Kelly v Director of Fisheries No. Dcaat-97-1048 Judgment No. D3801

[1998] SADC 3991

KELLY V DIRECTOR OF FISHERIES

CIVIL
JUDGE RUSSELL

The applicant, Mr Kelly, is an abalone fisherman.  He also operates a business as a registered fish processor at Pt McDonnell.

At all material times the applicant was and is the holder of licence number A02 issued by the Department of Primary Industries pursuant to the provisions of the Fisheries Act 1982 (‘the Act’). That licence is a commercial fishery licence in the Southern Zone Abalone Fishery of South Australia.

By application dated 16 September 1997 the applicant seeks a review, pursuant to s58(1)(a) of the Act of the decision of the respondent Director to impose certain conditions which are endorsed on the licence issued by the respondent to the applicant in relation to the year commencing on 1 July 1997 and ending on 30 June 1998.

Although initially the applicant called six conditions in question, he abandoned his complaints about three of those conditions and at the hearing of the review he complained only of conditions 172, 174 and 175.

I shall set out the text of those conditions later in these reasons.

So far as is relevant s58 of the Act provides as follows -

‘58(1)       A person aggrieved -

(a).... by a decision of the Director ... imposing ... a condition of an authority ...

may apply to the Administrative Appeals Court for a review of the decision ...

(2)    The application for review must be made within one month of the making of the decision or order to be reviewed, but the Court may, if it is satisfied that it is just and reasonable in the circumstances to do so, dispense with the requirement that the application be so made.

(3)    The Court may, on the review, do one or more of the following, according to the nature of the case:

(a).... confirm the decision or order subject to review;

(b)... substitute, or make in addition, any decision or order that should, in the opinion of the court, have been made in the first instance;

(c).... remit the subject matter of the review to the Director, or, as the case may require, the Minister, for further consideration;

(d)... make any further or other order as to costs or any other matter that the case requires.

...

(5)    The Director or the Minister must, if so required by any person affected by a decision or order referred to in subsection (1) made by him or her, state in writing the reasons for the decision or order.

(6)    If the reasons of the Director or the Minister are not given in writing at the time of making a decision or order and the person in relation to whom it was made then requested the Director or the Minister to state his or her reasons in writing, the time for making an application for review runs from the time of service upon that person of the written statement of those reasons.

...’

The word ‘authority’ is defined by s5 of the Act as meaning, inter alia, ‘a licence provided for or under the Act’

By virtue of the somewhat obscure provisions of clause (2) of schedule 3 to the Land Agents Act 1994, the reference in any act to the ‘Administrative Appeals Court’ is to be taken to be a reference to the Administrative and Disciplinary Division of the District Court.

At the hearing of the review Ms Hodder, who appeared as counsel for the respondent, quite properly emphasised the nature of a review of a decision as opposed to an appeal from a decision.

In Rowe v Director of Fisheries and Denton v Director of Fisheries (unreported Judgment No D3186 delivered by His Honour Judge Kitchen on 22 December 1994) after examining the authorities His Honour concluded at pages 47-50 as follows -

‘In my opinion a review denotes a process quite different from an appeal. (see Watson v Hanimex Colour Services Pty Ltd (supra). In the usual case a review is conducted for the purpose of correcting or improving that which is being examined. As I have said a judicial review is a concept well known as a legal procedure. A court's power on such a review is essentially to consider whether the decision was "lawful" but that extended to include many possible factors in the decision-making process which may vitiate the decision. Examples are to be found in the standard text on the subject of review of administrative acts (e.g. Administrative Law by H.W. R. Wade; Review of Administrative Action by Aaronson and Franklin). In the sphere of administrative decisions by persons or bodies exercising powers under Commonwealth legislation the process of review has been formalised by statute in which the grounds for review have been stipulated (The Administrative Decisions (Judicial Review) Act 1977, s.5). In Australian Administrative Law (Tomasic and Fleming) the learned authors opine that the grounds for review set out in that Act "parallel and largely duplicate those found at common law except that they are now set out clearly and less ambiguously than in common law".

