Minister for Fisheries v Puglisi and Ors (GD)

[2001] NSWADTAP 2

Appeal Panel

CITATION:	Minister for Fisheries -v- Puglisi and Ors (GD) [2001] NSWADTAP 2
PARTIES:	APPELLANT Minister for Fisheries RESPONDENTS Guiseppe Puglisi Grazia Puglisi Mario Puglisi Bobby Puglisi Augustino Puglisi Claudio Puglisi
FILE NUMBER:	009028
HEARING DATES:	28/11/2000
SUBMISSIONS CLOSED:	12/01/2000
DATE OF DECISION:	02/26/2001
DECISION UNDER APPEAL:	Fishing licence- endorsement on licence
BEFORE:	O'Connor K - DCJ (President); Rice S - Judicial Member; Bolt M - Member
CATCHWORDS:	scope of Tribunal Order - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	993049 and 993121
DATE OF DECISION UNDER APPEAL:	08/04/2000
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fisheries Management (General) Regulation 1995 Fisheries Management Act 1994 Interpretation Act 1987
CASES CITED:	Osborne v Commissioner of Police [2000] NSWADTAP 10 Minister for Fisheries v Woodward [2001] NSWADTAP 3
REPRESENTATION:	APPELLANT J Crespo, barrister RESPONDENT A Robertson, barrister
ORDERS:	1. The decision under appeal is set aside. ; 2. The Minister’s decision is affirmed.

1 This is an appeal under s 113 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) in relation to the review by the Tribunal of a reviewable decision, as permitted by s 112(1)(b) of that Act.

2 We commence with a preliminary point. In the proceedings before the General Division of the Tribunal upon the application for review of the reviewable decision the Director, NSW Fisheries was named as the respondent. The Tribunal’s decision was favourable to the applicants for review, and the Director has now brought this appeal.

3 It is now apparent that the administrator whose decision is in issue is not the Director but the Minister for Fisheries. This point is also noted in submissions by the respondents to the appeal (who were the applicants for review of the administrative decision) dated 30 November 2000. Consequently the Appeal Panel directs that the administrator identified as the party to these proceedings be the Minister, not the Director.

4 The appellant, the Minister, is responsible for the issuance of commercial fishing licences and endorsement thereon. The applicants for review, and respondents to the appeal are individuals who belong to a family which own a licensed commercial fishing business which mainly operates on the South Coast of New South Wales.

5 State law, currently the Fisheries Management Act 1994 (the Act) and the Fisheries Management (General) Regulation 1995 (the Regulation) regulates, among other things, commercial fishing that takes place in inland waters of the State, offshore and estuary waters within the State nautical limits and those Australian offshore waters outside the State limits which are State administered pursuant to agreement with the Commonwealth.

6 This case arises from an application made to the Minister for endorsements on the separate licences held in relation to two boats operated by the appellants, known as the Gracie P and the Charissa, to permit them to operate in the northern and southern zones of a restricted fishery. The applications to the Minister were successful in relation to the southern zone, basically the offshore waters south of Barrenjoey Headland, and unsuccessful in relation to the northern zone, the waters north of the Headland. The Minister confirmed his original refusal after reconsideration of his original decision by a statutory review panel. The Tribunal below set aside the Minister’s decision and directed that the matter be referred back to the review panel for further consideration.

7 A fishing business must be licensed: Part 4, Div 1 of the Act. In addition each boat must hold a licence: Part 4, Div 2. A fishery may be declared to be a restricted fishery. A licence must bear an endorsement permitting operation in a restricted fishery. A maximum number of commercial fishing licences may be endorsed in respect of a specified restricted fishery. See generally Div 3 of Part 4 of the Act. Part 8 of the Regulation sets out the details of the regulatory scheme applying to restricted fisheries. Areas which were previously ‘open waters’ have been converted to restricted fisheries. This is the case in relation to the waters from which the respondents are now precluded. They constitute the northern zone of the Ocean Fish Trawl Restricted Fishery, which commenced operation on 28 February 1997 with the coming into force of relevant amendments to the Regulation.

