Lenden Nominees Pty Ltd and Executive Director, Department Of Fisheries, Western Australia
[2005] WASAT 339
•19 DECEMBER 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: FISH RESOURCES MANAGEMENT ACT 1994 (WA)
CITATION: LENDEN NOMINEES PTY LTD and EXECUTIVE DIRECTOR, DEPARTMENT OF FISHERIES, WESTERN AUSTRALIA [2005] WASAT 339
MEMBER: JUSTICE M L BARKER (PRESIDENT)
DR B DE VILLIERS (MEMBER)
HEARD: 27 SEPTEMBER 2005
DELIVERED : 19 DECEMBER 2005
FILE NO/S: DR 341 of 2005
DR 342 of 2005
BETWEEN: LENDEN NOMINEES PTY LTD
Applicant
AND
EXECUTIVE DIRECTOR, DEPARTMENT OF FISHERIES, WESTERN AUSTRALIA
Respondent
Catchwords:
Fisheries - Management of fish resources - Review of proposed decision not to grant a permit to commercially fish for mackerel - Whether hardship or exceptional circumstances are possible grounds for issuing a permit even if entry criteria are not satisfied - What information is relevant to determine if assessable history of a licence satisfies the entry criteria - Whether assessable history of two areas can be combined for purposes of an application in one area - Whether Executive Director or Tribunal has discretion to issue a permit if the assessable history falls short of the entry criteria
Legislation:
Fish Resources Management Act 1994 (WA), s 3(2), s 54, s 55, s 56, s 57, s 58(2)(c), s 59, s 60, s 61, s 62, s 66, s 66(1), s 66(1)(a), s 66(2), s 66(3), s 66(4), s 71, s 71(2), s 72, s 72(2), s 147, s 149, s 149(1), Div 2 of Pt 6, Pt 6
Interpretation Act 1984 (WA), s 19(1), s 19(2)
Result:
Applications for review dismissed; proposed decisions of the Executive Director, Department of Fisheries Western Australia, respectively dated 29 September 2004 and 30 September 2004 in respect of applications of the applicant dated 1 September 2004 are affirmed; and applicant's application under the Fish Resources Management Act 1994 refused.
Category: B
Representation:
Counsel:
Applicant: Mr D Linaker (Director)
Respondent: Mr C Bydder
Solicitors:
Applicant: Self-represented
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Adams and Anor v Executive Director, Fisheries WA (2000) WASC 34.
Elphick and Executive Director, Department of Fisheries, Western Australia [2005] WASAT 301
Case(s) also cited:
Re Nicoletta Ciffolilli; ex part Peter Philip Rogers, Executive Director of the Fisheries Department of Western Australia [1991] WASCA 205
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant, Lenden Nominees Pty Ltd, sought review of a proposed decision of the Executive Director, Department of Fisheries Western Australia to refuse to grant two permits to commercially fish for mackerel on Fishing Boat Licence 1274, which was associated with Licensed Fishing Boat B80. The application for review was made under s 149(1) of the Fish Resources Management Act 1994 (WA) (FRM Act).
The decision by the Executive Director under s 66(1) of the FRM Act was based on the purported failure of Lenden Nominees to satisfy the entry criteria set out respectively in cl 13(1)(b) and cl 13(2)(b) of the Mackerel Fishery (Interim) Management Plan 2004. The entry criteria are determined on the basis of the statutory fishing returns of a fishing boat licence calculated for the period between 1 November 1990 and 31 October 1997. Clause 13(1) of the Management Plan sets out the entry criteria for Area 1 of the Fishery and cl 13(2) sets out the entry criteria for Area 2 of the Fishery.
In order to satisfy the entry criteria of either of the areas, Lenden Nominees was required to demonstrate that the assessable history of its Fishing Boat Licence 1274 recorded for Area 1 : (a) a catch of one tonne or more of mackerel (whole weight) in each of four different criteria years during the assessable period; or (b) a catch of seven tonnes or more of mackerel (whole weight) for the entire assessable period; and for Area 2 : (a) a catch of 750 kg or more of mackerel (whole weight) in each of four different criteria years during the assessable period; or (b) a catch of 5250 kg or more of mackerel (whole weight) for the entire assessable period.
The Executive Director refused the application on grounds that the assessable history of FBL 1274 showed that the entry criteria had not been satisfied for either of Areas 1 or 2. The Executive Director held that the assessable history of one area could not be taken into account in considering a permit in another area.
