Jewell v Director General, NSW Fisheries

[2004] NSWADT 295

CITATION:	Jewell v Director General, NSW Fisheries [2004] NSWADT 295
DIVISION:	General Division
PARTIES:	APPLICANT Juan Jewell RESPONDENT Director General, NSW Fisheries
FILE NUMBER:	043080
HEARING DATES:	8/7/2004
SUBMISSIONS CLOSED:	08/06/2004
DATE OF DECISION:	12/20/2004
BEFORE:	Rice S - Judicial Member
APPLICATION:	Fisheries Management Act - fishing licence - transfer of endorsement on licence - Fishing licence - transfer of endorsement on licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fisheries Management (General) Regulation 2002 Fisheries Management Act 1994
CASES CITED:	Greenaway v Director, Department of Fisheries [2000] NSWADT 173 Micallef v Minister for Fisheries [2002] NSWADT 105 Wardley v Minister of Fisheries [2002] NSWADT 65
REPRESENTATION:	APPLICANT In person RESPONDENT C Zoppo, solicitor
ORDERS:	1.The reviewable decision is set aside; 2.The matter is remitted to the administrator for reconsideration consistently with these reasons and findings

What happened?

1 In April 2003 Mr Juan Jewell bought fishing business 743 from Mr Frederick Moane.

2 Under the Fisheries Management Act 1994, Mr Moane had held certain endorsements, including an ocean hauling endorsement, on his licence that enabled him to take fish lawfully in restricted fisheries. Although Mr Moane lost his ocean hauling endorsement when he sold his business, Mr Jewell did not automatically receive it when he bought the business. That is the effect of clause 277 of the Fisheries Management Regulation 2002.

3 To be eligible for an ocean hauling endorsement in his own right Mr Jewell had to satisfy “guidelines relating to the transfer of fishing businesses issued from time to time by the Director” (clause 277(2)). The guidelines that applied at the time were produced by the Director-General in April 2002.

4 The guidelines are in a document under a heading ‘Policy’. The policy relates to the transfer of an ‘ocean hauling’ endorsement, and requires a purchaser of a fishing business who wishes to be eligible for an ocean hauling endorsement to rely on the catch history that they bought with the business. Thus Mr Jewell’s eligibility for an ocean hauling endorsement depends on Mr Moane’s fishing history. Although Mr Moane held the type of endorsement sought by Mr Jewell, the eligibility requirements for Mr Jewell as a purchaser after April 2000 were higher than they were for Mr Moane as a fisher before April 2000.

5 Mr Jewell applied for a Class A endorsement (known as a skipper’s endorsement) in the ‘ocean hauling’ restricted fishery. Eligibility for a Class A endorsement would usually be assessed according to the criteria in clause 258 of the Fisheries Management Regulation but, because Mr Jewell was a purchaser relying on the catch history of a vendor, and not a fisher relying on a personal catch history, his eligibility for the endorsement was assessed according to the April 2000 policy.

6 The Director-General rejected Mr Jewell’s application on the ground that Mr Moane’s catch history does not satisfy one of the requirements for eligibility under the April 2000 policy: that “the fishing business contains a minimum of 8 ocean catch returns with the relevant method recorded between 1986 and 1990”. The Director-General says that Mr Jewell can show only five such returns.

7 Mr Jewell has applied to this Tribunal for a review of the decision to reject his application for a Class A endorsement in the ocean hauling restricted fishery.

Status of ‘validated catch history’

8 This decision is concerned with what is, or is not, recorded on the catch returns completed by or on behalf of Mr Moane and signed by him for each calendar month in the period 1986 – 1990. These are original documents, green or white, completed in ballpen and kept on file by the Department after having been submitted by Mr Moane. As I describe below, these documents are unreliable as an accurate account of the matters they are supposed to record. These documents – the original catch returns – are, however, the documents to which the Director-General, and I, must have regard when assessing eligibility for endorsements.

9 I note that the Department has a substantial commitment to ensuring that it can reach agreement with fishers on what the catch returns actually record, through the process of Validated Catch History. In brief, some, but not all, information from a fisher’s catch returns is recorded in a database, and a fisher is invited, as Mr Moane was, to dispute or agree with what is recorded on that database. After any agreed corrections are made, a printout of the database is provided to the fisher as the “final Validated Catch History” (VCH). The VCH is then relied on by the Department as the basis for any dealings concerning catch history, such as its assessment of eligibility for endorsements.

