Ireland v Minister for Fisheries
[2001] NSWADT 198
•11/26/2001
CITATION: Ireland -v- Minister for Fisheries [2001] NSWADT 198 DIVISION: General Division PARTIES: APPLICANT
Troy Ireland
RESPONDENT
Minister for FisheriesFILE NUMBER: 003314 HEARING DATES: 09/02/2001 SUBMISSIONS CLOSED: 02/26/2001 DATE OF DECISION:
11/26/2001BEFORE: Goode P - Judicial Member APPLICATION: Fisheries Management Act - fishing licence- endorsement on licence - Fishing licence - endorsement on licence MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Fisheries and Oyster Farms (General) Regulation 1989
Fisheries and Oyster Farms Act 1935
Fisheries Management (General) Regulation 1995
Fisheries Management Act 1994
Mining Act 1906CASES CITED: Minister of Fisheries -v- Sneesby [2001] NSWADTAP 33
Associated Minerals Pty Ltd -v- NSW Rutile Mining Co & Ors [1961-62] ALJR 296
Simmons v Minister for Fisheries [2000] NSWADT 174
Searl -v- Director General, NSW Fisheries [2000] NSWADT 53REPRESENTATION: APPLICANT
A Broad, solicitor
RESPONDENT
C Cory, solicitorORDERS: 1. The decision under review is affirmed; 2. No award asto costs.
Background
1 The Applicant, Troy Ireland, is a commercial fisher. By Application dated 20 October 1996, he applied for various endorsements in the Estuary General Restricted Fishery. His application was not successful. On the same date, he also applied for an Estuary Prawn Trawl endorsement. This application was successful.
2 On 20 March 1997, the Applicant requested a review of the determination made by the Minister for Fisheries (the "Minister") in relation to the Estuary General Restricted Fishery. The Applicant was entitled to do this under clause 214A of the Fisheries Management (General) Regulation 1995 (the "Regulation").
3 Clause 214B of the Regulation obliges the Minister to establish a panel to conduct a review (the "Review Panel"). The grounds for review are set out in clause 214C of the Regulation.
4 On 30 June 2000, the Review Panel carried out a review of the Minister’s determination and provided the Minister with a written report, dated 17 July 2000, recommending that the Applicant be refused the endorsements in question. To obtain the endorsements it was necessary for the Applicant to be deemed to have inherited the personal catch history of another commercial fisher. The Panel declined to award it to him on the ground that, to do so, would contravene the Department’s policy on the splitting of personal catch history.
5 In accordance with the recommendation of the Review Panel, the Minister confirmed his original decision and determined that the Applicant should not be granted the endorsements (clause 214D of the Regulation). The Applicant was notified accordingly by letter dated 31 August 2000.
6 By application dated 25 September 2000, the Applicant applied to this Tribunal for a review of the Minister’s decision. The Tribunal’s review jurisdiction is conferred by s 38(1) of the Administrative Decisions Tribunal Act 1997 ("the Tribunal Act"). The Tribunal’s powers of review are set out in ss 63-66 of the Tribunal Act.
7 The regulation of commercial licences and commercial fishing boat licences under the Fisheries Management Act 1994 (the "Act") and the Regulation is discussed in detail in Minister of Fisheries v Sneesby [2001] NSWADTAP 33. For present purposes, the relevant legislative framework is discussed below.
Regulation of Commercial Fishing8 Section 111(1) of the Act provides that the regulations may declare that a fishery (not being a share management fishery) is a restricted fishery for the purposes of the Act. Clause 191K of the Regulation declares the Estuary General Fishery to be a restricted fishery.
9 Section 108(4) of the Act provides that:
10 Applications to transfer a boat licence are governed by cl 150 of the Regulation. Although the process is distinctly different from the licensing process, once a transfer is approved, the transferee may apply for, and be issued with, a fishing boat licence (cl 150(6)).
"(4) The licence for a boat:
(a) is subject to such conditions as are prescribed by the regulations or specified in the licence, and
(b) remains in force for the period of 1 year or such other period as is specified in the licence, and
(c) may be renewed from time to time in accordance with the regulations, and
(d) may be cancelled or suspended by the Minister in the circumstances authorised by the regulations."11 Section 102(1) of the Act prohibits a person from taking fish for sale from waters to which the Act applies unless he / she ("he") is authorised to do so by a commercial fishing licence. Pursuant to s 107(1) of the Act, a commercial fishing boat must not be used to take fish for sale from waters to which the Act applies unless it is licensed to do so.
