Micallef v Minister for Fisheries

[2002] NSWADT 105

CITATION:	Micallef -v- Minister for Fisheries [2002] NSWADT 105
DIVISION:	General Division
PARTIES:	APPLICANT Braiden Thomas Micallef RESPONDENT Minister for Fisheries
FILE NUMBER:	013257
HEARING DATES:	11/03/02
SUBMISSIONS CLOSED:	03/11/2002
DATE OF DECISION:	06/24/2002
BEFORE:	Higgins S - Judicial Member
APPLICATION:	Fisheries Management Act - fishing licence- endorsement on licence - Fishing licence - endorsement on licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fisheries Management (General) Amendment (Licensing) Regulation 1996 Fisheries Management (General) Amendment (Purse Seine and Lampara Fishing) Regulation 1997 Fisheries Management (General) Amendment (Restricted Fisheries) Regulation 1997 Fisheries Management (General) Amendment (Review Procedure) Regulation 1997 Fisheries Management (General) Regulation 1995 Fisheries Management Act 1994
CASES CITED:
REPRESENTATION:	APPLICANT A Broad, solicitor RESPONDENT C Cory, solicitor
ORDERS:	The decision of the Minister to refuse Mr Micallef’s application for eligibility for a class A (skipper) endorsement for ocean haul restricted fishery pursuant to a transfer of a fishing business is affirmed.

Background
1 Mr Micallef has made an application to the Administrative Decisions Tribunal (“the Tribunal”) for a review of the decision made by a delegate of the NSW Minister for Fisheries (“the Minister”) refusing his application for eligibility for a class A (skipper) endorsement in the ocean haul restricted fishery, upon the transfer of fishing business 1814 from Michael Andrew Brisbane to Mr Micallef.

2 The Tribuna1’s jurisdiction derives from s.126 of the Fisheries Management Act 1994 and s.38 of the Administrative Decisions Tribunal Act 1997.

3 The facts in this matter are not disputed, however it is necessary to set them out in some detail in order to understand the application of the relevant legislation to the decisions that were made by the Minister.

4 In June 2000 Mr Micallef, a licenced commercial fisherman under the Fisheries Management Act 1994 ( FM Act ), purchased fishing business No. 1814 from Mr Brisbane, who was also a licenced commercial fisherman under the FM Act . Attached to that business were two categories of restricted fisheries. These were an ocean haul restricted fishery and an estuary general restricted fishery. This application only relates to the ocean haul restricted fishery.

5 Mr Brisbane had purchased the fishing business from Mr Porratta in December 1999.

6 In January 1995, Mr Porratta had made an application for a class A (skipper) endorsement for ocean hauling restricted fishery pursuant to the FM Act and the Fisheries Management (General) Regulations 1995 (FMG Regs). It would appear that the application was made on the basis of only one ocean haul catch return during the relevant years (1986 to 1990) and that the kilogram value of that catch was 281kg.

7 In his application for a class A (skipper) endorsement, Mr Porratta sought a hauling net (general purpose) authority and nominated zone 6 as the region in which he had been most working during the relevant years. Mr Porratta resided in Mount Warrigal and the Tribunal was informed that zone 6, or region 6, was in the Jarvis Bay area between latitude 34’20" and 35’25".

8 Some time after his application was made, Mr Porratta was granted an entitlement to a class A (skipper) endorsement for ocean haul restricted fishery. The endorsement was subject to the condition that Mr Porratta fished in region 6 and used hauling nets (general purpose).

9 Mr Porratta transferred his fishing business to Mr Brisbane in late 1999, as he was unable to continue to operate the business due to the bad health of his father who needed full-time care. It was on this basis that Mr Porratta requested the transfer of his class A (skipper) endorsement to Mr Brisbane, which was granted.

10 As mentioned above, Mr Micallef purchased fishing business in June 2000. On 11 July 2000, Mr Micallef signed a restricted fisheries – interim transfer agreement that had already been signed by Mr Brisbane. The agreement attached the validated catch history of the fishing business as recorded on the NSW Fisheries database of catch returns for the period 1986 to 1993 and Mr Micallef stated that he accepted the attached validated catch history of the business as being correct. The last paragraph on the last page of the interim transfer agreement referenced is made to the ocean hauling endorsements that had been attached to the fishing business. It states:

“The fishing business previously contained an ocean hauling endorsement. This endorsement is not automatically available to the purchaser on transfer of the business. An assessment may be undertaken to determine, subject to eligibility criteria, whether an ocean hauling endorsement will become available to the purchaser upon transfer. Generally, this opportunity would not be available upon a second transfer of a fishing business without the activation of the ocean haul endorsement by the current owner. However, as this fishing business is to be transferred due to illness, Mr Micallef will be entitled to have an assessment completed.”
11 On 24 July 2000, Mr Micallef made an application for such an assessment by making an application on a standard pro-forma form issued by NSW Fisheries which was entitled “Application for eligibility for class A & class B endorsements in the ocean haul restricted fishery, upon transfer of a fishing business.”

