Moyce v Minister for Fisheries

[2002] NSWADT 62

CITATION:	Moyce -v- Minister for Fisheries [2002] NSWADT 62
DIVISION:	General Division
PARTIES:	APPLICANT Edward Sydney Moyce RESPONDENT Minister for Fisheries
FILE NUMBER:	013317
HEARING DATES:	08/02/2002
SUBMISSIONS CLOSED:	02/15/2002
DATE OF DECISION:	04/24/2002
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Fisheries Management Act - fishing licence - revocation of endorsement on licence - Fishing licence - revocation of endorsement on licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fisheries Management (General) Regulation 1995 Fisheries Management (Lobster Share Management Plan) Regulation 2000 Fisheries Management Act 1994
CASES CITED:	Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 McDonald v Director General of Social Security (1984) 1 FCR 354 Apostolovski v Crewe District Court of New South Wales Number 3171 of 1994, unreported Saadieh v Director General, Department of Transport [1999] NSW ADT 68 R. v. Olsen; Ex parte Vahlberg (1975) 11 SASR 156
REPRESENTATION:	APPLICANT F Doyle, solicitor RESPONDENT N Francey, barrister
ORDERS:	The decision of the Minister to cancel the commercial fishing licences and endorsements held by Edward Sydney Moyce is affirmed.

Background
1 These proceedings relate to a decision made by the Director, NSW Fisheries as a delegate of the Minister for Fisheries (“the Respondent”), to cancel the commercial fishing licences and endorsements held by Edward Sydney Moyce (“the Applicant”). The decision to cancel the Applicant’s licence and endorsements followed the Applicant’s convictions for offences under the Fisheries Management Act 1994 (“the Act”) and the Fisheries Management (General) Regulation 1995 (“the Regulation”).

2 The Applicant is 67 years of age, and has worked in the industry as a commercial fisher for 52 years. The Respondent’s records show that the Applicant was issued a commercial fishing licence on 16 July 1987. The licence has been renewed annually and the last issued licence is due to expire on 23 June 2002.

3 On 4 January 2000, the Applicant was charged with offences committed in December 1999. On 24 August 2001, after a defended hearing in the Local Court lasting from July 2000 to July 2001, the Applicant was convicted of Larceny (8 lobsters) and 3 counts of Interfere with Set Fishing Gear (3 fish traps).

4 The Notice of Cancellation was provided to the Applicant by letter dated 28 November 2001. That letter stated:

“In accordance with section 104(4)(e) of the Fisheries Management Act 1994 and clause 140(b) of the Fisheries Management (General) Regulation 1995 , I hereby cancel your commercial fishing licence. In accordance with section 104(6) of the Act, I hereby revoke all endorsements on your licence.

Cancellation is effective from the date of this letter. While you may apply for a new commercial fishing licence at any time, clause 137(1) of the Regulation provides for the refusal to issue a commercial fishing licence for the same reasons for which your licence has been cancelled. Accordingly, I will not consider any applications for a new licence for at least 2 years.

Similarly, clause 11 of the Fisheries Management (Lobster Share Management Plan) Regulation 2000 provides for refusal to endorse a commercial fishing licence for the Rock Lobster Share Management Fishery. This provision will apply for at least three years.”

5 Following receipt of the Notice of Cancellation, the Applicant sought an internal review of the decision. Ms Kay Smith undertook that review on 24 December 2001. Ms Smith affirmed the Minister’s decision to cancel the Applicant’s licence. The Applicant was given notice of Ms Smith’s decision by letter dated 8 January 2002.

Decision under Review
6 On 20 December 2001 the Applicant applied to this Tribunal for review of the Respondent’s 28 November 2001 decision. At the time of filing of the application the Applicant was not aware of the result of the internal review. He also applied for an urgent stay of the decision on the basis that he relies on his commercial fishing licence for his livelihood. The matter of the stay came before the Deputy President of the Tribunal on 2 January 2002 and the stay was granted. That stay remains in force. The Deputy President put in place a timetable for the filing of documents leading to a hearing of the matter on 8 February 2002.

7 The reviewable decision is that of the Minister to cancel the Applicant’s licences and endorsements, advised to the Applicant by letter dated 28 November 2001.

Jurisdiction
8 The Tribunal’s jurisdiction arises pursuant to section 126 of the Act which relevantly provides:

“126 Applications to Administrative Decisions Tribunal for reviews of certain decisions
(1) A person who is dissatisfied with any of the following decisions under this Part may apply to the Administrative Decisions Tribunal for a review of the decision concerned:
…
(c) the suspension or cancellation of the person's relevant authority.”
9 Pursuant to section 125 of the Act, both a commercial fishing licence and an endorsement on a commercial fishing licence are a “relevant authority” for the purposes of section 126 of the Act.

Nature of proceedings
10 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. “The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made” (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).

11 These are not adversarial proceedings in which the Applicant carries an onus of proof. The Applicant, by making the application, triggers a process of merits review by the Tribunal. The Applicant does not take on the responsibility of having to prove a case, nor does an Applicant cause the Respondent to have to prove a case. The Applicant and the Respondent are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).

