JOHNSON and EXECUTIVE DIRECTOR, DEPARTMENT OF FISHERIES (WA)
[2005] WASAT 216
•19 AUGUST 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: FISH RESOURCES MANAGEMENT ACT 1994 (WA)
CITATION: JOHNSON and EXECUTIVE DIRECTOR, DEPARTMENT OF FISHERIES (WA) [2005] WASAT 216
MEMBER: JUSTICE M L BARKER (PRESIDENT)
HEARD: 5 APRIL 2005
DELIVERED : 19 AUGUST 2005
FILE NO/S: DR 24 of 1998
BETWEEN: LAWRENCE MALCOLM JOHNSON
Applicant
AND
EXECUTIVE DIRECTOR, DEPARTMENT OF FISHERIES (WA)
Respondent
Catchwords:
Fisheries - Fish Resources Management Act 1994 (WA) - Initial application for fishery permit - Refusal to grant permit - Objection proceedings - Transfer of objection proceedings to the State Administrative Tribunal - Whether criteria for issue of permit under West Coast Demersal Gillnet and Demersal Longline Interim Managed Fishery Management Plan 1997 satisified
Legislation:
Fish Resources Management Act 1994 (WA), s 54, s 58, s 60, s 61, s 66(1), s 135, s 142, s 142(1)
Fish Resources Management Regulations 1995 (WA), r 117(1)
Fisheries Act 1905 (WA)
State Administrative Tribunal Act 2004 (WA), s 167(4)(b)
Result:
Decision of Executive Director affirmed; application for permit refused; objection proceedings dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: A Kurtz
Solicitors:
Applicant: Self-represented
Respondent: Department of Fisheries (WA)
Case(s) referred to in decision(s):
Re Nicoletta Ciffolilli; Ex Parte Peter Philip Rogers, Executive Director of the Fisheries Department of Western Australia [1999] WASCA 205
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL
Summary of Tribunal's decision
On 16 March 1998 the Executive Director, Department of Fisheries, advised Mr Johnson that he proposed to refuse to grant him a permit to fish in the West Coast Demersal Gillnet and Demersal Longline Interim Managed Fishery.
The Executive Director was not satisfied that Mr Johnson's application for the permit met the criteria set out in cl 15 of the management plan for the fishery.
In particular, the Executive Director was not satisfied that the reason Mr Johnson had not recorded the level of catch specified in cl 15(1)(b)(i) of the plan was solely due to reliance on information provided in a letter dated 10 June 1991 from the Director of Fisheries to Mr Johnson.
The Tribunal concluded that on the evidence before it, it was difficult for Mr Johnson to satisfy that particular criteria of the plan.
The Tribunal also found that Mr Johnson was unable to meet other criteria set out in cl 15(2)(b)(i) in that, at the commencement of the management plan, he was not the holder of a current fishing boat licence endorsed for the use of a power net drum.
The Tribunal also found that Mr Johnson was not able to satisfy cl 15(2)(b)(ii) of the plan in that he could not show that he took the minimum amount of fish from the Sch 3 waters described in the management plan in the period 1 July 1989 - 30 June 1991.
As a result, the Tribunal ordered that the decision of the Executive Director in which he proposed to refuse the permit should be affirmed, the permit refused and the objection proceedings dismissed.
Initial application for a fishery permit
Mr Johnson (applicant), trading as "Fishco" applied for a West Coast Demersal Gillnet and Demersal Longline Interim Managed Fishery Permit for Class A Zone 2 by an "Application For An Interim Managed Fishery Permit" dated 29 July 1997.
On 24 October 1997, following an invitation by the Department of Fisheries (Fisheries), the applicant submitted further information in relation to his application. The information included details of statutory fishing returns in respect of fish taken by demersal gillnet or demersal longline in the area of the fishery. The applicant also provided an overview of his shark fishing activities and history.
On 30 October 1997, Mr Johnson was advised that the further information he provided did not concur with records held by the respondent and that, in any event, F533 ‑ the licence number of the applicant's fishing boat ‑ did not:
"… satisfy the criteria for the issue of a West Coast Demersal Gillnet and Demersal Longline Interim Managed Fishery Permit. In particular, this licence does not satisfy the following criteria:
· a minimum of 1.5 tonnes of fish were caught by either demersal longline in the period commencing 1 July 1991 and ending 30 June 1992; and
· a minimum of 1.0 tonnes of fish were caught by either demersal gillnet or demersal longline in the period commencing 1 July 1992 and ending 30 June 1993",
and so did not satisfy the criteria in cl 15(1)(b)(i) of the West Coast Demersal Gillnet and Demersal Longline Interim Managed Fishery Management Plan 1997 (Management Plan).
The letter went on to state:
"Under the West Coast Demersal Gillnet and Demersal Longline Interim Managed Fishery Management Plan, it is necessary to satisfy both of the above criteria in order to be issued any class of West Coast Demersal Gillnet and Demersal Longline Interim Managed Fishery Permit. On your application form, you have applied for a Class A Zone 2 Interim Managed Fishery Permit. To be issued this class of permit, it is necessary that the applicant satisfy the following criteria in addition to those described above. These criteria are that either:
·the Fishing Boat Licence is endorsed to authorise the holder to fish in WA waters off the West Coast between 32° 41'S latitude and 33°S latitude using a power net drum; or
·under the authority of the Fishing Boat Licence, statutory returns were furnished to the Department which recorded that fishing had been undertaken for a minimum of 5 months during each financial year commencing 1 July 1989 and ending on 30 June 1991 and that a minimum of 9 tonnes had been taken from block 3215 in each of these financial years.
