Kiely and Australian Fisheries Management Authority - [2002] AATA 503

DECISION AND REASONS FOR DECISION [2002] AATA 503

ADMINISTRATIVE APPEALS TRIBUNAL)

No T2001/167

GENERAL ADMINISTRATIVE DIVISION)

TIMOTHY JOHN KIELY

Applicant

AUSTRALIAN FISHERIES
MANAGEMENT AUTHORITY

Respondent

DECISION

Tribunal:      Mr J. Handley, Senior Member
Date:             21 June 2002
Place:           Hobart

Decision:The decision under review is affirmed.

. . . . . .Sgd J Handley . . . . . .
Senior Member
CATCHWORDS
PRIMARY INDUSTRIES – allocation of shark quota – review – whether any exceptional circumstances – decision affirmed

Re O'May and Another and Australian Fisheries Management Authority [1999] AATA 720

Re Glendon Lane Pty Ltd and Australian Fisheries Management Authority (1995) 36 ALD 376

Re Secretary, Department of Family and Community Services and Selke (1993) 18 AAR 457

Re Secretary, Department of Social Security and Tran (1991) 13 AAR 346

REASONS FOR DECISION

21 June 2002 Mr J. Handley, Senior Member

The applicant applies to review a decision of a delegate of the respondent made on 20 September 2001. The delegate then varied a decision previously made by an officer of the respondent on 11 April 2001. The delegate's decision is reviewable pursuant to section 165 of the Administrative Appeals Tribunal Act1975.
The application arises out of the imposition upon the applicant by the respondent of quotas to catch school and gummy shark in the Southern Shark Fishery. By reason of certain events affecting the applicant, it was argued that he should have been allocated a greater quota. It was argued that his circumstances were "exceptional".
The hearing proceeded in Hobart on 28 May 2002. Mr Kiely appeared without representation. The respondent was represented by Mr Reid. Mr Kiely gave evidence, as did Ms Sachse, who is currently the Manager of the Southern Shark Fishery. A number of documents were also received into evidence, which will be referred to later in this decision.
BACKGROUND
The Southern Shark Fishery covers waters off the States of Victoria, Tasmania and South Australia. The Fishery was previously managed by what is known as "input controls", limiting the hooks and nets available to fishermen. In 1996, the Southern Shark Fisheries Assessment Group completed an assessment of the available shark stock and made certain recommendations. Without intending to violate the long and extensive process undertaken by the Australian Fisheries Management Authority ("AFMA") and associated agencies, a report was completed in July 1999 (T19) by the Southern Shark Allocation Advisory Panel ("Advisory Panel") making broad and wide recommendations for change with respect to the management of the Southern Shark Fishery.
For the purposes of the present application, one of the significant recommendations of the Advisory Panel was to have regard to the best three of four years of fishing for the period ending 31 December 1997 as the basis for the allocation of individual transferable quotas. At page 205 of the T documents, the Advisory Panel recommended:
"…While in respect of apportionment between fisheries we have recommended use of aggregate catches during the whole of the four years ending 31 December 1997, for allocation of ITQs among individual fishermen we recommend that the aggregate catches be derived from the best three annual catches during that period. The personal vicissitudes of a fisherman's life, such as injury or other illness, loss of, or serious damage to, gear or vessel, occurring during so short a period as four years are likely to affect his aggregate catch during the period to an extent that distorts his relative economic position. By using the best three years of the period the risk of such distortion is lessened, in our view".
In effect, therefore, the allocation of ITQs was to be determined on the basis of the best three years of catch for the four years of catch being 1994, 1995, 1996 and 1997.
The Advisory Panel also recommended that there may be circumstances that an individual fishermen may raise by way of appeal against the imposition of quota that may be regarded as being "exceptional". The Advisory Panel advised the AFMA Board that, if their recommendations as to a catch verification process were adopted, the persons who made submissions to the Advisory Panel should be contacted. This is determine whether there were any circumstances which should be regarded as being "exceptional", consistent with the terms of reference given to the Advisory Panel.
The terms of reference, at page 223 of the T documents, direct the Advisory Panel:
"2.to identify and include in that allocation system any exceptional circumstances which the Panel considers should be taken into account, including consideration of any inequity arising from previous allocations of fishing entitlements."
Initially, the applicant argued during the review process that his circumstances were exceptional, having regard to —

the Tasmanian Maritime Police seizure of his fishing vessel in March 1997 and its return in 1999, thereby prohibiting him effectively from fishing in the 1997 year. He noted that 1997 was one of the four years to be considered in the four-year period for a catch history, and
an injury he suffered in 1994, which resulted in periods of incapacity and surgery affecting him during 1994, 1995 and 1996.