10 But the VCH is a document generated by the Department and is largely irrelevant to an assessment of eligibility. Even if a fisher and the Department agree on its contents, a VCH is not the document on which an assessment of eligibility depends. None of the Fisheries Management Act, the Fisheries Management Regulation or the policy under consideration in this matter relies on the VCH as the basis for assessment. The basis for assessment is the catch returns, not any subsequent summary of them, agreed or not. The VCH has relevance only to the extent that the Department relies on it as a convenient and accessible means of recording and thereby reviewing what is actually recorded on the original catch returns. The VCH is not, however, simply an accessible consolidation of what is recorded on the original documents. There is a degree of interpretation involved when the data is entered. For example a Departmental officer, in an internal document relating to Mr Moane’s eligibility for fishing in estuary waters (4 March 2003, Exhibit B), says (with my emphasis):

8605 – Under the PRAWNS section he [Mr Moane] has [on the original catch return] ticked ‘hauling net’ and ‘running net’ and under the FISH section he has ticked ‘meshing’. Data entry has entered ‘hauling net, beach haul’ as obvious beach hauling species have been taken .

. . .

Although Mr Moane ticked hauling under the wrong section on his returns, it is clear that he was beach hauling. A data entry person picked this up for the month 8605.

11 As it happens, the VCH in this matter is demonstrably inaccurate when read against the original documents on which it is based.

Status of the policy

12 In Micallef v Minister for Fisheries [2002] NSWADT 105 this Tribunal decided that the April 2000 policy was not inconsistent with the effect of the fisheries management legislation. I see no reason to come to a different view. The Tribunal decided as well that the policy’s imposition of higher eligibility requirements for purchasers than for fishers did not produce an ‘unjust’ decision in the circumstances of that case. I have to assess the question of whether the policy produces an ‘unjust’ decision in the circumstances of this case.

13 In Micallef it appears that the purchaser did not argue that he could satisfy the eligibility criteria based on the catch history that came with the purchased business. In this case, however, Mr Jewell does say that, despite the view taken by the Director-General, the catch history that came with the purchased business satisfies the eligibility criteria.

Meaning of the policy

14 Mr Jewell’s eligibility turns on the words in the policy: can he establish a minimum of 8 ocean catch returns between 1986 and 1990 which record use of a hauling net?

15 If the word ‘recorded’ in the policy means that the method must be entered on the ocean catch return form – for example, a mark placed against the phrase ‘hauling net’, or words written that say ‘hauling net’ – then there is no need to look past the catch return document itself. If the method is ‘recorded’ on the document then it counts towards eligibility, and if it isn’t recorded, it doesn’t count.

16 I note that reliance only on what was recorded may allow eligibility to be recognised on the basis of activity that actually did not happen, but was recorded as fact. The principal protection against this risk of fraud is that the records relied on were not created at the time with future eligibility in mind – fishers at the time had no reason to think that what they recorded would later determine future eligibility to fish. Nevertheless, the risk remains that the policy will allow a decision maker to rely on an erroneous record.

17 In any event, the mere marking of the box for ‘hauling’ is not sufficient. The box must be marked on an “ocean catch return”. In the relevant period – 1986 – 1990, there was no such form in existence.

“Ocean catch return”

18 The form in use, Form 49, was a combined catch return for estuarine and ocean waters. The first page asked for information that did not distinguish between ocean and estuarine fishing: it made provision for recording only one fishing boat as having been used in the month, and only one fishing method having been used (the “main” method). Page 2 of Form 49 was for recording fish taken from “sea beaches and ocean waters”, and page 3 was for recording fish taken from “estuaries, tidal rivers, bays, tidal lakes or tidal inlets”.

19 The policy is problematic in making an entitlement to eligibility dependent on the terms of a document that does not exist in the form described. I note that eligibility provisions on the Fisheries Management Regulation do not refer to a document called an “ocean catch return”.