I have reached the conclusion that Parliament's apparently deliberate choice of the word "review" rather than "appeal" to describe the right given to an aggrieved person and the use of the word "should" rather than "could" in setting out the court's powers upon review reveal the legislative intention to be that the court is primarily restricted to an examination of the material before the Director at the time he made his decision, certainly so far as the  question of the court substituting its own decision is concerned.  It seems to me the court on review could not (by drawing on the provisions of Rule VI-9(e)) "give any decision which might have been made" by the Director, for that carries with it the same power contemplated by the word "could" which is different from the power inherent in "should".  The power in the rules to receive further evidence appears to be at odds with the concept of a review if that further evidence would in other circumstances justify the court in giving, for example, a decision converse to that of the Director.  On the other hand, the reception of further evidence on a question of fact relevant to the subject matter of the decision, could comfortably sit with the nature of the review and the court's powers on review were the court to determine that the subject matter of the review, including the fresh evidence, should be remitted to the Director for further consideration.

In my opinion the court, on a review, is not limited to considering only the material before the Director when he made his decision.   That could work a grave injustice to a licence holder, for example, in cases where the licence holder was ill- equipped to properly air his grievance or did not fully appreciate the  nature and  kind of materials  which may relevantly assist his case.   To shut him or her out entirely from adducing further evidence would deny him what a fuller understanding of the basis for his grievance may well have justly entitled him to. 

In my view the court does have a discretion to admit fresh or additional material not before the Director;  that is the provisions of Rule V1-9(b) apply.   That is not to say that the licence holder should be at liberty without restraint to, as it were, entirely reframe the case put before the Director (cp. case per Jacobs J at p.62a).

The primary consideration on review must be the material before the Director, but material which goes to elaborate upon, explain or supplement that which was before the Director should in fairness be admitted. It is the decision which is to be reviewed not the manner or means by which the decision was arrived at. If in the course of the review some significant new material is seen as being clearly relevant to the subject matter of the decision, and it puts a different complexion, advantageous to the licence holder, upon the matter when compared with what was before the Director, then the court, if constrained by s.58(3) as to when it may substitute its own decision, may remit the matter to the Director for further consideration. By taking that course the court will be acknowledging as it must that the Director is the person to whom the legislature has committed the decision making task upon a matter which involves issues of government policy.’

With respect I wholly agree with His Honour’s view as to the nature of a review under the Act and I propose to approach the present application in accordance with His Honour’s judgment.

It follows from that judgment that in conducting the review the Court is restricted to determining whether the Director has fallen into error in imposing the conditions of which the applicant complains.

In arriving at an answer to that question it is relevant to notice that the long title to the Act reads as follows -

‘An Act to provide for the conservation, enhancement and management of fisheries, the regulation of fishing and the protection of certain fish; to provide for the protection of marine mammals and the aquatic habitat; to provide for the control of exotic fish and disease in fish, and the regulation of fish farming and fish processing; and for other purposes.’

Moreover, s20 of the Act defines the principal objectives which the Director has in the administration of the Act as follows -

‘20    In administration of this Act, the Minister, the Director and management committees have as their principal objectives:

(a)     ensuring, through proper conservation, preservation and fisheries management measures, that the living resources of the waters to which this Act applies are not endangered or overexploited; and

(b)    achieving the optimum utilisation and equitable distribution of those resources.’

S37 of the Act prescribes the perimeters within which conditions of licence may be imposed as follows -

‘37(1)       Subject to subsection (2a), the Director may upon granting a licence, or at any other time, impose a condition of the licence, being a condition-

(a)directed towards conserving, enhancing or managing the living resources to which the fishery relates; or

(b)... related to any other matter prescribed by the scheme of management for the fishery. 

(1a)  The Director may impose a condition of a licence notwithstanding that the effect of the condition is to prevent for a specified period-

(a)the taking of one or more species of fish that could otherwise be lawfully taken pursuant to the licence; or

(b)    the use of any device or equipment that could otherwise be lawfully used to take fish pursuant to the licence. 

