Justice and Australian Fisheries Management Authority and Department of Fisheries Western Australia - [2001] AATA 918

DECISION AND REASONS FOR DECISION [2001] AATA 918

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2000/153

GENERAL ADMINISTRATIVE DIVISION       )
           Re      CRAIG JUSTICE
  Applicant
           And    AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
  Respondent

AndEXECUTIVE DIRECTOR DEPARTMENT OF FISHERIES WESTERN AUSTRALIA
Party Joined

order

Tribunal Associate Professor B W Davis A M (Part-time Member)

Date24 October 2001
PlaceHobart

Decision      The Tribunal orders that the Executive Director of the Fisheries Department of Western Australia be joined as a party to the proceedings.
  [Sgd B W Davis]
  Part-Time Member
CATCHWORDS
Practice and Procedure - Standing - joinder - person whose interests are affected by the decision - interests affected - Tribunal discretion - factors relevant to exercise of discretion.

Fisheries - southern and western tuna and billfish fisheries - boundary - latitude 34º south.

LEGISLATION
Administrative Appeals Tribunal Act 1975 - ss31(1), 32, 165
Fisheries Management Act 1991 - s32
Fish Resources Management Act 1994 (WA)

AUTHORITIES
Control Investment Pty Ltd and Ors v Australian Broadcasting Tribunal (No. 1)(1980)
50 FLR 1
Dixon and Ors v Australian Fisheries Management Authority (1999) 57 ALD 481
Bannister Quest Pty Ltd v Australian Fisheries Management Authority (1997) 77 FCR 503
Alphapharm Pty Ltd v Smith Kline Beecham (Australia) Pty Ltd (1994) 49 FCR 250
Re Marine World Victoria and Minister for Arts, Heritage and Environment (1986) 10 ALD 262
Re Scott and Secretary, Department of Social Security (1996) 42 ALD 738

OTHER MATERIALS
Arrangement between the Commonwealth and State of Western Australia in relation to the fishery for fish and other aquatic biological resources in waters relevant to Western Australia (Commonwealth Gazette No. GN4, 1 February 1995, at pp353-365).