As your licence does not satisfy the criteria for an Interim Managed Fishery Permit as specified in the West Coast Demersal Gillnet and Demersal Longline Interim Managed Fishery Management Plan, I propose to refuse to grant you an Interim Managed Fishery Permit."
Mr Johnson responded to this letter stating:
"It is of a concern to me that your records understate my catch and that the data entries appear to have been incorrectly inputted into your data base [sic]. Will you please have this discrepancy enquired into and let me know how the error came to be made and whether the problem is likely to have recurred as it is most important that your database is maintained in an accurate state since it is used to determine fishing entitlements when changes to access rules are made.
….
I have used a power net drum in my shark fishing operations since 1980 on the South Coast and also the West Coast and I cannot understand why my licence does not contain the proper endorsement. Could you please let me know why the endorsement does not appear on the licence."
By letter dated 5 February 1998 the Executive Director of Fisheries queried whether the applicant wanted to be considered for entry into the West Coast Demersal Gillnet and Demersal Longline Interim Managed Fishery (Fishery) in accordance with cl 15(1)(b)(ii) of the Management Plan.
Clause 15(1)(b)(ii) of the Management Plan can apply when cl 15(1)(b)(i) does not, where fishing activity has been curtailed solely because the person in question relied on information contained in a letter dated 10 June 1991 issued by the Executive Director. That letter advised its recipients that fishing activity undertaken after 20 May 1991 would not be taken into account in determining access to the Fishery in the future.
Mr Johnson replied on 13 March 1998 advising that he wanted to be considered under that clause as he had relied to his detriment on the letter dated 10 June 1991 and stated:
"I consider that I received the letter dated 10/6/1991 because I have not changed my address since prior to then and I recall even today that the cutoff for activity was 1991.
I recall that clearly because my early returns show a fair degree of west coast activity as I lived in Perth when the weather on the south coast was bad and fished out of Fremantle during those periods (winter months).
…
I remained on the south coast because I knew that the qualifying time for effort for entry into the proposed new west coast fishery had been cut off at 20/5/1991 and because of my history prior to then in what was to be the new west coast fishery I was confident that I would qualify and because the cut off date had been established and eligibility could not be altered or improved by further effort in the west coast fishery and in the buffer zone in particular I chose to stay at Windy Harbour during the mild winter of 1992/93.
My decision to remain on the south coast would have been different had I suspected that when the criteria for entry was set it would require effort in the west coast fishery area after May 1991 contrary to what had been said about the cut off date.
If I had thought that there was any chance of the entry criteria including a requirement for effort beyond May 1991 in the buffer zone I would have ensured that I maintained an annual catch record in that zone and I would have done that to preserve my position so that I could continue to fish my historic pattern which is mainly Windy Harbour with some annual activity out of Fremantle, generally to the south but not always so."
Letter of refusal
Mr Johnson was notified on 16 March 1998 that:
"[Y]our application does not meet [the criteria in cl 15(1)(b)(ii) of the Management Plan]. In particular, I am not satisfied that the reason for not recording the level of catch specified in clause 15(1)(b)(i) of the Plan was solely due to reliance on information provided in the letter dated 10 June 1991 from the Director of Fisheries.
In addition you should be aware that even had I been satisfied that you meet the criteria in clause 15(1)(b)(ii), as specified in my letter of 30 October 1997, you also do not satisfy the criteria in 15(2) of the Plan. As it is necessary to satisfy the criteria in both 15(1) and 15(2) in order to qualify for a Class A Zone 2 West Coast Demersal Gillnet and Demersal Longline Interim Managed Fishery Permit, I propose to refuse to grant you this permit."
Objection proceedings
On 6 April 1998, Mr Johnson lodged an objection based on the following grounds:
(a)a discrepancy in catch records owing to boat replacements; and
(b)a contention that he relied to his detriment on the Executive Director of Fisheries' letter dated 10 June 1991.
Mr Johnson's objection was then referred to the Minister for Fisheries, whereupon a Fisheries Objection Tribunal was established on 15 September 1998.
On 18 October 2000, Mr Johnson was advised by counsel for the Executive Director that:
"S 61 of the Fish Resources Management Act 1994 (WA) permits a management plan to prohibit fishing in a fishery unless a fisher has a permit issued by the Executive Director. S61 Fish Resources Management Act 1994 (WA) further limits the issuing of a permit by the Executive Director to the specified method and in the specified circumstances set out in the management plan. Under S66 (1) Fish Resources Management Act 1994 (WA), the Executive Director is satisfied that the entry criteria in the management plan have been satisfied and the procedures for determining allocation of permits have been followed …
These particular provisions were considered in the decision of Mckechnie J. of the Supreme Court of Western Australia in the case of Adams v. Executive Director of Fisheries WA … That particular case also involved an unsuccessful applicant for a permit in the West Coast Demersal Gillnet and Demersal Longline Interim Managed Fishery. Like yourself, the applicant in Adams case did not meet the criteria.
McKechnie J. found that the Executive Director and Fisheries Objections Tribunal had no ability at law to grant a permit to the applicant who did not meet the criteria.