(2)    Subject to subsection (2a), the Director may, at any time, revoke or vary a condition of a licence. 

(2a)  The Director must not-

(a).... impose a condition that has the effect described in subsection (1a)(a) or (b); or

(b)    vary a condition so that it has that effect,

except with the approval of the Minister. 

(2b)  Before giving his or her approval under subsection (2a), the Minister must-

(a)give the holder of the licence and the prescribed fishing industry body notice in writing setting out the condition to be imposed or the manner in which a condition is to be varied, as the case may be, and the reasons for the proposed action; and

(b)    not later than 14 days after giving notice, consult or use his or her best endeavours to consult with the holder of the licence and the prescribed fishing industry body in relation to the matter. 

(2c)  In subsection (2b)-

"prescribed fishing industry body" means-

(a)     the South Australian Fishing Industry Council; or

(b)    if the Council ceases to exist, such fishing industry body as is prescribed by regulation for the purposes of this definition. 

(3)    The conditions of a licence must be endorsed on the licence. 

(4)    The holder of a licence must not contravene, or fail to comply with, a condition of the licence. 

Penalty:   In the case of a contravention or failure to comply with a condition relating to the taking of abalone-division 1 fine or division 5 imprisonment, or both;

In any other case: for a first offence-division 6 fine; for a second or subsequent offence-division 5 fine.’

At the very outset, it is to be observed that the abalone fishery in South Australia is divided into three geographic zones:  the Southern Zone, the Central Zone and the Western Zone.

Each zone has a restricted number of licensed divers and an independently calculated total allowable catch each calendar year.  As at 1 July 1997 there were twenty three licences in the Western Zone; six licences in the Central Zone; and six licences in the Southern Zone.

Two species of abalone are harvested commercially in South Australian waters; green lip abalone and black lip abalone. Other species are not usually harvested because they rarely reach the minimum legal length or size for any other species. The minimum legal length for black lip abalone in the Central and Western Zones is 130 mm and in the Southern Zone, 125 mm. The minimum legal length for green lip abalone is 145 mm in the Western Zone and 130 mm in the Central and Southern Zones. Furthermore, in certain designated areas in the Southern Zone there are smaller black lip abalone which are considered to be ‘stunted’ populations which do not reach the minimum legal size and in respect of which what are known as ‘fishdowns’ of stunted abalone of not less than 110 mm in length are permitted by virtue of an exemption granted by the Minister for Fisheries pursuant to s59 of the Fisheries Act.

Those differences, taken together with different climatic conditions that exist between the three zones, serve as an indication that different licence conditions may well be warranted in each of the zones.  There are other differences too.  I mention some by way of illustration.

1. Growth rates are highly variable and are influenced by water temperature, water movement and the quantity, quality and species of macroalgae.  Optimal temperatures for abalone are in the range of 10-20°C (see Exhibit R8 paragraph 2.2).

It appears from the evidence that the climate in the Southern Zone is generally more mild and cooler than the climate in the Central and Western Zones.  (See, for instance, paragraph 4 in Exhibit JWG14 to the Affidavit of J W Godden sworn on 23 December 1997.)

1. The protozoan Perkinsus, which can affect abalone shell and meat quality, particularly of black lip abalone which is vulnerable to this parasite in the Western Zone and some green lip abalone in the Central Zone, does not appear to be a problem in the Southern Zone (Exhibit P8 paragraph 2.2), where in contrast with the licence conditions in the Western and Central Zones, shucking at sea is not permitted.  The significance of this is that one of the concerns in the Western and Central Zones, where Perkinsus disease prevails, is that shucking at sea spreads the disease.  (Paragraph 3 of Exhibit JWG14 to the Affidavit of J W Godden).

1. The distances to be travelled by fishermen from their base to the launching beaches from which they depart to reach the rocky shore lines and subtidal reef systems inhabited by abalone are much greater in the Western and Central Zones than the distances travelled by abalone fishermen in the Southern Zone.  This is another factor which, in conjunction with the cooler climatic conditions makes it practicable to forbid shucking at sea.  Moreover, it is a practice which, in turn, gives the fisheries compliance officers the opportunity of ensuring that undersize abalone are not being fished in the zone, thus ensuring that the living resources of the waters are not endangered or over exploited.