REASONS FOR ORDER

24 October 2001 Associate Professor B W Davis A M (Part-time Member)
Context

Mr Craig Justice managements a family fishing business in South Australia and has a number of other fishing interests in the South-East Non-Trawl Fishery (SENT) and the Southern and Western Tuna and Billfish fishery (SWTBF), the latter being managed for him by FMS Pty Ltd.
Mr Justice has sought review of a decision and review decision made by delegates of the Australian Fisheries Management Authority (AFMA) pursuant to s32 of the Fisheries Management Act 1991 not to vary the conditions of his 2000-2001 SWTBF permit number 26085. The permit foes not permit him to conduct fishing operations throughout the SWTBF, but only authorises fishing operations in the area of the SWTBF (off the coasts of Western Australia and South Australia) south of latitude 34º south.
Mr Justice seeks review by the AAT on a number of grounds, claiming that the 34º south boundary is arbitrary, has no biological basis, does not meet AFMA's statutory objectives and is contrary to the implementation of efficient and cost-effective fisheries management. The case is schedule for hearing in late 2001.
The Joinder Application
A written application to be joined as a party to proceedings was lodged by the Department of Fisheries of Western Australia on 10 September 2001, and detailed submissions and a list of authorities provided on 10 October 2001. The applicant advised on 12 September 2001 that he would oppose the Department of Fisheries Western Australia being joined as a party to proceedings. The respondent indicated on 19 September 2001 that it did not oppose the application for Fisheries WA to be joined as a party to proceedings.
Section 31(1) of the Administrative Appeals Tribunal Act 1975 provides that where it is necessary to decide whether the interests of a person are affected by a decision, that matter shall be decided by the Tribunal and, if the Tribunal decides that the interests of a person are affected by a decision, the decision of the Tribunal is conclusive.
Given the above, a hearing of all parties was convened by telephone conference on 24 October 2001 to determine the matter.   Parties were represented as follows:
For the applicant: Mr Robert Fish
For the respondent: Mr Justin Hyland
For Fisheries WA:    Ms Carol Bathurst.
The parties had before them submissions made by the applicant and respondent and were asked to address these, provide any supplementary comment as required and comment on the case presented by other parties.   The Tribunal made an oral decision, but stated that the decision and reasons would be given in writing.
Submission by Fisheries WA
The joinder application by Fisheries WA claimed that the Executive Director of the Department of Fisheries WA, was a "person" whose interests were affected, as being statutorily responsible for management of fisheries and associated industries in West Australian waters, as defined in s10 of the Fish Resources Management Act 1994 (WA) ("the State Act").
The Executive Director considered it necessary to intervene in the current case to ensure that the interests of Western Australian Fisheries and the ecologically sustainable development of fish stocks connected to Western Australia are taken into account by the Tribunal. There was potential for conflict between the interests of Western Australia and AFMA (the Commonwealth). Accordingly, it was important for Western Australia to be separately represented in this case.
In detailed submissions the following points were made (set out below is a condensed version):
"(a) The words 'interest are affected' in the Administrative Appeals Tribunal Act 1975 ("the AAT") denote interests which a person has other than as a member of the general public or holding a belief certain kinds of conduct should be prevented. The interest need not be a legal interest. A person seeking to be joined does not have to establish that they are in fact affected, it is sufficient to show that their interest could be affected.
Authorities cited:
Control Investment Pty Ltd and Ors v Australian Broadcasting Tribunal (No. 1)(1980)
50 FLR 1
Dixon and Ors v Australian Fisheries Management Authority (1999) 57 ALD 481 @ 488
(b) In the case under consideration it is claimed that the Executive Director of Fisheries WA has the following interests affected by the decision that is the subject of these proceedings:
(i)the decision affects the fish stocks in, and management of, other fisheries which are administered by the Executive Director:
·recreational fishing for tuna and like species;
·all other fisheries managed in accordance with the law of Western Australia, pursuant to the arrangement between the Commonwealth and State of Western Australia in relation to the fishery for fish and other aquatic biological resources in waters relevant to Western Australia. (Commonwealth Gazette No. GN4, 1 February 1995 at pp353-365, section 7 of the Commonwealth Act and section 233(1) of the State Act).
(ii)the decision also affects matters referred to in section 3(1) of the State Act, which the Executive Director has the statutory responsibility for administering, concerning the conservation and exploitation of the fish resources of the State. The decision also affects the economic validity of public infrastructure provided by the State."
Fisheries WA manages waters that overlap with waters in which the respondent (AFMA) has management authority. The granting of any permit by the respondent that authorises fishing in Western Australian waters affects Fisheries WA management interests. The statutory objectives of Fisheries WA are relevant to those of the respondent. Fisheries WA has distinct and to some extent conflicting interests to the respondent. Fisheries WA has a real and genuine interest in current policy being applied in the reviewable decisions and any flow on effect from a setting aside of those decisions. Accordingly, Fisheries WA has an interest affected by the review decisions. (Authority cited: Dixon and Ors v Australian Fisheries Management Authority (1999) (supra) p489).
There are a number of factors which are relevant to the discretion to make an order joining a party whose interests are affected by the decision under review:
Authorities cited: (Control Investment Pty Ltd and Ors v Australian Broadcasting Tribunal (No. 1) (1980) 50 FLR 1; Re Marine World Victoria and Minister for Arts, Heritage and Environment (1986) 10 ALD 262; Re Scott and Secretary, Department of Social Security (1996) 42 ALD 738.
It is appropriate in the circumstances of the present case that the discretion be exercised in favour of the joinder for the following reasons:
(a) the application raises an issue of general public importance;

(b)the position taken by the Executive Director of Fisheries WA may well differ from that taken by the respondent. Given the importance of the issue, it is appropriate that all views of the relevant public interest be presented to the Tribunal;
(c)the Executive Director has a different interest from the respondent in that he is interested in the impact of the decision on different fisheries and is more concerned with the local impact of the decision;
(d)the joinder of the Executive Director should not unduly lengthen proceedings and should not require the adjournment of any listed hearing;
(e)when the interest in hearing all aspects of the public policy arguments are balanced against any additional costs the joinder may impose, the interests of sound administration favour granting the Executive Director application for joinder.