In the Tribunal, evidence in support of the decision of the Executive Director explained that entry criteria were aimed at restricting the number of permits issued on grounds that mackerel is a scarce resource and the exploitation thereof must be managed in a sustainable way.
The Tribunal dismissed the review application and affirmed the decision by the Executive Director not to issue the permits on the ground that the entry criteria set out in the Management Plan had not been satisfied. The Tribunal found that once it is established that the entry criteria are not satisfied, the Executive Director and the Tribunal does not have any residual discretion to take account of exceptional circumstances experienced by an applicant.
The decision under review
On 1 September 2004, Lenden Nominees Pty Ltd lodged two applications under the Fish Resources Management Act 1994 (WA) (FRM Act) with the Department of Fisheries (Fisheries) seeking the grant of an Area 1 Mackerel Fishery (Interim) Managed Fishery Permit and an Area 2 Mackerel Fishery (Interim) Managed Fishery Permit (the permits). Although the applications were dated 1 September 2004, Fisheries records show that they were received on 31 August 2004.
When Lenden Nominees lodged their applications they were the holders of Fishing Boat Licence (FBL) 1274 which is associated with Licensed Fishing Boat (LFB) B80.
By notice dated 29 September 2004 and 30 September 2004 respectively, issued pursuant to s 147 of the FRM Act, the Executive Director of the Department of Fisheries notified Lenden Nominees that he proposed to refuse to grant the permits by reason that both the applications failed to meet the entry criteria specified in cl 13(1) and cl 13(2) respectively of the Mackerel Fishery (Interim) Management Plan 2004 (the Management Plan).
By letter dated 25 October 2004 Mr Dennis Linaker on behalf of Lenden Nominees lodged a Notice of Objection pursuant to s 149 of the FRM Act to the proposed decisions.
The decision-making context
Section 66 of the FRM Act deals with the grant of managed fishery licences and interim managed fishery permits. By s 66(1):
"If a person applies to the Executive Director for the grant of an authorisation and -
a) the Executive Director is satisfied that the criteria specified in the relevant management plan for the grant of the authorisation have been satisfied; and
b) if a procedure is specified in the plan for determining which persons are to be granted the authorisations, the person is selected in accordance with that procedure,
the Executive Director may grant to the person an authorisation."
Sections 66(2) and (3) go on to provide that an authorisation may authorise fishing generally or fishing activity of a specified class and that the entitlement a person has under an authorisation may be limited by reference to a number of criteria including the quantity of fish that may be taken from an area of land or waters and a period of time.
Section 66(4) expressly provides that the extent of an entitlement under an authorisation may be expressed in terms of units of entitlement defined in the management plan.
The making of management plans is provided for in particular by Div 2 of Pt 6 of the FRM Act. Ultimately by s 54 the Minister for Fisheries may, by instrument in writing published in the Gazette, determine a management plan for a fishery. Considerable regulation or management of fisheries is possible through the making of a management plan, as sections 56 - 62 of the FRM Act disclose.
In these applications cl 13(1) and cl 13(2) respectively of the Management Plan set out the criteria that must be satisfied before the Executive Director may grant a person a permit to fish in Area 1 and Area 2 of the Fishery.
Clause 13 of the Management Plan sets out the entry criteria for Area 1 as follows:
"(1)The criteria to be satisfied before the Executive Director may grant a person a permit to fish in Area 1 of the Fishery are that –
(a)on 31 July 2004 the person was the holder of a fishing boat licence and in respect of the boat specified on that licence during the period commencing 1 November 1990 and ending on 31 October 1997, statutory fishing returns for that period were received by the Department on or before 31 December 1998;
(b)the returns referred to in paragraph (a) recorded –
(i)a catch of one tonne or more of mackerel (whole weight) in each of four different criteria years during the period specified in (a) from the waters described as Area 1; or
(ii)a catch of seven tones or more of mackerel (whole weight) for the whole of the period specified in (a) from the waters described as Area 1; and
(c)the person applies for a permit on or before 31 August 2004."