12 Pursuant to s 112 of the Act, a commercial fisher is not entitled to take fish for sale in a restricted fishery unless he is authorised by the Minister to do so. This authorisation is in the form of an endorsement on the fisher’s commercial fishing licence. Pursuant to s 113(2) of the Act, eligibility for endorsement of commercial fishing licences is to be determined in accordance with the Regulations. An endorsement is not transferable unless authorised by the regulations (s 114).
13 In order to fish in the Estuary General Restricted Fishery, a person must have an endorsement on his commercial fishing licence (clause 191J of the Regulation). Clause 191N(1) of the Regulation defines the various classes of endorsement which are available in the restricted fishery. Relevantly, they include:
14 During the course of the hearing it was conceded by the Applicant that he could not satisfy the requirements in relation to hand gathering. Accordingly, this endorsement was not proceeded with.
· Hand lining and hauling crew
· Meshing
· Trapping
· Eel trapping
· Mud crab trapping
· Hand gathering.15 In order for a person to be entitled to any endorsement, other than a hand gathering endorsement, he must satisfy the "general requirements" provisions of cl 191N of the Regulation. Clause 191N(1) provides:
"(1) General requirements. The general requirements for an endorsement are that the person:
(a) owns a licensed fishing boat that is suitable for use in the restricted fishery, and
(b) has submitted to the Director at least 12 estuary waters catch returns in any 4 years (not necessarily consecutive) from 1986 to 1993, and at least one of those returns relates to a month prior to January 1991."16 The additional requirements for each of the relevant endorsements specified in cl 191N are:
17 Clause 191N(12) of the Regulation provides:
"(2) Hand lining and hauling crew endorsement.
(b) the person submitted to the Director a total of at least 8 estuary waters catch returns in the years 1986 to 1993 that indicate that mud crab were taken by the method of trapping and at least one of those returns relates to a month prior to January 1991."
(b) the person holds a commercial fishing licence that is not subject to a condition known as a “beach worm only” condition.
(3) Meshing endorsement .
(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 a flathead net and at least one of those returns relates to a month prior to January 1991.
(5) Trapping endorsement.
(b) the person submitted to the Director at least 8 estuary waters catch returns in the years 1986 to 1993 that indicate that fish (other than eels and mud crabs) were taken using a fish trap or a hoop or lift net and at least one of those returns is for a month prior to January 1991.
(6) Eel trapping endorsement.
(b) the person submitted to the Director at least 5 estuary waters catch returns in the years 1986 to 1993 that indicate that eels were taken using an eel trap.
(7) Mud crab trapping endorsement.18 Clause 191N(13) of the Regulation provides:
"(12) 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)."
19 Clause 135(3) of the Regulation provides:
"(13) The catch history associated with a fishing business is to be determined in accordance with clause 135(3)."
20 Clause 191O(3) of the Regulation empowers the Minister to endorse the commercial fishing licence of a person who satisfies the eligibility requirements for an endorsement.
"(3) The catch history associated with a fishing business is the historical takings of fish for sale by or 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, or of fish taken for sale by use of a licensed fishing boat operated by the business, or to a combination of both. 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.'
21 Section 121 of the Act provides:
22 Relevantly, cl 222 of the Regulation provides:
"121 Commercial Fishers to keep records of catch
Maximum penalty : 200 penalty units."
(1) A commercial fisher must make a record of all fish taken by the commercial fisher.
(2) If the commercial fisher is the master of a boat used to take fish, a record of all fish taken by the use of the boat must be made. In that case, any other commercial fisher who assisted in the taking of those fish is not required to keep a record of those fish.
(3) The record must be made in such form and manner as are prescribed by the regulations or (subject to the regulations) as are approved by the Minister.
(4) A commercial fisher who contravenes this section is guilty of an offence.23 Section 121(3) of the Act, together with clauses 222 and 223 of the Regulation and para 6.1 of the NSW Fisheries Licensing Policy, November 1996 (the “Licensing Policy”), clarify the records required to be kept by a commercial fisher. The Licensing Policy is the updated version of the original Licensing Policy introduced on 9 June 1994. The Licensing Policy includes provisions for assessing catch history.
" 222 Form of record to be kept by commercial fisher – transitional
For the purposes of section 121(3) of the Act, if the Minister has not approved a form of record to be kept by a commercial fisher under section 121 of the Act (being the record of fish taken by a commercial fisher), the prescribed record for the fisher is:
(a) in the case of a commercial fisher taking fish for sale from any waters (other than inland waters) and landing the fish in New South Wales - Form 19 of Schedule 1 to the Fisheries and Oyster Farms (General) Regulation 1989 (as in force immediately before the commencement of this Regulation), or
(b) ...."24 The definition section of the Licensing Policy defines catch history as:
25 Paragraph 6.1 of the Licensing Policy states that the catch history attributable to any one fishing business arises from the monthly catch records submitted by each licensed fisher. Licensed fishing boats are classified as either boat history vessels or general purpose vessels. In turn, catch history is categorised as either "personal catch history" or "boat history".