Submission in Response

The applicant (Craig Justice) opposed the application for joinder on the following basis:
"(a) there is no evidence that the Director (of Fisheries WA) is a 'person whose interests are affected by the decision' within section 31 (1A) of the Administrative Appeals Tribunal Act 1975.
(b) if, which is denied, the Director is a 'person whose interests are affected" the AAT should in its discretion, refuse joinder because:
(i) joinder would unduly impede the expeditious conclusion of the proceedings;
(ii) joinder would increase the costs for both parties;
(iii)there has been an unreasonable delay by the Director in application for the joinder;
(iv)there are a number of other persons with interests 'substantially similar' to that of the respondent;
(v)the Director's alleged interest is 'substantially similar' to that of the respondent;
(vi)the Director's alleged interest is not 'significant';
(vii)the Director's alleged interest is a general 'public' interest."
In questioning whether the Director was a "person whose interests were affected", counsel for the applicant made a number of points:

(a)A person seeking joinder must be able to identify a relevant interest and that this interest is truly affected.    There is no such evidence.
(b)The Director asserts that the decision affects fish stocks in, and management of, other fisheries administered by the Director, to which the Fish Resources Management Act 1994 (WA) applies.   The Director does not explain how the decision affects fish stocks in fisheries administered by him.   There is no evidence before the Tribunal as to how allowing fishing north of latitude 34º south could have an effect on fish-stocks generally or on those fish stocks for which the Director is responsible.
(c)The suggestion of increased conflict between different fisheries is totally unsubstantiated and no less than bizarre.   The Director's application expresses concerns regarding gear conflict between longline gear and lobster pots, but tuna fishing is carried out well offshore, outside the continental shelf.
(d)The Director has no responsibility in relation to the fishing activities which the applicant undertakes, namely fishing for tuna.    The arrangement between the Commonwealth and Western Australia expressly excludes tuna and tuna like species from State control (see clause 2).   The State of Western Australia acceded all management responsibility for tuna fishing and any species taken incidentally, to the Commonwealth.
(e)The Tribunal should have regard to objectives of the Fisheries Management Act 1991 in determining whether the Director is a "person whose interests are affected. (authority cited: Alphapharm Pty Ltd v Smith Kline Beecham (Australia) Pty Ltd (1994) 49 FCR 250).
(f)The applicant submits that from the Director's submission and previous actions it can be seen that the Director is principally concerned with the effect on Western Australian commercial, recreational and public interest generally.   This is not an interest which is consistent with the purposes of the Fisheries Management Act 1991.    The decision of the Federal Court in Bannister Quest Pty Ltd v AFMA 1997) 77 FCR 503 makes it clear that social concerns, or commercial concerns of fishery stakeholders are not at all relevant to the objectives of AFMA.
(g)In the present matter, the Fisheries Management Act makes no provision for the hearing of industry, or a State in relation to applications for fishing permits or the imposition of conditions on those permits.   The interests of the Director in the present application are no different to that of any other senior State or Territory fisheries official.
(h)Paragraph 8 of the Director's submission relates to the AAT finding that Fisheries WA had an interest affected by the reviewable decision in the Dixon matter.   There is no evidence before the Tribunal of the Director's alleged interest in the Dixon matter or any links with this current application for joinder in the Justice matter.

