Tribunal for review of decisions based on these ‘back-dated’ eligibility criteria.

81 Mr Hirst says that he would have fished differently, and so generated a different and more favourable catch history, had he known that his future entitlements would be affected. In evidence he said: “if I’d known, and if they’d said to us. . . ‘this is what we’re trying to do’ . . . obviously you would try to put more effort into . . . catching garfish. You’d go out of your way to fulfil that requirement”.

82 Mr Hirst is saying, in effect, “I should have been given the chance to avoid the effect of the legislation if I’d known what was coming”. This might be so. But it is not a reason for not giving effect to the legislation. Mr Hirst did not fish in a particular way because of any representations made to him. There is no suggestion on the facts that any estoppel could arise against the Department. Subject only to the personal circumstances described above, Mr Hirst fished as he usually fished, and that is the conduct, recorded in the catch history, which determines his future eligibility.

83 It is clear from the way that the new licensing requirements have been designed in the FM Act and the FM Regulation that the intention is that, in relation to existing fishers, a licence to continue to fish will do no more than reflect the manner and extent to which in which fishing was conducted before the new licensing requirements. In other words, the extent and manner of future fishing will be determined by the extent and manner of past fishing.

84 There is support for this in the objects of the FM Act, in section 3. The objects make clear that commercial fishing will be promoted only to the extent that it is consistent with the conservation of: fishery resources, fish stocks and habitats, threatened species populations and ecological communities of fish and marine vegetation, and biological diversity.

85 Mr Hirst is simply in the position the legislation intended him to be, subject to any prescribed or significant other reasons why the extent and manner of his future fishing should not be determined by the extent and manner of his past fishing. The legislation does not have retrospective effect, and it would thwart the intention of the legislation to allow him to be licensed to fish to an extent and in a manner which he did not previously.

POLICY

86 I am obliged by the s64 of the ADT Act to give effect to any relevant policy.

87 The Department tendered a document NSW Fisheries Licensing Policy November 1996 (Exhibit 2) (‘FM Licensing Policy’). It was a policy “in force at the time the reviewable decision was made” (s64(1) ADT Act). It was admitted into evidence on the basis of its apparent relevance to the issues in this matter: the eligibility of a currently licensed fisher to an endorsement on his licence.

88 In fact I cannot find anything in the FM Licensing Policy which is relevant to Mr Hirst’s situation. Nor can I find anything relevant to the situation of any fisher who was licensed prior to 1995 and who wishes to continue fishing with the necessary endorsements under the restricted fisheries regime.

89 Quoting from the Preface to the FM Licensing Policy at page 5:

The policies outlined in this document allow existing fishers to leave the fishing industry, and new fishers to enter the industry in an orderly manner.

90 The circumstances described in this quote do not cover Mr Hirst’s circumstances. He is neither entering nor leaving the industry; he is an existing fisher and wishes to continue as a fisher. The term “existing fisher” is defined in the ‘Interim Transfer Policy’ on page 33 of the FM Licensing Policy, but it would appear that that definition is only for the purposes of the ‘Interim Transfer Policy’.

91 On page 6 it is stated that

The objective of the licensing policy is to prevent increases in commercial fishing, and in particular to :
1. Provide transitional arrangements (etc)
2. (allow identification and disposal of fishing businesses)
3. Allow new entrants into the industry in a manner which ensures that real fishing effort is being replaced
4. (consolidate smaller fishing businesses)

92 There is no reference to provision for existing fishers such as Mr Hirst as an “objective of the licensing policy”.

93 On page 11 there is a section headed ‘Policy for Existing Fishers’. The only relevant text under that heading states that “renewal of a licence is subject to the requirements in effect at the time of application”, and (in bold) that “Licence renewal is not automatic”.

94 If there is a restricted fisheries policy in relation to the basis on which existing fishers are to continue to fish, other than the intention apparent from the FM Act and the FM Regulation, then I am unaware of it.

SUMMARY

95 I find that the reviewable decision is that of the Minister advised to Mr Hirst on 14 December 1999. That was the decision of the Minister, in accordance with the report of the review panel, to confirm the original refusal to grant a Category Two Hauling endorsement.

96 I find that Mr Hirst does not satisfy the catch return requirements of clause 191N(10)(b) of the Fisheries Management Regulation and on that basis is not eligible for a Category Two Hauling endorsement.

97 I find that there is no causal connection between the personal circumstances Mr Hirst relies and his failure to satisfy the catch return requirements.

98 I find that the personal circumstances Mr Hirst relies on are not significant reasons that the review panel should consider under cl 214C(2)(c)(iii) of the Fisheries Management Regulation.

99 I find that there is in the evidence before me no policy in relation to restricted fisheries which covers the circumstances of existing fishers who wish to continue to fish.

100 Having regard to the relevant factual material and the applicable law, I find that decision of the Minister under review was the correct and preferable decision.

ORDERS

101 I make the following orders:

1. Pursuant to s63(3) of the Administrative Decisions Tribunal Act and cl 214D(1)(a) of the Fisheries Management Regulation , I affirm the decision of the Minister to confirm the determination that was reviewed by the review panel, to the effect that the applicant is not eligible for a Category Two Hauling endorsement.
2. Pursuant to s88 of the Administrative Decisions Tribunal Act I make no award of costs.