"The catch records allocated to a fishing business after a catch history assessment. The records are based upon monthly catch returns submitted to NSW Fisheries by licensed fishers, between 1986 and 1993."
26 The Licensing Policy (para 6.1) provides:
27 Paragraph 6.3 of the Licensing Policy provides:
"(a) Personal catch history - Generally, personal catch history applies in fishing businesses where the fisher is the primary unit of effort. This includes estuary and beach fishing, and boats involved in mixed estuary / ocean businesses. A fisher’s personal history comprises all of his / her catches taken from general purpose vessels between 1986 and 1993 (see below).
(b) Boat history - Boat history generally applies where the boat is the primary unit of effort. These include all endorsed vessels (ie. offshore prawn trawl, estuary prawn trawl, Commonwealth tuna longline and South East Trawl endorsed boats) and some unendorsed ocean vessels such as finfish trawlers and large offshore line and trap boats. These vessels are referred to as boat history vessels. "
"6.3 Did I receive catch history when I purchased my boat before 9 June 1994?
Fishers who purchased a boat or boats which were involved in a personal history business (under this policy) normally receive that entire personal catch history of the seller if the transfer resulted in the seller leaving the industry at that time. If the seller continued to hold other boat licences or retained their fishing licence to work on other boats, the catch history is normally considered to have remained with the seller.Fishers who purchased a boat or boats in a boat history business receive the catch history which is attributable to that boat."
28 In deciding whether the Applicant was eligible for any of the endorsements in question, the Review Panel was required to determine whether the Applicant had sufficient catch history to satisfy the relevant requirements of cl 191N of the Regulation. In making this determination, it was of critical importance to ascertain whether the Applicant was entitled to inherit the personal catch history of Mr Wayne Buie, a commercial fisher from whom the Applicant had purchased a licensed fishing boat ("LFB") 11090 called the "Mossie". Unless the Applicant could be deemed to have inherited Mr Buie’s personal catch history, it was apparent that he was unable to meet the specific requirements pertaining to each of the endorsements in question.The Review Panel’s Consideration of the Applicant’s Eligibility
29 The main issue for consideration by the panel was who was entitled to the benefit of Mr Buie’s catch history. Two other fishers, Mr Watkins and Mr Shoesmith, both purchased fishing boats from Mr Buie shortly after the Applicant purchased the "Mossie". A brief of advice from the Department dated 2 August 1999 (signed by Ms McCullough) indicated that personal catch history inheritance could only be allocated to one fisher and that as it could not be split amongst two or more parties, Mr Shoesmith was entitled to inherit the whole history.
30 In determining the Applicant’s eligibility, the Review Panel conducted a review as provided for under cl 214B of the Regulation, taking into account the evidence before it (including the advice concerning the Department’s policy on personal catch history inheritances), the relevant records kept by the Director of NSW Fisheries, the Licensing Policy, the relevant provisions of the Act and the Regulation, and the grounds for review set out in cl 214C.
31 Relevantly, the grounds for review set out in cl 214C of the Regulation are:
32 The evidence before the Review Panel indicates that Mr Buie sold his three fishing vessels to three different fishers in the period 7 - 14 July 1992. Ms O’Brien’s brief of advice dated 27 February 1998 shows:
"214C Grounds for review
(1) A panel that conducts a review may consider any circumstances that are relevant to the determination that is the subject of the review request.
(2) A panel that conducts a review may decide that a person is eligible for an endorsement in a restricted fishery, or should be eligible for an endorsement in the fishery, if the person who applied for the review satisfies the panel:
(a) that the records relied on to make a determination whether the person is eligible for an endorsement (for example, catch history records or records of net registration) are, for reasons that are not attributable to the fault of the person, inaccurate or incomplete and, on the basis of verified records produced to the panel by the person, the person does in fact satisfy the eligibility criteria for the endorsement, or
(b) that a determination as to the catch history associated with the person’s fishing business is incorrect and, on the basis of verified records produced to the panel by the person, the person does in fact satisfy the eligibility criteria for the endorsement, or
(c) .....
(3) This clause does not limit the inclusion in a report by a panel of any other decision or recommendation relating to a person’s entitlement in a restricted fishery.