Clause 13 of the Management Plan sets out the entry criteria for Area 2 as follows:
"(2)The criteria to be satisfied before the Executive Director may grant a person a permit to fish in Area 2 of the Fishery are that –
(a)on 31 July 2004 the person was the holder of a fishing boat licence and in respect of the boat specified on that licence during the period commencing 1 November 1990 and ending 31 October 1997, statutory fishing returns for that period were received by the Department on or before 31 December 1998;
(b)the returns referred to in paragraph (a) recorded –
(i)a catch of 750 kilograms or more of mackerel (whole weight) in each of four different criteria years during the period specified in (a) from the waters described as Area 2; or
(ii)a catch of 5250 kilograms or more of mackerel (whole weight) for the whole of the period specified in (a) from the waters described as Area 2; and
(c) the person applies for a permit on or before 31 August 2004."
The issues
The Executive Director decided that FBL 1274 did not satisfy the entry criteria set out respectively in cl 13(1) and cl 13(2) of the Management Plan and as a result the applications were refused. Lenden Nominees argued that the unique circumstances that caused them to be unable to fish for two years during the assessable period as well as the financial hardship it would face if the permits were refused, should be taken into account by the Executive Director and that he should issue the permits.
It was agreed that the assessable history of the FBL 1274 did not satisfy the requirements of cl 13(1)(b) in the case of Area 1 or cl 13(2)(b) in the case of Area 2. In Area 1, the statutory returns satisfied the required quota in two of seven criteria years and failed to meet the total weight over the entire period. In Area 2, the statutory returns satisfied the required quota in three of seven criteria years and failed to meet the total weight over the entire period.
Mr Linaker explained that the reason for FBL 1274 not being able to satisfy the criteria was that the boat had been damaged during a storm and due to complications arising from its restoration, and related court litigation it was out of operation for 2 years. As a result no records were lodged for the period November 1995 to October 1997.
Mr Linaker nevertheless contended that the permits should be granted for three reasons:
(1) account should be taken of the special circumstances in which Lenden Nominees find themselves;
(2) if the average weight of the period November 1990 to October 1994 were extrapolated to the two years in which no fishing occurred, it would demonstrate that FBL 1274 would have met the criteria had the boat not suffered the damage; and
(3) the shifting of the boundary of Area 1 from 120 degrees east longitude to 121 degrees east longitude caused his assessable returns to be diluted as the returns are split into two separate areas. If the boundary of Area 1 remained at 120 degrees or if the total of his assessable returns of the Licence were taken into account for the application for Area 1, FBL 1274 would satisfy the entry criteria.
Mr Linaker also criticised the process of consultation leading to the enactment of the Management Plan on grounds that it was not inclusive enough and that the shifting of the boundary from 120 degrees east longitude to 121 degrees east longitude was motivated mainly by the interests of a few of the larger operators to the detriment of smaller operators working from Broome.
Counsel for the Executive Director explained that the decision was based on a proper construction of the Management Plan. It is agreed that the applications did not satisfy the entry criteria for each respective area. Counsel for the Executive Director therefore contended that there is no residual discretion vested in the Executive Director, or this Tribunal on review, to issue the permits. Neither the Act nor the Management Plan clothes the Executive Director with discretion to take account of the circumstances that allegedly caused FBL 1274 to fail to satisfy the entry criteria or the possible hardship that might result from a refusal of the applications. Counsel for the Executive Director also contended that the assessable history of FBL 1274 in one area may not be taken into consideration for an application in another area. It is therefore only the assessable history of mackerel caught in Area 1 that can be taken into account for the purposes of an application for that area. The same applies in regard to Area 2.
The main issues for the Tribunal to determine are therefore as follows:
(1) Is it open to the Executive Director and the Tribunal effectively to waive the entry criteria for issuing permits for commercial fishing of mackerel?
(2) Did Fisheries act within their powers by excluding the assessable history of mackerel caught in Area 2 from an application for a permit in Area 1 (and vice versa)?
(3) Does the Executive Director have any discretion to grant a permit if the entry criteria are not satisfied?
We will now address each of the issues on the basis of the evidence heard and submissions made.
Issue 1: Is it open to the Executive Director and the Tribunal effectively to waive entry criteria for issuing permits for commercial fishing of mackerel?
The parties do not dispute that the Minister has the statutory authority to enact a Management Plan and to set entry criteria to regulate commercial fishing of mackerel.
However, Mr Linaker takes issue with two matters. Firstly, he submits that research does not support the contention by Fisheries that mackerel stocks are under threat or that fishing of mackerel has increased drastically. Secondly, he contends that the shifting of the demarcation line from 120 degrees east longitude to 121 degrees east longitude was biased towards a few bigger operators and discriminated against smaller operators who have been active in the area for many years.
