LENZO and EXECUTIVE DIRECTOR, DEPARTMENT OF FISHERIES (WA)

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: FISH RESOURCES MANAGEMENT ACT 1994 (WA)

CITATION: LENZO and EXECUTIVE DIRECTOR, DEPARTMENT OF FISHERIES (WA) [2005] WASAT 218

MEMBER: JUSTICE M L BARKER (PRESIDENT)

HEARD: 30 MARCH 2005

DELIVERED : 19 AUGUST 2005

FILE NO/S: RD 17 of 2002

BETWEEN: JOHN LENZO
Applicant
AND
EXECUTIVE DIRECTOR, DEPARTMENT OF FISHERIES (WA)
Respondent

Catchwords:

Fisheries - Fishing tour operator's licence - Resource Management Regulations 1995 (WA) Reg 128I, Reg 128J(1) - Independent assessment panel - "Fit and proper" person to hold licence - Benchmark date criterion - Second application for licence refused - Whether objection proceedings of applicant should be upheld

Legislation:

Australia Act 1986 (Cth), s 2(1)

Coastal Waters (State Powers) Act 1980 (Cth), s 5, s 5(a), s 5(c), s 7, s &(b)
Commonwealth Constitution, s 92
Constitution Act1889 (WA), s 2(1)
Fish Resources Management Act 1994 (WA), s 4, s 5, s 5(a), s 5(b), s 5(c), s 5(d), s 149, s 151(2), s 246, s 246(4), s 246(5), s 257(1), s 257(2)(g), s 258(c), Sch 3
Fish Resources Management Regulations 1995 (WA), Reg 128I, Reg 128J(1), Sch 15
Fisheries Act 1905 (WA), s 4(5), s 71(b), Pt 11
Fisheries Act 1952 (Cth), s 76
Fisheries Legislation Amendment (High Seas Fishing Activities and Other Matters) Act 2004 (Cth)
Fisheries Management Act 1991 (Cth), s 4(1), s 4(5), s 10(2), s 10(2)(a), s 10(3), s 17
Petroleum (Submerged Lands) Act 1967 (Cth), Sch 2
Protection of the Seas Act 1983 (Cth)

State Administrative Tribunal Act 2004 (WA), s 167(4)(b)

Result:

Proposed decision of Executive Director, Department of Fisheries to refuse fishing tour operator's licence affirmed; application for licence refused; objection proceedings dismissed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Alison Fleming

Solicitors:

Applicant: Self-represented
Respondent: Department of Fisheries (WA)

Case(s) referred to in decision(s):

Bonser v La Macchia (1969) 122 CLR 177
Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337
Chan v Nurses Board of Western Australia [2005] WASAT 114 at [73] – [85]
Commissioner of Stamp Duties (NSW) v Millar (1932) 48 CLR 618 and 632 ‑ 633
Commonwealth of Australia v Yarmirr (2001) 208 CLR 1
Johnson v The Commissioner of Stamp Duty [1956] AC 331
Pearce v Florence (1976) 135 CLR 507
Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340
Robinson v Western Australian Museum (1977) 138 CLR 283
Thompson v The Commissioner of Stamp Duty [1969] 1 AC 320 at 335 – 336
Union Steamship v King (1988) 166 CLR at 9 ‑ 10 and 12

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In April 2001 Mr Lenzo applied to the Executive Director of the Department of Fisheries for a fishing tour operators licence pursuant to Fish Resources Management Regulations 1995 (WA), Reg 128J.
Mr Lenzo's initial application was refused.
Mr Lenzo then applied again for a fishing tour operator's licence in March 2002.
The Executive Director again indicated he proposed to reject Mr Lenzo licence application.
The second refusal was on the basis that the applicant did not provide sufficient information to establish he was a "fit and proper person" and because the Executive Director was not satisfied it was in the best interests of the management of commercial and recreational fishing to grant the licence.
Mr Lenzo then lodged a notice of objection to the Executive Director's proposed decision.
On 1 January 2005 the proceedings in the Fisheries Objection Tribunal were transferred to the State Administrative Tribunal.
The Tribunal upheld the Executive Director's proposed decision not to grant the licence.
The Tribunal rejected Mr Lenzo's argument that the State's regulation system of fishing including over fishing tour operator's activities were invalid and did not apply to his activities in off‑shore waters, near Western Australia.
The Tribunal also rejected Mr Lenzo's related arguments that the State's system of fishing regulation conflicted with the Commonwealth fisheries legislation or was contrary to Mr Lenzo's fundamental rights and liberties as a citizen.
So far as the merits of the case were concerned, the Tribunal rejected Mr Lenzo's application because he could not meet the criteria set out in Ministerial Policy Guideline Number 12 made under the Fish Resources Management Act1994 s 246.
The Tribunal found that the criteria set out in the guideline were relevant to a consideration of whether or not the licence should be granted and that Mr Lenzo did not meet them.
As a result, the Tribunal affirmed the proposed decision of the Executive Director not to grant the fishing tour operator's licence, ordered that the application for that licence should be refused and otherwise dismissed the objection proceedings in the Tribunal.

The first application for a fishery tour operator's licence

This application was transferred to the State Administrative Tribunal from the former Fisheries Objection Tribunal on 1 January 2001 in accordance with the transition requirements of the State Administrative Tribunal Act 2004 (WA) s 167(4)(b).
The matter has a fairly long history.
On 2 April 2001, Mr Lenzo lodged with the Department of Fisheries (Fisheries) an application dated 29 March 2001 for a fishing tour operator's licence for the West Coast Zone. He set out his business proposal in an accompanying letter to Fisheries dated 27 March 2001.
The application for this licence was necessary because Fish Resources Management Regulations 1995 (WA) (FRMR) Reg 128I made under the Fish Resources Management Act 1994 (WA) (FRMA), provides that:
"A person who conducts a fishing tour for a commercial purpose in a zone set out in Schedule 15 must hold a fishing tour operator's licence or restricted fishing tour operator's licence for that zone."
Reg 128J(1) further provides that:
"If a person applies to the Executive Director for the grant of a fishing tour operator's licence to conduct a fishing tour for a commercial purpose in a zone set out in Schedule 15 and the Executive Director is satisfied that ‑
(a) the person is a fit and proper person to hold the licence; and
(b)it is in the interests of the management of commercial and recreational fishing to grant the licence,
the Executive Director may grant to the person a fishing tour operators licence for that zone."
To assist in the administration of the FRMR the Minister set up an independent assessment panel (the panel) to assess applications for fishing tour operator's licences against the requirements of Reg 128J(1) and to make recommendations to the Executive Director.