The decision of the Supreme Court in the Adams case makes no allowance for the personal reasons behind the inability of an applicant to satisfy the entry criteria.
My view is that, as a matter of law, there is no difference between your circumstances and that of the unsuccessful applicant in the Adams case. Neither of you met the entry criteria in the management plan. In my view, the provisions of the Fish Resources Management Act 1994 (WA) do not allow a permit to be granted to you either by the Executive Director or the Fisheries Objections Tribunal … you have no prospect of success before the Fisheries Objections Tribunal."
Transfer of objection proceedings to the State Administrative Tribunal
On 1 January 2005, the objection proceedings were transferred to the State Administrative Tribunal in accordance with s 167(4)(b) of the State Administrative Tribunal Act 2004 (WA).
Requirements of the Fish Management Resources Act 1994 and Management Plan
Section 54 of the Fish Resources Management Act 1994 (WA) (FRMA) allows the Minister, by instrument in writing published in the Government Gazette to determine a management plan for a fishery.
The management plan in this case ‑ the West Coast Demersal Gillnet and Demersal Longline Interim Managed Fishery Management Plan 1997- is one such management plan. It commenced on 1 June 1997 and will expire on 31 May 2006.
Clause 4 of the Management Plan provides that the "Fishery" in question means the West Coast Demersal Gillnet and Demersal Longline Interim Managed Fishery identified in clause 6. Clause 6 provides that the relevant fishery is the fishing for any species of fish by the use of a demersal gillnet or a demersal longline in the waters described in Schedule 1. Schedule 1 then describes the Fishery as being "All Western Australian waters off the west coast between 26° south latitude and 33° south latitude".
This fishery is divided into two zones by the Management Plan, being Zone 1 and Zone 2. Zone 2 includes all the waters of the Fishery, whereas Zone 1 includes Western Australian waters off the west coast between 32° 41' south latitude and 26° south latitude ‑ that is, a 19 nautical mile strip known as the "Cape Bouvard Buffer Zone".
Clause 15 of the Management Plan, as it stood in 1997, when the decision concerning Mr Johnson was made, provided:
"(1)An applicant for a Class A permit to authorise access to zone 1 of the Fishery must satisfy the Executive Director that ‑
(a)at the commencement of this Plan he or she is the holder of a current fishing boat licence and ‑
(i)that licence is endorsed to authorise the holder of that licence to fish in Western Australian waters off the west coast between 32° 41' south latitude and 26° south latitude using a power net drum; or
(ii)under the authority of that licence statutory fishing returns which recorded a catch of fish by demersal longline in waters off the west coast between 33° south latitude and 26° south latitude during the period commencing 1 January 1988 and ending on 31 December 1993 were furnished to the Department; and
(b)under the authority of the fishing boat licence referred to in (a) ‑
(i) (A) a minimum of 1.5 tonnes of fish were taken by either demersal gillnet or demersal longline in the period commencing 1 July 1991and ending on 30 June 1992; and
(B)a minimum of 1.0 tonne of fish were taken by either demersal gillnet or demersal longline in the period commencing 1 July 1992 and 30 June 1993; or
(ii)fish were taken by demersal gillnet or demersal longline but he or she did not meet the criteria specified in subparagraph (i) ‑
(A)solely due to reliance on information contained in a letter dated 10 June 1991 from the Director of Fisheries which advised the receiver that any fishing activity undertaken after 20 May 1991 would not be taken into account when determining future access to the Fishery; and
(B)he or she was the addressee of the letter described in (A);
(c)the fish referred to in (a) and (b) were recorded as having been taken by demersal gillnet or demersal longline on statutory returns furnished to the Department prior to 31 December 1993; and
(d)[Mr Johnson] applies for a permit before 31 July 1997.
(2)An applicant for a Class A permit to authorise access to zone 2 of the Fishery must satisfy the Executive Director that ‑
(a)he or she satisfies the criteria specified in subclause (1)(a), (b), and (c);
(b)at the commencement of this Plan he or she is the holder of a current fishing boat licence ‑
(i)that licence is endorsed to authorise the holder to fish in Western Australian waters off the west coast between 33° south latitude and 32° 41' south latitude using a power net drum; or
(ii)under the authority of that licence statutory returns were furnished to the Department which recorded that fishing had been undertaken for a minimum of 5 months during each financial year commencing 1 July 1989 and ending on 30 June 1991 and that a minimum of 9 tonnes of fish had been taken from the waters described in Schedule 3 in each of those financial years;
(c)the fish referred to in (b) were recorded as having been taken by demersal gillnet or demersal longline on statutory returns furnished to the Department prior to 31 December 1993; and
(d)[Mr Johnson] applies for a permit before 31 July 1997.
(3) …"
Clause 15 of the Management Plan, as it currently stands, is in exactly the same terms.
Prior to the introduction of the Management Plan, authority to use demersal gillnets, and so to gain entry to the Demersal Fillnet Limited Entry Fishery ‑ as the Fishery was previously known – was indicated by the placement of an endorsement on a person's fishing boat licence (FBL). The endorsement was achieved administratively by the inspection on a FBL of the following two conditions:
·Condition 70, which authorised the use of a power hauled net drum between 32° 41' south latitude and 26° south latitude; and
·Condition 98, which authorised the use of a power hauled net drum between 33° south latitude and 32° 41' south latitude.