12 On 23 January 2001, Erin Lee, on behalf of NSW Fisheries wrote to Mr Micallef advising him he was not eligible for a class A (skipper) endorsement for ocean haul restricted fishery. He advised that Mr Micallef was not eligible because the validated catch history (VCH) for fishing business 1814 did not record a minimum of 7.5 tonnes of ocean haul catch and at least 8 ocean haul catch returns during the years 1986 and 1990 (inclusive).

13 In the same letter, Erin Lee advised Mr Micallef that he was however, eligible for a class B (crew) endorsement for ocean haul restricted fishery because the fishing business had previously held an ocean haul class A (skipper) endorsement. Such an endorsement allowed Mr Micallef to be a crew member of a licensed fishing vessel that was authorised to fish in this restricted fishery and which was skippered by a commercial fisherman who had a class A (skipper) endorsement attached to his commercial fishing licence.

14 On 16 May 2001 Mr Angus Broad, of Kirkby & Associates – Lawyers, wrote to NSW Fisheries on behalf of Mr Micallef requesting a copy of the instrument of decision affecting the grant of endorsements in ocean haul restricted fishery and in the estuary general restricted fishery in respect of fishing business 1814.

15 On 7 June 2001 Narelle Caldwell, of NSW Fisheries, wrote to Mr Broad in response to his request of 16 May 2001. In respect of the ocean haul restricted fishery endorsement, Ms Caldwell provided Mr Broad with a copy of the letter which had been forwarded to Mr Micallef on 23 January 2001 and advised as follows in respect of Mr Micallef’s class B (crew) endorsement:

“[This endorsement] authorises him to operate in the ocean haul restricted fishery in region 6 (between latitude 34 '24" and 35' 25" only) subject to the conditions of his licence. This region was determined in accordance with clause 212I of the Fisheries Management (General) Regulation 1995 on the basis of the primary area of activity in the ocean hauling fishery (for the fishing business) in the years 1986-1990 inclusive. The previous owner of FB 1814, Mr Maxwell Porratta, operated primarily in region 6 and hence his ocean hauling endorsement was for operation in this zone. Please note that the NSW Fisheries Policy on the eligibility for class A and B endorsements in the ocean haul restricted fishery upon transfer of a fishing business states that the region of operation specified in an endorsement will not be altered, irrespective of the residential location or intended fishing area of the new owner.”
16 On 13 June 2001, Mr Broad again wrote to NSW Fisheries questioning the contents of the letter sent to Mr Micallef on 23 January 2001. In particular he made reference to clause 212F of the FMG Regs , which sets out the eligibility criteria for a class A (skipper) endorsement for ocean haul restricted fishery. As he pointed out the criteria set out in the FMG Regs were different to those that had been cited in the letter of 23 January 2001 to Mr Micallef.

17 In the same letter, Mr Broad also stated that prior to purchasing the fishing business Mr Micallef had made enquiries from the Department about transferring the region of the endorsement to his home region, which differed to that of Mr Porratta. It was Mr Micallef’s contention that he was told there would be no difficulty in transferring the region.

18 Mr Broad again wrote to NSW Fisheries on 3 August 2001 raising the same questions.

19 On 10 August 2001, Darryl Sullings, of NSW Fisheries, wrote to Mr Broad in response to his letter of 13 June 2001. In that letter Mr Sullings advised that the eligibility criteria outlined in sections 212F of the FMG Regs were used for the initial allocation of ocean haul class A (skipper) and class B (crew) endorsements. He went on to state that: “After the initial allocation of these endorsements in March 1995, a restrictive transfer policy was in place.”

20 Mr Sullings stated that the new ocean haul transferability guidelines were developed under clause 212Y(2) of the FMG Regs and were introduced in April 2000 after Ministerial approval. As Mr Micallef’s application was lodged after the guidelines were introduced, he stated that they became applicable to him. A copy of the guidelines were also provided to Mr Broad with the letter.