The first refusal

In this case, the panel recommended that Mr Lenzo's application be refused on the ground that he had failed to meet the benchmark criterion specified in cl 3.9(ix) of the Ministerial Policy Guideline No 12, January 2000, issued under s 246 of the FRMA, which is entitled "Assessment of Applications for the Granting, Renewal or Transfer of Fishing Tour Operator's Licence and Aquatic Eco-Tourism, Operators Licences".
This Guideline, while issued pursuant to the FRMA, does not rigidly apply but, by virtue of s 246(4), must be taken into account by the Executive Director in exercising his functions under the FRMA. FRMA s 246(5) provides that nothing in s 246(4) derogates from the Executive Director's duty to exercise his discretion in a particular case.
On 1 August 2001, Mr Phil Readhead, Fisheries Management Officer, Recreational Fisheries, within Fisheries, wrote to Mr Lenzo requesting him to provide further information to assist in the assessment of his application, namely:
1.information that demonstrated his involvement in the aquatic industry prior to 12 September 1997;
2.evidence that the proposed tour operation would be carried out in an area which was not currently serviced by an existing tour operator or for a stock or species which was then not currently fully exploited;
3.evidence that the proposed fishing tour operation would not significantly increase fishing pressure on stocks, areas or species identified by Fisheries in published material as fully exploited or vulnerable;
4.police clearances for each applicant named of the application form;
5.evidence that he could and would obtain and maintain public liability insurance cover to the extent of $5 million;
6.survey certificates of all boats to be associated with the licence and registration certificates of all vehicles to be associated with the licence; and
7.relevant training certificates for all persons who would operate equipment specified in the licence.
On 14 September 2001, Fisheries received a letter from the applicant dated 5 September 2001, in which Mr Lenzo made further submissions. With that letter he provided four character references.
The panel again assessed the applicant's application and again recommended that he be refused a fishing tour operator's licence.
The panel recommended the application be refused because it considered Mr Lenzo had failed to provide sufficient evidence to show he was a "fit and proper" person to hold the licence and because he failed to meet the benchmark date criterion. The panel was also not satisfied that the applicant would offer a service in areas not already serviced by existing operators. The panel recommended a "precautionary approach" because it considered the fish to be targeted by Mr Lenzo were fully exploited and referred to the "State of the Fisheries Report 1999/00" in this regard.
In a letter dated 10 December 2001, Mr Peter Millington, Executive Director of the Fisheries Department, notified Mr Lenzo that he proposed to refuse his application because he was not satisfied that he was a fit and proper person to hold a tour operator's licence; nor was he satisfied it was in the best interests of the management of commercial and recreational fishing to grant him the licence.
The Delegate for the Executive Director advised the applicant of his right to object to his proposed decision, pursuant to FRMA s 149 as it then operated.
On 15 January 2002, the Executive Director wrote to the applicant notifying him that, as he had not received an objection to his proposed decision within the prescribed 21‑day objection period, his decision had become final pursuant to s 151(2) of the FRMA, as it then operated.

The second application for a licence

Subsequently, because he was aggrieved with the decision, Mr Lenzo lodged a second application for a fishing tour operator's licence dated 30 March 2002, proposing a fishing tour operation from either Mindarie or Hillarys to target dhufish, snapper, taylor, mackerel, tuna, mulloway, king george whiting, dolphin fish, wahoo, flathead, skippy and dartfish. He supported his application with references. The letter sets out details of his proposed operation, and arguments why he should be granted the licence. In particular, Mr Lenzo argued that the benchmark criterion date was discriminatory, unjust and not even a "law" ‑ merely policy.

The second refusal

The panel recommended that Mr Lenzo's second application be refused because :
1.the applicant did not provide it with sufficient additional information to convince the panel that he was a fit and proper person, and he failed to provide a police clearance;
2.the applicant did not meet the benchmark date criterion;
3.of the 129 fishing tour operators licensed to operate in the West Coast Zone, 85 were based in the metropolitan area; and
4.in light of the fact the species to be targeted by the applicant were considered to be fully exploited a cautionary approach was required (until information could be gathered on how fishing tour operations affected the State's fish stocks).
On 13 May 2002, the Delegate for the Executive Director notified Mr Lenzo that he proposed to refuse his application as he was not satisfied that the applicant was a fit and proper person; nor was he satisfied that it was in the best interests of the management of commercial and recreational fishing to grant the applicant the licence.
Mr Lenzo then lodged a "Notice of Objection to a Proposed Decision" on 4 June 2002, pursuant to FRMA, as it then applied, and stated his grounds of objection to be:
1.the benchmark date criterion should only be applied to commercial fisheries; and
2.benchmark criteria should either be enforced on new applications as well as transferred licences. If not, then the benchmark date criterion should not affect new applicants.

The Fisheries Objection Tribunal proceedings

The matter then proceeded before a Fisheries Objection Tribunal set up by the Minister pursuant to the FRMA.
A preliminary conference was held on 5 September 2002 at which the applicant claimed that the benchmark criterion date was in breach of National Competition Policy (NCP) and that, when in opposition, the Minister, the Hon Kim Chance, had opposed the policy.
The final hearing date was set for 15 November 2002, but was later postponed indefinitely as Fisheries took the view that the hearing of the matter should be postponed until the National Competition Council (NCC) had reviewed the Guideline in accordance with its formal review processes. Subsequently, the Department obtained legal advice on that issue and indicated that the hearing could proceed notwithstanding any review of the Guideline by the NCC.
Fisheries then stated that its position regarding the applicant's submission that the benchmark criterion date was in breach of NCP was that, even if it were considered to be in breach of that policy (which was not conceded), it would have no bearing on the outcome of Mr Lenzo's objection. The submission put was that the Competition Principles Agreement was a contractual agreement between the States and the Commonwealth, a breach of which might result in financial sanctions, but would not affect the validity of legislation, or of the Guideline, or give the applicant enforceable rights.
After these preliminary skirmishes, a number of further conferences were held in the Fisheries Objection Tribunal during 2003.
On 15 May 2003, a preliminary conference was held in the Fisheries Objection Tribunal to consider issues relating to the decision‑making process raised by Mr Lenzo, including the following issues:
1.the basis for deciding that fishing tour operations needed to be restricted;
2.the justification for imposing a retrospective benchmark criterion date;
3.the method used to determine that there were 135 fishing tour operators as at September 1997;
4.the significance of the fact that greater than 135 licences hadn't been issued;
5.publication of the Guideline and benchmark criterion date;
6.whether the operation of fishing tour operators is in the meaning of "Offshore Constitutional Settlement"; and
7.the relevance of the National Competition Policy.
During the 15 May 2003 conference Mr Lenzo argued:
1.that he did not accept the validity of the Guideline and specifically challenged the use of a benchmark date criterion;
2.the principal objective of the Executive Director should be to control fish stocks not to set limits on numbers of operators;
3.that 11 operators held more than one licence and two operators have more than one vote;
4.the benchmark date should have been the date on which it was made known to the public;
5.limited entry licences encourage a "goldrush" mentality; and that
6.people should be told they have no guarantee of obtaining a licence.
Further conferences were held in the Fisheries Objection Tribunal in October 2003 and in June 2004. On 11 June 2004 the parties discussed the impending introduction of a new category of licence under the FRMR called "Restricted Fishing Tour Operator's Licences". These licences would restrict the taking of fish for consumption during aquatic-eco (or viewing only) tours. Fisheries thought the applicant might be interested to apply for such a licence.
Further dealings between the parties included a complaint by the applicant to the Ombudsman on 19 October 2004 that he had been treated unjustly in respect of the time taken to resolve his objection.
On 6 December 2004, the Fisheries Objection Tribunal wrote to the applicant and counsel for the Executive Director requesting the parties provide further written submissions on the issue of the constitutional validity of the tour operators licensing scheme, and comments on how the objection might be finalised.
By letter to the Fisheries Objection Tribunal dated 13 December 2004, Mr Lenzo stated that his argument was that "Western Australian Fisheries [cannot] under any law whatsoever limit or delegate the authorisation to whom they feel is entitled to utilise and enter the Commonwealth Waters".
It was after this protracted course of proceedings, culminating in this particular legal submission by the applicant, that on 1 January 2005, the proceedings in the Fisheries Objection Tribunal were transferred to the State Administrative Tribunal upon the commencement of the State Administrative Tribunal.