12 Section 63(1) of the ADT Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Respondent’s, and “there is no presumption that the Respondent’s decision is correct” (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357).

13 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities (McDonald at 357).

Evidence
14 The Tribunal heard evidence from the Applicant, Mr Jason Moyce, the Applicant’s son and business associate, and Mr Scott Maxwell Westley a commercial fisherman who is also an industry representative on the Management Advisory Committee for Lobster Share Management Fishery. Each of these individuals also prepared statements which were filed in the proceedings.

15 The Applicant also put in evidence a number of testimonials which purported to testify to his good character, along with various items of correspondence between the Applicant’s solicitor, NSW Fisheries and the Respondent. The Respondent put in evidence a number of documents relating to the Applicant’s convictions.

The Applicant’s Background
16 The Applicant became involved in the fishing industry when he was 17 years of an age. He left school in sixth class and did not attend high school. He has no other educational or employment qualifications. He received his commercial fishing licence in the 1940s although he does not recall the actual year. Since that time he has worked in the commercial fishing industry. Since about 1992 he has been in business with his only son, Jason Edward Moyce who is also a licensed fisherman and who also appears before this Tribunal in separate but related proceedings.

17 As noted above, the Respondent’s records show that the Applicant was issued a commercial fishing licence on 16 July 1987. Presumably the Applicant’s earlier employment in the industry involved licensing under a different regime. It is not relevant to these proceedings.

18 As also noted above, the Respondent’s decision to cancel the Applicant’s licence followed convictions on 24 August 2001. Those convictions related to events which occurred in December 1999. Prior to his 1999 offence, the Applicant had three convictions in relation to his fishing activities. On 14 December 1988 he was fined $50 for failing to comply with the lawful requirement of an inspector. On 23 July 1992 he was fined a total of $1250 for attempting to sell undersized fish. On 13 December 1994 he was fined $200 and placed on a twelve-month good behaviour bond in relation to charges relating to stolen fishing gear. No action had been taken in relation to his licence following any of those convictions.

19 The Applicant’s evidence is that he has limited assets. His taxable income for the 1999/2000 tax year was $17,730.00. He assists in the support of several family members and is dependent on fishing for his livelihood.

The 1999 Offences
20 On 23 August 2001 the Applicant was convicted of several offences which, as charged, read:

“That Edward Sydney Moyce between the 27th day of December 1999, and the 29th day of December 1999, at La Perouse, in the State of New South Wales, did steal certain property of the value of $400, to wit, 8 Eastern Rock Lobsters, the property of NSW Fisheries.”

“That Edward Sydney Moyce between the 27th day of December 1999, and the 29th day of December 1999, at La Perouse, in the State of New South Wales, was in possession of fish taken in contravention of a provision or made under the Fisheries Management Act, 1994. Section 35(1), Fisheries Management Act 1994.”

“That Edward Sydney Moyce between the 27th day of December 1999, and the 29th day of December 1999, at La Perouse, in the State of New South Wales, did contravene a condition of a Commercial fishing licence. Clause 104(7), Fisheries Management Act, 1994.”

“That Edward Sydney Moyce between the 27th day of December 1999, and the 29th day of December 1999, at La Perouse, in the State of New South Wales, did without reasonable excuse, interfere with set fishing gear consisting of a rock lobster fishing trap marked R. FIRKIN 11442. Clause 107(1), Fisheries Management (General) Regulation 1995.”

21 The evidence to support the charges was that on 27 December 1999, 10 eastern rock lobsters were implanted with microchips. The microchips have an individual 10 digit code, which is not repeated. Those lobsters were placed in three commercial fishing traps, which had R. FIRKIN 11442, clearly marked on the floats. These traps containing the lobsters were then placed in the Tasman Sea approximately 5 miles off Botany Bay.

22 On 30 December 1999, NSW Fisheries attended the Sydney Fish Market and scanned three boxes of eastern rock lobsters. These three boxes contained 57 cooked lobsters and were consigned for auction by J. and T. Moyce. Attached to The lobsters were commercial fishing tags, which had been issued to the Applicant in November 1999. Eight of the lobsters in this consignment were identified through scanning, as those that had been microchipped and placed at sea in the traps marked R. FIRKIN. The Applicant had no permission to interfere with commercial fishing gear in the name of R. FIRKIN.

23 On 4 January 2000 NSW Fisheries and NSW Police attended the Applicant’s home. He was placed under arrest and conveyed to Maroubra Police Station. The Applicant declined to be interviewed and was issue with court attendance notices for the offences.

24 The Applicant pleaded not guilty to the charges. He was found guilty, fined $3,000 and placed on a twelve-month good behaviour bond.