8 This development is an aspect of current policy in relation to the taking of fish, which seeks to balance conservation, sustainable use and commercial and recreational fishing interests.

9 The creation of the Ocean Fish Trawl Restricted Fishery is explained by the official document, Fishery Profile: Fish Trawl, produced by NSW Fisheries in 1999:
‘In 1997 the NSW fish trawl industry moved from an open access fishery to one of limited entry. Prior to this the fishery had been regulated simply by the requirements of the Fishery Management Act 1994, the Regulations and the Department’s Licensing Policy.
A consultation process with industry established the criteria which fishers had to meet to get an endorsement in the limited access ‘restricted fishery’. The fishery was divided into two regions, north and south of Barrenjoey Headland, reflecting the jurisdictional boundaries of the OCS agreement [OCS is a reference to the Offshore Constitutional Settlement between Commonwealth and the States made in 1991 relating to administration of fishing in waters between the State nautical limits and the perimeter of the Continental shelf]. Endorsements were subsequently issued for fish trawl north and fish trawl south.’

10 The document notes that a management plan designed to support the objectives of conservation of resources and sustainable use in relation to the fish trawl zones is being developed.

11 As noted earlier, to operate in the Ocean Fish Trawl Restricted Fishery it is necessary for boats to hold endorsements. Div 2A of Part 8 of the Regulation (cll 183 and following) was inserted into the Regulation effective 28 February 1997 to establish the new scheme.

12 By virtue of cl 187, catch history in the several zones of the past that corresponded to the new northern and southern zones of the new restricted fishery became, in the case of initial applications, the sole determinant of whether a fisher would have a future entitlement to take designated fish species from the fishery.

13 In October 1996, in anticipation of the commencement of the regulations giving effect to the policy creating the new restricted zone, the respondents made applications for various endorsements, including ones related to operating in both zones of the Ocean Fish Trawl Restricted Fishery.

14 The Minister’s general power is conferred by cl 188(3) of the Regulation:
‘The Minister may endorse the commmercial fishing licence of a person who satisfies the eligibility requirements for the endorsement or who is the nominated fisher of a person who satisfies the eligibility requirements for an endorsement.’

15 The respondents were advised by letter dated 21 February 1997 that they had been unsuccessful in the northern zone element of their applications. They were advised that they could appeal with the closing date for the lodging of appeals being 31 December 1997. An appeal was lodged on 10 April 1997.

16 The regulations do not use the word ‘appeal’. They describe the right given to the applicant as a right to request a review: see Part 8, Div 6, Review of Eligibility and Catch History Determinations - Transitional (cll 214A - E). (The letter to the respondents noted that the right was confined to requests made by 31 December 1997.) The Minister may refer the case for review to a statutory panel, the Restricted Fisheries Review Panel, who reports back to the Minister, who then makes a fresh decision.

17 On 28 October 1998 the Minister approved the panel’s advice, to refuse endorsement, in relation to the boat, Charissa (FB 2079), and on 5 April 1999 made a similar decision in relation to the boat, Gracie P (FB 1969).

18 Each gave rise to applications for review by the Tribunal which were heard together. The Minister’s decisions are the reviewable decisions. Section 126 of the Act confers jurisdiction on the Tribunal to review a refusal to issue a relevant authority, in this case an endorsement on a commercial fishing licence.

19 The statement of reasons filed in these proceedings sets out and adopts the reasons of the review panel as the reasons for the decision.

20 The basis for the Minister’s first decision refusing the northern zone endorsement was that the eligibility criteria set down in cl 187(1) of the Regulation were not satisfied.

21 The eligibility criteria allowed for two ways of satisfying this requirement: either by showing (a) a catch history for the period 1986 to 1990 made up of 15 ocean waters catch returns indicating that the method of fish trawl had been used in specified zones; or (b) that 3 returns had been submitted in the period 1986-1990 and at least 5 returns had been submitted in the period 1991-1993 together with a requirement as to the tonnage of fish trawl species taken in three of the years between 1986 and 1993.