Proceedings in the State Administrative Tribunal

On 23 February 2005 the Tribunal listed the objection proceedings for final oral closing submissions at 9.30am on Wednesday 30 March 2005.
At the hearing On 30 March 2005 the applicant was self-represented and the Executive Director was represented by counsel. Counsel for the Executive Director addressed the respondent's outline of submission dated 23 February 2005 that dealt, in particular, with the power of the Parliament of the State of Western Australia to impose the fisheries regulatory system about which Mr Lenzo complained.
The applicant made oral submissions on this issue.
As a result of hearing the submissions of the parties, on 30 March 2005, the Tribunal ordered that further submissions on the point of the extra-territorial application of the system of state fishing regulation be filed on behalf of the Executive Director within 21 days, and that the applicant have the right to file written submissions in response to those within a further 14 days after that. Following the receipt of those submissions the Tribunal's decision was reserved.

Issues at hearing

The question of the extra-territorial application of the system of State fishing regulation arose because, in the course of the hearing on 30 March 2005, Mr Lenzo distilled his earlier written and oral submissions to the proposition that the WA Department of Fisheries does not have jurisdiction to regulate charter boats in territorial seas. His contention was that once a charter boat ventures into territorial seas', the system of State fishing regulation had no application to the boat or activities carried out from it.
Mr Lenzo put his submissions in a factual context by saying that charter boats don't operate in the three nautical mile area offshore but operate 25 ‑ 30 nautical miles off‑shore, over the continental shelf, and that they fish in 100 ‑ 180 metres of water. For these reasons Mr Lenzo considered that State law did not have any reach so far as his proposed eco‑tourism fishing or dive tours were concerned.
Mr Lenzo also raised related arguments concerning the invalidity of the system of State fishing regulation by reference to ‑
(1)inconsistency with the Commonwealth Fisheries Act;
(2)s 92 of the Commonwealth Constitution which guarantees free trade and intercourse between the States;
(3)the decision of the High Court in Commonwealth of Australia v Yarmirr (2001) 208 CLR 1; and
(4)the Magna Carta.
So far as the merits of his application were concerned, apart from the extra-territorial reach argument, the applicant generally emphasised that he considered that he could satisfy the requirements of the FRMR and the Guidelines. He was at pains to emphasise that the Guidelines should not be applied on the basis that the Executive Director was strictly bound by them.

At a practical level, so far as the extent of his involvement with or investment in the fishing tour industry prior to 12 September 1997 was concerned, the applicant emphasised that, in practical terms, it would be difficult for many people, and at least him, to satisfy these requirements because he was not living adjacent to the relevant zone at material times. He considered that a person's involvement should be capable of demonstration through showing the person had applied for a TAFE course in obtaining a skipper's licence to get a chartered boat operations up and running, and that such involvement should not be considered non‑commercial sea time.