21 On 24 September 2001 Steve Dunn, Director of NSW Fisheries, wrote to Mr Broad in response to his letter of 3 August 2001. This response confirmed what Mr Sullings had stated in his letter dated 10 August 2001.

Relevant Legislation
22 Section 64 of the Administrative Decisions Tribunal Act, 1997, makes provision for the application of Government policy in determining an application for a review of a reviewable decision by the Tribunal. So far as is relevant, that section provides as follows:

“64(1) In determining an application for a review of a reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstance of the case.

….

(4) In determining an application for a review of a reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case.

In this section:


Government policy means a policy adopted by:
(a) the Cabinet, or

(b) the Premier or any other Minister, and

that is to be applied in the exercise of discretionary powers by Administrators”.

23 The FM Act has been in operation since 16 January 1995 and its objects are contained in s. 3 of the Act, which provide:
“3(1) The objects of this Act are to conserve, develop
and share the fishery resources of the State for the
benefit of the present and future generations.

(2) In particular, the objects of the Act include:

(a) to conserving fish stocks and key fish habitats, and

(b) to conserving threatened species, populations and ecological communities of fish and marine vegetation, and

(c) to promote ecologically sustainable development including the conservation of biological diversity,

and, consistently with those objects:

(d) to promote viable commercial fishing and aqua-culture industries; and

(e) to promote quality recreational fishing opportunities, and

(f) to appropriately share fisheries resources between the users of those resources.

24 In accordance with these objectives the FM Act provides a comprehensive licensing scheme for commercial fishers and commercial fishing boats.

25 Section 112(1) of the FM Act provides that a commercial fishing licence does not authorise a person to take fish for sale in a restricted fishery unless the holder is authorised by the Minister, by an endorsement on the licence to do so.

26 Subsection 113(2) of the FM Act provides that the eligibility for an endorsement of commercial fishing licences is to be determined in accordance with the regulations.

27 Section 114 of the FM Act provides that an endorsement of a commercial fishing licence under Division 3 of Part 4 (relating to restricted fisheries) is not transferable, unless authorised by the regulations.

28 Paragraph 116(a) of the FM Act provides that the regulations may make provision for, or with respect to, the endorsement of commercial fishing licences and the cancellation, suspension or transfer of those endorsements.

29 Division 4A of Part 8 of the FMG Regs contains provisions creating and regulating the ocean haul restricted fishery. This division was inserted into the FMG Regs on 1 March 1995. The provisions in this Division defines what ocean haul fishery is for the purpose of the Division, the types of endorsements (class A, class B and class C) in such a fishery and the eligibility for each type of endorsement.

30 Clause 212F(1) of the FM Regs prescribes the eligibility criteria for a class A (skipper) endorsement. These criteria are as follows:

“(a) The person submitted at least one return under s.42 of the 1935 Act during a relevant year and, according to that return, the person caught mullet, bream, salmon, black fish, pilchard or garfish using a hauling net and at the time had a fishing boat that was licenced to the person, and

(b) the Minister is satisfied that the person had a hauling net of the type in respect of which an endorsement is sought, which was registered in the name of the person, before 31 December 1990 and that the person currently has such a registered hauling net, and

(c) the Minister is satisfied that the person currently has a suitable boat for use in the ocean hauling fishery and is licenced to the person.” (emphasis added)

31 Clause 212F(4)(a) provides that the relevant year in subclause (1) is a reference to the years 1986, 1987, 1988, 1989 or 1990.

32 Clause 212G of the FMG Regs provides that an endorsement remains in force for the period specified in the endorsement, except to the extent that its duration is affected by suspension, or unless it is cancelled.

33 Clauses 212I of the FM Regs sets out the region in which a class A endorsement may be used. Subclause 212I(2) provides that the Minister is to specify the region which, in the opinion of the Minister, was the fisher’s primary area of activity in the ocean hauling fishery in the years 1986-1990 inclusive. However, it goes on to provide that a different region may be specified if the Minister considers it appropriate in the circumstances, for example, because the fisher has changed his or her place of residence.

34 Clause 212Y of the FMG Regs sets out what effect the sale or disposal of a fishing business (in whole or part) has on the seller’s and buyer’s eligibility for any endorsement in a restricted fishery that is attached to the fishing business. That section provides as follows:

“212Y(1) A person ceases to be entitled to an endorsement in a restricted fishery if any part of the fishing business that made the person eligible for the endorsement is sold or disposed of. For example, if a person sells the licenced fishing boat that made the person eligible for an endorsement, the person ceases to be entitled to such an endorsement.