Events Following the 1999 Offences
25 On or about 13 March 2000 a delegate of the Respondent, Mr Paul Murphy, Principal Manager Licensing, wrote to the Applicant and advised him that he was considered to have contravened the conditions of the endorsement on his licence in respect of the Rock Lobster Share Management Fishery. Mr Murphy referred to the power to cancel or suspend a licence contained within the Act, and requested that the Applicant show cause why his commercial fishing licence should not be suspended in accordance with clause 140(d) of the Regulation.

26 The Applicant’s solicitor responded by letter dated 22 March 2000. It was submitted that the charges brought against the Applicant had not been determined and that Mr Murphy’s actions appeared to be an attempt to circumvent any determination of the court and were premature whilst the matters remained sub judice. It was also submitted that it was unfair to attempt to compel the Applicant to make any submission while the charges against him remained to be determined.

27 In addition, the Applicant queried how Mr Murphy could have fairly and properly considered that the Applicant had contravened the conditions of the endorsement on his licence, without the benefit of judicial determination. He submitted that it is not enough to rely on the "serious nature" of unproved allegations. The Applicant requested that Mr Murphy suspend any action against him until after the court proceedings had been determined and he had been given a reasonable opportunity of making submissions to the Minister.

28 The Director, NSW Fisheries subsequently wrote to the Applicant advising that he was prepared to await the Magistrate's decision in the matter and that the Applicant’s licence therefore remained valid.

29 On 16 October 2001 the Director, NSW Fisheries again wrote to the Applicant in similar terms to those contained in the letter of 13 March 2000. He noted the Applicant’s convictions for larceny and three cases of interfering with set fishing gear, referred to the Minister’s powers to suspend or cancel a commercial fishing licence, and requested that the Applicant show cause why his commercial fishing licence should not be cancelled.

30 The Applicant’s solicitor responded by letter dated 6 November 2001, making detailed submissions with respect to why the Applicant’s licence should not be cancelled. In essence the submissions were:

· Firstly, that the presiding Magistrate had stated that he had not taken any account of any possible penalty that might arise from loss or suspension of the Applicant’s licence or loss or reduction of quota, but had assumed that that would not happen. He expressed the hope that any person who is giving consideration to any further penalties that would be imposed would be aware that that is the basis on which he had reached his decision.

· Secondly, that the Magistrate had placed the Applicant on a good behaviour bond for a period of two years which places him under the supervision of the Court for that period. Any other conviction would result in the Applicant being brought back before the Magistrate and sentenced with respect to the conviction for stealing. The Minister should not take any action to suspend or cancel the Applicant’s commercial fishing licence whilst he is under the supervision of the Court pursuant to the good behaviour bond.

· Thirdly, the Applicant requested that the circumstances of the earlier offences be closely examined. He submitted that the court had not recorded convictions in relation to those offences and that the court had reached that view after taking into account all the circumstances surrounding those matters.

· Fourthly, the Applicant submitted that fishing is a way of life for him, and to deprive him of his livelihood would be manifestly unfair, noting that he has already been adequately punished by the penalties imposed by the Local Court.

· Fifthly, the proposed cancellation of the Applicant’s son's commercial fishing licence would make it difficult for the Applicant to nominate another commercial fisherman to take his quota of rock lobster.

· Sixthly, the Applicant referred to the question of alleged corruption in the lobster industry and in particular the sale of lobsters outside the fish markets, and that the Applicant is not a part of that corruption as all of his catch is sold publicly through the fish markets.

· Seventhly, apart from any loss of income, the Applicant would suffer financial loss with respect to fishing boats and equipment. It would be difficult to dispose of those items The Applicant has built a special cool room and freezer room under his La Peruse house which could not be used for any other purpose.

· Eighthly, the Applicant is a respected member of the local community and a good family man. Because of his long association with the fishing industry, he is well known and respected in the industry generally and specifically by those, including Fisheries officers, who come in regular contact with him at the Sydney Fish Markets.

Economics of Lobster Fishing
31 The annual lobster season usually begins in November each year. From evidence before the Tribunal it appears the best fishing time for lobsters is from the beginning of the season until January. The best evidence is that he has suffered significant loss because of his inability to fish months are December and January.

32 The Applicant’s in the period following the cancellation of his licence until a stay was put in place on to January 2002. His gross yearly income from lobsters is approximately $50,000. His inability to fish during the busiest time of the season will severely impact on that income.

The Nature of Lobster Fishing
33 Mr Westley was accepted as an expert who was able to speak with knowledge of the industry. He gave evidence that commercial fishing is one of the most dangerous occupations in Australia, with the highest mortality rate of any industry. When fishing for lobsters, traps are set in ocean waters between 2 and 220 metes in depth and up to 20 nautical miles out to sea. The inshore fishery (less than 10 metres in depth) is the most dangerous because varying sea conditions and breaking waters make it difficult to set and retrieve traps.

34 In the deepwater fishery, fishers undertake expensive activities to find and harvest migrating lobsters. These include setting up 70 or 80 large traps covering an extensive area of the ocean. The risk of loss to shipping, other fishery operations (i.e. tuna longline and trawling), predators, and the need to operate large suitable vessels make deep water commercial lobster fishing a high cost and high risk industry.