The constitutional validity of the State's system of fishing regulation

As noted earlier, FRMR Reg 128I provides that:
"A person who conducts a fishing tour for a commercial purpose in a zone set out in Schedule 15 must hold a fishing tour operators licence or restricted fishing tour operators licence for that zone."
The expression "fishing tour" is defined by FRMA s 4 to mean:
"a tour, a central purpose of which is to provide an opportunity for recreational fishing and may include the provision of fishing guidance, fishing gear, accommodation or transport".
The expression "commercial purpose" is defined by FRMA s 4 to mean:
"the purpose of sale or any other purpose that is directed to gain or reward".
For the purposes of the FRMR, Sch 15 identifies four zones described as "Tour management zones". Zone one is the Pilbara/Kimberley region, zone two is the Gascoyne region, zone three is the West Coast region and zone four is the south coast region. These regions are defined in Reg 3 of the FRMR to mean "all land in the State or all WA waters" bounded by specified lines of latitude and longitude.
The expression "WA waters" is given meaning by FRMA s 5 in the following terms:
"In this Act, reference to WA waters ‑
(a)is reference to all waters within the limits of the State;
(b)except for purposes relating to a fishery that is to be managed in accordance with the law of the Commonwealth under an arrangement under Part 3 and except for the purposes specified in paragraph (d), is a reference to any waters not within the limits of the State that are on the landward side of waters adjacent to the State that are within the Australian fishing zone;
(c)the purposes relating to a fishery that is to be managed in accordance with the law of the State under an arrangement under Part 3, is a reference to any waters to which the legislative powers of the State extend, with respect to that fishery, whether under s 5 of the Coastal Waters (State Powers) Act 1980 of the Commonwealth or otherwise; and
(d)for purposes relating to recreational fishing, within the meaning of the Commonwealth Act, other than recreational fishing ‑
(i)carried on by the use of a foreign boat; or
(ii)prohibited or regulated by a plan of management determined under s 17 of the Commonwealth Act, is a reference to any waters to which the legislative powers of the State extend with respect to such fishing."
The Australian fishing zone is an expression defined in s 4(1) of the Fisheries Management Act 1991 (Cth) ("FMA") to exclude coastal waters of, or waters within the limits of, the State. The coastal waters of the State are defined to include those waters within three nautical miles of the baseline for territorial sea.
Consequently, "WA waters" for the purposes of FRMA s 5(a) and (b) includes only those waters out to three nautical miles from the baseline of the territorial sea.
So far as the definition in FRMA s 5(c) is concerned, prior to the amendment of the FMA by the Fisheries Legislation Amendment (High Seas Fishing Activities and Other Matters) Act 2004 (Cth) (Amendment Act), FMA s 4(5) provided that for the purposes of the FMA, a charter boat and the person in charge of the boat were to be taken as engaged in commercial fishing.
A boat and person conducting fishing tours in accordance with FRMR Div 5 of Pt 11 would therefore fall within the description of a chartered boat and person in charge of a chartered boat for the purposes of FMA s 4(5).
As a result of the FMA taking a charter boat and charter boat operator to be engaged in commercial fishing, regulation of charter boats and charter boat operators fell within the arrangement between the Commonwealth and the State gazetted on 1 February 1995 entitled "Arrangement Between the Commonwealth and the State of Western Australia in Relation to the Fishery for Fish and Other Aquatic Biological Resources in Waters relevant to Western Australia" ("Arrangement") made under FMA s 72(b) and Pt 11 of the Fisheries Act 1905 (WA) which the latter Act continued, in effect, by virtue of the transition provisions of the FRMA Sch 3, para 7.
The Commonwealth and the State arranged in the Arrangement "that the fishery to which this arrangement applies is to be managed in accordance with the law of Western Australia being the fishery, for any purpose other than recreation, in all waters relevant to Western Australia, being coastal waters and waters of the Australian Fishing Zone that lie within the area described in Sch 2 of the Petroleum (Submerged Lands) Act 1967 (Cth) under the heading "Area that includes the adjacent Area in respect of Western Australia", for all species of fish of the Class Osteichtyes (bony fish) and Class Chondrichthyes (cartilaginous fish), all species of aquatic invertebrates, all marine algae of the Divisions Clorophyta (green algae), Rodophyta (red algae) and Phaetophyta (brown algae), and all sea grasses of the Families Hydrocharitaceae, Posidoniaceae, Znosteraceae and Cymodoceaceae.
The Arrangement excluded certain species of fish including species of tuna and tuna-like fish, billfish and fish of the Family Bramidae (pomfrets) seaward of the 200 metre isobath for all fishing methods.
On the basis that boats used for fishing tours and fishing tour operators were regulated by the Arrangement in respect of the specifies of fish identified in the Arrangement, in respect of the four management zones in FRMR Sch 15, the "WA waters" as defined in to s 5(c) of the FRMA, should be considered to extend to all waters of the Australian Fishing Zone ("AFZ") for the identified species of fish, not just to the three nautical miles from the baseline as asserted by the applicant.
Accordingly, the Fisheries Department submitted that "WA waters" for the purpose of regulation of fishing tours for the take of fish not covered by the Arrangement, was confined to three nautical miles from the baseline of the territorial sea.
FMA s 10(2)(a) provides:
"subject to sub-section (3), the Parliament intends this Act is to apply to the exclusion of any law of a State … relating to fishing so far as that law would, but for this Act apply to:
(a)activities in the AFZ …"
FMA s 10(2) operates to prevent the management zones from extending into the AFZs in respect of species of fish not covered by the Arrangement.
FMA s 4(5) was then amended by the Amendment Act to provide:
"For the purposes of this Act, a charter boat, the person in charge of the boat and any other person fishing from the boat are taken to be engaged in recreational fishing."
FMA s 10(3) provided:
"this Act does not apply to:
(a)recreational fishing (whether from a charter boat or otherwise) that is carried on in the AFZ or outside the AFZ by the use of an Australian boat, other than recreational fishing that is prohibited or regulated by a plan of management or temporary order; or
(b)recreational fishing (whether from a charter boat or otherwise) that is carried on by the use of an Australian boat in the coastal waters of a State or Territory, being coastal waters in respect of which an Arrangement mentioned in section 12K of the Fisheries Act 1952, or section 76 of this Act relates, other than recreational fishing that is prohibited or regulated by a plan of management or temporary order; or
(c)activities in the AFZ to which, because of section 77, this Act does not apply."
Accordingly, FRMA s 5(d) provides that a reference to "WA waters" for purposes relating to recreation fishing, within the meaning of the Commonwealth Act, other than recreational fishing carried on by the use of a foreign boat or prohibited or regulated by a plan of management determined under s 17 of the Commonwealth Act, "is a reference to any waters to which the legislative powers of the State extend with respect to fishing."
In all these circumstances, the Department contends that the effect of the amendment to FMA s 4(5) has the following results:
(1)the Arrangement ceased to apply to fishing tours conducted under the FRMA, as the Arrangement excludes recreational matters.
(2)Under the FMA the conduct of charter boats and persons in charged of charter boats became subject to those provisions of the FMA relating to recreational fishing. FMA s 10(3) applies.
(3)That, as set out in the explanatory memorandum to the Amendment Act states:
"generally, the Fisheries Management Act 1991 (Cth) will no longer apply to charter fishing carried on in the Australian Fishing Zone or outside the Australian Fishing Zone by an Australian boat. The Act will only apply to recreational and charter fishing that is prohibited or regulated by a plan of management or temporary order."
(4)The State has the power to legislate in terms of FRMA s 257(1)(g) and to make FRMR Reg 128I.
(5)That under the FRMA s 257(1)(g) the regulation of fishing tours has its own licence classification:
"1)the Regulations may provide for the licensing of ‑
(g)person engaged in aquatic eco‑tourism or the provision of fishing tours for a commercial purpose."
(6)In the application of FRMA s 5(d) it is necessary to consider recreational fishing under the FMA, not the FRMA. FMA s 4(5) now provides that a charter boat, the person in charge of a charter boat and any other person fishing from the boat are taken to be engaged in recreational fishing.