AFMA apparently accepted Mr Kiely's submissions that the 1997 year should not be taken into account, by reason of his boat being seized. AFMA decided, upon review, to consider the best three of four years for the period 1993 to 1996 inclusive. This resulted in an increase in quota for gummy shark from 9299 kgs (T38, p.299), as initially determined, to a total catch of 10,380 kgs of gummy shark, (T50, p.327).
Nonetheless, the applicant pursued review against the delegate's decision for two reasons. Firstly, the alleged failure to regard the impact of his knee injury upon his opportunity to fish. Secondly, the imposition of the 1993 year, when considering the best three of four years in the period 1993 to 1996.
At the commencement of the hearing, I was concerned as to whether the applicant had any standing to bring these proceedings. It appeared that, at all relevant times, the applicant was either the Master of a vessel owned by a person named Mr Hodgson or he was the lessee of a permit issued to Mr Hodgson. The T documents indicate that the permit that had been issued to Mr Hodgson, was formally transferred to Mr Kiely on 11 April 2001 (T38, p.293).
At the hearing, Mr Kiely said that at all times he had an agreement with Mr Hodgson that when AFMA permitted licences or permits to be transferred, he (Mr Kiely) would obtain, with the consent of Mr Hodgson, a transfer of his licence. Mr Kiely, otherwise, fished using his own vessel and the catch history of that vessel attached to him, not Mr Hodgson.
Mr Reid advised at the commencement of the hearing that, in so far as AFMA was aware, the applicant could demonstrate a catch history. AFMA was prepared to allow that catch history to be transferred from the permit of Mr Hodgson to the permit that was eventually issued in favour of Mr Kiely. Nonetheless, it was AFMA's position that if Mr Kiely raised any circumstances that were considered to be exceptional, these should be regarded as being exceptional as against Mr Hodgson. That is to say, during periods of time when Mr Kiely was unable to fish due to his knee injury, Mr Reid submitted that the Tribunal would be obliged to inquire whether Mr Hodgson could have engaged another skipper to replace Mr Kiely and thereby continue to undertake fishing operations.
I expressed concern, at the commencement of the hearing, that in the event of Mr Kiely demonstrating exceptional circumstances resulting in a greater allocation of quota to him, there may, on the current AFMA policy, be an adverse effect upon other fishermen within the Southern Shark Fishery. This is because a maximum ceiling has been placed upon total catch from that Fishery. In the event of an increased quota allocation to Mr Kiely, it could result in a proportional reduction in the quota allocated to other fishermen.
Having heard the evidence of Mr Kiely and Ms Sachse, upon reading the documents lodged and considering the submissions put by both parties, I am not satisfied that there are any "exceptional circumstances". I propose to affirm the decision under review.
THE APPLICANT'S CASE
Mr Kiely submitted that the 1993 year should not have been taken into account because AFMA imposed a moratorium on fishing for part of November and all of December in that year. That is to say, he and other fishermen were prohibited from fishing during that period of time. It followed, he submitted, that his catch history for that year was reduced in comparison to other years because he was not able to fish for part of the year.
In the alternative, if the 1993 year was to be used, there should be an imputation of catch for the period November to December having regard to shark caught in the 1995 equivalent period. Apparently, there was also a moratorium upon fishing for the same period in 1994. The 1995 year was selected as the next available year where a verifiable catch could be determined.
With respect to his knee injury, Mr Kiely said that he suffered the injury while playing football for Swansea in 1994. He said that he was initially advised to rest and to build up the muscles around his knee. He said the injury occurred in April 1994 and he did not fish for the following five months. He said he worked the summer of 1994/1995, but he continued to have knee pain. He said that he underwent an arthroscope in 1995, where he then lost another four months from fishing. He fished during the 1995/1996 season, however in 1996 his "ligaments snapped" and he had reconstructive surgery. Thereafter, he was unable to fish for the following five months and did not resume fishing until late 1996. He then fished until March 1997 when the Maritime Police seized his boat.
It follows upon the above analysis, that Mr Kiely lost between 4 to 5 months for each of 1994, 1995 and 1996, thereby affecting his catch history. It follows, therefore, that in the allocation of quota to him, based on the period 1993 to 1996, the returns were reduced by reason of his inability to fish for a full period of 12 months (in each of these years).