212Y(2) A person who acquires any part of the fishing business of another person does not thereby become eligible for an endorsement in a restricted fishery, except in accordance with guidelines relating to the transfer of fishing business issued from time to time by the Director.”

35 Clause 212Y was inserted into the FMG Regs on 28 February 1997. Prior to this, the FMG Regs did not contain any provision for the transfer of an ocean haul restricted fishery endorsement pursuant to paragraph 116(a) of the FM Act .

36 However, the Tribunal was informed that, in March 1995, when the provisions in relation to ocean haul restricted fishery was inserted into the FMG Regs, the Minister had introduced a restricted transfer policy for class A and class B endorsements. That policy prevented the transfer of endorsements to any new owner of the fishing businesses, except where the transfer was for a class A (Skipper) endorsements and the previous owner of the fishing business had died or demonstrated serious illness.

37 As mentioned above, in April 2000, the Minister approved new criteria for the transfer of class A and class B endorsements in the ocean haul restricted fishery. The effect of these new criteria was that a class A (skipper) endorsement, which had been issued by the Minister in accordance with clause 212F of the FMG Regs, could only be transferred if the person’s validated catch history of the fishing business for the relevant years (1986 to 1990) included a minimum catch of 7.5 tonnes and a minimum of 8 ocean catch returns. The new criteria were significantly higher than the eligibility criteria provided for in clause 212F(1)(a) of the FMG Regs.

Issues
38 The issue in this case is primarily one of statutory construction, and in particular whether the eligibility criteria set out in the Minister’s policy of April 2000 are contrary to the provisions contained in the FM Act and the FMG Regs or whether that policy produces an unjust decision.

39 Mr Broad, on behalf of Mr Micallef, argued that they were contrary to the express provisions of the FM Act and the FMG Regs, in particular they were contrary to the criteria set out in clause 212F of the FMG Regs. He also submitted that they were unfair in that having purchased the fishing business he had become entitled to the validated catch history of the business, which had been the basis of the previous owner’s entitlement to the ocean haul endorsement.

40 Ms Cory, on behalf of the Minister, argued that the Minister’s policy was not contrary to the provisions of the FM Act and FMG Regs as they were criteria, which were expressly authorised by the express powers contained in clause 212Y(2) of the FMG Regs. She further submitted that the eligibility criteria that are set out in clause 212F of the FMG Regs only applied to the initial applications for the endorsements.

41 The other matter in issue only arises if the Tribunal sets aside the decision of the Minister and grants a class A (skipper) endorsement. If that is the case, Mr Micallef seeks review of the Minister’s decision to refuse to transfer the class A (skipper) endorsement to the region where Mr Micallef resides, which is different to that where Mr Porratta resided. In this case Mr Broad, argues that the Minister’s policy in respect of Mr Micallef’s request for a transfer of the region was also contrary to the express powers of clause 212I of the FMG Regs.

Findings and Reasoning
42 In my opinion, having regard to the legislative structure of the FM Act and FMG Regs a distinction needs to be drawn between an endorsement and its transferability and an entitlement to an endorsement and the entitlement to an endorsement on the transfer of a fishing business. This case, in my opinion, relates to the latter and not the former as I have explained below.

Endorsement and Transfer of the Endorsement
43 As mentioned above, a licensed commercial fisher is not entitled to take fish for sale from a restricted fishery unless authorised, by the Minister, with the relevant endorsement on his commercial fishing licence to do so (s. 112(1) FM Act). Accordingly, an endorsement is that which is attached, by the Minister, to a fisher’s commercial fishing licence.

44 In my opinion, the entitlement to or eligibility (s. 114 FM Act) for an endorsement is not the same as the issue of an endorsement. The FM Act envisages these as being two separate processes, even though they are related. They are dealt with in different sections and the issue of an endorsement is directly connected to the issue of a commercial fishing licence.

45 By being directly connected to the fisher’s commercial fishing licence, any endorsement attached to that fisher’s commercial fishing licence will, by virtue of this connection, expire on the expiration of the licence (i.e. after one year – see s. 104(4)(b) FM Act and clause 212G FMG Regs). Provision is made for the commercial fisher to renew his licence and to apply for his endorsement to be extended for a further year (s. 104(4)(c) of the FM Act and clause 212O FMG Regs).