(4) In this clause, verified record means a document prescribed for the purposes of section 51(4) of the Act (dealing with determination of catch history)."33 It was accepted by the Panel that all three boats were general purpose vessels (and therefore that the history associated with them was personal catch history) and that Mr Buie’s intention at the time he sold his vessels was to leave the fishing industry.
· The Applicant purchased the "Mossie" from Mr Buie and on 7 July 1992 applied for the boat to be transferred to him.
· Mr Clarence Watkins purchased LFB 10884 from Mr Buie and on 14 July 1992 applied for the boat to be transferred to him (LFB10884 was replaced by LFB 11105).
· Mr Darrin Shoesmith purchased the "Invader", LFB 10616, from Mr Buie and on 14 July 1992 applied for it to be transferred to him.34 The Review Panel noted that Mr Buie’s personal catch history had not been allocated to any of the three fishers. It also noted the Department’s briefs of advice dated 27 February 1998 (Ms O’Brien’s advice) and 2 August 1999 (Ms McCullough’s advice) recommending that although Mr Shoesmith should be allocated Mr Buie’s catch history, the Department would not make any such allocation while the Applicant and Mr Watkins were contesting the inheritance and had not had their claims considered under the restricted fisheries review process. The panel determined that the Applicant was the first purchaser, and that he purchased the smallest vessel with the least number of catch returns. It also noted the difficulty in applying the personal history inheritance guidelines to Messrs Watkins and Shoesmith, that the vessels they respectively purchased were similar in length, power and returns lodged, and that there was no evidence of buyer’s expectations at the time of sale.
35 In recommending that the Applicant’s endorsements be refused, the Review Panel concluded that it would not recommend to either the Minister or the Director to take any action that was contrary to NSW Fisheries policy and accordingly expressed the view that the proper allocation of Mr Buie’s catch history was a matter for the Department, depending on the resolution of the issue between Messrs Shoesmith and Watkins.
36 Relying on material obtained from the Department’s files after the Review Panel’s determination, Mr Broad submitted that the boat licences of LFB 10884 and the "Invader" had both expired as at the date of the relevant transfer applications. He submits that in these circumstances, neither Mr Watkins nor Mr Shoesmith is entitled to Mr Buie’s catch history.
Effect of late renewal of boat licences37 The evidence before me discloses that the transfer of the "Mossie" to the Applicant took effect on 26 August 1992 and that the boat licence was valid until 23 June 1993. It also discloses that the transfer of LFB 10884 took effect on 27 July 1992 and was replaced by LFB 11105 on the same date. While not conclusive on the issue, Mr Watkins’ letter to the Director suggests that at the time Mr Buie sold LFB 10884, the boat licence had expired. In the absence of the complete Departmental file, I am unable to conclude when Mr Buie sought to renew the licence (if at all). Based on Mr Watkins’ letter to the Department dated 14 July 1992, I accept that it is unlikely that the licence had already been renewed. However, it may be that Mr Buie had applied to renew it sometime later in May (as he had done with the "Invader") and that as of 14 July 1992 the Department had not processed it. The evidence also discloses that the transfer of the "Invader" took effect some time after 28 July 1992. However, an application to renew it was lodged by Mr Buie on 29 May 1992 and on 30 July 1992 renewed until 10 May 1993 (ie backdated to 10 May 1992).
38 For present purposes, I am prepared to accept that as of 14 July 1992 when Mr Watkins and Mr Shoesmith purchased Mr Buie’s fishing vessels, LFB 10884 and the “Invader” respectively, the boat licences had both expired.
39 As of July 1992, the relevant legislative scheme was the Fisheries and Oyster Farms Act 1935 (the "F&O Act") and the Fisheries and Oyster Farms (General) Regulation 1989 (the "1989 Regulation"). Section 23(1) of the F&O Act provided:
40 Section 24A(2) of the F&O Act provided:
"Every boat used for or in connection with the taking of fish for sale from any prescribed waters, by any method, shall be licensed."
41 Clause 5(1) of the 1989 Regulation provided that for the purposes of s 24A(2) of the F&O Act, the prescribed application for either the issue or the renewal of a boat licence was to be in writing (Form 1). The relevant form was entitled "Application for Issue / Renewal of Boat Licence" and required the applicant to nominate whether he was seeking to have the licence issued or renewed. The same details were required for both issue and renewal.
"Where the prescribed application for, or for the renewal of, a licence is made, the Minister or a prescribed officer may issue or renew or refuse to issue or renew, the licence."