In cross-examination, Mr Kiely was taken to a number of documents which purported to demonstrate his catch history. While these documents will be referred to later in these reasons, it was suggested that he did not fish consistently during the winter months of any year, being the period approximating from May to September. It was suggested that he chose not to fish during these periods of time because fish stocks were low and it would have been uneconomic. The periods of time where Mr Kiely did not fish in the 1994, 1995 and 1996 years by reason of his knee injury or the convalescence from surgery, coincided with the winter months. Nonetheless, he said that he would have fished outside the fishing season because, while stocks were low, prices increased by his estimation at one third and it would have been "worthwhile" to fish during those periods. When he was taken to the 1993 return showing that there was no catch verified for the winter months, Mr Kiely said that his boat was being refitted. In 1992 he chose to take a holiday during the winter season. In the winter of 1991, his boat was extensively renovated and new nets were acquired.
With respect to the submission that the 1993 year should not have been taken into account or there should have been a substitution of an equivalent catch for the November/December period of 1995, Mr Kiely acknowledged that the permit that he leased restricted him to fishing within State waters. When he learned that the Fishery, in so far as it affected Victorian and Tasmanian waters was concerned, was only closed for December 1993 (and not part of November), Mr Kiely acknowledged that this may have been so. Additionally, he acknowledged that in so far as December in any year was concerned, he would have fished only up until 23rd or 24th of that month and would not have resumed fishing until 2 or 3 January. It followed, therefore, that any fishing activity in December of any year would be confined to the period 1 to 23 or 24 December only. Additionally, he acknowledged that he would have been aware prior to 23 or 24 December that fish processors would have shut down for the Christmas period. He said, however, any "loss" for the period at the end of December could have been "made up" by greater fishing activity earlier or later.
THE RESPONDENT'S CASE
Mr Reid called Ms Sachse who had provided a comprehensive proof of evidence prior to the commencement of the hearing.
In relation to Mr Kiely's claim that the respondent's use of the 1993 year was inappropriate, she pointed to page 269A of the T documents. AFMA prepared a document by way of media release, notifying that it intended to restrict fishing in waters west of the South Australia/Victoria boarder during November 1993 and waters to the east of that boarder during December 1993. When Mr Kiely learned of this, he conceded that only the month of December 1993 could remain alive, in so far as he continued to dispute the imposition of the 1993-year as one of the years where catch history was viewed.
Ms Sachse said that there were no exceptional circumstances in relation to the use of the 1993 year because fishermen were notified in advance of December that there would be a moratorium upon fishing in that month. She noted that the press release (at page 269) is dated September 1993. She said that fishermen, therefore, had prior notice of the moratorium. In the event that they would potentially lose income by not being able to fish in December, the opportunity was given to obtain greater catches by working longer hours prior to December.
Additionally, Ms Sachse said, by way of defending the decision not to find exceptional circumstances, that the moratorium upon fishing operated against all fishermen and not just Mr Kiely. It follows, she said, that the decision – particularly having regard to the giving of notice – was equitable and all persons were affected, not only the applicant.
When asked to comment upon what she understood to be "exceptional circumstances" and whether any other person had successfully satisfied AFMA that their circumstances were exceptional, Ms Sachse said that she had no first hand knowledge of similar applications. She was aware of one fisherman who had demonstrated exceptional circumstances by reason of severe and persisting eczema, where his hands bled and had to be kept dry. She understood that his eczema affected him for all or part of the four-year period where catch history was assessed. She understood, also, that he had engaged a skipper. Nonetheless, she said that it was not her responsibility to make a finding of exceptional circumstances and said that that was the responsibility of the review delegate.
In relation to the ability of the applicant to catch shark, Ms Sachse had prepared a summary of the quotas allocated to Mr Kiely and 7 other permit holders. She highlighted that the quota allocation was upon the basis of prior catch history. Mr Kiely had a current gummy shark quota of 10,380 kgs. Of the 7 remaining permit holders, the highest quota allocation was 5733 kgs. The average amongst those permit holders was 3882.86 kgs. Additionally, at paragraph 46 of her proof of evidence, she noted that:
"A dedicated full-time Tasmanian State waters shark fisherman, restricted to using 3 gillnets with a total headrope length not exceeding 1800m could generally expect to catch approximately 6 tonnes of shark in any given year."