With regard to discretion, if, contrary to these submissions the Tribunal finds the Director is a "person whose interests are affected" by the decision, the applicant respectfully submit that the Tribunal should, as a matter of discretion, refuse joinder for the following reasons:

(a)the time necessary to hear the applicant's application will necessary be expanded and the costs increased;
(b)the Director has been dilatory in applying to be made a party. Proceeding commenced in November 2000 and the application for joinder was not made until September 2001. The Act requires that matters be dealt with expeditiously.
(c)the submissions which the Director may wish to make deal broadly with retention or removal of the line in the sea at latitude 34º south and are equally capable of being made by the respondent;
(d)it is clear from the Director's claims that his alleged interest is simply a general public interest in the outcome of the review.

Submissions Made at the Hearing

During the hearing conducted on 24 October 2001, counsel for Fisheries WA stressed that due to the overlap of marine jurisdictions any decision made by the Commonwealth with respect to tuna or related species was bound to impact on operations of charter vessels and recreational fisheries based in Western Australia. The Executive Director of Fisheries WA therefore had a direct and specific interest in the outcome of the case.
It was further claimed that, although the relevant fisheries management objectives and policies of the Commonwealth and Western Australia had some similarities, there were differences, thus conflict could arise and it was important that the Western Australia authority should be able to express its views and safeguard its interests, especially with regard to a fishstock in which both authorities had an interest. There was also the possibility that decisions about tuna allocations or permits could impact on other fisheries through bycatch, gear conflict or the displacement of fishing effort to other species, thus affecting the interests of Western Australia for which the Executive Director was statutorily responsible.
Counsel for the applicant (Mr Craig Justice) refuted these claims, arguing that because the Commonwealth had complete jurisdiction over tuna fisheries, the Executive Director of Fisheries WA was not a person with an identifiable interest, especially in matters relating to conditions on an individual permit. There was also a high probability that if Western Australia was joined to proceedings, time delays and increased costs would occur, breaching provisions of the AAT Act requiring the expeditious conduct of cases.
Counsel for the respondent (AFMA) noted an error in paragraph 26 of the applicant's submissions, namely a claim that the interests of the Director were no different from that of any other State or Territory fisheries official. There are considerable variations in case situations involving State jurisdictions and each must be considered on its merits, thus it is feasible for the Executive Director of Fisheries WA to have a particular and specific interest different from other States or Territories.
AFMA also indicated that the time allowed for hearing the case (5 days) was probably insufficient whether or not WA was joined as a party to proceedings. Six to eight days could be involved and this could include Western Australian evidence. All parties were anxious to proceed and all were in a situation to lodge necessary documentation by early December. There was always a risk new information could give rise to delays, but this prospect existed in all Tribunal proceedings.
Analysis
Has Fisheries WA an Interest that is Affected by the Reviewable Decision?
At the outset it is necessary for the Tribunal to note that Fisheries WA's responsibilities are relevant, but distinct from, the objectives AFMA is statutorily bound to pursue.
Section 3 of the Fisheries Management Act 1991 (Cth) reads:
(3(1). The following objectives must be pursued by the Minister in the administration of this Act and by AFMA in the performance of its functions:
(a)implementing efficient and cost-effective fisheries management on behalf of the Commonwealth; and
(b) ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development and the exercise of the precautionary principle, in particular the need to have regard to the impact of fishing activities on non-target species and the long term sustainability of the marine environment; and
(c) maximising economic efficiency in the exploitation of fisheries resources; and
(d) ensuring accountability to the fishing industry and to the Australian community in AFMA's management of fisheries resources; and
(e) achieving government targets in relation to the recovery of the costs of AFMA."
The object of the WA Fish Resources Management Act 1994 are set out in s.3 of that Act as follows:
"3(1) The objects of the Act are to conserve, develop and share the fish resources of the State for the Benefit of present and future generations.
(2) In particular, the Act has the following objects:
(a) to conserve fish and to prevent their environment;
(b)to ensure that the exploitation of fish resources is carried out in a sustainable manner;
(c)to enable the management of fishing, aquaculture and associated industries and aquatic ecotourism;
(d)to foster the development of commercial and recreational fishing and aquaculture;
(e)to achieve the optimum economic, social and other benefits from the use of fish resources;
(f)to enable the allocation of fish resources between users of the resources;
(g)to provide for the control of foreign interests in fishing, aquaculture and associated industries;
(h)to enable the management of fish habitat protection areas and the Abrolhas Islands reserve."
It is quite obvious to the Tribunal that there are similarities and differences in function between AFMA and the Department of Fisheries WA, but the other crucial point not identified in the statutory extract above, is that Fisheries WA is the manager of waters that overlap with waters for which AFMA has management authority. The effect of one on the other is further recognised by the arrangement between the Commonwealth and WA 1995, earlier cited.