35 From his knowledge of the commercial lobster fishing industry, Mr Westley was able to state that the industry considers interference with fishing gear and stealing from traps to be the most serious crime, resulting in loss of income to those persons who are the victims of the crime.

36 He was an industry representative on the Management Advisory Committee for the Lobster Share Management Fishery when the Management Plan was developed. Provisions for forfeiture of shares in the Lobster Share Management Fishery were included in the Fisheries Management (Lobster Share Management Plan) Regulation 2000. Interference with set fishing gear is a share forfeiture offence. The Management Advisory Committee fully supported the inclusion of the forfeiture offences.

37 The main deterrent against committing offences under Fisheries legislation has always been the possibility of cancellation of the commercial fishing licence. Throughout the drafting of the Management Plan the Management Advisory Committee was aware of the Fisheries Management Act 1994, whereby the Minister has the power to cancel commercial fishing licences. Therefore, the Management Advisory Committee believed that there was no need to include similar provisions in the Management Plan.

38 Policing management controls is a difficult task. Gathering evidence in respect of stealing from traps is extremely difficult. Traps are set in open waters where it is easy to see other boats approaching enabling thieves to escape without being detected. The ability to avoid detection is made even easier with the aid of radar, giving the advantage of being able to see beyond the horizon.

39 Mr Westley stated that commercial lobster fishing businesses are relatively well sought after with the sale of lobster shares occurring frequently. The current share price of one share in the lobster fishery is $800. He estimated that a fishing business the size of the Applicant’s (95 shares) could be easily sold for in excess of $76,000 without the need for sale of any gear.

Relevant Statutory Provisions
40 Suspension and cancellation of licences is the subject of section 104(4) of the Act which relevantly provides:

“104 Provisions relating to licensing of commercial fishers
…
(4) A commercial fishing licence:
…
(e) may be cancelled or suspended by the Minister in the circumstances authorised by the regulations.”
41 For the purposes of section 104(4)(e) of the Act, the relevant clause of the Regulation is clause 140. That clause provides:
“140 Grounds for suspension or cancellation of a licence

For the purposes of section 104 (4) (e) of the Act, the Minister may cancel or suspend a commercial fishing licence if:

(a) the holder of the licence has been convicted of an offence under the Act or regulations made under the Act or of an offence relating to commercial fishing operations under the law of the Commonwealth, another State, a Territory or New Zealand, or
(b) the holder of the licence has been convicted of an offence relating to the theft of fish, fishing gear or a boat or intentional damage to fishing gear or a boat, or
(c) the holder of the licence has been convicted of an offence relating to an assault on a fisheries official, or
(d) the holder of the licence has, in the opinion of the Minister, contravened a condition of the licence or of an endorsement on that licence or of a permit issued to him or her under the Act, or
(e) the holder of the licence has sold or disposed of the holder's licensed fishing boat or boats, or transferred the holder's right to a fishing boat licence or licences, and the Minister is of the opinion that the holder is not able to maintain a viable fishing operation because the holder has an insufficient number of licensed boats or catch history (as referred to in section 51 of the Act), or
(f) the holder of the licence made a statement in connection with the holder's application for the issue or renewal of the licence that was, in the opinion of the Minister, false or misleading in a material particular, or
(g) the holder of the licence is not authorised, by or under section 103 (2) of the Act, to hold a commercial fishing licence.”
Submissions
Submissions for the Applicant
42 Ms Doyle's submission is essentially that section 104(e) gives the Minister discretion to cancel or suspend a commercial fishing licence. There is no imperative for the Minister to take this action. She notes that the Applicant has been convicted of larceny of fish and interference with set fishing gear and that he is subject to the supervision of the Local Court by virtue of a good behaviour bond. She argues that any further penalties would be unfair.

43 This would have serious implications for the Applicant. He is 67 years of age and has worked as a commercial fisher for 52 years. He has no qualifications or experience to engage in any other profession. Commercial fishing is the only viable means available to him to support himself and his family financially.

44 The Applicant, like other lobster fishers, has a wider interest as a member of the commercial fishing industry. Like other fishers, he has tested his skills against nature in the most harsh environment and his actions and reactions have been moulded by the same influences. Ms Doyle referred to views expressed in the case of Apostolovski v Crewe District Court of New South Wales Number 3171 of 1994, unreported, where Mahoney DCJ said at page 11:

“I have regard to the character reference, together with an appreciation of the fact that the industry controlled by this department is one which is more likely to attract modestly educated and very robust members of the community who lack the advantages of highly ethically motivated professional associations committed to the inculcation and maintenance of appropriate ethical standards of professionalism amongst members, such as are available for accountants, medical professionals and the like.”
45 She observed that the Act attempts to provide a deterrent to stealing from traps. It is consistent with the Applicant's evidence that he too had been subjected to theft and interference with fishing gear. This matter involved the theft of eight lobsters. The impact of that degree of loss on a fellow commercial fisher is negligible. The cancellation of the Applicant's licence will not be productive in preventing loss to the industry as a whole. There is no evidence that the Applicant poses a threat in the broad sense. The good behaviour bond that is current affords protection to fellow fishers.