22 In the case of the Gracie P, there were three returns for the 1986-90 period but none for the 1991-93 period so neither of the criteria could be satisfied. In the case of the Charissa there were two returns for the 1986-90 period and none for the 1991-93 period, so again neither of the criteria could be satisfied.

23 The review panel is able to consider a wider range of factors than those to which the Minister could have regard in making his first decision. The review panel may recommend that an endorsement be granted even though the strict eligibility criteria are not satisfied. This case revolves around the question of whether the review panel should have taken into account the explanations given by the respondents as to why they did not fish in the northern zone to the degree now necessary to secure an endorsement.

24 The review panel’s discretion is governed by cl 214C in particular sub-para (iii) of para (c) of cl (2) of the Regulation. Clause 214C provides:
‘214C. Grounds for review
(1) A panel that conducts a review may consider any circumstances that are relevant to the determination that is the subject of the review request.
(2) A panel that conducts a review may decide that a person is eligible for an endorsement in a restricted fishery, or should be eligible for an endorsement in the fishery, if the person who applied for the review satisfies the panel:

(a) that the records relied on to make a determination whether the person is eligible for an endorsement (for example, catch history records or records of net registration) are, for reasons that are not attributable to the fault of the person, inaccurate or incomplete and, on the basis of verified records produced to the panel by the person, the person does in fact satisfy the eligibility criteria for the endorsement, or
(b) that a determination as to the catch history associated with the person's fishing business is incorrect and, on the basis of verified records produced to the panel by the person, the person does in fact satisfy the eligibility criteria for the endorsement, or
(c) if eligibility is based on the person's activities in a fishery during a particular period, that:
(i) the person suffered illness or other incapacity for a significant period and the illness or incapacity substantially affected his or her ability to satisfy the eligibility criteria for the endorsement, or
(ii) the person lost his or her commercial fishing boat due to accident or misadventure and the loss substantially affected his or her ability to satisfy the eligibility criteria for the endorsement, or
(iii) the person was engaged in fishing during that period and for other significant reasons (that are not attributable to the fault of the person) the person was unable to satisfy the eligibility criteria.
(3) This clause does not limit the inclusion in a report by a panel of any other decision or recommendation relating to a person's entitlements in a restricted fishery.
(4) In this clause, "verified record" means a document prescribed for the purposes of section 51 (4) of the Act (dealing with determination of catch history).
Note. Clause 128 sets out the documents that are prescribed for the purposes of section 51 (4) of the Act. ’

25 The review panel’s reasons were substantially identical in respect of both applications. In each instance the panel recommended that the Minister should confirm his refusal of the endorsement on the ground that the established eligibility criteria were not satisfied. The review panel’s recommendation is set out at para [7] of the Tribunal’s decision, and it is convenient to repeat that passage here:
‘The Review Panel is not satisfied that the applicant meets the established criteria for the allocation of the Ocean Fish Trawl Restricted Fishery - Northern Zone endorsement and recommends to the Minister that the application be refused.
The Review Panel wishes to draw to the attention of the Minister that it is satisfied, on the evidence presented, that the applicant historically participated in the gem fish run up the Eastern Coast of South Eastern Australia and in doing so, trawled waters north of Barrenjoey Headland [the southern boundary of the new northern zone] during the months of July, August and September until 1987. [The applicants had been fishing commercially since at least 1972].
The Panel is also satisfied on the evidence that the imposition of trip limits on gem fish catches rendered Northern Zone fish trawling uneconomic for this applicant, which state it is only desirous of targeting gem fish should an increase in stocks enable an increase in trip limits to an economically viable level.’

26 The review panel, while noting the economic factors that led the respondents to cease fishing in waters now falling within the northern zone at the level required to fulfill the catch history requirements, did not regard those factors as ones it could formally take into account.