Prohibition Notice Number 476 (Notice 476) prohibited a person from using certain devices in certain waters if the two conditions were not endorsed on their FBL. Notice 476 was issued under the Fisheries Act 1905 (WA) and continued in force as a s 43 order under the FRMA. It currently prohibits all persons other than the class of persons described in Sch 1 of Notice 476 from using, for the purpose of taking fish, a boat fitted with equipment of the type specified in Schedule 2 in the waters described in Schedule 3. Schedule 1 specifies the class of persons as licensed professional fisherman using a licensed fishing boat, the licence for which is endorsed permitting it to use equipment of the type specified in Schedule 2. Schedule 2 specifies the relevant equipment as being a fishing net drum, a puretic power block and other similar devices for hauling a fishing net. Schedule 3 specifies that the relevant waters are all waters of the Indian Ocean, the Southern Ocean and the Timor Sea.
FRMA s 58 provides:
"(1)Without limiting section 56(3), a management plan may prohibit a person from engaging in fishing or any fishing activity of a specified class in the fishery or any part of the fishery otherwise than in accordance with an authorization.
(2)The management plan may -
(a)provide for different classes of authorizations;
(b)restrict the number of authorizations that can be granted or provide that no further authorizations can be granted;
(c)specify criteria to be satisfied before the Executive Director can grant an authorization;
(d)specify a procedure for determining which persons are to be granted authorizations if the number of eligible persons seeking an authorization exceeds the number of authorizations that can be granted;
(e)provide for the submission and consideration of objections to the grant of authorizations;
(f)provide for specified things to be endorsed on authorizations;
(g)specify conditions to which authorizations are subject;
(h)specify grounds on which the Executive Director may cancel, suspend or refuse to renew an authorization (in addition to those already specified in section 143(1)(a) to (g));
(i)specify a period for which an authorization remains in force after it has been granted or renewed;
(j)specify criteria to be satisfied before the Executive Director can vary an authorization on the application of the holder of the authorization;
(k)specify grounds on which the Executive Director may refuse to transfer an authorization or any part of an entitlement under an authorization;
(l)prescribe fees payable in respect of applications for -
(i) the grant, renewal and variation of authorizations; or
(ii) the transfer of authorizations or entitlements under authorizations;
(m)prescribe fees payable for the issue of authorizations.
FRMA s 60 provides:
"(1)Without limiting section 56(3), a management plan may provide for a scheme relating to the extent of the entitlements conferred by authorizations in respect of the fishery or any part of the fishery.
(2)The management plan may -
(a)specify the way in which entitlements are to be fixed and allocated;
(b)provide for all or any of the entitlement to be specified in an authorization;
(c)provide for entitlements to be expressed in terms of units (however described) and from time to time specify the extent of the entitlement arising from such units;
(d)suspend entitlements during a specified period;
(e)provide for entitlements to be increased or reduced;
(f)provide for the conversion of one kind of entitlement into another kind of entitlement;
(g)prohibit a person from doing any thing in excess of an entitlement;
(h)authorize the temporary transfer of entitlements (either generally or only in specified circumstances);
(i)specify -
(i)the criteria that a person must satisfy before the person can buy any forfeited entitlement under section 76(4); and
(ii)the way in which any forfeited entitlement may be sold under that section."
FRMA s 66(1) provides:
"If a person applies to the Executive Director for the grant of an authorization and –
(a)the Executive Director is satisfied that the criteria specified in the relevant management plan for the grant of the authorization have been satisfied; and
(b)if a procedure is specified in the plan for determining which persons are to be granted authorizations, the person is selected in accordance with that procedure,
the Executive Director may grant to the person an authorisation."
FRMA s 135 provides:
"(1)An application for the grant, renewal or variation of an authorization or for the transfer of an authorization or part of an entitlement under an authorization (an "application") must be:
(a)made to the Executive Director in a form approved for that purpose by the Executive Director;
(b)accompanied by the fee (if any) prescribed, or specified in the relevant management plan, for such an application; and
(c)accompanied by any information that the Executive Director reasonably requires for a proper consideration of the application.
(2)An applicant must provide the Executive Director with any further information that the Executive Director by notice in writing requires Mr Johnson to provide in respect of an application.
(3)An applicant must, if required to do so by the Executive Director, verify by statutory declaration any information contained in, or given in connection with, an application.
(4)The Executive Director may refuse to consider an application if the application does not conform to a provision of this section or if Mr Johnson has failed to comply with a provision of this section."
FRMA s 142(1) provides:
"The Executive Director may vary an authorization if –
(a)the holder of the authorization applies to the Executive Director for the variation;
(b)it is necessary to correct any error in the authorization; or
(c)it is necessary to give effect to the provisions of this Act."
Regulation 117(1) of the Fish Resources Management Regulations 1995 (WA) (FRMR) provides:
"A person having the day to day control of any boat used or intended to be used for or in conjunction with commercial fishing, must ensure that a current fishing boat licence is in force in respect of the boat.
Penalty: $10 000."
Block 3215 is described in Schedule 3 of the Management Plan as:
"All Western Australian waters bounded by a line commencing at the intersection of 32° south latitude and 115° east longitude; thence east to the intersection of 32° south latitude and 116° east longitude; thence south to the intersection of 33° south latitude and 116° east longitude; thence west to the intersection of 33° south latitude and 115° east longitude; thence north to the commencement point."