Counsel for Fisheries contends that the Minister has the statutory authority to have enacted the Management Plan and once enacted, it is binding and must be complied with by the Executive Director.
The Tribunal received documentary evidence and an account of the background to the making of the Management Plan from Ms Kennedy, Senior Commercial Fisheries Management Officer of the Department. Ms Kennedy explained that prior to the introduction of the Management Plan there was no proper system of control of commercial or recreational exploitation of the mackerel resource. As a result the fishery was at risk of becoming threatened and depleted. Fisheries therefore embarked on a consultative process for the Minister to enact a regulatory regime for the control and management of the fishery.
We note that s 3(2) of the FRM Act sets out the objectives of the FRM Act which includes the duty to ensure that the exploitation of fish resources is carried out in a sustainable manner; the proper and sustainable management of the fishing industry; to achieve optimum outcomes from utilising fish resources; and to allocate fish resources between different user groups such as commercial and recreational groups. We accept the evidence provided on behalf of the Executive Director by Ms Kennedy that special arrangements are required for the sustainable management of the commercial exploitation of mackerel. Her evidence reflected with the findings and recommendations made by the Mackerel Independent Advisory Panel (MIAP) to the Minister before the Management Plan was made.
The Minister has responsibility and authority under the FRM Act to implement measures aimed at protecting, amongst other, the mackerel fishing stocks of Western Australian waters. Part 6 of the FRM Act provides for the management of fisheries and for the enactment of management plans (s 54) with the force of subsidiary legislation (s 55). The Act sets out the requirements for a management plan (s 56).
A management plan may specify criteria to be satisfied "before the Executive Director can grant authorisation": (s 58(2)(c)) (emphasis added). The Management Plan also limits the discretion of the Executive Director by requiring that the entry criteria must be satisfied "before the Executive Director may grant a permit…": (cl 13(1) and cl 13(2)).
The Management Plan sets out the entry criteria that "must" be satisfied before the Executive Director "may" issue a permit. If the entry criteria are not met, the Executive Director does not have any discretion to issue a permit. See Adams and Anor v Executive Director, Fisheries WA (2000) WASC 34 (21 February 2000); and see generally Elphick and Executive Director, Department of Fisheries, Western Australia [2005] WASAT 301. Although a recommendation was made to the Minister by the MIAP to enable the Executive Director to issue a permit on grounds of exceptional circumstances such as hardship or ill-health, the Minster did not accept it.
There are therefore no grounds to suggest that cl 13(1) or cl 13(2) empowers the Executive Director to issue a permit on the grounds put forward by Lenden Nominees.
However, we note that the Minister did extend the assessable period from the recommended 5 years in the draft Management Plan to 7 years to allow additional time for applicants to satisfy the assessable history.
We do not accept the allegation by Mr Linaker that the process leading to the enactment of the Management Plan did not provide sufficient opportunity for submissions or that the Management Plan is particularly skewed to satisfy special interests.
The Tribunal finds that neither the Executive Director nor the Tribunal has the discretion to issue the permits on account of the exceptional reasons offered by Lenden Nominees.
As to the demarcation issue, the Management Plan describes the Areas of the Fishery in Schedule 2. In doing so it uses the 121 degree east longitude line to distinguish between Area 1 and Area 2. As noted earlier, the Minister is authorised to set criteria and define areas within which management activities will occur, in the Management Plan.
Mr Linaker contends that the demarcated areas are unfair and unjust for two reasons. Firstly because the applicant believes that the shifting of the boundary of Area 1 from the initial 120 degrees east longitude line to 121 degrees east, was intended to accommodate the interests of a few large operators and did not take into account the interests of smaller operators who have a long track-record of fishing from Broome. Mr Linaker referred in this regard to page 23 of the MIAP Recommendations where mention is made of the shifting of the line to accommodate the special interests of a few big boats. Secondly, Mr Linaker contends that the decision that the assessable history of one area cannot be taken into account in an application for a permit in another area, is unjust, arbitrary and does not reflect the historic situation where operators were free to fish where they wanted to.
The background to the enactment of the Management Plan was sketched in detail by Ms Kennedy, Senior Commercial Fisheries Management Officer of Fisheries. In summary, she explained that prior to the introduction of the Management Plan there was no proper system of control of commercial exploitation of the resource. The demarcation of areas of fishing was one of the management techniques recommended by the MIAP and included in the Management Plan.