46 The FM Act also provides that a commercial fishing licence is not transferable (s. 104(4)(d) of the FM Act). In my opinion this explains why Parliament has placed a similar restriction, as contained in s. 114 of the FM Act, on the transfer of an endorsement attached to a commercial fishing licence.

47 This means that the legislation makes provision for commercial fishing licences and endorsements, which give the fisher a right to fish in a restricted fishery, to be monitored on annual basis.

48 On the other hand, the legislation enables regulations to be made in respect of the eligibility of an endorsement to a restricted fishery (113(2) of the FM Act). There is nothing in this section, which requires the regulations to make a single set of eligibility criteria for the various restricted fisheries. For the reasons explained below, it is my opinion that Part 8 of the FMG Regs set out the circumstances in which a commercial fisher became entitled to an endorsement for a restricted fishery at the time the restricted fishery was established pursuant to s. 111(1) of the FM Act. These circumstances continue to apply but what clause 212Y(2) of the FM Regs provides is a mechanism whereby purchasers of the fishing business from these fishers will only be entitled to or eligible for the endorsement if the catch history of that business meets the specified threshold set out in the Director’s guidelines.

Eligibility for an endorsement
49 In my preparation of this decision I noted that Division 4A of Part 8 of the FMG Regs, as it was originally enacted, used the words “applicant” and not “a person”. For example, clause 212F(1) provided as follows:

212F(1) An applicant for a Class A endorsement is eligible for that endorsement if:
(a) The applicant submitted at least one return under s.42 of the 1935 Act during a relevant year and, according to that return, the applicant caught mullet, bream, salmon, black fish, pilchard or garfish using a hauling net and at the time had a fishing boat that was licensed to the applicant , and

(b) the Minister is satisfied that the applicant had a hauling net of the type in respect of which an endorsement is sought, which was registered in the name of the applicant, before 31 December 1990 and that the applicant currently has such a registered hauling net, and

50 At that time, Division 4A also contained clause 212M, which provided a mechanism by which an applicant for an endorsement under this Division could seek a review, by the Minister, of the Minister’s determination in respect of the applicant’s application for an endorsement.

51 By their terms the provisions of Division 4A did not apply to new entrants into this category of fishery. What the provisions did was to require all existing ocean haul fishers to apply for an endorsement under clause 212E of the FMG Regs if they wished to continue to fish in this fishery. In determining a fisher’s entitlement to or eligibility for an endorsement the FMG Regs required the fisher to satisfy a pre-determined catch history in respect of that fishery as well as other specified criteria as provided in clause 212F. Applicants who did not meet the relevant criteria were no longer able to fish in that fishery.

52 In 1997, Division 4A of the FMG Regs was amended and provision was made for five new categories of restricted fisheries pursuant to s 111 of the FM Act. The amendments to Division 4A of the FMG Regs were contained in the Fisheries Management (General) Amendment (Purse Seine and Lampara Fishing) Regulations 1997 (Act No. 79 and gazetted on 28 February 1997) (“FMG Amendment Reg No. 79”). The other 1997 amendments to the FMG Regs, were made by the Fisheries Management (General) Amendment (Restricted Fisheries) Regulation 1997 (“FMG Amendment Reg No. 77”) and Fisheries Management (General) Amendment (Review Procedure) Regulation 1997 (“FMG Amendment Reg No. 78”)

53 FMG Amendment Reg No. 79 contained amendments which included the omission of clause 212M (the review provision) and the omission of the word “applicant” from clause 212F and other relevant clauses in the Division and replacing it with the word “person”. The latter changes were consistent with the terminology used in FMG Amendment Reg No. 77, which created the new categories of restricted fishery. FMG Amendment Reg No. 79 also inserted into Division 4A a new category of endorsement for ocean haul restricted fisheries namely; a class C endorsement for ocean haul fishery using purse seine nets.

54 FMG Amendment Reg No. 77, as well as inserting the new categories of restricted fisheries into Part 8 of the FMG Regs inserted a new Division 4C relating to entitlements of fishing business owners. This new Division made provision for owners of fishing businesses to be eligible for an endorsement to a restricted fishery and also provided for what effect the sale of a fishing business would have on endorsements attached to that business (i.e. clause 212Y).