Fisheries' case
The Executive Director provided submissions to the Tribunal on 5 April 2005. In them the Executive Director notes that Mr Johnson currently holds FBL 1098, which he has held since before 1985. Various licensed fishing vessels have been attached to that FBL since Mr Johnson has held it. Each boat was required to bear a fishing boat licence number pursuant to FRMR reg 117. In Mr Johnson's case, the relevant license is FBL F533.
The Executive Director accepts that Mr Johnson met the criteria specified in cl 15(1)(a)(ii), cl 15(1)(d) and cl 15(2)(d) of the Management Plan, in that Mr Johnson:
(1)furnished to Fisheries fishing returns which recorded a catch of fish by means of demersal longline in the waters off the west coast between 33° south latitude and 26° south latitude during the period 1 January 1988 and 31 December 1993; and
(2)applied for the permit before 31 July 1997.
However, the Executive Director submits that Mr Johnson did not, at material times, meet the criteria set out in cl 15(1)(a)(i), cl 15(1)(b)(i)(A), cl 15(1)(b)(i)(B), cl 15(1)(b)(ii)(A) and cl 15(2)(b) of the Management Plan because :
(1)he did not hold an FBL endorsed to authorize him to fish in Western Australian waters off the west coast between 32° 41' south latitude and 26° south latitude using a power drum (cl 15(1)(a)(i));
(2)he did not hold an FBL endorsed to authorize time to fish in Western Australian waters off the west coast between 33° south latitude and 32° 41' south latitude (cl 15(2)(b)(i));
(3)he did not take a minimum of 1.5 tonnes of fish by either demersal gillnet or demersal longline in the period commencing 1 July 1991 and ending on 30 June 1992; or ook a minimum of 1.0 tonne of fish by either demersal gillnet or demersal longline in the period commencing 1 July 1992 and ending on 30 June 1993 (cl 15(1)(b)(i)(A) and cl 15(1)(b)(i)(B));
(4)he did not under the authority of an FBL endorsed with condition 98 furnish returns to the respondent which recorded that fishing had been undertaken for a minimum of 5 months during each financial year commencing on 1 July 1989 and ending on 30 June 1991 (cl 5(2)(b)(ii)); and
(5)he did not take a minimum of 9.0 tonnes of fish from the waters of block 3215 in each financial year commencing on 1 July 1989 and ending on 30 June 1991 (cl 15(2)(b)(ii)).
In relation to cl 15(1)(b)(ii) in particular, the Executive Director denies that Mr Johnson failed to meet the criteria referred to in cl 15(1)(b)(i) of the Management Plan owing solely to his reliance on the letter of 10 June 1991, as:
(1)there is no copy letter on Fisheries’ file to suggest that the letter was ever sent to Mr Johnson or Fishco;
(2)if Mr Johnson did receive the letter, the evidence suggest that he did not alter his fishing plans solely on the basis of the letter as:
(a)Mr Johnson's catch returns indicate that he took fish in the relevant area (being block 3215) in 1988 but from then on only in October 1989 and May 1992, which suggests that Mr Johnson's fishing pattern did not alter markedly from June 1991;
(b)Mr Johnson admits that he fished on the west coast when the weather was bad on the south coast, which indicates that his fishing location was governed principally by the weather; and
(n)Mr Johnson was confident that his fishing history in 1988 and 1989 was sufficient for eligibility into the Fishery.
In any event, the Executive Director also submits that it is necessary for Mr Johnson to meet the criteria outlined in cl 15 of the Management Plan before he could be issued with a permit under the Management Plan as:
(1)s 58 of the FRMA provides that the Management Plan may specify criteria to be satisfied before the Executive Director can grant an authorization;
(2)the Management Plan specifies criteria to be satisfied.
The Executive Director is not satisfied that Mr Johnson meets the threshold licence criteria for zone 2 (cl 15(1)(a)(i), cl 15(2)(b)(i) and cl 15(2)(b)(ii)) and submits that, as meeting the criteria is a threshold eligibility requirement, the fact that Mr Johnson fails to meet the criteria means there is no room for the exercise of discretion under s 142 of the FRMA in his favour.
The Executive Director contends that the situation in this case is similar to that contained in the Supreme Court of WA decision in Re Nicoletta Ciffolilli; Ex Parte Peter Philip Rogers, Executive Director of the Fisheries Department of Western Australia [1999] WASCA 205 (the Guardon case). The Executive Director submits that the Management Plan lays out exhaustive criteria for entry into the Fishery and that it is therefore not possible to gain entry into the Fishery under the general provisions set out in s 135 and s 142(1) of the FRMA.
In the Guardon case, Parker J held, at pages 12 ‑ 13, after reviewing s 58 and s 60 of the FRMA that:
"It will be seen from this quick review that a management plan must contain a few matters, and may contain a very wide range of other matters. It is the case, therefore, that management plans for different fisheries may vary considerably as to their content. A management plan may make only limited and general provision or may extend to very detailed, extensive and even highly restrictive provisions.
It is the effect of s 58, and especially s 58(1) and s 58(2)(b),(c) and (d), that a management plan may, but need not, make detailed and exhaustive provision as to which persons may be authorized to fish in a fishery, and by s 58(2)(j) as to the criteria to be satisfied before the Director can vary an authorisation on the application of a holder of an authorisation. Similarly, it is the effect of s 59 and s 60, especially s 60(1) and s 60(2)(a), (b) and (c), that a management plan may, but need not, make detailed and exhaustive provision to determine the entitlement to take fish conferred from time to time by an authorisation."