On the quota allocated to Mr Kiely, he was achieving a shark catch rate far in excess of AFMA's expectation of other similar fishermen in Tasmanian waters.

Additionally, Ms Sachse said that AFMA recognised that the applicant was unable to fish in 1998 by reason of the seizure of his boat and the 1993-year was selected as a substitute. She said that other fishermen, who sought variation of the assessment period (including Tasmanian shark fishermen), had had 1993 allowed as a substitute year. These fishermen were not given any allowance for the closure of the Fishery in December. She said that it would be, in the circumstances, inequitable to grant an allowance to Mr Kiely and not to the others.
CONCLUSION AND REASONS FOR DECISION
During the hearing, a number of documents were received into evidence purporting to demonstrate the applicant's catch history and by implication, his ability to catch fish.
The documents Mr Reid prepared (referred to during the hearing as "the coloured documents") contain identical data, but are distinguished by reason of the fishing season and by calendar year. Those documents record the month by month catch of shark between November 1990 and February 1997.
Ms Sasche said that the data contained within the coloured documents "was obtained" by members of the "catch verification team" who visited the applicant and obtained data from various sources made available by Mr Kiely. She said the documents are regarded as "working documents" and the data is contained within AFMA's database. (They are in the nature of documents referred to as documents relied upon by AFMA in support of catch verification and referred to in her proof of evidence at paragraph 34.)
Mr Kiely referred to a document at page 328 of the T documents, which he used in support of his request for reconsideration of the primary decision. He said that he could not recall who prepared that document or the source of it. However, it purports to record a catch history between January 1990 and February 1997 and distinguishes between gummy shark and school shark. It gives a breakdown of shark catch on a monthly basis. The total combined gummy and school shark catch, as recorded in that form, is substantially different to the catch data contained in the coloured documents. In fact, on close analysis, the document (at page 328) records a total of catch of approximately 50 per cent less than the catch referred to in the coloured documents. This could not be explained at the hearing, nor did the source of the documents ever become known
Additionally, the applicant provided copies of his catch history, as AFMA verified, having regard to dockets obtained from fish processors and from his bank statements.
During his cross-examination of Ms Sachse, Mr Kiely also referred to what he described as his "logbooks". On inspection, these booklets are apparently issued by AFMA or by the Tasmanian Fishing Authority and are entitled "Monthly General Fishing Return".
When the latter documents were observed, it was noted that the catch data is identical to the catch data referred to in the coloured documents. While the "log books" did not cover the entire period, as the coloured documents did, on all of the occasions that the applicant has completed a monthly return, the catch data is identical to that which is recorded in the AFMA data base as found within the coloured documents. It follows, therefore, that the returns completed by the applicant – contemporaneously – reconcile entirely against the information AFMA retains in its data base and which were produced at the hearing.
While putting that issue to one side, temporarily , what is obvious from all four of the above source documents is that the applicant consistently did not fish in the months of May to September inclusive between 1990 and 1996, except for the month of May in 1995.
This pattern of fishing indicates that the applicant did work in the season where fish stocks were at their highest, namely towards the end of each year and at the beginning of the following year, and did not fish during a period of time when fish stocks were at their lowest, namely the middle months of each year.