55 The remaining 1997 amending regulation to the FMG Regs was FMG Amendment Reg No. 78, which inserted into Part 8 of the FMG Reg a new Division 6. This Division provided for a review process in respect of determinations made on applications for eligibility to the endorsements to the newly created restricted fisheries. Clause 212A(1) of this Division gave fishers a right to seek a review of a determination relating to that person’s eligibility to an endorsement for the newly created restricted fisheries or a determination as to the person’s catch history in a particular fishery. Clause 212A(3) provided that a review request had to be made by 31 December 1997.

56 The new provisions relating to the new categories of restricted fisheries were of similar effect to the provisions relating to ocean haul restricted fisheries in that they were directed at fishers who were already engaged in these fisheries and who wished to continue to operate in them. That is, such fishers had to apply for an endorsement for the relevant restricted fishery and their eligibility to such an endorsement was partly dependent on the fisher’s catch history (during the years 1986 to 1993) meeting the specific requirements of the FMG Regs.

57 In 1996 the FMG Regs were amended (Fisheries Management (General) Amendment (Licensing) Regulation 1996), by the insertion of new provisions that included a provision for the determination of the catch history associated with a fishing business (clause 135(3) of the FMG Regs-previously clause 128). Under the new provision the Director of NSW Fisheries was required to determine the catch history associated with the fishing business and this was based on records kept by the Director (for the years 1986 to 1993) of persons (licensed commercial fisher) and or licensed fishing boats associated with the fishing business. Once the Director had determined the catch history associated with a fishing business, subject to the rights of review contained in Division 6 of Part 8 of the FMG Regs (see paragraph 49 above), that determination was final but transferable.

58 The catch history was transferable in accordance with the guidelines issued by the Director of NSW Fisheries (clause 135(3) of the FMG Regs expressly provide for this). The Director has issued guidelines in this regard and they are contained in the 1996 NSW Fisheries Licensing Policy (“1996 policy”). Item 6.1 of the 1996 policy expressly states that once the catch history of a fisher and or fishing boat associated with a fishing business has been determined by the Director “this history remains credited to the fishing business for possible use under future management arrangements”.

59 Where the eligibility to an endorsement to a restricted fishery was dependent on a catch history of the applicant fisher or fishing business, the same determined catch history was relied upon in deciding whether the applicant had satisfied the eligibility criteria in respect of the catch history for the endorsement applied for.

60 It is my understanding that NSW Fisheries, in administering the provisions relating to endorsements to a restricted fishery, provided successful applicants with a formal written notice, which stated that the applicant or their fishing business was entitled to the endorsement applied for. On the basis of this written notice the Minister made the appropriate endorsement on the applicant’s commercial fishing licence, or the nominated commercial fisher of the fishing business, as required by s. 112(1) of the FM Act. It was this notice that was relied in applications for the endorsement for a further period as described above. That is, the notice of entitlement to an endorsement was ongoing subject to the fisher or the fishing business ceasing to be entitled to that endorsement. That entitlement was lost if the fisher sold the boat on which the entitlement was granted or sold the fishing business.

61 In this case Mr Porratta’s fishing business had been issued with a notice of entitlement for a class A (skipper) endorsement for ocean haul restricted fishery and the catch history of that fishing business had been determined under clause 135(3) of the FMG Regs.

Entitlement to an endorsement on transfer of the fishing business
62 Division 4A of Part 8 of the FMG Regs makes no provision for the transfer of an endorsement that is attached to a fishers commercial fishing licence. This means that s. 114 of the Act continues to apply and the endorsement is not transferable. I note that 1995 the Minister had introduced a restrictive policy in relation to transfers of endorsements to ocean haul restricted fishery (see paragraph 36 above). This policy is not the subject of this application so I have not considered it any further.

63 Division 4A, as it was originally enacted made no provision for the transfer of an entitlement to an endorsement, which had been issued to a fisher. This meant that those fishers who had been successful in obtaining an entitlement to an endorsement, lost that entitlement if they sold the business unless they came within the abovementioned policy of the Minister.

64 In my opinion, clause 212Y of the FMG Regs creates a new set of criteria for the eligibility of those fishers (the buyer) who acquire a fishing business, which was entitled to an endorsement in a restricted fishery from another (the seller). It does this by sub-clause 212Y(1) expressly stating that the seller ceases to be “eligible” (entitled) to the endorsement and sub-clause 212(2) stating that the buyer is “eligible” (entitled) to the endorsement where the transfer of the fishing business accords “… with guidelines relating to the transfer of the fishing business issued from time to time by the Director”.