The Tribunal also notes evidence given that the granting of any permits by AFMA that authorise fishing in WA waters or impact on associated fishstocks through bycatch or other reasons may affect Fisheries WA's management interests. In this sense the Executive Director of Fisheries WA is a "person whose interests are affected" when current policy is applied by the Commonwealth in reviewable decisions.
This is further reinforced if one considers the case of tuna or like species, where the Commonwealth has management jurisdiction, but the granting of permits or fixing or removal of zone boundaries may impact on fishstocks and bycatch where WA charter boats and recreational fisheries are involved. Here again and more specifically the Executive Director is a "person whose interests are affected".
In making a determination about "interests" it is necessary to provide some response to points raised by the applicant in his opposition to the joinder application:
(a)While it is true Fisheries WA can have no influence over conditions attached to a permit issued by the Commonwealth, the implications of such action, especially if it relates to potential changes in fishing boundaries and fishing effort may be a legitimate concern of WA and hence grounds for becoming a party to reviewable decisions.
(b)It was argued that the Executive Director's interest was at most a general public with emphasis on commercial aspects and recreational fisheries. Section 3(1) of the Fish Resources Management Act 1994 (WA) makes it clear recreational fisheries are a matter the Executive Director must deal with, so no special significance arises, other than the reality management of recreational fisheries in WA is influenced in part by Commonwealth determinations.
(c)it was argued decisions relating to tuna and associated species fisheries could not impact on rock lobster fisheries, given spatial and other differences. Thus begs the question of possible shifts in fishing patterns and effort, arising from any changed regime for tuna fisheries.
Having taken all submissions and evidence into account, the Tribunal is convinced the Executive Director of Fisheries WA should be joined as a party in proceedings related to Justice and AFMA, T2000/153.
The Discretion to Join Under Section 30(1A)
A finding by the Tribunal that a person is an interested or affected person does not necessarily mean that the person is entitled to be joined as a party to proceedings. The Tribunal must first decide whether to exercise its discretion. The nature of such discretion has been considered in a number of earlier cases:
Control Investment Pty Ltd and Ors v Australian Broadcasting Tribunal (No. 1)(1980)
50 FLR 1, @ p81.
Re Marine World Victoria and Minister for Arts, Heritage and Environment (1986) 10 ALD 262, @ p272
Re Scott and Secretary, Department of Social Security (1996) 42 ALD 738 @ p741

The general requirement is that the Tribunal take into account the interests of all parties in a fair, efficient and timely manner and keep the cost of proceedings to the parties and public to a minimum.

Counsel for the applicant expressed concern that approving the joinder application by fisheries WA would further delay hearing of a matter that had already taken nearly a year and further expense would be incurred. During the hearing on 24 October all parties were consulted and it became apparent all were in favour of an early hearing, all were agreed documents could be available by early December and all were aware that the scheduled initial hearing dates of 10 - 14 December provided a narrow window prior to the Christmas - New Year period. The Tribunal was thus in a position to exercise discretion, grant the joinder application and proceed with the case.
Order
The Tribunal orders that the Executive Director of the Fisheries Department of Western Australia be joined as a party to the proceedings.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis A M (Part-time Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  24 October 2001
Date of Decision  24 October 2001
Counsel for the Applicant        Mr Robert Fish
Solicitor for the Applicant
Counsel for the Respondent    Mr Justin Hyland
Solicitor for the Respondent
Solicitor for Fisheries WA        Ms Carol Bathurst