Following the hearing on 30 March 2005, Fisheries made further written submissions about the extra-territorial reach of the State's fishing laws.
First, Fisheries contend that the Parliament of the State has power to legislate for peace, order and good government of the State pursuant to s 2(1) Constitution Act 1889 (WA); and that grant of power is plenary in nature and includes the power to enact legislation that operates both within the territory of the State and outside the territorial limits of the State: Union Steamship v King(1988) 166 CLR at 9 ‑ 10 and 12.
Fisheries submit that the extra‑territorial legislative competence of the State's Parliament was confirmed by s 2(1) of the Australia Act 1986 (Cth), which provides:
"It is hereby declared and enacted that the legislative powers of Parliament of each State include full power to make laws for the peace, order and good government of that State that have extra‑territorial operations."
Further, that having regard for the terms of the offshore constitutional settlement that resulted in the passing of the Coastal Waters (State Powers) Act 1980 (Cwth), the Parliament of Western Australia had the power to enact a law which operates within the limits of the coastal waters of the State by virtue of either or both of s 2(1) of the Constitution Act 1889 (WA) and s 5(a) of the Coastal Waters (State Powers) Act 1980.
Thus, Fisheries contend, the Parliament of Western Australia has the power to enact a law which operates beyond the limits of the coastal waters of the State by virtue of s 2(1) of the Constitution Act 1889 (WA).
Consistent with the plenary nature of the legislative power of the State, Fisheries contend a State law will be valid if it is connected, not too remotely, with the State which enacted it or operates on some circumstance which appertains to the State: Commissioner of Stamp Duties (NSW) v Millar (1932) 48 CLR 618 and 632 ‑ 633; Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337 at 375, Dixon J, approved in Johnson vThe Commissioner of Stamp Duty [1956] AC 331 of 353 and in Thompson v The Commissioner of Stamp Duty [1969] 1 AC 320 at 335 – 336.
Accordingly, Fisheries submit State legislation should be held valid if any real connection – even a remote or general connection between the subject matter of the legislation and the State is established: Pearce v Florence (1976) 135 CLR 507 at 518, approved in Union Steamship v King (supra); Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340 at 372.
Fisheries say the possible basis for such a connection or nexus is very wide. By way of example in Broken Hill South Ltd v Commissioner of State Taxation (supra) Dixon J at observed:
"… It is within the competence of the State legislation to make any fact, circumstance, occurrence or thing in or connect[ed] with the territory the occasion of the imposition upon any person concerned therein of a liability to taxation or any other liability. It is also within the competency of the legislature to base the imposition of liability on no more than the relation of the person to the territory. The relation may consist in presence within the territory, residence, domicil, carrying on business there, or even remoter connections. If a connection exists, it is for the legislature to decide how far it should go in the exercise of its powers."
In so far as State laws which operates in the waters off the coast of the State are concerned, Fisheries contends it is well recognised that the fact that the waters are offshore waters of the State, provides the necessary nexus of connection to render valid a law operating within those waters. Further aspects of relevant connection include the fact that the waters off the coast of the State are vital to its trade, the people of the State have traditionally exploited the resources of the offshore waters and used them for recreation, and State law enforcement would be impeded if State laws were unable to extend into its offshore waters.
As a result, Fisheries contend that, if the persons, things or events to which a State law applies occur within its offshore waters, that provides a sufficient connection with the State to render the legislation valid: Pearce v Florence (supra) at 519 – 520.
I accept that it has long been recognised that State laws regulating fishing in the offshore waters of the State have a sufficient connection with the State to be considered valid and apt to be described as laws for the "peace, order and good government" of the State: Pearce v Florence at 520 – 521, 522, 524, 526 – 527; Robinson v Western Australian Museum (1977) 138 CLR 283 at 331; Bonser v La Macchia (1969) 122 CLR 177 at 226.
As Port MacDonnell Professional Fishermen's Association Inc v South Australia (supra) at 373, demonstrates, a State law relating to fishing which operated up to 200 nautical miles from the coast of South Australia may be considered a valid law, if a real and substantial connection between the subject of the law and the State is found to exist. In that case, because the fishery in question was a finite resource available for exploitation, and exploited by, the residents of the State and was significant source of trade and employment for the State, and because the land territory of the State was the closest land territory to the fishery, the High Court held the State law to be valid.
I accept Fisheries submission, in this case, that the waters described as zones 1 and 3 of Sch 15 to the FRMR are relevant to this application, encompass waters within the coastal waters of the State. To that extent, the relevant regulations, in the circumstances of this case, operate within the coastal waters of the State.
I also accept that the Western Australia Parliament has the power to enact a law providing for the making of subsidiary legislation which operates within the coastal waters of the State, either in the exercise of the Parliament's power to legislate with extra‑territorial effect under s 2(1) Constitution Act 1889 pursuant to the Coastal Waters (State Powers) Act 1980 (Cth) s 5(a).
The waters described as zones 1 and 3 of Sch 15 to the Regulations also extend beyond the coastal waters of the State. To that extent, the FRMA and FRMR, in the circumstances of this case, operate within the waters beyond the outer limits of the coastal waters of the State. The Western Australian Parliament is empowered to enact a law providing for the making of subsidiary legislation which operates beyond the coastal waters of the State, in the exercise of the Parliament's power to legislate with extra‑territorial effect under s 2(1) Constitution Act 1889.
In this regard, I accept Fisheries submission there is a real and substantial connection between the subject matter of FRMA s 257(1)(g), s 257(2) and s 258(c) and the relevant FRMR regulations, and the State of Western Australia. The regulatory provisions relate to the commercial operations of fishing tours by which persons will be able to engage in recreational fishing. The relevant regulations clearly contemplate that those recreational fishing activities will take the place in the waters off the Western Australian coast – whether within, or beyond, the coastal waters of the State. There exists a substantial connection to Western Australia by that geographical proximity alone.
In addition, the regulation of recreational fishing conducted through fishing tours is one aspect of the broader regulation of recreational fishing in the waters off Western Australia. There are many points of connection between recreational fishing and the State of Western Australia, including the State's interest in sustaining fishing stocks in the waters off its coast, so that fish resources can be exploited by Western Australians into the future.
The regulation of fishing tours also clearly has a commercial connection with the State. The conduct of fishing tours for commercial purposes can boost employment, result in an injection of funds into the State's economy and generate tourism.
There is also a proper connection to the State in that it is the State's interests to ensure the safety of persons who engage in recreational fishing by participating in fishing tours.
There are also practical connections between the subject matter of the legislation and the State in the particular factual context of this case. Mr Lenzo is a resident of Western Australia and seeks to be licensed to use a boat registered in Western Australia to conduct fishing tours. Those fishing tours commence and finish within the State.
It is unnecessary, for the purposes of this case, to determine what might be the limits of the valid operation of the relevant regulations. Mr Lenzo's vessel is subject to a Class 2C survey, so the vessel is restricted to operating within 30 nautical miles from "D" area, (for example an area of gazetted partially smooth waters) or from the mainland coast. Furthermore, the applicant's qualification of as coxswain enables him to operate his vessel to a maximum of 15 nautical miles from coast.