65 In my opinion s. 113(2) of the FM Act does not restrict the making of regulations, which create different eligibility criteria for different persons for the same class of endorsement. To do so would place unnecessary restrictions on the management of commercial fishing. Accordingly, clause 212Y(2) of the FMG Regs is a regulation made pursuant to s. 113(2) of the Act because it provides, in general terms, for the eligibility to an endorsement by a buyer of a fishing business that had been eligible for the endorsement. Details of that eligibility are then to be found in the relevant guidelines of the Director of NSW Fisheries.

66 The fact that the details of eligibility are contained in the guidelines and not in the regulations and the fact that it is the Director, and not the Minister, who determines the eligibility of the buyer’s entitlement to the endorsement does not in my opinion necessarily result in the guidelines being contrary to s. 113(2) of the FM Act or clause 212F of the FMG Regs. There may of course be an issue where the Director has given an entitlement to an endorsement under his guidelines, which is not accepted by the Minister when an application is made for the commercial fisher’s licence to have the relevant endorsement attached to it. However, this is not an issue in this application.

67 As mentioned above, the 3 February 2000 Guidelines made by the Director, pursuant to clause 212Y(2) of the FMG Regs provide that a buyer of a fishing business will only be eligible for a class A (skipper) endorsements where the a catch history of the fishing business included a minimum of 7.5 tonnes of the relevant fish caught and a minimum of 8 ocean catch returns during 1986 and 1990. Again, in my opinion, the fact that the Guidelines use the catch history of the fishing business as the basis of the eligibility criteria of the buyer to an endorsement does not make the criteria in the guidelines contrary to the legislation. As explained above, it is this catch history, which is used as the basis of the ongoing management of the restricted fishery. In that context, setting a higher threshold of catch history on the eligibility of buyer of a fishing business to an endorsement is consistent with resource management of fisheries and the objectives of the FM Act.

Unjust Decision
68 In my opinion, on the assumption that the 3 February 2000 Guidelines are a policy coming within s. 64 of the Administrative Decisions Tribunal Act, they do not give rise to an unjust decision in this case.

69 I appreciate that Mr Micallef may have anticipated as a result of the transfer of fishing business 1814 he would be entitled to the endorsements attached to that business, because on purchasing the business he became entitled to the catch history of that business. However, in relation to endorsements that had been attached that business, Mr Micallef’s expectations ignore the express provisions of the FM Act and the FMG Regs, which prohibit the transfer of an endorsement to a restricted fishery unless authorised by the regulations. They also ignore the policies that have been in place since 1995 in respect of ocean haul restricted fishery and restricted fisheries generally.

70 Since November 1996, fishers have been aware of the Director’s policy on the transfer of catch histories and endorsements attached to a fishing business. Item 7 of the 1996 policy contained an interim transfer policy, the introductory words of which provided:

“Entry into the future Restricted Fisheries will be based on the validated catch history of fishers meeting the participation criteria for each fishery. It is envisaged that transferable criteria will be developed through the Restricted Fishery Consultative Committee process. The transferable criteria will be used to identify the endorsement that may be transferred with fishing businesses. ” (underline added)
71 I note that the 3 February 2000 Guidelines were introduced after extensive consultation and agreement with the industry. No evidence was before the Tribunal that Mr Micallef was unaware of this consultation process and the changes that were taking place. The interim transfer form and application for eligibility for an endorsement signed by Mr Micallef at the time he acquired the fishing business did not in any way suggest to him that he would be given an entitlement to a class A (skipper) endorsement for the ocean haul restricted fishery. On the basis of his application Mr Micallef was granted an entitlement, but it was not what he had anticipated. This in my opinion, in all the circumstances, does not make the decision to refuse his application for a class A (skipper) endorsement unfair. Objective criteria, which were not contrary to law, were used in making the decision.

Conclusion
72 Accordingly, in my opinion, the Minister’s decision to refuse Mr Micallef’s application for eligibility for a class A (skipper) endorsement for ocean haul restricted fishery pursuant to a transfer of a fishing business is the correct and proper decision.

73 In light of my decision I am not required to consider the second issue raised in Mr Micallef’s application.

74 Accordingly, I order that the decision of the Minister to refuse Mr Micallef’s application for eligibility for a class A (skipper) endorsement for ocean haul restricted fishery pursuant to a transfer of fishing business 1814 is affirmed.