Despite the evidence of the applicant that it was economic to fish during the "off" season, the fact is he did not and he did not in the years before his knee injury in 1994. The reasons he did not fish in those years were expressed to be either by reason of taking a holiday or for refitting or refurbishing of his boat. Those events occurred during the off season. There is nothing exceptional about those events.
It is in the nature of a pattern of fishing undertaken by Mr Kiely that he did not fish in the off season. Those periods were used either for recreation, restoration of or repairs upon his boat. His injury and subsequent periods of convalescence coincided with the off season. The injury in 1994 occurred in April. His rehabilitation initially from that injury was permitted because it occurred at or about the commencement of the winter season. He had an arthroscope in 1995, which he said incapacitated him from fishing for four or five months, but that, in my view, it is unlikely. That is to say, he undertook an arthroscope either as a day patient or by admission to hospital for one night (he could not recall which) and he was advised to keep off his knee for a short period subsequently. During that period he used crutches. There is nothing to indicate (and medical evidence is contained within the T documents) that he was incapacitated from fishing for a period of four or five months in that year. He elected to have surgery in 1996 by way of total knee reconstruction, but that followed a serious aggravation of the injury in or about May or June of that year.
It would be inequitable against other fishermen and it would offend the system of quota allocation to regard the applicant's knee injury and the subsequent convalescence as being an exceptional circumstance that should have been brought to account when quota allocation was considered. This is because there is nothing to indicate that the periods of four or five months, as alleged in 1994, 1995 and 1996 when Mr Kiely did not fish had any impact on his catch returns. I have reached this conclusion because the pattern of fishing prior to 1994 indicates that Mr Kiely's chose not to fish in the winter months. I am satisfied this choice would have continued during these years. The arthroscope in 1995 would not have resulted in invalidity throughout the winter months. It follows that the quota allocated to him, having regard to the selection by AFMA of the best three of the four years between 1993 and 1996 would have produced the same outcome or result irrespective of whether he suffered injury.
In relation to the submission that the catch in December 1995 should be imputed as against the loss of catch at December 1993, I am unable to find that there was any validity in the submission.
All fishermen were prohibited from fishing east of the South Australia/Victoria boarder in December 1993. Other fishermen who have had the 1993 year substituted in their favour have not appealed against the selection of that year. Mr Kiely was put on notice, as were other fishermen, in advance of December 1993 that fishing would be prohibited in that month. He had the opportunity to obtain a greater catch prior to December 1993 to make up for any loss that would have been incurred by the prohibition of fishing in that month. Additionally, to impute the December 1995 catch into the 1993 year would, in effect, be giving regard to the December 1995 catch on two occasions.
The opportunity to vary the quota allocation to fishermen by reason of "exceptional circumstances" has its origin in the Advisory Panel's recommendations. Those recommendations ultimately became the policy of AFMA. The policy of itself is not binding upon this Tribunal, but it is persuasive by reason of its reflection of the will of Government as AFMA, the appointed agency, implemented. It is a policy which affects all relevant fishermen. Principles of fairness and good management dictate that there should be consistency in the application of policy.
The expression "exceptional circumstances", however, is not defined. It was considered briefly by the Tribunal in Re O'May and Another and Australian Fisheries Management Authority [1999] AATA 720 and even more briefly in another Tribunal decision of Re Glendon Lane Pty Ltd and Australian Fisheries Management Authority (1995) 36 ALD 376.
The expression has been considered, however, in two Social Security decisions within the Tribunal, namely Re Secretary, Department of Family and Community Services and Selke (1993) 18 AAR 457 and Re Secretary, Department of Social Security and Tran (1991) 13 AAR 346. Allowing for the obvious distinction between the beneficial nature of social security legislation and the commercial nature of fishing and the influence upon the latter by policy, the above two decisions are illustrative of the manner in which the concept of exceptional circumstances is to be regarded.
In Re Selke, the Tribunal in part relied on dictionary definitions where the Shorter Oxford Dictionary defined "exceptional" as "of the nature of or forming an exception; unusual". The Macquarie Dictionary defined it in similar terms, namely "forming an exception or unusual instance; unusual; extraordinary".
In all the circumstances, I am not satisfied that the circumstances expressed by Mr Kiely can be regarded as being "exceptional", particularly having regard to the above authorities. Certainly, I am unable to conclude that those circumstances are exceptional as against the owner of the permit during the relevant years.
It follows in all of the circumstances that the decision under review should be affirmed.

I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:         Katherine Navarro................................
  Associate
Date/s of Hearing  28 May 2002
Date of Decision  21 June 2002
Counsel for the Applicant        Mr Kiely
Solicitor for the Applicant
Counsel for the Respondent    Mr Reid
Solicitor for the Respondent