20 Presumably an “ocean catch return” is a Form 49 that shows entries on page 2. What the Director-General appears to have done is to treat a Form 49 as an ocean catch return when page 2 records fish taken from sea beaches and ocean waters, whatever else was recorded on pages 1 and 3. Of Mr Moane’s catch returns only 9005 can, on this approach, count towards eligibility, and the Director-General was correct to have counted it as an ocean catch return. None of Mr Moane’s other returns has page 2 completed, so none can be said to be an “ocean catch return” to which the policy relates.

21 But even when an ‘ocean catch return’ can be identified from among the Form 49s, the recording of the fishing method remains unclear. If, as is the case with 9005, there are entries on pages 2 and 3 for both ocean and estuarine fishing, and the “main” fishing method on page 1 is marked as hauling, how is one to know whether the single recorded fishing method was used for the estuarine or the ocean fishing? Looking only at the method ‘recorded’ it is not possible to say whether the method was estuarine or ocean. Thus the policy is problematic in this further respect: it makes an entitlement to eligibility dependent on the occurrence of an event the record of which is ambiguous as to its having occurred.

22 The Director-General submits that the word ‘recorded’ in the policy must be read narrowly, and that the ‘recorded’ fishing method is the one that is entered on the ocean catch return form as I described above in paragraph 15. He notes that eligibility criteria elsewhere in fisheries management legislation use the word ‘indicate’ rather than ‘record’, and that in Greenaway v Director, Department of Fisheries [2000] NSWADT 173 I said that the word ‘indicate’ is an invitation to look at other evidence to determine the method used.

23 Consistently with my view in Greenaway, I would agree with the Director-General’s submission as to the approach that should be taken to dealing with the word “recorded”, except that the single “main” method that is recorded cannot, simply from its having been recorded, be attributed to either the “ocean catch” or the “estuarine catch” part of the return. The policy is unworkable. It is only possible to identify the method as having been an ‘ocean’ or ‘estuarine’ method by having regard to other information on the form, such as indicator species, from which the full meaning of the method recorded on the form can be inferred.

24 Thus despite the use of the word “recorded” rather than “indicated”, and what I think is the correctness, in general terms, of the Director-General’s submission that the former leads to a narrower approach than does the latter, the Director-General himself has no choice but to look at the whole of the document, and not merely the fishing method that is recorded, to be able to say whether it is the “ocean” part of the form to which the recorded method – in this case ‘hauling’ – relates. This is what the Director-General must do just to be able to identify those catch returns that record the hauling method as ocean catch returns that record the hauling method. He has done this in relation to catch return 9005 which records hauling as the main method used; the Director-General has counted this return as an ‘ocean catch return which records use of a hauling net’.

25 But, as he concedes in his submissions, the Director -General has gone further then this. When the hauling method is recorded but the ‘ocean’ part of the catch return has not been completed, the Director-General has been prepared to look at the form more broadly and to infer from other matters recorded that the hauling was done to take ocean catch (‘sea beach’ catch in Mr Moane’s case). The Department’s Statement of Reasons for its internal review, for example, relies on the “listing [of] at least one indicator species taken by general purpose hauling net” (my emphasis).

Catch returns counted towards eligibility by Fisheries

26 The Director-General took this approach in relation to 8904. On that catch return there is no entry on page 2 of any ocean (sea beach) catch. Under the wording of the policy, the absence of any entry for ocean catch ought to have been enough to cause the Director-General to disregard that catch return because it was not an ocean catch return.

27 But a glance at the whole of the catch return shows that 10,233kg of sea mullet and 1,113kg of blue fin tuna were taken, and that the area of fishing was recorded as Jervis Bay. This gives an overwhelming ‘indication’ that that fish were taken in ocean waters, although they are recorded on the ‘estuary’ page of the form. It seems that the mere recording of ‘Jervis Bay’ has been taken by the Director-General as a sufficient basis for calling the return an ‘ocean return’; in Exhibit B that I refer to above, the officer says: “8904 is an ocean return, Jervis Bay, which would count towards the assessment”.