The inconsistency issue

FRMA s 257(1)(g), s 257(2) and s 258(c), and the relevant FRMR regulations, to the extent that they operate within the waters off the coast of Western Australia, adjacent to the State, and within the area described in Zone 1 and Zone 3 of Sch 15 to the FRMR are not rendered invalid by virtue of any inconsistency with a law of the Commonwealth.
By virtue of s 4(5) of FMA, as amended in the Amendment Act, the FMA does not apply to the use of chartered boats for the conduct of fishing tours for commercial purposes, because those activities are now treated as recreational fishing for the purposes of the FMA.
I accept the submissions made on behalf of Fisheries and find that FRMR Reg 128I, that requires a person who conducts a fishing tour for a commercial purpose in a zone set out in Sch 15, to hold a fishing tour operator's licence or a restricted fishing tour operator's licence for that zone, whether within three nautical miles off the baseline of the territorial sea or beyond, is valid.

Accordingly, I do not accept the applicant's submission that the State does not have jurisdiction to regulate chartered boats in territorial seas.

Other "constitutional" arguments

Mr Lenzo’s main argument was that, in one way or another, the State system of fisheries regulation offshore, beyond the three mile nautical limit, was invalid. In pressing this argument he also made reference to s 92 of the Commonwealth Constitution, which guarantees free trade and intercourse between the states, the decision of the High Court of Australia in Commonwealth of Australia v Yarmirr (supra) and the Magna Carta.
At the hearing before the Tribunal, and in the written submissions of the applicant and the respondent, these additional bases for considering the State system of fishing regulation invalid were not pressed in any substantive way.
A cursory glance at s 92 of the Commonwealth Constitution (supra) shows that it cannot assist Mr Lenzo’s argument. Section 92 relevantly provides:
"On the imposition of uniform duties of customs, trade, commerce and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free."
There is nothing in the system of the State fishing regulation that suggests the State Parliament had attempted to regulate trade, commerce or intercourse among the States. The State’s system of fishing regulation applies to persons who having the relevant nexus with the State, as discussed earlier in these reasons, and there is no circumstance which brings s 92 of the Commonwealth Constitution into play.
As to the decision of the High Court in Commonwealth of Australia v Yarmirr (supra), I understood Mr Lenzo is to seek to draw from that decision a fundamental principle that a common law right of navigation in navigable waters was at risk of abrogation by reason of the State system of fishing regulation. Commonwealth of Australia v Yarmirr in part recognises that at common law in the territorial waters – in this case in Australian waters and in coastal waters over which the State has direct control, there is a public right of navigation. However, that common law right is subject to statute. In this case the public right of navigation in relevant waters is not affected by the State’s system of regulation. The State law focuses on tour operators of the type referred to in the FRMA and FRMR.
In those circumstances there is no fundamental right in the sense such as Mr Lenzo’s to conduct the tour operations that he wishes to conduct, free from the State’s system of fishing regulation.
As to the Magna Carta, an ancient statute of England, Mr Lenzo believes it provides him with some fundamental right or freedom to conduct his tour operations without regard to the State’s system of regulation.
The Magna Carta is seen as the "Keystone of English liberties": see discussion in Enright, "Constitutional Law", Law Book Company Limited, 1977, page 27:
"The practical importance of Magna Carta has now gone. It however still stays as a reminder that while the rule of law is cherished, that revolt is sometimes necessary."
There is nothing in the Magna Carta, assuming that was a statute received into the colony of Western Australia that still applies within the State, that enshrines any fundamental constitutional freedom or liberty that has the consequence of setting aside those portions of the FRMA or FRMR that require Mr Lenzo to obtain a permit to carry out his proposed tour operations.
The most that can be said of the Magna Carta in the present context is that it may be seen as having preserved the public right to fish in tidal waters: see Commonwealth of Australia v Yarmirr (supra) (per Gleeson J, Gaurdron, Gummow and Hayne JJ at par 60); and Seas and Submerged Lands Case (1975) 135 CLR 337 at 489 per Jacobs J.
The public right to fish in tidal waters is not however an unalterable right and it may be affected by a valid law of the Parliament of Western Australia.
It follows that none of the incidental arguments concerning the validity of the State system of fishing regulation raised by Mr Lenzo can succeed.