1. It is to be noted that the Scheme of Management (Abalone Fisheries) Regulations 1991 do not impose a requirement that the three zones which have been designated for the purpose of management of the abalone fishery must have identical management criteria.  Separate licence conditions and management arrangements apply within the various schemes relating to the different zones covered by the overall scheme.

1. The Abalone Fishery Management Committee and the Primary Industries and Resources South Australia Fisherys’ five year management plan (1997) clearly sets out the differences across the three zones.

1. The abalone in each of the three zones have different growth characteristics and difference species are found in different proportions in different areas. For example, the Southern Zone abalone fisheries comprise mostly black lip abalone. And so each zone has different size limits which may be fished and different total allowable catches for the different species and, in the Southern Zone, for the stunted growth abalone where the fishdown is permitted under s59.

And so it is in the light of these differences that conditions must be attached to licences which will not only conduce to the objectives to be borne in mind when framing the conditions, but also to preserve the fisheries and their resources against illegal fishing which can only deplete the resource beyond the levels reasonably required in order that the licensed commercial fishermen’s interests may be protected.  Whilst the level of illegal abalone fishing by poachers can only be estimated, the evidence gained from intelligence sources and law enforcement agencies throughout Australia is that as much as 700 tonnes of abalone meat is taken illegally in Australia each year.  If, as the evidence suggests, the beach price of abalone is $85 per kilogram, that represents a loss of about $59 million.  In other words it represents more than double the total value of the total catch in South Australia (Exhibit P8 paragraph 2.4).

And so I turn to each of the conditions to which Mr Kelly takes objection.

CONDITION 172

‘PISA Fisheries compliance unit must be notified on 1800 244317 prior to engaging in fishing with the following information.

(a).... The name of the person making the call and the SZAF licence number.

(b)... The name of the registered master who will be conducting the permitted activity on that day.

(c).... The date on which fishing will take place.

(d)... The launching area to be used on that day.’

Mr McNamara, of counsel for the applicant, submitted that the condition must be read in conjunction with condition 171 which reads -

‘No more than one registered master may engage in the taking of abalone on any one day.’

Mr McNamara submitted that condition 172 is intrinsically unfair and too rigid.  He submitted that the condition commits the holder to diving a particular and using a particular diver on a particular day.  I do not agree.  Whilst it may be that the compliance unit may have been notified of the particulars required in advance of the day on which the fishing is to take place, the condition does not, in my opinion, prevent a subsequent notification from being given if circumstances have changed, provided, of course, that the notification be given ‘prior to engaging in fishing’.

If, for example, a diver nominated earlier is unable to dive, then, in my view, there is no reason why, prior to engaging in fishing, the notification cannot be amended by giving a fresh notification.

Mr McNamara equated the word ‘fishing’ in condition 172 with the words ‘fishing activity’ which is defined by s5 of the Act as meaning ‘the act of taking fish, or any act preparatory to, or involved in, the taking of fish.’

In my opinion there is a difference between ‘fishing’ and the words ‘fishing activity’ and their extended meaning.  I consider that the mere nomination of a person to be registered master on a proposed fishing trip cannot be classified as ‘the act of taking fish, or any act preparatory to, or involved in the taking of fish’ any more than whilst walking down a lane a person who sees a hay stack in a paddock makes up his mind to set the hay stack alight, but upon seeing the farmer emerge from behind the hay stack puts the idea out of his mind, can be said to have attempted to commit the crime of arson.

Nor can I accept, as Mr McNamara argued, that if a change in weather or other conditions at the proposed launching site makes a change of launching area desirable, then a change in the launching area cannot be notified to the compliance unit.  Mr McNamara referred to the words ‘permitted activity’ which he submitted came from the fishdown conditions attached to the exemption granted by the Minister.  He submitted that those words are undefined and are a meaningless term in the context of the conditions under which a licence is granted by the Director.  I cannot agree.  The words ‘permitted activity’ read in the context of the conditions under which the licence is granted are to be given their ordinary meaning and refer, quite clearly in my view, to the activity in which the licence permits the licensee to engage.