27 The Minister has a limited choice in relation to the response that he can give to a review panel recommendation. He may either accept the recommendation of the review panel or refer it back for reconsideration: generally, cl 214D. The Minister is not at liberty to make a final decision different to that recommended. The Minister decided, as recommended, to confirm his original decision.

28 The Tribunal’s conclusion in response to the respondents’ application for review of the Minister’s decision was that the correct and preferable decision was that the Minister refer the recommendation back to the review panel for further consideration, as permitted by cl 214D.

29 The Tribunal set aside the Minister’s decision and substituted a decision that the report and accompanying recommendation be referred back to the review panel with various instructions: Puglisi & ors v Director, NSWFisheries [2000] NSWADT 105 (4 August 2000).

30 The Tribunal’s determination was as follows:
‘the Minister should refer this matter back to the Panel together with instructions that the Panel take account that commercial and economic factors are significant reasons for the purpose of the Regulation and that the Panel also be instructed that the endorsement of licences is not the primary tool for regulating the resource of fish in the zones.’

The Appeal

31 The appeal is made under s 112 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act). The notice of appeal, filed by the Director and now standing in the name of the Minister, alleged various errors of law in the reasoning of the Tribunal.

32 The parties written submissions filed prior to hearing comprise: those filed by the appellant on 13 September 2000 with the notice of appeal, respondents’ submissions in reply dated 20 October, further appellant’s submissions dated 22 November 2000, further respondents’ submissions dated 28 November 2000 (the day of hearing).

33 In its first written submissions, the appellant appeared to concede that commercial and economic factors could be given as an explanation for not meeting usual catch limits in a fishery where now there was an application for an endorsement. As the submissions were originally formulated, the objection of the appellant to the reasoning of the Tribunal went to two other matters, the finding that the matters raised in this case should be treated as ‘significant’ reasons and the making of an order requiring, in effect, the review panel to act on that basis. The latter order was seen as usurping the role of the review panel, which the appellant submitted should be left to reach its own conclusion as to significance.

34 But at hearing on 28 November 2000 the appellant took a more fundamental point, submitting that the reference to ‘other significant reasons’ in sub-para (iii) could not properly be construed as including reasons connected with commercial and economic considerations related to the operation of the applicant’s business. The appellant’s submission essentially was to that sub-para (iii) needed to be construed having regard to the first two factors referred to in para (c), and more generally by having regard to the objects of the legislation and the overall legislative scheme. The appellant referred to the objects clause of the Act, s 3, NSW Fisheries Policy 1994 and November 1996, the evidence of a witness called at the Tribunal hearing by the appellant (Mr Darren Michael Hale) and the wording of cl 214C in its entirety.

35 As this more fundamental objection only clearly emerged at hearing, directions were made, with the result that revised reasons for appeal from the appellant were filed on 29 November 2000 and further submissions in reply from the respondents on 30 November 2000.

36 In their final form the appellant’s grounds of appeal focussed squarely on the Tribunal’s interpretation of cl 214C(2)(c)(iii). The appellant submitted that the Tribunal had erred in its interpretation thereby giving rise to additional errors in taking into account as relevant considerations various matters which had the provision been properly construed could not have been taken into account.

37 The questions for the appeal panel are these.

38 Is it is permissible for the review panel (and consequently the Minister and the Tribunal on external review) to take into account in applying the discretion conferred by cl 214C to a case where the fisher is unable to satisfy the eligibility criteria an explanation that the fisher had deliberately chosen as a matter of commercial judgment not to operate in the restricted fishery during a relevant period? Does the ordinary meaning of the phrase ‘other significant reasons (that are not attributable to the fault of the person)’, read in the context of the provision and the legislation generally, preclude any consideration of such an explanation?