28 Even though credited as an ocean catch return, ‘hauling’ is not recorded on 8904 as a method for catching fish. No method is recorded at all for taking fish, and the only method recorded on the form is ‘hauling’ under the heading ‘Prawns’. Under the wording of the policy, this ought to have caused the Director-General to disregard what he accepted as an ocean catch return.

29 But the Director-General had previously recognised that despite hauling not being recorded as a fishing method on the catch return 8904, that method ought in the circumstances be acknowledged. The Director-General did this in response to Mr Moane’s own objection, made in 1997, to a refusal to give him a hauling endorsement. Mr Moane successfully appealed the refusal, and the Director-General amended Mr Moane’s VCH to show that the hauling method had been used in that month. Relying therefore on the VCH, and not on what is recorded on the catch return, the Director-General concedes that 8904 counts towards eligibility.

30 The Director-General concedes that 8605 counts towards eligibility on the same basis that he concedes 8904. It is not an ocean catch return, and does not record ‘hauling’ as a method for taking fish. The Director-General had, however, previously amended Mr Moane’s VCH to show that the hauling method had been used in that month, and concedes that 8605 counts towards eligibility based not on what is recorded on the catch return, but on the VCH.

31 The Director-General concedes that 8601 counts towards eligibility, even though it is not an ocean catch return, as no fish are recorded as having been taken in ocean waters. The form does however record ‘hauling’ as a method. This is taken to be a record of hauling for ocean fish because the form shows indicator species (208kg of sea mullet), even though recorded on the ‘estuary’ page of the form. The form records “Lake Illawarra and Beach” as the site for fishing.

32 The Director-General concedes that 8602 counts towards eligibility, even though it too is not an ocean catch return, as no fish are recorded as having been taken in ocean waters. The form does however record ‘hauling’, which is taken to be a record of hauling for ocean fish because the form shows indicator species (548kg of sea mullet), although recorded on the ‘estuary’ page of the form. The form records “Lake Illawarra and Beach” as the site for fishing.

33 Thus despite his submission to the Tribunal as to the narrow approach that should be taken to ‘recorded’, the Director-General has gone beyond looking merely at the method recorded on the document, and has looked at other material on the document. He has had to do so when ‘hauling’ is recorded as the method and the ‘ocean’ part of a catch return is completed, as it would be impossible otherwise to make the connection between the hauling and the ocean fishing. He has chosen to do so when other information recorded on the catch return makes clear, without resort to other material, that hauling was used in ocean fishing. To the extent he relied as well on the VCH, the VCH entries as to fishing method were themselves based not only on what the original catch returns recorded, but on other material in the document.

34 This generous course taken by the Director-General brings the applicant frustratingly but misleadingly close to eligibility. Whatever hope he gave Mr Jewell by looking beyond the method that was actually recorded and thereby lifting the number of eligible catch returns from one to five, the Director-General went beyond the eligibility requirements of the policy, and counted towards eligibility catch returns that do not qualify under the policy’s terms. There is a real difference between a thing being ‘recorded’ and its being ‘indicated’, and effect should be given to that difference.

35 In summary, of all the catch returns in the relevant period only 9005 records the method of ocean hauling. In Mr Moane’s catch history there is only one of the required eight catch returns. Mr Jewell is, as the Department has decided even on a more generous approach, ineligible for the endorsement he seeks.

36 In light of the view I have taken as to the meaning of the word ‘record’ in the eligibility requirements in the policy, there is no need to receive evidence as to what was caught and how the method of its catching is ‘indicated’ by information on the catch returns. What matters is what is recorded, not what actually happened, and the documents speak for themselves.

37 I allowed Mr Moane to give evidence as to what was caught and the method of its catching because, at the time, I had not formed a view on the difference between ‘record’ and ‘indicate’ in eligibility requirements. Had I decided that the use of the word ‘record’ entitled to me to look at other evidence to determine the method used, then Mr Moane’s evidence would have been directly relevant for that purpose. It is not, however, relevant for that purpose.

38 What Mr Moane’s evidence does do, however, is raise a real question in my mind as to whether the policy produces an unjust decision in the circumstances. If it does, then I am not obliged to give effect to it (section 64 of the Administrative Decisions Tribunal Act, 1997).