42 Clause 10 of the 1989 Regulation provided:
43 Section 24A(6) of the F&O Act provided:
"For the purposes of sections 24A(6) and 25(9) of the Act, the prescribed period during which a boat licence or fisherman’s licence remains in force is 12 months after the date of its issue or renewal."
44 Section 24A(7) of the F&O Act provided:
"Except to the extent that its duration is affected by subsection (7) or (8) or by suspension, or unless it is sooner cancelled, a licence remains in force for the period prescribed for the purposes of this subsection."
45 Section 24A(8) of the F&O Act provided:
"Where application is duly made for the renewal of a licence and the renewal is not granted before the expiration of the licence -
(a) The licence continues in force until the renewal is granted or refused; and
(b) The renewal may be granted notwithstanding that, but for this subsection, the licence would have expired."46 Unlike the current Act and the Regulation, neither the F&O Act nor the 1989 Regulation expressly made provision for the late renewal of a fishing boat licence. Clause 146(3)(e) of the current Regulation vests in the Minister a discretion to refuse to renew a licence if the application for renewal is received more than 60 days after the date the licence would have expired but for subclause (6) (see para 48 below).
Where a licence is continued in force under subsection (7), it may not be renewed to expire on a date later than the date on which it would have expired had a renewal been granted on the date on which, but for being so continued in force, it would have expired."
47 Clause 146(5) of the Regulation provides:
48 Clause 146(6) of the Regulation provides:
"If an application is duly made for renewal of a fishing boat licence and is received by the Minister before the expiration of the period in which it remains in force, and the licence is not renewed before the expiration of that period, the licence:
(a) is taken to continue in force until the licence is renewed or the application for renewal is refused, and
(b) may be renewed despite the fact that, but for this subclause, the licence would have expired."49 It is clear from the above analysis that there was no provision in either the F&O Act or the 1989 Regulation which expressly allowed for a licence to remain in force for a period of 30 days after the date the licence would have expired (ie, a 30 day period of grace), notwithstanding the lodging of an application for renewal after the date of expiry. Equally, the earlier legislation did not expressly give the Minister a discretion to renew a licence after the 30 day grace period had elapsed.
"If an application for renewal of a fishing boat licence is not received by the Minister before the expiration of the period in which it remains in force, the licence:
(a) is taken to continue in force for 30 days after the date the licence would have expired (but for this subclause), or until the licence is renewed or the application for renewal is refused, whichever happens first, and
(b) may be renewed despite the fact that, but for this subclause, the licence would have expired."50 Mr Broad submits that the earlier legislative framework made no provision for a licence to be renewed if the application for renewal was lodged after the licence had already expired (as occurred in the present case). Thus if an application for renewal was lodged after the expiry date, the Minister had no power to renew the licence. He could only issue a new licence.
51 In support of this proposition, Mr Broad relies on the High Court decision of Associated Minerals Pty Ltd v NSW Rutile Mining Co & Ors [1961 – 62] ALJR 296 where it was held that although two dredging leases had been validly granted, they could not be renewed after the expiration of the 3 month term. The Court said at 298:
52 Contrary to Mr Broad’s interpretation of s 24A(7) of the F&O Act, Ms Cory submits that there is nothing in the subsection to suggest that it was mandatory for the application for renewal to be made before the licence had expired. She submits that the F&O Act was administered on the basis that a 30 day grace period was permitted and after that period had expired a licence could be renewed for up to 2 years from the original expiry date before it lapsed. In support, she tendered correspondence from the Director of NSW Fisheries to Mr Shoesmith, dated 21 August 1992, advising him of the Department’s policy and reminding him to renew his boat licence within 2 years. She also indicated that the Department had dealt with the boat licence applications made by Mr Watkins and Mr Shoesmith as licence renewals rather than fresh licences, and renewed them accordingly by backdating the date of renewal to the date of the original expiry.
"What is of prime importance is that the relevant provisions as a whole point towards continuity so that a lease and its renewal or renewals can be treated as one extended term. The word “renewed” itself suggests the same thing and we think the words of Lindley LJ in R v Licensing Justices of Crowkerne (1888), 21 QBD 85, at p 87, quoted by Myers J are pertinent: - “What is the meaning of applying for a renewal of a licence? It can only mean that the licence holder is applying to renew that which is in existence and is on the point of expiring.” This construction accords with what seems to be the plan of the Act that, upon the expiration of an original or a renewed term, the lease is at an end and others have or can acquire rights that the existence of a lease would preclude. For instance, the owner holds his land free from the lease and any person seeking a lease may take steps to get a lease that the continued existence of another lease would prevent. Neither a gap between the original term and the renewed term, nor a renewed term dating back to the expiration of the original term, coupled in either case with the termination or the destruction ab initio of rights acquired in the meantime, seem to have been within the contemplation of the legislature. We consider, therefore, that the leases could not be renewed in March 1959, and cannot be renewed now."