The merits of the applicant's case

On 13 May 2002, the Executive Director advised the applicant that he proposed to refuse the applicant's application because he was not satisfied that the applicant was a "fit and proper" person; and because he was not satisfied that it was in the best interest of the management of commercial and recreational fishing to grant the objected licence.
So far as the question of the applicant not being a fit and proper person is concerned, the Executive Director's decision appears to have been based on the panel's recommendation that the application be refused for the reason, among others, that the applicant had not provided sufficient evidence to convince the panel that he was a fit and proper person and because he had failed to provide a police clearance.
In fact the applicant did eventually obtain an Australian Federal Police, police certificate – name check only, dated 24 May 2002, in which it is stated:
"This is to certify that there are no Discloseable Court Outcomes recorded against the name of: Giovanni Lenzo born in Perth, WA on 21 January 1963 in the records of the Australian Federal Police or the police of any Australian State or Territory as at 24 May 2002."
Additionally, as noted earlier, the applicant did provide undated references from R Pedretti, M Reader and M Duxbury. Mr Pedretti's letter was more a statement to confirm that the applicant had planned to start a marine tourism business in early 1997 and had sought advice from Mr Pedretti about his proposal. Mr Pedretti said that he was "very impressed" with the applicant's motivation to building his boat and to finally get it to a stage where it is ready for charter work. That letter says little by way of comment on the personal character of the applicant although it does suggest that Mr Pedretti thinks that the applicant would be a suitable tour operator.
By contrast, the letter provided by Mr Reader, a manager of a business, was to the effect that he has known the applicant for four years and has found him to be quite honest, reliable and a good character and "would not hesitate in recommending him for any future ventures he may wish to undertake".
Mr Duxbury also said he had been associated with Mr Lenzo for the past five years and had found him to be "very trust worthy and reliable". Our business dealings with John have always been in a professional manner and has always had a good credit rating. John always conducts himself in a professional manner and is on any occasion a pleasure to do business with."
Whilst these letters or references are very short in nature, and one would normally expect more of a referee than the [broad] statements made in each of these undated letters, the fact that they and the police clearance were provided, suggest that there was no particular reason for the Executive Director to refuse the applicant's application because he was not satisfied he was a fit and proper person.
In any event, Mr Lenzo's application dated 30 March 2002 told a little more about his proposed operation and his background. He was then aged 39 years and "currently self‑employed mobile automotive and marine mechanic". He had a Coxswain's licence and was an acting volunteer member of Whitford Sea Rescue Group. He has previously been employed by the Department of Conservation and Management as a level 2 officer working at Yanchep National Park.
Mr Lenzo addressed the "fit and proper person" requirement in his application stating that he has been happily married with two children for ten years and considered himself a good citizen with appropriate person and business character references to support this statement. He also expanded on his involvement with the Whitford Sea Rescue where he was trained in all aspects of safety and sea search and rescue procedures. He had also been involved in many rescues and searches and provided examples of that.
Perhaps in all these circumstances it was not unreasonable for the applicant to state in this particular application that the found it "very insulting" that the panel felt there was insufficient evidence that he was a fit and proper person to hold the licence he had applied for.
FRMR Reg 128J, as noted earlier, permits the Executive Director to grant a fishing tour operator licence to conduct a fishing tour for a commercial purpose in a zone set out in Sch 15 if the Executive Director is satisfied that:
the person is a fit and proper person to hold a licence; and
is in the interests of the management of commercial and recreational fishing to grant the licence.
As to the "fit and proper person" requirement such a requirement often appears in legislation that regulates the entitlement of a person to follow a particular profession. In this particular regulatory context the person must be "fit and proper … to hold the licence". There is both a need for the person generally to be of an appropriate character to be dealing with members of the public in the course of conducting a fishing tour for a commercial purpose, but also "fit and proper" in the sense that the person has the necessary qualifications and skill to undertake such an activity.
The first consideration bears upon the honesty, trustworthiness and integrity of the applicant. These are factors which bear upon the question whether the applicant is a "good citizen" who will do the right thing by members of the public with whom he or she deals.
The other aspect of the "fit and proper" requirement goes to the need for the person to be sufficiently qualified and skilled so as not to put the physical well being of members of the public with whom he or she deals at risk in the course of undertaking the regulated activity.
The concerns that need to be addressed by reference to the "fit and proper" requirement have been discussed in many regulatory contexts: see for example Chan v Nurses Board of Western Australia [2005] WASAT 114 at [73] – [85].
The second criteria spelt out in Reg 128J(1)(b), that the grant be "in the interest of the management of commercial and recreational fishing" is very generally stated and provides the Executive Director with an extremely broad discretion in deciding whether or not to grant an application.
However some attempt has been made in the FRMA to structure this discretion so that it is not one to be exercised virtually at the whim of the decision‑maker. In that regard FRMA s 246(1) provides that the Minister, for the assistance of the Executive Director and the information of the fishing industry, the aquaculture industry, the aquatic eco‑tourism industry, the fishing tour industry, the pearling industry and the community, may issue guidelines setting out matters that the Minister considers to be of importance in respect of the performance by the Executive Director of any function under the FRMA or any other act relating to the fishing industry, the aquaculture industry, the aquatic eco‑tourism industry, the fishing tour industry or the pearling industry.
While these guidelines must be taken into account by the Executive Director in performing any function under the act to which they are relevant as provided for by FRMA s 246(4), FRMA s 246(5) expressly provides that nothing in s 246(4) –
(a)derogates from the Executive Director's duty to exercise his or her discretion in a particular case;
(b)precludes the Executive Director from taking into account matters not set out in the guidelines; or
requires the Executive Director to take into account a guideline if the guideline is inconsistent with the provision of the act under which the function is conferred.
The requirements of s 246(5) make it clear that the policy guidelines issued by the Minister have the same status as policy guidelines have under the general law.
In this case, the Minister responsible for the administration of the FRMA at material times had published Ministerial Policy Guideline No 12, pursuant to FRMA s 246.
Ministerial Policy Guideline No 12 par 3 headed "Policy", addresses the importance of "the benchmark criterion". The Guideline recognises that unregulated growth of the fishing tour and aquatic charter industry may ultimately lead to an over‑capitalised industry together with over‑exploited fish resources. It says expansion of the industry combined with a lack of knowledge of its impact on fish resources calls for a conservative response, and that in keeping with the objects of the FRMA, a "precautionary approach" of capping activity at 1997 levels is justified until the relative impact of fishing tour activities on fish resources and fish habitat has been established.
This policy is reflective in par 3.9(a)(ix) of the criteria for assessing an application for a fishing tour operators licence which expressly provides:
"(ix)The applicant's demonstrated involvement with or investment in the fishing tour industry prior to 12 September 1997".
The Tribunal accepts that, generally speaking, in developing policies for the allocation of scarce resources such as fish resources, it may be appropriate to adopt a precautionary approach and thereby to "cap activity", as it is put in the Executive Director's reasons, at known levels at a particular date. This leaves it open to the Minister on advice, and the decision‑maker in due course, to assess whether the cap placed on activity according to an historic level of activity should be altered, either upwards or downwards.
On the evidence currently before the Tribunal, there is no reason to upset the benchmark date criterion, as it has been called, at this stage.
It follows that, in ordinary circumstances, if a person can in effect show that they had a certain involvement in respect of a regulated activity under the FRMA as at 12 September 1997, then their involvement may possibly be recognised by the grant of a licence to permit to continue that activity after that date.
In his case, Mr Lenzo points to the two letters from two people who he describes as holding "highly respectable positions of employment within the television industry" and two people who have "high standards within the community" who have both stated that they had a conversation with him about how to get into the charter boat industry as a result of which the applicant "invested my time in obtaining sea time hours prior to September 1997". He says this can be proved with his statutory declaration stamped by the Department of Transport in 1999 showing that he undertook a skipper's course. The applicant says this all discloses that it was his "intention" prior to September 1997 "to get into the industry".
Mr Lenzo contends that, in other cases, the Fisheries Objection Tribunal had taken a broad view of the criteria that an applicant can demonstrate "involvement with or investment in" the fishing tour industry prior to 12 September 1997. He refers to the definition of the word "investment" as meaning spending "money or time or effort" in doing something. He says that this has been recognised in other cases.
For example, the applicant refers to the case of Mr Kelly and also the case of Mr Legget. He says that Mr Kelly was found relevantly to have "invested" money to have a stability test done on his vehicle prior to the relevant date. He says Mr Legget invested money to pay for a Coxswains course and time to do the course.
Accordingly, the applicant argues, "sea time" should also be classified as an investment, on the grounds that you have invested your time and effort to obtain knowledge in many aspects of fishing techniques, experience on a vessel, in terms of safety nautical knowledge, reef area experience, boat handling and confidence in going out to sea with passengers onboard and returning safely.
To the extent that it is necessary to interpret the criteria that appear in par 3.9(a)(ix), the Tribunal thinks that it is usually appropriate for an applicant to demonstrate some actual involvement with or investment in the fishing tour industry prior to 12 September 1997. Preparatory work or expenditure of money with a view to taking up an opportunity to enter the fishing tour industry prior to the relevant date will usually, of itself, fail to meet the criteria because a person cannot show that they are actually involved with or have actually invested in "the industry" at that point.
By contrast, if a person can demonstrate some actual involvement with or prior investment in the fishing tour industry at the relevant date, even perhaps in a small way (as would appear to have been the case with both Mr Kelly and Mr Legget), then other evidence of involvement or investment that might otherwise be characterised as preparatory might take on greater significance and qualify for consideration.
The difficulty with Mr Lenzo's application is that he has no demonstrated involvement or investment in the tour industry prior to 12 September 1997. As at that date he was hoping to enter the industry and was taking steps to make himself a worthy applicant. But was not actually in the industry in any relevance sense at that time.
I think in all of those circumstances the Executive Director's decision, on the recommendation of the panel, that the applicant had failed to meet the benchmark date criterion was a reasonable one that the Tribunal shares.
The Guideline goes on, however, to sensibly provide that where a person is proposing entry into the fishing tour industry for the first time, and cannot demonstrate compliance with the benchmark date criterion, then he or she may be able to satisfy other criteria appropriate for new entrants. The first of these is specified by par 3.9(b)(i) of the Guideline, in the following terms:
"That the proposed fishing tour will be carried out in an area which is not currently serviced by existing fishing tour operator or for a stock or species which is not currently fully exploited."
The Executive Director noted that the West Coast Zone, in relation to which Mr Lenzo applied for his licence, attracts the highest level of recreational fishing activity in the State. This includes the highest number of fishing tour operators in the State – 129. The species to be targeted by the proposed operation of the applicant are all considered fully exploited and most of the species to the targeted are the subject of current proposed decreases in size, bag and possession limits in both the West Coast and the Gascoyne zones.
The Tribunal accepts the Executive Director's assessment of the applicant's proposal in these terms and that, as a result, this new entry criterion cannot be satisfied.
The second new entry criterion is that specified in par 3.9(b)(ii), in the following terms:
"(ii)That the proposed fishing tour operation will not significantly increase fishing pressures on stocks, areas or species identified by fisheries in published material as fully exploited or vulnerable."
In relation to this criterion, the Executive Director considered that all key species and fisheries in the proposed regions are considered fully exploited. Most of the applicant's proposed target species are the subject of current proposed revision of size, bag and possession limits. For example, dhufish, snapper, tailor, mackerel, tuna, mullaway, king george whiting, dolphin fish, wahoo, flathead, and skippy. The Executive Director considered the same species are targeted by recreational fishers, established fishing tour operators and commercial fishing boat licence holders – at which there are around 12 000 licensed to operate in these zones. In the circumstances, the Executive Director considered any further increase in effort in this zone or pressure on these stocks is undesirable.
Adopting a precautionary approach, and given that Mr Lenzo's proposal is to either fish for or view the target fish, the extent to which his tour operations would increase effort or pressure on these stocks is not altogether clear. However, the Tribunal agrees with the Executive Director's assessment that any further increase in effort in the zone, or pressure on these stocks, would be undesirable.