39 Based only on the documents themselves, and not as well on Mr Moane’s evidence that assists in better understanding the catch returns, the Department concedes that five returns indicate the method of ocean hauling. Mr Moane’s evidence, for reasons that follow, satisfies me that at least four further catch returns indicate that the method of ocean hauling was used.

Mr Moane’s evidence

40 Mr Jewell led extensive evidence from Mr Moane to establish that Mr Moane had in fact engaged in ocean hauling method. The Director-General has submitted that Mr Moane’s evidence is unreliable. I do not agree. It is the case, as the Director-General submits, that Mr Moane has no independent recollection of events in the relevant period. He does however recall clearly his fishing practices, such as ocean beach hauling each February. I find that his evidence on such matters is reliable.

41 Mr Moane’s evidence confirms that a catch of sea mullet indicates ocean beach hauling. His evidence is that although he caught luderick when meshing, he would catch large quantities by hauling. His evidence is that he went ocean beach hauling every February, and that he recorded Lake Illawarra as his home port rather than as the site where he fished. On Mr Moane’s evidence a significant number of the catch returns ought, if they were to be accurate, have listed ‘hauling’ as a method. The Director-General did not suggest otherwise; there was no evidence, and it was not suggested to Mr Moane in cross-examination, that the species indicating hauling were or were likely to have been caught by other methods.

42 On the information recorded in the catch returns alone, the Director-General concedes that the method of ocean hauling was used for 8601, 8602, 8605 and 8905. With the assistance of Mr Moane’s evidence, other returns indicate that the method of ocean hauling was used.

Catch returns that indicate actual method

43 Looking at the whole of the catch return, as the Director-General did, and with the assistance of Mr Moane’s evidence noted above, I would be satisfied that catch return 8901 indicates that the method of ocean hauling was used. The method of ‘hauling’ for fish is not recorded, no fish are shown as having been caught in ocean waters, and Lake Illawarra is shown as the site for fishing. But there was a catch of 430kg of sea mullet. No entry was made for the site for fishing.

44 Similarly I would be satisfied that catch return 8902 indicates that the method of ocean hauling was used. The method of ‘hauling’ for fish is not recorded, no fish are shown as having been caught in ocean waters, and Lake Illawarra is shown as the site for fishing. But there was a catch of 269kg of sea mullet, and it was caught in February. As well, I would be satisfied that catch return 8908 indicates that the method of ocean hauling was used. The method of ‘hauling’ for fish is recorded, but no fish are shown as having been caught in ocean waters and Lake Illawarra is shown as the site for fishing. There was however a catch of 262kg of sea mullet.

45 The Department has already assessed 8902 and 8908 as estuary catch returns going towards another endorsement held by Mr Moane, but that only serves to illustrate the limitation of relying on a form that records only the “main method” and not all methods used, as I note below.

46 I would also be satisfied that catch returns 8801 and 8802 indicate that the method of ocean hauling was used. The method of ‘hauling’ for fish is not recorded, no fish are shown as having been caught in ocean waters, and Lake Illawarra is shown as the site for fishing. But the fishing for one of them was done in February, and there were catches of 202 of sea mullet and 122kg of luderick (8801), and 84kg of sea mullet and 263kg of luderick (8802).

47 Thus were I in a position to assess – by reference to all the information on the catch returns and to Mr Moane’s evidence – what method Mr Moane actually used, I would say that at least 9 catch returns in total indicate ocean hauling. But application of the policy would preclude me from doing so.

Effect of policy

48 The policy operates in circumstances where what is recorded on the catch returns is unreliable, for two reasons. First, Form 49 allowed recording only of the ‘main method’. If more than one method was used during the month to take fish, only one was to be recorded. I said in Greenaway that

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

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

86 . . . to the extent that regard is had to Form 49 catch returns to determine what methods were used, the ‘X’ in the box for ‘main fishing method used’ is not necessarily helpful: it will show only one of what may have been many methods used in the month.

87 The ‘X’ in the box of a particular Form 49 catch return cannot be relied on to accurately “indicate” all the fishing methods used in the month. The ‘X’ is conclusive only as to one of the methods used . . .