46 Events leading to the Applicant's conviction should be viewed in the context of a long career in the fishing industry, and should be considered alongside the testimonials presented by the Applicant and the mitigating circumstances surrounding the Applicants' criminal histories.

47 The lobsters which were stolen had market value of approximately $ 300.00. The Applicant's evidence is that he regularly catches quantities of Lobsters far in excess of the eight in question and it would be reasonable to infer that the lobsters which he stole would have an insignificant impact on his financial gain, nor the financial detriment of their rightful owner.

48 The Applicant's actions occurred as a result of his perceived belief that a person or persons had interfered with his traps, thereby interfering with him in the course of obtaining his livelihood. The actions were a result of a feeling of frustration because he was not able to get support in relation to his complaints. He perceived that he had been victimised. The traps interfered with belonged to a Mr Ron Firkin with whom the Applicant had long standing animosity. Ms Doyle argued that it is significant that Fisheries would employ the assistance of a long standing adversary when designing an operation to catch lobster thieves, whereas no operation was commenced when Mr Moyce complained about interference with his traps.

49 Mr Westley does not fish in the same area as the Applicant and does not know him. He had no direct knowledge of the Applicant’s problems, although he stated that he himself has had similar problems Mr Westley said he could sympathise with the Applicant. No expert with local knowledge was called to confirm the truth or otherwise of the Applicant's story. Testimonials that the Applicant submitted confirm that his peers are aware that he has experienced frustration in relation to the interference with his gear and traps.

50 The Applicant presented as a person fighting in the face of considerable economic pressure, who regrets the situation. Subsequent to the cancellation of his licence, he has been put to substantial financial loss by virtue of lost profits, lost equipment and legal costs relating to his appeal. The initial decision was taken at the commencement of the industry’s peak fishing period, three months after the convictions were recorded and the Respondent failed to acknowledge the Applicant's request for an internal review of the decision. This loss has, in turn, impacted on his family and his dependents. The Respondent has failed in its duty to take into account the interests of all persons affected by the decision.

51 Ms Doyle, on behalf of the Applicant, argued that the sanction suffered by the Applicant should be the end of the matter. She submitted that the presiding Magistrate in the local court matter, in sentencing the Applicant, was appraised of the possibility that the Respondent would consider action in relation to the Applicant's licence. He specifically addressed this issue and he stated at page 13 of the transcript of those proceedings:

“I might say I am dealing with this matter, I am not imposing a penalty that is meant to clear up the lobster industry. If there is some more general operation crusade, whatever, by Fisheries, that is not for me to deal with. I need to deal with the precise matters, the matters before me. And just to make it clear, following the arguments that were put to me I do not take any accounts of any possible penalty that might arise from loss or suspension of licence or loss or reduction of quota. I have assumed, for the purposes of my rationale, that that will not happen and I would hope that any person who has given consideration to any further penalties that would be imposed would be aware that that is the basis on which I have reached my decision.”
52 The Magistrate chose not to mitigate penalty by reference to a possible decision to cancel the Applicant's licence at a future time. Ms Doyle submitted that the penalty imposed by the Magistrate will be all that is necessary to give confidence to the general community that in the future, misconduct will not occur. If the good behaviour bond the Court has imposed is breached, the Applicant may well be sent to gaol. The sentence acknowledges the serious nature of the offence, but reflects the belief of the Magistrate that there is a broader context to the offence.

53 Ms Doyle referred to the testimonials before this Tribunal and argued that they confirm that the Applicant is well regarded by his peers and business associates. He is a longstanding member of the fishing industry and a very senior pioneer in that industry. One of the referees attended the hearing and was willing to give evidence in support of the Applicant. There were others who were also prepared to attend, although they were not required. The fact that the Applicant is held in high esteem by many of his peers is something that should be taken into account.

54 Ms Doyle also queried the Respondent's power to refuse future consideration of any new application for a licence or endorsements that the Applicant may choose to bring.

55 Ms Doyle referred the Tribunal to the case of Saadieh v Director General, Department of Transport [1999] NSW ADT 68 as authority for factors to be taken into account as relevant to the issue of mitigation. She submitted that those factors include:

· the nature, seriousness and frequency of any criminal offences.

· the nature, seriousness and frequency of complaints against the Applicant;

· the career record of the Applicant;

· the Applicant's reputation in the community; and

· the likelihood that the Applicant will reoffend.

· It seems clear that these people have learnt a very salutary lesson from what has gone before.

56 In relation to the first of these factors, Ms Doyle referred to her earlier submissions. With respect to complaints against the Applicant, she submitted that there is no evidence of any complaints other than the evidence of the local court convictions. In relation to the Applicant's career record, she observed that he has survived in what is clearly a very hard career. The testimonials from within the community where the Applicant lives and works affirm that he is a person of good reputation and that he is good at his work. His own evidence indicates that he is proud of his efforts as a fisherman. The likelihood that the Applicant will reoffend is remote. He has learnt a very salutary lesson from what has taken place.