Guideline criteria 3.9(a)(i) also requires "the content and nature of the five year operational plan submitted by the applicant" to be considered.
In this case the applicant submitted his proposal stating his intention to,
•operate a one vessel fishing tour operation from Mindarie;
•carry 10 passenger, two crew;
•fish at various locations within the West Coast zone;
•operate in the industry long term, that is, not sell a licence after a short period;
•he also referred to the Gascoyne zone but not in any detail in his submission.
The Executive Director considered that this statement of the five year operational plan was "unclear".
While there is a degree of specificity about the plan it certainly says nothing about what is proposed in the Gascoyne zone or the fishing locations in the West Coast zone. Moreover the proposal seems to be targeted at fishing primarily.
Guideline criteria 3.9(a)(ii) then specifies:
"(ii)The nature, pattern, consistency and seasonality of the tour operation and where applicable its demonstrated operational history."
By his application Mr Lenzo proposed:
•to conduct fishing tours from Mindarie;
•to trade no more than five days per week;
•fish at various locations within the West Coast zone;
•to target dhufish, snapper, tailor, mackerel, tuna, mullaway, king george whiting, dolphin fish, wahoo, flathead, skippy and dartfish.
The Executive Director considered that the applicant had not addressed either the pattern or the seasonality of the proposed operations and had not demonstrated any operational history.
Again, these comments are fair and nothing before the Tribunal makes the nature, pattern, consistency and seasonality of the tour operation any more specific than that set out in the original proposal. There is no demonstrated operational history that the applicant is able to point to.
Guideline criteria 3.9(a)(iii) specifies:
"(iii)Demonstrated capital resources sufficient to enable the applicant to operate in the industry at the capacity indicated by the plan."
In his application Mr Lenzo indicated that his capital resources included a newly built 36 foot vessel valued at $150 000 plus safety equipment valued at $30 000. He also referred to his regular income from his "mobile mechanics" business.
The Executive Director was satisfied that the applicant possessed or had access to capital sufficient to enable operation in the industry.
The Tribunal would see no reason on the view to disagree with that assessment made by the Executive Director.
Guideline criteria 3.9(a)(iv) specifies:
"(iv)The operational and business growth intentions of the applicant as they may relate to increased effort and impact on the resources during the five year life of the plan."
The applicant in his proposal addressed this criterion, as the Executive Director noted, by simply stating: "My growth intentions at this stage are purely to establish one fishing charter vessel".
The Executive Director considered that, although the applicant does not intend to increase his fishing tour operation over the five year plan of the business, the operation would essentially represent an increase in the current level of fishing effort. If the licence were granted, the applicant's operations would have an accumulative impact on the State's fish stocks.
The Tribunal accepts there is a certain logic to the Executive Director's assessment of this criteria. Because the applicant is, in effect, proposing to become a new entrant in the industry, his effort will be in addition to the existing effort of others already involved in the industry. There could only be a "cumulative impact" on the existing effort. The question of the significance of that additional effort is no doubt difficult to assess. However, the Tribunal agrees with the broad observation made by the Executive Director. In short, this is a factor that needs to be considered, although it might be said not to be determinative, on its own, of the outcome of the application.
Guideline criteria 3.9(a)(v) specifies:
"(v)The compatibility of the proposed operation with management objectives for the area or fisheries objective impacted by the proposal."
The Executive Director considered the guiding principles for management, outlined in a five year management strategy for recreational fishing for the West Coast and Gascoyne zones, include the need for the Department of Fisheries to incorporate controls and measures that anticipate and cover increasing numbers of recreational fishers and their impact on fish stocks. The guiding principles have been adopted by Recreational Fishing Advisory Committee (RFAC) established under the FRMA and supported by the Minister of Fisheries in his initial responses to the final reports of the West Coast and Gascoyne recreational fishing working groups.
The Minister saw a need to cap the level of activity to the 1997 level in order to restrict the impact on fish stocks.
The Executive Director considered that, in these circumstances, Mr Lenzo's proposed operation is inconsistent with the general principle in the Guideline that activity be capped at 1997 levels. The Executive Director noted that the West Coast zone is the most densely populated on the WA coast and attracts the highest level of recreational fishing activity with 1996/97 figures at around 380 000 anglers fishing an estimated 4 000000 fishing days per year. The total effort in this area for the boating sector for the same period was estimated at 453 000 angler fishing days (722 000 boat hours or 1 730 000 angler days based on a mean of 2.4 fishers per boat).
The Executive Director considered that this application should be viewed in the context of integrated management of Western Australia's fish resources. Without management of the total catch by all sectors, and adequate provision for the conservation of breeding stocks, conflict between user groups over resource shares and access will escalate as the productivity of the State's fisheries decreases.
The Tribunal agrees with these broad statements of policy in relation to the allocation of scarce resources.
The Executive Director pointed to a 12‑month survey in 1998/99 which estimated the recreational boat fishing effort for the Gascoyne zone at 165 000 boat‑fishing days per year with 67 000 days occurring within the Shark Bay inner gulf. An estimate of recreational fishing participation in the Western Gulf of Shark Bay alone is around 39 000 angler days per year. Estimates of the recreational fishing participation in the Gascoyne zone in recent years range between 6.5 percent and 11 percent of the State fishers or between 40 000 and 60 000 fishers a year (Fisheries WA, 1999). This equates to some 350 000 – 600 000 fisher days each year.
The Executive Director also pointed to the UN Conference on Environment and Development (UNCED) in 1992, which resulted in the "Rio Declaration" which highlighted the need for sustainable development in the application of the "precautionary principle". He also pointed to the UNFAO Conference in 1995 which provided a code of conduct for responsible fishing that specifically recognises that a precautionary approach should be applied in management. Critical information regarding the impact of the fishing tour industry is unavailable presently in the State. For that reason the Executive Director believes a precautionary approach must be adopted to minimise risk to fish stocks.
The Tribunal agrees with the Executive Director that a precautionary approach should be adopted in relation to the allocation of scarce resource where reliable information concerning the impact of the fishing tour industry on stocks is not currently available.
The Tribunal also agrees that in the absence of essential information on this operation proposed by the applicant, and given the risks to fish stock to increase recreational and commercial fishing pressure, the objectives of the FRMA encourage a precautionary approach consistent with international and national policy on ecologically sustainable development.
Guideline criteria 3.9(a)(vi) specifies:
"(vi)The impact of the proposed operation on other resource users."
The Executive Director considered that the applicant would be competing with all other resource users in the West Coast and Gascoyne zones, including other tour operators, recreational fishers, managed commercial fishers, fishing boat licence holders and conservation interests, for operational sites and for fish resources.
The Executive Director referred to the 12‑month survey in 1998/99 concerning recreational boat fishing effort in the Gascoyne zone, referred to above.
In short, the Executive Director noted that over half of Western Australia's commercial fishing fleet as at 30 June 1998 had taken part in wetlining targeting species also being highly priced by the recreational sector such as dhufish, pink snapper and spanish mackerel. The Executive Director said this not only poses problems of impact on other resource users but an overlap in target and species.
In these circumstances, the Executive Director again took the view that Mr Lenzo's application should be viewed in the context of integrated management of State's fish resources. Without management of the impact of all sectors and adequate provision for the conservation of breeding stocks, conflict between user groups over resource issues and access will escalate as the productivity of the State's fisheries decreases.
Again, with this policy view the Tribunal agrees.
The Tribunal accepts the precautionary approach to the allocation of scarce fish resources taken by the Executive Director. The proposed operation involving 10 passengers fishing five days per week could, potentially, have a substantial localised impact on other resource users in terms of target fish species and stocks.
Guideline criteria 3.9(a)(vii) specifies:
"(vii)The compliance of the proposed operation with minimum environmental standard where they exist for the area, fishery activity proposed."
The Executive Director considered that the applicant had not address this criterion.
The Executive Director's assessment was that the laws of the State concerning marine environmental standards are based on the international covenant for the prevention of pollution from ships. This is the convention usually called MARPOL 73/78. The main Australian legislation that refers is the Protection of the Sea Act 1983 (Cwth). Annexure V refers to non‑oil pollution.
There is no particular evidence suggesting that the issue raised by this criterion should determine the fate of Mr Lenzo's application.
Guideline criteria 3.9(a)(viii) specifies:
"(viii)The level of threat posed by the proposed operation to the sustainability of fish stocks or the health of fish habitats."
The Executive Director considered that the proposed operation of 10 passengers "not more than five days per week" has a potential to contribute to the cumulative impact on the State's fish stocks and fish habitats by 10 recreational fishers per day or 260 000 anglers days per year. This appears to be a reasonable mathematical assessment.
The Executive Director considered fishing tour operators to have a larger impact on fish stocks than amateur boat fishers because they employ the use of specialised equipment such as GPS and echo sounders and have specialist expert knowledge in the take of fish. The cumulative impact on the stocks and species to be targeted by the proposed operations therefore means that the level of threat posed, that is, 2600 angler days per day, can be considered significant.
Additionally, the Executive Director noted that the population of all but one species to be targeted by the proposed operation are of concern to the Department. All fisheries in the zone were identified as fully exploited in the State of the Fisheries Report 1999/00, and with evidence of growing fishing pressure from the recreational sector in particular, they have been identified sufficiently at risk to require a review of bag limits, size limits or possession limits in the five year management strategy for recreational fishing for the West Coast and Gascoyne zones.
The Executive Director also noted that the West Coast zone attracts the highest level of recreational fishing activity in the State. The statistics concerned were referred to earlier.
In these circumstances, the Executive Director considered that the proposed areas of operation experience high levels of commercial fishing activity, and that any increase in effort in this area from the relevant species is undesirable.
In the circumstances, the Tribunal agrees that in adopting a precautionary approach, the Executive Director's assessment of this criteria is reasonable.
In all, the Tribunal considers that the criteria specified in the Ministerial Policy Guideline No 12 are relevant to a consideration of Mr Lenzo's application. While the Tribunal, like the Executive Director, is not bound by the Guidelines, they provide a sound basis upon which to assess Mr Lenzo's application.
Taking into account the evidence adduced by the Executive Director in relation to this application, and having regard, in particular, to the need to apply a precautionary approach in deciding whether particular authorisations should be grated under the Act to permit the taking of the State's scarce fish resources, there is insufficient evidence before the Tribunal to justify the grant of the licence applied for by the applicant.
Whilst Mr Lenzo has demonstrated considerable enthusiasm and desire to be involved in the fish tour industry, his ability to demonstrate a relevant present involvement with or investment in the fish tour industry, and his inability to demonstrate that he can satisfy the new entrant criteria specified in the Guidelines, taken together with his ability to satisfy the other criteria specified in the Guideline in any convincing way, causes the Tribunal to conclude that Mr Lenzo's application can not succeed on its merits.

Conclusion

In these circumstances, the Tribunal would affirm the decision of the Executive Director not to grant the fish tour operator's licence applied for by the applicant and would dismiss the applicant's application for review of the Executive Director's proposed decision in that regard.

Orders

The Tribunal makes the following orders:
1.The proposed decision of the Executive Director, Department of Fisheries (WA) not to grant the applicant's application for a fishing tour operator's licence is affirmed.
2.The applicant's application for the fishing tour operator's licence is refused.
3.The objection proceedings and the application in the Tribunal are otherwise dismissed.

I certify that this and the preceding [198] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE M L BARKER, PRESIDENT

[2005] WASAT 218

19 AUGUST 2005

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Administrative Law

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Judicial Review

Natural Justice & Procedural Fairness

Resource Management