Parker J then examined the specific management plan in question and held, at page 16, that:
"It may be seen from this brief summary of the Management Plan that it specified exhaustively the qualifications of those who might hold licences to operate in the Fishery and determined exhaustively the units of entitlement to be specified on a licence for a zone of the Fishery. The Director had no discretion or other power in these respects. It is the case, as was submitted for Guardon, that there was not any provision in the Management Plan which expressly provided to the effect that no additional or other licences might be granted, or other entitlements specified on a licence, but any such provision would be surplusage. The exhaustive provision that was made did not allow the possibility of additional or other licences or entitlements."
As to the relationship between s 135, s 142(1) and the management plan in issue, Parker J held, at pages 19 ‑ 20:
"From the review of the Management Plan which has been set out earlier it may be accepted that it purports to deal exhaustively with entitlements to Zone 4 units in respect of this Fishery and that there is no provision for any additional units whether discretionary or otherwise.
…
The Management Plan having been determined or amended to include provisions to this effect, pursuant to the express enabling powers in the Act, the legal question which arises is whether there is conflict between the enabling provisions for management plans and s 135(1), s 147(1) and s 142(1). It is not a question of subsidiary legislation seeking to limit the operation of the enabling statute.
In this case s 135(1) and s 147(1) may be seen to be intended to provide a general procedural regime, rather than to deal with entitlements. Section 142, however, deals specifically with the variation of entitlements. While s 142(3) creates an entitlement to a variation when criteria specified in the Management Plan are satisfied, s 142(1) is merely a permissive provision. Section 142(1)(b) and (c) each stipulate criteria which give rise to a discretionary power to vary an authorisation; these are to correct an error, or to give effect to provisions of the Act. Section 142(1)(a) stands uniquely as lacking in specification of any criteria. Were it intended to create a power to vary to be exercisable merely on application, ie unfettered and uncontrolled at all by criteria, then s 142(1) could have been drafted as a much shorter and simpler provision even though enabling variation at the instigation of the holder of the authorisation or the Director as is appropriate. Further, if s 142(1)(a) is to be construed as Guardon submits, that would preclude a management plan from making exhaustive provision for entitlements under authorizations, even though the scheme of the express earlier provisions appears to be directed to enabling that to occur, in a case that is where that is considered to be appropriate. Such an interpretation of s 142(1)(a) would appear not merely to be inconsistent with, but to contradict the effect of, express provisions such as, s 58(1), s 58(2)(b), (c), (d) and (j), s 59(1), s 60(1), s 60(2)(a), (b), (c), (e) and (g), especially their effect in combination.
The reconciliation of this possible contradiction is to be found, in my view, in an interpretation of s 142(1)(a) which sees its purpose as enabling variation, where that is possible under the terms of the Management Plan, but not as intended to create a right to variation where the terms of a duly made management plan are exhaustive and preclude variation. This could mean that in a case such as the present the procedure exists for the applicant to apply for variation but the Management Plan precludes the application being granted by the Director or the Tribunal. That appears to be a consequence which is more consistent with, and in furtherance of, the scheme of the Act …" (Emphasis supplied.)
Applicant's case
Mr Johnson did not file written submissions. However, he did provide some documentary evidence and gave oral evidence at the hearing.
In essence, the applicant's case is that he continued fishing in the manner he had always done following the issuing of Notice 476, and he never understood that he had to do anything by way of getting an endorsement on his FBL to continue his fishing practices. He also stated that several Fisheries officers were aware of the fact that he fished using equipment prohibited under Notice 476.
Mr Johnson also maintained throughout the course of the hearing that he relied on the letter of 10 June 1991. However, he did not recall whether or not he had received it personally, or whether he heard the contents of the letter read out at a meeting of the Leeuwin Professional Fishermen's Association, of which he was a member at material times.
When questioned as to how he could show that he relied solely on that letter, Mr Johnson stated:
"Well, I can't show your Honour, except that I've only fished once in that zone since then because they said it was no long - - I was no further - - you know, your returns, when they show any further effort in the west coast zone, were not going to be taken into consideration as far as access to the zone."
Additionally, when questioned by counsel for the respondent about what governed where he fished, Mr Johnson stated:
"… there's many factors; weather, whether I was refitting boats. I mean, I had a boat go ashore down there and - - but the letter was a - - you know, was continually - - would have continued to fish here had I not received notification that it was, you know, not going to do me any good as far as access to the west coast fishery.” (p39 transcript)
The Tribunal's findings
It is clear enough that, where a management plan, such as that which is relevant to this application, exhaustively deals with the circumstances in which a person may seek variation of an authority under the FRMA, the management plan effectively governs the situation and the Executive Director in dealing with an application for variation, and this Tribunal in reviewing a decision of the Executive Director, does not have a general discretion to go outside the terms of the management plan.
In this case Mr Johnson applied for a permit in respect of the class A zone 2 area referred to in the Management Plan.
As explained in evidence, zone 1 referred to in the Management Plan covers much of the State. However, Zone 2 is a more limited area.
The Executive Director Fisheries says that Mr Johnson does not meet the criteria in the Management Plan to fish in zone 2.