57 Ms Doyle argued that it is not the role of the Tribunal to make an example of the Applicant, although what action follows his conviction may well be relevant to the public interest. The Tribunal should place some weight on the fact that the Applicant has already undergone a period of suspension of one month in peak fishing season. It should conclude that the suspension served is sufficient to act as a deterrent to anyone else who might consider engaging in similar conduct.

Submissions for the Respondent
58 Mr Francey, for the Respondent, referred the Tribunal to the power within section 104 of the Act, which provides that the Minister may cancel or suspend a commercial fishing licence in the circumstances authorised. Subsection 104 (6) of the Act provides that the Minister may revoke or vary the conditions of or endorsements on the licence, or add new conditions or endorsements. The grounds are all related to the management of fisheries. He submitted that the trigger provisions in the legislation which would entitle the Minister to suspend or cancel have been triggered.

59 The matter for the Tribunal to consider is: what is the correct and preferable decision, having regard to the available material? In that regard, Mr Francey pointed to Mr Westley's evidence regarding the general concern in the industry about theft. Mr Westley referred to the difficulties of proving that theft has occurred; the imposition that ongoing theft causes to the industry in terms of the potential unnecessary danger that fishers are exposed to by taking precautions to protect their traps; and the commercial distortion that occurs by reason of it. This distortion is both in terms of the financial reward to the person who engages in it and the undesirable consequence that theft by one person can give rise to retaliation and a general lowering of standards of probity in the industry.

60 The operation to catch out somebody stealing lobsters was so remarkably successful that, on the day following the microchipped lobsters being placed in the traps, they appear to have been picked up by the Applicant, delivered to the fish markets the very next day, and then detected. As a result, the Applicant was charged and convicted. The technology that now exists to provide evidence of theft, used for the first time in this case, was so convincing that the Magistrate was satisfied beyond reasonable doubt of the Applicant’s guilt. He disbelieved the Applicant’s evidence denying that he was involved in committing the offences.

61 Mr Francey questioned the credibility of the claim that this is the one and only time that the Applicant had engaged in this kind of activity; that it is not a regular event, he has not done it in the past and he is not going to do it in the future. Mr Francey referred to the evidence that offences of this kind are prevalent in the industry and difficult to detect. He submitted that Mr Jason Moyce would have had a clear recollection of the events if he had engaged in this kind of activity on only one occasion. However, Mr Jason Moyce's recollection of dates was not clear. Mr Francey urged the Tribunal to draw the inference from the speed within which the Applicant was caught following the laying of the trap, that, if the operation of microchipping had been done on more than one occasion over a period of time, there may have been a greater quantity of evidence. The Applicant is not in a position to say that this is not something of the kind that he has done before, because he has been convicted for similar things on a previous occasion.

62 A Magistrate would take account of any provocation which had the effect of provoking the Applicant into committing an offence which he otherwise would not have committed. This would be considered in deciding whether or not to not record a conviction, despite the fact that an offence was found proven. However, the Applicant did not defend the charges against him on the basis of provocation. The Applicant defended the charges by denying committing the offences. The Magistrate formed the view that any provocation did not justify the Applicant taking the law into his own hands and committing offences of his own. He made no adverse finding about Mr Firkin or members of NSW Fisheries or anyone. The Applicant has made no specific allegation of provocation or wrongdoing as an excuse or explanation. There is therefore nothing to which the Respondent can respond.

63 For reasons that are not well explained, the Applicant deliberately decided to take fish, knowing that he was not entitled to do it. That is evidence of a mindset that shows a disregard for the law. Further, when charged he gave sworn evidence denying involvement in the offences, when he knew that he had been involved in the offences. That again is evidence of a mindset that he would continue to take the law into his own hands in order to avoid potential adverse financial consequences.

64 In Mr Francey submission, the Applicant engaged in deliberate, premeditated conduct, irrespective of the fact that he says that it was motivated by something other than stealing for commercial gain. The Tribunal should have regard to the Applicant’s preparedness to not tell the truth under oath in order to avoid the consequences of cancellation. The question them becomes: What is the appropriate action to be taken under section 104 against all of that background?

65 With respect to the presiding Magistrate's comments referred to by the Applicant, Mr Francey submitted that the Magistrate was going further than he was entitled to go in making those latter comments. The Magistrate's role is to deal with a criminal offence and, upon conviction, to impose a penalty that is appropriate on the facts and evidence before him. The issue of fisheries management remains to be addressed by those who are responsible for fisheries management. In Mr Francey submission, the Magistrate's expressed hope that any person giving further consideration to the matter would allow the approach which he had adopted to influence their decision is irrelevant. The Applicant is left in a situation in which his conduct falls to be considered under section 104 of the Act. The Respondent has taken a decision on the matter and argues that it made the correct and preferable decision in the circumstances. The Applicant has not demonstrated otherwise.