Construction

39 The Tribunal did not provide any detailed reasons in relation to its conclusions on the question of statutory construction. It said the following at para [16], commencing:
‘The Tribunal considers that the Panel took a very cursory and limited view of what was open to it for consideration in respect of this application. It is quite clear looking at the terminology in the Regulations that there were a number of circumstances that could be taken into account where applicants where unable to meet the criteria.’

40 The Tribunal is referring here to the four possible reasons, set out in the sub-clauses that precede sub-cl (c)(iii) for not satisfying the eligibility criteria. These are proven inaccuracy or incompleteness in the records relied upon by the applicant for reasons not attributable to the fault of the applicant (para (a)); proven incorrectness of the findings made in the Minister’s determination (para (b)); illness or incapacity for a significant period affecting the applicant’s ability to satisfy the eligibility criteria (para (c)(i)); and loss of a commercial fishing boat due to accident or misadventure, thereby affecting the applicant’s ability to satisfy the eligibility criteria (para (c)(ii)).

41 The Tribunal went on to say in para [16] and [18] of its reasons:
‘The Tribunal is of the view that commercial fishermen have a number of issues to deal with in the proper management of their business and in making commercial decisions, there are often factors which are outside the control of parties but, nonetheless, they are legitimate matters to be taken into account. In this case the applicants make a sustained argument that there were a combination of features which brought about their decision not to be fishing in this area at the particular time. They say that they have a history in the area, they are commercial fishermen and that for reasons of fishing limits and other matters, it was not economic for them to be in the zone in that period. They say that if they had known what the full impact of these regulatory requirements would be, they may have taken a different decision. … 18. In the Tribunal’s view, these are matters which should clearly have been considered by the panel under the terms of the regulation. It was appropriate for the panel to look at these matters to decide whether such matters were sufficient for the panel to make a recommendation that there were other significant reasons that the applicants were unable to satisfy the eligibility criteria. The Tribunal does not consider that the terminology used in the Regulations when they are put in the context of the introduction of the new zonal system, should have been construed in a literate and conservative way.’

42 As noted, the Tribunal below did not embark on the task of statutory construction, other than to make general references to ‘terminology’ and to refer to the policy context of the legislation. The Appeal Panel has dealt recently with the appropriate approach to issues of statutory construction: see esp. Osborne v Commissioner of Police [2000] NSWADTAP 10 at [28]-[36].

43 The Interpretation Act 1988 provides guidance as to the proper approach to statutory construction. An approach which promotes the object or purpose underlying the Act or statutory rule is to be preferred to a construction that would not promote that purpose or object: s 33. Against that background, the first step is to ascertain the ordinary meaning of the text in issue. Extrinsic material may be consulted ‘to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or the statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made)’: s34(1)(a). If the ordinary meaning ascertained in this way may be disregarded if having regard to the extrinsic material that would lead to a result which is ‘manifestly absurd’ or is ‘unreasonable’: s 34(1)(b)(ii).

44 In the present instance, if the only words in issue in the statutory rule were ‘other significant reasons’ the likely conclusion would be that favoured by the Tribunal: that these are words intended to be of general application, allowing for a wide range of factors to be taken into account by the review panel. But in this instance the words ‘other significant reasons’ are qualified by the words ‘(other than ones attributable to the fault of the applicant).’ Clearly the words in parenthesis seek to cut back the scope of ‘other significant reasons.’

45 The difficulty that is presented is this. The first two sub-paras of para (c), (i) and (ii), clearly seek to protect the position of an applicant who has suffered a misfortune that is out of his or her control and which has led to that person being unable to meet the eligibility requirements. It could be said that these provisions seek to give a benefit to an applicant who, to use a common saying, ‘through no fault of his/her own’ has been prevented from obtaining the necessary catch history - a supervening factor has intervened. Viewed in this way, the phrase ‘other significant reasons (that are not attributable to the fault of the person)’ would carry the meaning of significant reasons ‘beyond the control of the applicant’, which reasons are analogous to the ones mentioned in sub-para (i) and (ii).