49 In this matter, where eligibility turns on what is ‘recorded’, not what is indicated’, the ‘X’ in the box of a particular Form 49 catch return cannot be relied on to accurately ‘ record’ all the fishing methods used in the month. The ‘X’ is conclusive only as to one of the methods used. Thus the policy makes eligibility dependent on a document which is not a reliable record of whether hauling was used. The method of hauling, if it was used, would not have been recorded if it was not the “main method” for the month.

50 Secondly, Mr Moane made the point in evidence which, in my experience, fishers often make in proceedings such as this: he did not complete the catch returns with the intention of ensuring that they would in future give an accurate account of their activity. The forms were not completed in bad faith, or without a reasonable degree of accuracy. But the immediate relevance of the catch return was the quantity of fish recorded as caught for sale. Recording where the fish were caught, for example, and the method by which they were caught, was not of any immediate relevance to the fisher or, as it appeared to the fisher, to the Department.

51 Mr Moane was always careful to record accurately the type and amount of fish caught for sale. That was the one piece of information that had immediate import for a fisher – their income depended on it. I note that it is principally the type and amount of fish caught for sale on which an inference as to fishing method and site is based. But otherwise, while he never knowingly lodged a false return, Mr Moane says he may well have ticked the wrong boxes for other information, or recorded inaccurate details. He says that it didn’t concern him; it didn’t make a difference to him.

52 So while the catch returns are quite accurate as to the type and amount of fish caught for sale, they are unreliable as a record of where the fish were caught, for example, and the method by which they were caught. Yet the policy makes eligibility to fish dependant on exactly that record. Thus the policy makes eligibility dependent on a document which is not a reliable record of what fishing method was used, as there was no reason at the time for the fisher to ensure that entries, other than for the record of type and quantity of fish caught for sale, were accurate.

Unjust decision

53 When there is no argument that what happened was at all, or significantly, different from what was recorded, no injustice will be done. But when it is the case, as I am satisfied it is in this matter, that what happened was significantly different from what was recorded, then the prospect of an injustice arises. The Director-General’s own exercise of counting some catch returns towards eligibility even because they indicate that there was ocean hauling, even though ocean hauling was not recorded, is an acknowledgement of the unreliability of the catch return documents.

54 To know what fishing method was likely to have been used it is necessary to do just as the Director-General did on the basis of the whole document, and as I have done on the basis of oral evidence. The policy precludes this approach, and makes eligibility dependent on an incomplete and inaccurate record of what fishing method was used.

55 The objects of the Fisheries Management Act are, in s3, to:

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

(2) In particular ...

(a) to conserve fish stocks and key fish habitats, and

(b) to conserve threatened species, populations and ecological communities of fish and marine vegetation, and

(c) to promote ecologically sustainable development, including the conservation of biological diversity,

and, consistently with those objects:

(d) to promote viable commercial fishing and aquaculture industries, and

(e) to promote quality recreational fishing opportunities, and

(f) to appropriately share fisheries resources between the users of those resources, and

(g) to provide social and economic benefits for the wider community of New South Wales.

56 The NSW Commercial Licensing Policy, under which the ocean hauling transfer policy operates, has as its specific objectives:

- to licence commercial fishing in accordance with the Act and Regulations, and fishery management policies in each fishery

- to permit fishers with catch history to dispose of their fishing businesses.

- to allow new entrants to the industry, without increasing real fishing effort

- to permit the consolidation of fishing businesses.

57 If a fisher meets the eligibility requirements then the licensing regime anticipates that they will be able to fish in the manner allowed for. The licensing regime recognises and regulates actual fishing activity, and is concerned to manage “real” fishing effort. To be consistent with and give effect to the objects of the Act, within the Commercial Licensing Policy, the ocean hauling transfer eligibility requirements must reflect actual past activity as the basis on which to plan for sustainable future activity. Eligibility requirements are not intended to be arbitrary standards unrelated to actual fishing activity.

58 If a person’s actual past activity meets an eligibility requirement, but the formal record of that activity does not, then it would in my view be unjust to deny eligibility on that basis. The policy, in Mr Jewell’s circumstances, imposes arbitrary standards unrelated to the actual fishing activity. Unless there are other grounds on which Mr Jewell is not eligible, the policy produces an unjust decision in the circumstances of this case.