CONDITION 174

‘Within 200 metres of the point of landing, or the nearest public telephone if mobile service is not available at the point of landing, PISA Fisheries must be notified, on 1800 065 522 with the following information:  the licence number, the name of the person making the call, the total number of bins for that day, the consecutive tag numbers on those bins and the location and name of the intended processor to which the abalone will be consigned for weighing.’

It was submitted by Mr McNamara that this condition is not directly connected with the conservation of the resource or with monitoring the quota.

I consider this condition to be a perfectly legitimate method of enabling the fishery compliance officers to check the catch between landing and delivery of the catch to the fish processor.  It is a cost effective method, in that it makes it unnecessary for compliance officers to wait at the landing area until the fisherman arrives back with his catch.

Whilst Mr Kelly may think that it adds an unnecessary burden on the fisherman, that is not a view generally shared by others in the Southern Zone.

I appreciate that this condition does not apply to the other zones, but then there are a number of differences between the zones to which I have already referred, not least of which is the fact that in the Southern Zone shucking at sea is not permitted and what has to be checked is the size of the abalone and, if apparently undersize, whether they are abalone whose growth has been stunted and which have been harvested from areas designated as fishdown areas which do not exist in the other zones.

Nor do I consider the condition to be unreasonable by reason of the fact that the information required duplicates some of the information required to be supplied on the abalone catch and disposal record (Exhibit P1).  The latter record is not only a record compiled in part by the fisherman, but it is also a record that is completed by the fish processor to whom the catch is delivered in sealed bins.

Moreover, the information supplied by telephone is information which is capable of verifying the information required to be supplied by the catch and disposal record.

It was suggested that the condition is irrational.  I do not agree.  It seems to me that it forms part of an overall scheme that enables a proper control over the fishery to be exercised by the Director and his staff in a cost effective manner.

Mr McNamara complained that the condition does not require the catch to be delivered to the processor within a particular period.  I am not at all sure why it should.  I would have thought that it is in the fisherman’s own interest to deliver the catch as soon as possible in order that it may be received by the processor in its most fresh condition.

I recommend, however, that consideration be given by the Director to making it clear that where, for some reason or other, it is impossible for the fisherman to make the call within 200 metres of the point of landing, then the call should be made at the earliest opportunity at the nearest public telephone available on the journey from the point of landing to the location of the intended fish processor, or by mobile telephone when the fisherman comes within an area in which a mobile service is available, whichever event occurs first.

CONDITION 175

‘Abalone must not be damaged to intentionally induce weight loss by any means.’

In my view, whilst it might have been drafted without splitting the infinitive, the intention of this condition is clear.  It does not deal with shucking.  It is aimed at preventing the fisherman from inducing a weight loss to his catch.  The measurement of the catch in the Southern Zone is the whole weight of unshucked abalone.  A weight loss by bleeding the abalone prior to it being weighed, would have the effect of reducing the weight that would be taken off the licensee’s quota and could impact on the calculation of the quota taken from the fishery.

Before leaving the judgment I should add that it was pointed out by counsel that condition 29 is incomplete in that it does not list the registered fish processors in South Australia to whom the catch may be taken for weighing. I should also observe that it appears from the evidence that some of the licensees in the Southern Zone deliver their catches to fish processors in Victoria. Curiously enough, the notice in the Government Gazette dated 21 August 1997 which gives the exemption for the size of the stunted abalone taken on a fishdown has a similar provision which lists seven fish processors, three of whom are located in Victoria in Schedule 3, notwithstanding the fact that clause 9 of the Notice requires the abalone to be delivered to one of the registered fish processors detailed in Schedule 3 ... within the State of South Australia. Perhaps some further consideration might be given to a more appropriate drafting of condition 9.

For all these reasons the order of the Court is that the application be and is hereby dismissed.