46 On this construction what the maker of the regulations was seeking to achieve was a catch-all provision that allowed for mishaps other than the ones enumerated in sub-para (i) and (ii) to be allowed for by the review panel.

47 In this matter the respondents’ decision not to fish actively in the area now constituting the northern zone in the years 1991 and 1993 could not reasonably be described as an event that was beyond their control. It was their ‘fault’ in the sense that they made a decision over which they had control, i.e. a business decision to use the boats more productively in other waters. Of course, they could not at that time have factored in the possibility that might be barred in future from that zone.

48 This interpretation of ‘fault’ - i.e. beyond the control of the individual - stands uneasily with the usual meaning attributed to ‘fault’ in the standard dictionaries. For example the Concise Oxford Dictionary, 1987, gives as meaning no 1, ‘defect, imperfection, blemish, of character or structure, appearance, etc.’ The Macquarie Dictionary, 3rd ed 1997, gives as meaning no 1, ‘a defect or imperfection; a flaw; a failing.’ Other meanings connect the meaning of the word to the connotation of an act that involves wrongdoing, carelessness or moral blame. Meaning no 2 in the Macquarie Dictionary perhaps comes closer to the intended meaning of the Regulation, defining ‘fault’ as an ‘error or mistake.’ In this instance a commercial decision to limit fishing in northern zone waters after 1986 and not to fish at all between 1991 and 1993 could now be said to have been an error on the respondents’ part.

49 When the phrase in issue is first used in the provision, at para (a), it appears in the context of a rule relating to reliance on inaccurate or incomplete records. The rule permits a person to produce in substitution verified records provided that the reasons for the original records being incomplete or inaccurate is ‘not attributable to the fault of the person’, (though there is no reference here to the reason having to be ‘significant’).

50 Our conclusion is that the words in parenthesis in sub-para (iii) of para (c) confine the scope of ‘other significant reasons’ to explanations that relate to circumstances that lie beyond the personal control or conduct of the applicant.

51 We are supported in reaching that conclusion by an examination of the purposes and objects of the statutory scheme within which the rule operates. The 1994 Act, which commenced operation on 16 January 1995, is the cornerstone of the new scheme for the regulation of fishing in New South Wales. The objects clause, s 3 provides in sub-s (1) ‘The objects of this Act are to conserve, develop and share the fishery resources of the State for the benefit of present and future generations.’

52 In sub-s (2) more specific objects are listed:
‘In particular, the objects of this Act include:
(a) to conserve fish stocks and key fish habitats, and
(b) to conserve 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 aquaculture industries, and
(e) to promote quality recreational fishing opportunities, and
(f) to appropriately share fisheries resources between the users of those resources.’

53 It is noteworthy that there is an emphasis in those objects on conservation and ecologically sustainable development. They are the primary objectives and it is provided that ‘consistently with those objects’ other objects include the promotion of a viable commercial fishing industry.

54 It is in that policy context that the creation of restricted fisheries must be seen. As noted, restricted fisheries are the subject of detailed regulation in Part 8 of the Regulation.

55 Some of the classes of restricted fishery focus solely on the fish type affected, whereas some refer to a defined area and other factors such as the use of particular methods for taking fish or particular species. The restricted fishery in issue in this case, the Ocean Fish Trawl Restricted Fishery, divided into northern and southern zones, has each of the aspects of a defined area, method of taking and particular species within its parameters.

56 The primary rule for being able to continue operating in this fishery is the presence of a catch history showing a significant level of activity in the area prior to the new scheme commencing. The provisions in issue in this case are ones that were developed to deal with the claims of existing fishers seeking to retain the ability to operate in waters where they had previously been active. On first application the only matter considered was catch history. The right to review by the review panel provided fishers with an opportunity to object to the original decision.