To improve the management of the mackerel fish stock, the Department of Fisheries released a draft Management Plan for public comment in October 2000. In 2001 the Executive Director appointed the MIAP. The purpose of the MIAP included a request to provide advice to the Executive Director on the "most appropriate allocation (access criteria) system within the fishery…". The MIAP was directed to consult with those involved in the mackerel fishery to ensure that operators were treated "on a fair and equitable basis". The MIAP was also requested to give advice as to whether "exceptional circumstances" should be taken into account when permit applications were considered.
The evidence provided by Fisheries to the Tribunal shows that extensive public consultation occurred in the process that lead to the making of the Management Plan. We do not accept the contention of Mr Linaker that the process lacked appropriate research or was biased or designed to protect vested interests.
The Management Plan was published in the Government Gazette on 23 July 2004 and commenced on 1 August 2004. The Management Plan defines the areas within which the management of the mackerel stock will occur and it sets the entry criteria. The Minister did not accept the recommendation of the MIAP that provision should be made for a category of "exceptional circumstances" when applications are considered.
The Tribunal is satisfied that although the demarcation holds an unfortunate consequence for the applicant, there are no grounds upon which the Tribunal can review the demarcation of Areas as set out in the Management Plan.
Issue 2: Did Fisheries act within their powers by excluding the assessable history of mackerel caught in one area from an application for a permit in another area?
It is agreed between the parties that if the assessable history of the Licence were combined, it would satisfy the requirements of Area 1 or Area 2. However, Fisheries contend that the Management Plan does not allow the assessable history of one area to be taken into account in the application for another area. As a consequence both the applications fail to satisfy the requirements of either Area 1 or Area 2.
The Management Plan is unequivocal in its requirement that only the assessable history of a Licence in a particular area can be taken into consideration for an application in the same area (cl 13(1)(b) and cl 13(2)(b) respectively).
For the same reasons set out earlier, we are satisfied that the Management Plan was enacted according to the FRM Act and it is binding on the parties. The Executive Director therefore acted in accordance with the Management Plan by refusing to take the assessable history of the Licence in Area 2 into account for the application of a permit in Area 1 and vice versa and the Tribunal is bound to do likewise.
Issue 3: Does the Executive Director have the discretion to grant a permit if the entry criteria are not satisfied?
Mr Linaker contended that the Executive Director has a residual discretion to take into account hardship or special circumstances experienced by an applicant even if the entry criteria are not satisfied. Although one can express understanding for the predicament in which Lenden Nominees finds itself, neither the Executive Director nor the Tribunal has the discretion to grant a permit if the entry criteria are not satisfied. This is consistent with the conclusion of McKechnie J in Adams and Anor v Executive Director, Fisheries WA referred to earlier at par 54, that "on the proper construction of the FRM Act s 66(1)(a) and the Plan, the discretionary power to grant an authorisation is not triggered until the Executive Director is satisfied as a matter of fact unless the [several] conditions ...in clause … of the Plan have been fulfilled".
As we already noted, the Minister did not accept the recommendation of the MIAP to provide for a discretion based on "exceptional circumstances".
The use of entry criteria has the inevitable consequence that some applications may just fall short of satisfying the criteria. However, even though Lenden Nominees explained that they fell short of satisfying the entry criteria due to the damage caused by a storm to their boat, the Tribunal does not have the discretion to issue a permit if the entry criteria are not fully satisfied. Section 58(2)(c) of the FRM Act empowers the Minister to set entry criteria that must be satisfied before the Executive Director may grant a permit. It is only after the entry criteria have been satisfied that the Executive Director or the Tribunal can exercise discretion in accordance with s 71(2) or s 72(2). It is not open to exercise the discretion under s 71 or s 72 to grant a permit when the entry criteria as set in the Management Plan have not been satisfied.
We conclude therefore that the Executive Director's and the Tribunal's authority to grant a permit pursuant to cl 13(1) and cl 13(2) only takes effect once it can be shown that all the entry criteria are satisfied. FBL 1274 fails to satisfy the entry criteria for Area 1 and Area 2 respectively, and as a consequence the applications cannot succeed.
Conclusion and Orders
For these reasons the applications must be dismissed.
The Tribunal orders:
1) The application for review is dismissed.
2) The proposed decisions of the Executive Director, Fisheries dated respectively 29 September 2004 and 30 September 2004 in respect of the applications of the applicant dated 1 September 2004 are affirmed.
3) The applicant’s application under the Fish Resources Management Act 1994 (WA) is refused.
I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT
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