66 Mr Francey referred to a progression in the legislation regulating the industry. He argued that the regulatory regime and management structure exist for reasons of general public policy. The fishing industry is better run if members of the industry comply with the law that is imposed on them by both the general criminal law, and the legislation in which they operate. The decision under review is the correct and preferable decision in broad policy terms

67 Specific prohibitions on members of the fishing industry engaging in theft have been added to the general law prohibiting theft. In 1993 a provision allowing for the cancellation of a licence for theft was inserted. Improvements in technology which addressed the difficulties in securing convictions for theft resulted in a conviction in this case. Mr Francey argued that it is not enough for the Applicant to say that he was only doing what everyone else does. There is a regulatory regime and a management structure in place directed at preventing this kind of behaviour. The exercise of the power that exists under the legislation is separate to the sanctions that exist under the general law.

68 Mr Francey submitted that this is not an attempt to make an example of the Applicant. This is a rare occasion on which it has been possible to prove that someone committed offences of this kind. That has potentially huge benefits for the industry by overcoming what is generally perceived as problems within the industry at the moment. This is an occasion for taking disciplinary action against somebody who has been convicted of these offences.

69 If no action was taken to prevent the Applicant being involved in the industry, it would send a message that says “even if you get convicted, which was always difficult to prove in the past, nothing much is going to happen. You'll be fined a few hundred dollars and that's it”. The argument that an example is being made of the Applicant is not appropriate. It is a matter of technology existing which has enabled the detection of people engaged in wrongful conduct, and appropriate consequences should flow.

70 The cancellation of the Applicant's licence does not affect his capacity to sell his endorsements, quotas, entitlements et cetera. Therefore he has suffered no financial loss on that account. As a consequence of the stay imposed by the Tribunal, the Applicant is now experiencing a privilege of fishing when otherwise he would not be able to do so. This is in circumstances in which he has been convicted of offences which are of a kind that is causing an undermining of standards in this industry.

71 The Applicant is essentially retired. He simply allows his fishing endorsements to be used by the business that is primarily operated by his son. The Applicant helps on the hauling, but for most of the year he spends his time making the gear. He is not an entirely impoverished individual. He lives in a house valued at $800,000. He has substantial assets, quite apart from those in relation to his fishing activities.

Findings
72 The situation which faces the Applicant and the arguments made on his behalf bear some similarity to the matter before the Full Court of the Supreme Court of South Australia in R. v. Olsen; Ex parte Vahlberg (1975) 11 SASR 156. In that case the Acting Director of Fisheries in South Australia cancelled Mr and Mrs. Vahlberg’s authority to take rock lobsters following conviction of Mr Vahlberg for taking lobsters from a device set by another person contrary to the Fisheries Act 1971 (SA). Mr Vahlberg was fined $55. The maximum penalty prescribed was a fine of $100. On the question whether action additional to those prescribed for the criminal offence can be taken, Bray C.J. said (at p. 161):

"There is no doubt of the general principle that if a statute creates an offence and imposes penalties for it, then regulations made under the Act, in the absence of specific language in the regulation-making power, cannot impose additional or higher penalties for the same offence … It is clear law that where an Act of Parliament provides for a certain state of things, and imposes penalties for a breach, a by-law cannot be passed to provide for the same state of things".
73 The application of this principle leads to the conclusion that unless the Act specifically so provides, penalties contained therein which are additional to those imposed on the Applicant, cannot be applicable to the Applicant. It is clear that the Act does specifically provide for the Minister to take action against the Applicant in addition to any penalty imposed by the Courts. Pursuant to subsection 104(4)(e) the Act and clause 140 of the Regulation, the Minister is given a power of cancellation where the holder of a commercial fishing licence is convicted of an offence of the requisite type.

74 It follows that any argument that the sanction suffered by the Applicant must be the end of the matter, must fail. It is not disputed that the Applicant has been convicted of an offence of the requisite type. It follows, in my view, that the Minister has the power to cancel the Applicant’s licence. This is not to say that the exercise of that power was justified in the circumstances of this matter. That issue remains for determination. The task of the Tribunal is to exercise the discretion placed in the Minister and to determine whether, on the particular facts in this application, the decision to cancel the licence was the correct and preferable decision.

75 I have given consideration to all the facts in this application and, in particular, the following: the nature of the Applicant's offences, the circumstances in which those offences came to light, the time which has elapsed since the commission of the offences, the cancellation of the Applicant's licence and the period during which the Applicant was unable to operate under the licence, the Applicant’s other offences and convictions, the quantum of penalty imposed in relation to the maximum available, the Applicant's financial position and family responsibilities, testimonials presented on behalf of the Applicant, the need for management of the lobster fishery and the measures being taken to achieve that, and the public interest in limiting criminal activity within the industry.