The position on the evidence, and conceded by Fisheries, is that Mr Johnson meets the criteria set out in Management Plan cl 15(1)(a). Counsel for Fisheries said that Fisheries accepts that, even though Fisheries say Mr Johnson’s licence was not endorsed to fish in the zone 1 waters and he does meet the second alternative aspect of cl 15(1)(a)(ii), in that he has provided returns to the Department showing that he has caught fish in the fishery between the relevant dates from 1 January 1988 and 31 December 1993. The returns of Mr Johnson that make this clear were attached to the statement of Mark Cliff dated 28 March 2005 filed by Fisheries in the proceedings.
Fisheries also acknowledged that Mr Johnson meets cl 15(1)(c) and (d) and cl 15(2)(d) of the Management Plan.
However, Fisheries says that Mr Johnson does not meet cl 15(1)(b) of the Management Plan, in that there is not evidence to show that the minimum number of fish were taken as required under (i), or that the fish that were taken by Demersil Gillnet or Demersil Longline was "solely due to reliance" on information contained in a letter dated 10 June 1991 from the Director of Fisheries, and Mr Johnson was the addressee of the letter. As a result, Fisheries also says Mr Johnson cannot satisfy cl 15(2(a) of the Plan.
There is no doubt on the evidence before me that Mr Johnson cannot make out that he took the minimum weight of fish during the relevant periods specified in Management Plan cl 15(1)(b)(i). Thus, the question is whether Mr Johnson can show that the fish that he did take were taken pursuant to Management Plan cl 15(1)(b)(ii), "solely due to reliance" on information contained in the letter dated 10 June 1991 from the Director of Fisheries.
The evidence before me does not positively establish the letter of 10 June 1991 was sent to Mr Johnson. The best that Mr Johnson can say is that he believes he may have heard the contents of that letter read out at a meeting of the association of fishers to which he belongs.
However, counsel for Fisheries accepts that the relevant letter was at the material time sent out to Southern Gillnet Limited Entry Fishers and that Mr Johnson did have a permit of that nature at material times and so it is quite possible that he could have been sent that letter.
Even if this is accepted for the present purposes that possibly Mr Johnson was an addressee of the letter, the question is whether he took fish "solely due to reliance" on the information contained in the letter. In that regard the evidence of Mr Johnson is quite slim.
The evidence of Mr Cliff who is a technical officer with the Research Services Branch of Fisheries, commented that Mr Johnson mainly fished in the Windy Harbour area of the south coast fishery, and mainly in blocks 3415, 3416, 3515, 3516. The particular block most relevant for present purposes is block 3215. Mr Cliff’s evidence suggests that Mr Johnson fished block 3215 quite substantially in 1988 but then fished block 3215 only on two other occasions in October 1989 and May 1992.
Fisheries contend that if Mr Johnson had relied solely on the letter of 10 June 1991, he would have changed his patterns of fishing at about the time of the letter to demonstrate reliance on the letter. There is merit in this submission. The evidence suggests however, that Mr Johnson’s pattern of fishing was established in 1988 and did not significantly change thereafter. His pattern of fishing after 10 June 1991 does not seem to have altered significantly and this suggests, in turn, no special reliance on the information in the Executive Director's letter of 10 June 1991.
Rather, the evidence given by Mr Cliff suggests that Mr Johnson determined where to fish according to the weather, rather than anything else.
Mr Johnson accepted that it was hard to contradict the evidence given on behalf by Fisheries as to how much he caught and in which zone. By his evidence he tried to emphasise his commitment to fishing. He said he had been a continuing full time shark fisherman continually fishing those blocks in that pattern since about 1986.
Mr Johnson said, so far as his pattern of fishing was concerned, that he was a one-man band, did everything himself and "if I buy another vessel I refit and I … might miss or change my fishing pattern, and apart from that, it’s weather."
When asked by the Tribunal whether he received the letter of 10 June 1991 and relied upon it Mr Johnson stated:
"I am not sure whether I got it, or our association got it, but it was read out to us quite plainly and clearly…it would have been at the Leeuwin Professional Fisherman’s Association, or I would have received it personally. I can’t remember which. I’d have to go back into the – - you know attempt to find it, if it is at home among the … reams of paperwork that you get from the Department."
Mr Johnson later added:
"But I mean, it was made quite clear to us, to the zone 1 – - we’re called zone 1 fisherman, that you’ve got – - it’s a little confusing, there’s a zone 1 and 2 up on the west coast as well, and it’s zone – - we’re actually the zone 1 fishermen. Zone 2 is from basically Walpole to the South Australian border. Our zone is a very small zone. We have from Walpole to the Bouvards, or we had, for access.
And I bought [sic] up from the first --I attended the first west coast -- the start of the west coast meetings, when they decided to try and break this into another fishery -- I should point out in 1986, Julian Grill [Administrator] made a press release that there was to be no further effort put on fishing on the west coast in the way -- and demersal gill nets, but that never got followed up by the Department either. But we had a – the zone 1 fishermen, we’re tied into a very small area now and they’ve since found with fishing the same stock, which is the west coast as well.
As I say, the Department played ducks and drakes with the west coast fishery generally, you know? That’s why there’s so many bits and pieces to it, to chop out as much effort as they can."
When again pressed by the Tribunal to explain how he could satisfy that part of the Management Plan that refers to fish being taken "solely due to reliance" on the letter of 10 June 1991, Mr Johnson again emphasised that he historically fished in the area "and that should be sufficient". He added:
"Well, I was a full time shark fisherman so I think I should be able to continue full-time shark fishing. You know, you can’t fish in two zones at once and originally when I put the application in, you know, I was either fishing up here or down there, depending on, you know, the seasons, all sorts of factors."