57 As noted, the panel can look behind any apparent failure by a fisher to meet the catch history requirements. It may consider independently verified records that the catch returns initially relied on are not accurate: see paras (a) and (b) of s 214C. But para (c) goes (at least in sub-paras (i) and (ii) to an applicant’s inability to satisfy the eligibility criteria. Sub-paras (i) and (ii) deal with situations of mishap that had the effect of preventing the fisher from reaching the levels.

58 While sub-para (iii) is broader, it would, we consider, greatly distort a scheme of this kind to interpret it as permitting fishers to come forward with a minimal catch history or none at all, and seek to be allowed in to the restricted fishery in circumstances where they had consciously chosen not to be involved in the area now comprising the restricted fishery, and as a result did not have any or any sufficient catch history. Such an interpretation would weaken considerably the force of the central rule for being permitted to remain in a restricted fishery (prior participation to an extent that meets the catch history rules).

59 We consider that the restricted fisheries review panel was correct, and consequently the Minister was correct, in excluding from its formal consideration the commercial factors relied upon by the respondents for not meeting the catch history requirements. There must be a persuasive reason, going beyond mere commercial choice, for not having a demonstrable catch history that would otherwise entitle a fisher to continue to operate in a (now restricted) fishery.

60 The policy framework supports the conclusion that the words in paranthesis in cl 214C(c)(iii) - ‘that are not attributable to the fault of the person’ - are intended to exclude from consideration as ‘other significant reasons’ explaining an inability to produce a satisfactory catch history conscious decisions made by fishers in the past leading them not to participate significantly, or at all, in the restricted fishery.

61 If we are wrong in this interpretation the other submissions of the appellant need to be considered.

‘Significant’ Reasons

62 If, contrary to our conclusion, a conscious decision not to fish or to limit fishing in a zone is a reason to be considered under sub-para (iii) of sub-cl (c) it is for the review panel, the Minister and then the Tribunal performing its role (as the assessor of what the correct and preferable decision) is, to determine whether the reason is, in the circumstances, a ‘significant’ one. While the form of its order would suggest that the Tribunal had made a finding on whether the reason advanced was ‘significant’, the reasons of the Tribunal do not contain any fact-finding process in relation to this question. We interpret the order as indicating that the advice of the review panel should be obtained by the Minister on whether such a reason was significant.

Form of Order

63 The form of the order made by the Tribunal was also put in issue. It is not desirable, we feel, to be too didactic on this issue. The relevant provision in this instance is s 63(3) of the Tribunal Act, which provides:
‘(3) In determining an application for review of a reviewable decision, the Tribunal may decide: … (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.’

64 The Tribunal’s determination in this case contained words directed to the review panel taking the form of ‘instructions’ from the Tribunal as the Minister-substitute. As noted earlier, the order included the following words, that the ‘Minister should refer this matter back to the Panel together with instructions that the Panel take account that commercial and economic factors are significant reasons for the purpose of the Regulation and that the Panel also be instructed that the endorsement of licences is not the primary tool for regulating the resource of fish in the zones.’

65 It is permissible for the Tribunal in the shoes of the Minister to refer the decision back to the review panel with a recommendation that it take into account factors which it found to be relevant. To express the matter in the form of ‘instructions’ to the review panel overstates the authority conferred on the Minister. An error as to power in the formulation of an order should not of itself vitiate a substantive decision. The remedy in such a case would be for the Appeal Panel to re-cast the order to bring it within power.

66 The additional comment, that the panel ‘be instructed that the endorsement of licences is not the primary tool for regulating the resource of fish in the zones’ also goes beyond the proper scope of ‘directions’ or ‘recommendations’. The regulation of fishing resources is a complex area of policy. In the present instance the Tribunal had not engaged in a form of hearing or process that put it in a position to articulate broad views on policy priorities. The second ‘instruction’ was entirely inappropriate.

67 The issue of the scope of the order-making power of the Tribunal in this area of regulation is examined in greater detail in Minister for Fisheries v Woodward [2001] NSWADTAP 3.

Order

1. The decision under appeal is set aside.

2. The Minister’s decision is affirmed.