76 As noted above, Ms Doyle referred to the Tribunal's decision in the matter of Saadieh v Director General, Department of Transport. In that matter, the Deputy President of this Tribunal set out several factors which should be considered when determining a person’s fitness and suitability to hold a taxi authority. These included:

· the nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted;

· the nature, seriousness and frequency of any complaints made against the Applicant;

· the Applicant's reputation in the community; and

· the likelihood that the Applicant will re-offend, be the subject of further complaints or commit further traffic offences.

77 In my opinion, these factors are readily adaptable to the requirements of the Act when determining a person’s fitness and suitability to hold a fishing licence.

78 I accept the submissions made on behalf of the Applicant in relation to complaints against him, his reputation in the community and the likelihood that he will reoffend. I accept that given the industry in which the Applicant operates, and the time that he has spent in that industry, his record has been relatively unspoiled prior to his most recent convictions. In my view, it is most probable that the Applicant is highly regarded among those persons in the industry with whom he has been associated. It is also most probable that he is very skilled at his chosen field of work. In the circumstances, I accept that the Applicant has learned an important lesson from his recent experiences and that he is unlikely to reoffend in the manner referred to in this matter.

79 Notwithstanding that view, I do not accept that those factors lessen the seriousness of the offences for which the Applicant has been convicted. While I note the evidence that the Applicant's conduct was a response to general frustration he experienced as a result of a more widespread problem in the industry, I have great difficulty in accepting that the Applicant was caught engaging in an unlawful activity on the one and only time that he engaged in that activity. In my view, it is more likely that if the operation of microchipping had been done on more than one occasion over a period of time, there may have been a greater quantity of evidence.

80 It is clear from the evidence that NSW Fisheries engaged in an operation specifically designed to catch lobster thieves at least partly as a consequence of the volume of anecdotal evidence that the Applicant frequently stole lobsters from other fisher's traps. It is important to note that the Applicant was caught stealing lobsters very early into the operation. The offences committed by the Applicant and for which he has been convicted are most serious. I accept that this view is also shared by the commercial fishing industry.

81 I agree with Mr Francey’s submissions that the Applicant’s conduct is evidence of a mindset that shows a disregard for the law. It is of no consequence that similar attitudes exist amongst others who operate within the industry.

82 I also agree with the views expressed by the presiding Magistrate in the Local Court matter when he observed at page 12 of the transcript:

“The steps that the Fisheries Department had to go through to prove this case I think is indicative of the problems in detecting and proving the offence. It may well be that the lobster fishing industry is a little bit like Dodge City, I don’t know. I hear some material that suggests that that is the case, but that’s no justification for behaving illegally. Just because one person follows the law of the jungle doesn’t justify anybody else in doing that. The two of you obviously should have known better, you have been before the courts before. Mr Edward Moyce for a similar matter, a matter with very similar circumstances ... so I take it that each of you must have known very clearly (a) what the consequences might be as far as penalty and (b) you would have been only too aware of the adverse consequences for Mr Firkin.”
83 The Fisheries Management (Lobster Share Management Plan) Regulation 2000 clearly outlines objectives and performance indicators in relation to the management plan. In my opinion, I ought to give very high regard to those matters. I note that objective number 6 provides:
“6. Minimise the number of offences committed by fishers in relation to rock lobster.”
84 Mr Francey made detailed submissions in relation to the public interest in maintaining an industry free from criminal activity. The expression “public interest” is a term embracing questions, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals. A licence is granted with the expectation that the licensee utilises that authority 'in the public interest'.

85 I note the consequences which may well flow to the Applicant if his licence is cancelled, however the Applicant’s interest in retaining his licence must be subordinate to the need to overcome what are generally perceived as problems within the industry.

86 The commercial fishing industry is a high risk industry that relies heavily on the integrity of operators. Theft is considered to be a major issue, particularly of high value species such as lobsters. If a known thief is allowed to continue to operate there is a risk that members of the industry may take the law into their own hands. This is clearly not in the public interest.

87 This is clearly a rare occasion on which it has been possible to prove theft of this kind. The public interest requires that the regulatory regime and management structure which exist in relation to the industry are effectively applied in circumstances where somebody has been convicted of these offences. The failure to utilise the powers open to the Minister in these circumstances would defeat the legislative purpose behind the grant of those powers. I have difficulty in imagining a situation in which the use of those powers would be warranted if it is not warranted in the present circumstances.

88 With respect to the view expressed by the Respondent in relation to the processing of future licence applications, I make no comment except to note that any application would be a matter for consideration by the Respondent should such an application be made. The Applicant will have rights of review in relation to any decision made by the Respondent.

Conclusion
89 Having considered all these factors, I consider it appropriate that some form of action should be taken in relation to the Applicant’s licence in addition to the sanctions imposed as a consequence of his convictions. I have had some difficulty in determining the extent of the action that should be taken; however I have formed the view that the decision made by the Minister is the correct and preferable decision. Accordingly the decision of the Minister to cancel the commercial fishing licences and endorsements held by Edward Sydney Moyce is affirmed.

Orders
90 The decision of the Minister to cancel the commercial fishing licences and endorsements held by Edward Sydney Moyce is affirmed.