53 Taking into account the overall scheme of the earlier legislative framework and the specific wording of s 24A(7) and s 24A(8) of the F&O Act, I am of the view that it was within the contemplation of the legislature that an application to renew a boat licence could be made after the licence had expired without the licence lapsing and without the need for a fresh licence to issue. Unlike cl 146(5) of the present Regulation, s 24A(7) of the F&O Act makes no reference to a duly made application being received by the Minister before the expiration of the 12 month period in which the licence remains in force. Had the legislature intended to confine the continuity provided for by s 24A(7) to applicants who lodged their renewal applications “on time”, it would have expressly done so. Under the present statutory regime, the legislative intention is more clearly spelt out in cl 146(5) and cl 146(6) of the Regulation with express provision being made for a 30 day grace period and a discretionary power to extend beyond this period. (This is consistent with both the 1994 Licensing Policy and the 1996 Licensing Policy.)
54 I am mindful of the words of Lindley LJ quoted with approval by the High Court in Associated Minerals Pty Ltd v NSW Rutile Mining Company Ltd & Ors at 298 to the effect that the renewal of a licence can only mean that the licence holder is applying to renew that which is in existence and on the point of expiring. However, the overall plan of the Mining Act 1906 (NSW) differs markedly from the present and past Fisheries legislation. In my opinion, s 24A(7) of the F&O Act clearly provided for licences to be renewed notwithstanding the fact that, but for the subsection, they would have expired.
55 Accordingly, I do not accept that the late renewal of the licences of LFB 10884 and the "Invader" automatically precluded the respective owners, Mr Watkins and Mr Shoesmith, from being eligible to inherit Mr Buie’s catch history on the ground that the boats in question were not at the relevant time licensed fishing boats. (The owners could however be ineligible for other reasons.)
56 In determining that the Applicant should not be allocated Mr Buie’s personal catch history, the Review Panel had before it the Department’s policy in respect of splitting personal catch history, as set out in Ms O’Brien’s advice dated 27 February 1998, Ms McCullough’s advice dated 2 August 1999 and Ms Naughton’s advice dated 8 July 2000. Ms McCullough’s advice states:
The splitting of personal catch history57 The Department’s policy in relation to splitting personal catch history is also set out in a document described as the "Catch Validation Procedures Manual" (the "manual") which was approved by the Director of NSW Fisheries on 11 March 1996. The actual manual was not before the Review Panel. It is clear that the manual is an internal document aimed at providing assistance to Departmental staff when dealing with various matters including the validation and allocation of catch history. As illustrated by the remarks quoted directly below, it is also apparent that the manual is subject to variation from time to time.
"In accordance with Departmental policy only one fisher can be recognised as effectively buying Mr Buie out of the industry and replacing his fishing effort, hence his personal catch history (PCH) can only be allocated to one fisher.
To split Mr Buie’s PCH three ways is not dissimilar to licence splitting which contravenes the NSW Licensing Policy. Splitting the PCH three ways has the potential to increase fishing effort as all three fishers can access what was originally a single return, to assist them gaining endorsements.
....
In the absence of any specific information on sales agreements from the parties concerned, the Department considers Mr Shoesmith entitled to PCH of Mr Buie as he purchased the major portion of Mr Buie’s fishing operation"58 In accordance with the Departmental policy of not splitting personal catch history inheritances amongst two or more fishers, the manual discusses the various factors to be considered when determining to whom an inheritance should be allocated. Relevantly, the following remarks appear at p 12 of the manual:
59 The four main factors to be taken into account when determining a contested inheritance are set out at p 31 of the manual. The manual states:
"The first assessment involving a personal history inheritance occurred in October 1994. In this case, the applicant had bought the last boat ever owned by the previous owner, and the applicant was awarded all the former owner’s personal history. On 14 October 1994 the next inheritance was awarded, but in this instance the applicant received the inheritance as he had bought the longest LFB 10884.
By January 1995, two additional factors were considered for determining a personal history inheritance, being the amount of catch history attributed to each LFB, and buyer’s expectations ..."You should consider all four of these factors when determining which LFB the personal history should transfer with and include the details in your brief."