When pressed in the cross examination as to why his historic access should be considered relevant to meeting the criteria set out in the Management Plan, Mr Johnson said:
"Well, I’ve refitted two vessels in that time, which you know, take quite a bit of time in some cases. I think it took me nine months to do one and as I say, the continuing -- you can see the set patterns on the ones I’ve furnished you with, if you’ve had a look at it.
… it just shows since ‘86 when I purchased the larger vessel, that I was, you know, fishing up and down the coast, not just in those lower zones. I spent most of my time in the lower zones. Because of the infrastructure you need to … you can’t just run up and down the coast as easy as, you know, ice machines and dinghies and ice boxes and trucks..."
Leaving aside the endorsement issue, the important issue remains whether Mr Johnson could show he had fished by whatever means "solely due to reliance" on the letter of 10 June 1991. As to that reliance question, Mr Johnson advised the Tribunal:
"Well, I can’t show your Honour, except that I’ve only fished once in that zone since then because they said it was no longer -- I was no further-- you know, your returns when they show any further effort in the west coast zone, were not going to be taken into consideration as far as access to the zone. That’s what I meant when I said, your Honour, that the Department played ducks and drakes with the dates. That’s why there’s so many ifs, buts and wherefores in the criteria.
Our Association kicked up about it, but is was deaf ears and … they held many meetings which we all spent many hours attending, but the Department doesn’t really -- it seems as though it’s a fait accompli before it happens. They suggest what’s going to happen and it just happens regardless of what we say."
As to the extent to which he fished in particular areas, particularly the Windy Harbour area, and whether it was the weather that dictated his fishing activities, and not the letter dated 10 June 1991, Mr Johnson stated:
"Oh, the weather’s a -- I mean, there’s many factors; whether I was refitting boats. I mean I had a boat go ashore down there and -- but the letter was a -- you know was, continually -- would have continued to fish here had I not received notification that it was, you know, not going to do me any good as far as access to the west coast fishery."
The evidence also suggested that in 1991, having regard to the returns filed by Mr Johnson, Mr Johnson didn’t catch any fish. The next return was for 1992 and Mr Johnson went back to block 3215 and caught fish. Mr Johnson said he would have to check and see if he was doing a boat refit or what other circumstances caused that to happen in that particular period.
The evidence to support a conclusion that Mr Johnson took fish by Demersal Gillnet or Demersal Longline, even though he could not meet the criteria specified in cl 15(1)(b)(i) of the Management Plan, "solely due to reliance" on the information contained in the letter dated 10 June 1991 from the Director of Fisheries, is not terribly strong.
While Mr Johnson seems to have been aware of the letter and the continuing debate between his association and Fisheries about the development of a new fishery that would affect his interests, there is little evidence to support the conclusion that Mr Johnson took fish "solely due to reliance" upon information contained in that letter.
In these circumstances it is difficult to conclude that Mr Johnson is able to satisfy cl 15(1)(b)(ii) of the Management Plan. As it is necessary for an applicant for a class A permit authorising access to zone 2 of the fishery first to satisfy all of the criteria specified in sub clauses (1)(a),(b) and (c) of cl 15, Mr Johnson is unable to meet the criteria specified in cl 15(2)(a) for a zone 2 permit.
It also appears quite clear that Mr Johnson is unable to meet the further criteria set out in cl 15(2)(b)(i) for a zone 2 permit, in that at the commencement of the Management Plan he was not the holder of a current fishing boat license endorsed to authorise the use of a power net drum. As much as Mr Johnson believed he was entitled to continue using a power net drum, by his own admission at no time did he have an endorsement to this effect on his FBL.
Mr Johnson explained that he used a net drum although he did not have a net drum endorsement on his fishing boat licence.
There appears to be no doubt, in Mr Johnson’s evidence, that he used a net drum in his fishing activities, both before and after Notice 476 required an endorsement on a FBL for a net drum to be used.
As a matter of fact, at no material time did Mr Johnson have an endorsement placed on his fishing boat licence to permit him to fish by a net drum, as required by Notice 476 in 1991. There was no condition 98 on the FBL to that effect. Nor was there a condition 70 to that effect which would have permitted a net drum to be used in the Cape Bouvard buffer zone and the zone 1 area.
Mr Johnson stated that his position was that he continued to do after Notice 476 in 1991 was issued what he had been doing before the Notice, and that as far as he was concerned Fisheries knew he was using a net drum and so his fishing practices should not be considered contrary to the FRMA.
Nor, in the alternative, is Mr Johnson able to satisfy subclause 2(b)(ii) to cl 15 of the Management Plan, in that he cannot show that he took the minimum take of fish from waters described in Schedule 3 of the Management Plan in each of the financial years commencing 1 July 1989 and ending 30 June 1991.
Conclusion and orders
In these circumstances, Mr Johnson is not able to satisfy a number of important and relevant clause 15 criteria. As a result he does not qualify for a permit in zone 2 of the Management Plan and his objection proceedings should be dismissed.
The Tribunal orders:
(1) The decision of the Executive Director proposing to refuse the permit is affirmed;
(2)The application for the permit is refused; and
(3)The objection proceedings and the application in the Tribunal are otherwise dismissed.
I certify that this and the preceding [85] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT
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