59 The policy will produce different decisions according to the circumstances. As I said above, for some fishers there will be no difference between what actually happened and what was recorded as having happened, and in those cases no injustice would be produced by the policy (see Wardley v Minister of Fisheries [2002] NSWADT 65 at [95-96]).

60 In Micallef, as I noted above, it appears not to have been argued that the actual fishing history was different from what was recorded: the argument there was, instead, a direct attack on the validity of the policy. In giving effect to the policy the Tribunal said (at [69]-[71]) that Mr Micallef held expectations as to his entitlements despite the express provisions of the legislation and policies, and the terms of correspondence and notices he had received. The Tribunal was saying, in effect, that Mr Micallef was on notice of the policy, and that the decision it produced was not unjust simply because the decision was one he was not expecting.

61 If Mr Jewell was saying no more than that the policy produced a decision that was contrary to his expectations or beliefs or hopes, then I agree that that does not constitute an unjust decision if it was unreasonable for him to hold those expectations or beliefs or hopes. But he is not relying on that argument. He could concede (although he does not) that he was on notice. That does not alter the unjust nature of the decision produced by the policy in the circumstances I have described.

March 2004 policy

62 I note that the policy I am asked to apply has since been replaced by a policy dated March 2004 (Exhibit 9). That policy is to the same effect except that, instead of requiring “a minimum of 8 ocean catch returns with the relevant method [hauling] recorded”, the policy now requires “a minimum of 8 ocean catch returns indicating its [hauling’s] use recorded”. The wording of the policy has changed to include the concept of “indicating”, thereby, in my view, broadening the approach to be taken to assessing eligibility.

63 On my analysis of Mr Moane’s evidence Mr Jewell is eligible under the March 2004 policy, which was introduced only three months after he was refused eligibility under the April 2000 policy. This in my view compounds the unfairness of a decision produced the April 2000 policy in the circumstances.

64 If the April 2000 policy were still in place I would set aside the decision made under it, and remit the matter to the Director-General to reconsider otherwise than by reference to the policy. But the March 2004 policy now applies, and the correct and preferable decision is one arrived at pursuant to that policy.

65 That policy does not produce an unjust result, as in my view it allows a decision maker to look beyond what is recorded to what is indicated as recorded. This encompasses the exercise that I go through above, and that the Director-General actually undertook to some extent. If I am wrong, and the change in wording in the current policy does not have this effect, then the current policy would produce an unjust decision in this case in the same way that the April 2000 policy does.

66 Applying the current policy, Mr Jewell is, subject to a further consideration I note below, eligible for the endorsement he seeks, as the fishing business contains a minimum of eight ocean catch returns indicating a hauling net’s use recorded between 1986 and 1990. The Director-General concedes that the fishing business contains a minimum of 7.5 tonnes of catch history for the net type.

67 Both the April 2000 policy and the March 2004 policy provide that:

Class A endorsements will initially only be issued to new fishers who can demonstrate they have at least two years of ocean hauling experience in the fishery (ie a skipper or crew member). Those who cannot demonstrate this experience will be issued with a Class B endorsement for a two year period. After this period a Class A endorsement will be issued

68 I do not know what to make of the word “initially” in the first sentence – it implies that this requirement will not be made of new fishers after some initial period of the policy’s being in operation, but I do not know what the Director-General’s practice is. I think that the word ‘a’ in the parentheses should be, or the sense would read better if it were instead, the word “as”.

69 I do not know whether Mr Jewell has at least two years of ocean hauling experience in the fishery as skipper or crew member. The matter should be remitted to the Director-General for that question alone to be decided.

Findings and orders

70 In summary, I find that under the terms of the policy in force at the time, the applicant is ineligible for a Class A ocean hauling endorsement. I find that that policy produces an unjust decision in the circumstances of the case. I find that under the terms of the policy now force, the applicant is eligible for a Class A ocean hauling endorsement, subject only to whether he has had at least two years of ocean hauling experience in the fishery as skipper or crew member.

71 Accordingly, I set aside the reviewable decision, and remit the matter for reconsideration by the administrator. I direct the administrator to reconsider the applicant’s entitlement to a Class A ocean hauling endorsement consistently with these reasons and findings.