"There are four main factors that should be considered when determining a personal catch history inheritance where a previous LFB owner owned more than one boat. These are as follows:
(i) the time period between LFB transfers . The history may go with the last boat sold if the sale coincides with the close of the fishing operation.
(ii) Length of the Vessel. The history may go with the longest LFB where that boat is clearly the major contributor to the history.
(iii) Amount of catch history attributable to each LFB. Establish which vessel caught most of the catch history as the history may go with this vessel.
(iv) Buyers expectations.60 The Applicant submits that the appropriate policy for determining the attribution of catch history is the Licensing Policy and that by applying the Department’s policy on the splitting of personal catch history, as set out in Ms McCullough’s advice dated 2 August 1999, the Review Panel fell into error.
61 The Applicant further submits that while the Tribunal must give effect to any relevant Government policy (as required by s 64(1) of the Tribunal Act), in the circumstances of the present case it is inappropriate to give effect to the policy on the splitting of personal catch history because:
62 Acknowledging that the Tribunal may also have regard to any other policy applied by the administrator (as permitted by s 64(4) of the Tribunal Act), the Applicant further submits that it is inappropriate to give effect to the policy on the splitting of personal catch history for the same reasons given in para 61 above.
· There is no evidence that the policy is a Government policy as defined by s 64(5) of the Tribunal Act.
· It is contrary to the terms of the Licensing Policy.
· The application of the policy would produce an unjust decision in the circumstances of the case (see para 65 below).63 It is convenient to set out the terms of s 64 of the Tribunal Act:
64 The Respondent submits that whether the policy on the splitting of personal catch history is regarded as Government policy or "any other policy", it is not contrary to the terms of the Licensing Policy and its application would not produce an unjust decision in the circumstances of the case.
(1) In determining an application for a review of a reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case.
"64 Application of Government policy
(2) The Premier or any other Minister may certify, in writing, that a particular policy was Government policy in relation to a particular matter.
(3) The certificate is evidence of the Government policy concerned and the Tribunal is to take judicial notice of the contents of that certificate.
(4) In determining an application for a review of a reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case.
(5) In this section:
Government policy means a policy adopted by:
(a) the Cabinet; or
(b) the Premier or any other Minister,
that is to be applied in the exercise of discretionary powers by administrators."65 In submitting that the application of the policy on the splitting of personal catch history would produce an unjust decision in the circumstances of the case, the Applicant relies inter alia on the following matters:
66 Although Mr Broad sought to highlight some inconsistencies between the policy on the splitting of personal catch history as expressed in Ms McCullough’s advice of 2 August 1999 and in the manual, for present purposes I am satisfied that at the very least, the policy requires the following four matters to be taken into account:
· He has been engaged in commercial fishing activities since 1992.
· He is committed to commercial fishing as is evidenced by his ownership of the "Mossie" and another fishing boat.
· He bought the vessel from Mr Buie on the expectation that he was purchasing the whole of the seller’s interest and that the seller was leaving the industry.67 As the policy is clearly in a process of evolution (see para 58 above), it appears that it is permissible for other factors to also be considered including:
· Time period between LFB transfers
· Length of each vessel
· Amount of catch history attributable to each LFB
· Buyer’s expectations.68 In order to fall within the definition of "Government policy" in s 65(5) of the Tribunal Act, it is not mandatory for either the Premier or the Minister to certify that the policy on splitting of personal catch history is Government policy (s 64(2)). Nonetheless, in order to come within the definition of “Government policy”, s 64(5) makes it clear that the policy in question must have been adopted by either the Premier or the Minister. While I acknowledge that the policy (as expressed in the manual) has been formally approved by the Director of NSW Fisheries, there is no evidence before me to show that the policy (as expressed in either the manual or the Departmental briefs of advice before the Review Panel) has been adopted by the Minister either by delegation or otherwise. Accordingly, I do not find that the policy is Government policy within the meaning of s 64(5).
· Motor size of each vessel
· Methods used by fishers, measured in days fished.69 However, unless I find that the policy is contrary to Government policy or the law or that the policy produces an unjust decision in the circumstances of the case (s 64(4) of the Tribunal Act), I am not precluded from taking the policy into account in determining what is the correct and preferable decision (s 63(1)).
70 The Applicant submits that the policy is contrary to the Licensing Policy and, therefore, that I am precluded from taking it into account (s64(4)) regardless of whether it would produce a just or an unjust decision in the circumstances of the case.
71 The question arises as to whether the Licensing Policy is Government policy within the meaning of s 64(5). The objectives of the Licensing Policy, set out on p6 are as follows:
72 In Simmons v Minister for Fisheries [2000] NSWADT 174, Judicial Member Smith appears to have regarded the Licensing Policy as a policy falling within s 64(4) (see para 22). In Searl v Director General, NSW Fisheries [2000] NSWADT 53 Judicial Member Skinner found at para 91 that the Department’s policy in relation to the transfer of endorsements (as set out inter alia in section 7 of the Licensing Policy) was "policy at almost the level which invokes the mandatory provisions of subs 64(1) of the Tribunal Act". Earlier in the decision he made these comments (which I respectfully adopt):
"The objective of the licensing policy is to prevent increases in commercial fishing effort and in particular to:
1. Provide transitional arrangements which do not pre-empt future management whilst longer term management arrangements are being developed.
2. Provide a mechanism which allows existing fishers with catch history to identify and subsequently dispose of their fishing 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."
73 Whether or not the Licensing Policy is strictly regarded as Government policy within the meaning of s 64(1) of the Tribunal Act, it is apparent that the objectives of the Policy have the support of the Government. Consistent with this view, the submissions of the Minister in the appeal of Sneesby were quoted by the Appeal Panel at para 16:
"84 There is no evidence before me that strictly establishes the existence of a "Government policy" within its meaning as defined in this section. The Director is not the Minister. However, such a distinction is a fine one. In any event the decision under review involved the application of policy that has been carefully struck after wide consultation with stakeholders and in respect of a resource requiring careful management for the benefit, as the Act states in its objects, of present and future generations. In reviewing such a decision I would have to be persuaded by powerful and cogent considerations if I were not to give effect to the policy of the Government where same can be clearly ascertained."
74 In the circumstances, I am of the view that the critical question for me to determine is whether the policy on the splitting of personal catch history is contrary to the Licensing Policy. Section 6.3 of the Licensing Policy states that fishers who purchased a boat or boats which were involved in a personal history business normally received the entire personal catch history of the seller if the transfer resulted in the seller leaving the industry at that time.
"11 The Licensing Policy grew out of a national approach to the management and protection of fisheries. See the resolutions of the Australian Fisheries Council on 28 July 1984, para 14.
12 The general approach of the NSW Licensing Policy was confirmed during 2000, in response to the introduction by the Queensland government of a Structural Adjustment Scheme in relation to the Queensland East Coast Trawl Fishery. The objective of the scheme was to achieve a 15% reduction in total fishing effort in that fishery through the voluntary transfer to government of commercial fishing boat licences and associated fishery symbols."75 On an overall reading of the Licensing Policy, I do not consider that there is any inconsistency between the two policies. Reading sections 6.3 and 6.4 of the Licensing Policy together, section 6.4 clearly envisages that circumstances may arise which require referral to "an appeals panel" because they are beyond the scope of the Licensing Policy and the Department is unable to administratively determine the catch history. The present circumstances involving a contested catch inheritance illustrate the point as they are clearly not dealt with in the Licensing Policy.
76 The next issue to determine is whether the application of the policy on the splitting of personal catch history produces an unjust decision in the circumstances of the case. Based on the various Departmental briefs of advice, six criteria appear to be applicable. They are:
77 The first four factors are listed in the manual. The remaining two factors are referred to in the Departmental briefs of advice. Applying each of the factors in turn, I am not satisfied that the Applicant can be distinguished from Mr Shoesmith and Mr Watkins in relation to:
· Time period between LFB transfer
· Length of each vessel
· Amount of catch history attributable to each LFB
· Buyer’s expectations
· Motor size of each vessel
· Methods used by fishers, measured in days fished.78 I am, however, satisfied that he can be distinguished from Mr Shoesmith and Mr Watkins in relation to:
· Time period between LFB transfers
· Buyer’s expectations.Of the three vessels, the "Mossie" is the shortest in length, has the least powerful motor, has no positive catch returns lodged by Mr Buie, and has significantly less effort in meshing activities.
· Length of each vessel
· Motor size of each vessel
· Amount of catch history attributable to each vessel
· Methods used by fishers, measured in days fished.79 Taking into account the above factors together with the Applicant’s submissions, and the evidence that was before the Review Panel, I am not persuaded that the application of the policy produces an unjust decision in the circumstances of the case. I acknowledge that the Applicant is committed to commercial fishing and that he bought the "Mossie" on the expectation that he would be taking over Mr Buie’s fishing operations. However, taking into account all the evidence before me and the detailed submissions made by both the Applicant and the Respondent, I can find no basis for setting aside the decision under review.
Orders(1) The decision under review is affirmed.
(2) No award as to costs.
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