PRIDEAUX and CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF FISHERIES

[2011] WASAT 201

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: FISH RESOURCES MANAGEMENT ACT 1994 (WA)

CITATION:   PRIDEAUX and CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF FISHERIES [2011] WASAT 201

MEMBER:   MR M SPILLANE (SENIOR MEMBER)

MR D AITKEN (MEMBER)

HEARD:   6 AND 7 SEPTEMBER 2011

DELIVERED          :   12 DECEMBER 2011

FILE NO/S:   DR 131 of 2011

BETWEEN:   PETER PRIDEAUX

Applicant

AND

CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF FISHERIES
Respondent

Catchwords:

Fish Resources Management Act 1994 ­ Section 143 ­ Suspension of commercial fishing licence ­ Basis of discretion ­ Fit and proper ­ Best interests of fishing industry

Legislation:

Fish Resources Management Act 1995 (WA), s 3, s 4, s 66, s 67(2), s 68, s 73, s 91(d), s 136A, s 140, s 140(2), s 143, s 143(1), s 143(2), s 147, s 148(1)(d), s 149, s 149(1), s 150(c), s 152(1), s 152(2), s 172, s 172(b), s 223, s 224
Fish Resources Management Regulations 1995 (WA), reg 38(2)(b), reg 121, reg 122, reg 134, reg 147
Security and Related Activities (Control) Act 1996 (WA)
State Administrative Tribunal Act 2004 (WA), s 27

Result:

Decision of Chief Executive Officer of Department of Fisheries is varied

Category:    B

Representation:

Counsel:

Applicant:     Mr P McGowan

Respondent:     Ms C Ide

Solicitors:

Applicant:     DLA Piper Australia

Respondent:     State Solicitor's Office

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

Andrea Corrao and Executive Director, Fisheries WA (FT 7 of 1999)

Herron v McGregor (1986) 6 NSWLR 246

Hewett v Medical Board of Western Australia [2004] WASCA 170

Minister for Aboriginal Affairs v Peko­Wallsend Ltd (1986) 162 CLR 24

Motor Vehicle Industry Board and Dawson [2006] WASAT 8

Real Estate and Business Agents Supervisory Board and Mavaddat [2008] WASAT 193

Tavelli re Johnson unreported; Supreme Court of WA Library No 960693; 25 November 1996

The Registrar, Real Estate and Business Agents Advisory Board v Barnett unreported, Full Court of the Supreme Court in WA, Library No 170426, 26 August 1997

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. Mr Peter Prideaux is a commercial fisherman who was convicted and fined $2,500 in February 2008 for interfering with crayfish pots, which were not his, off Lancelin in 2006.

2. Following that conviction, the Chief Executive Officer of the Department of Fisheries decided to suspend the applicant's Commercial Fishing Licence until 31 August 2012.

3. Mr Prideaux sought a review of that decision before this Tribunal and argued that his Commercial Fishing Licence should not be suspended due to:

   •the Chief Executive Officer's delay in suspending his licence;

   •the fact that, following his conviction, a Managed Fishery Licence had been transferred to him in 2008 and his Commercial Fishing Licence had been renewed in 2008, 2009 and 2010 without conditions;

   •the fact that the court had not suspended his licence;

   •the hardship it would cause;

   •the circumstances of how the offence occurred; and

   •his good character.

4. Having considered each of those matters and examined the legislation, the reasons for the suspension and the interests of the fishing industry, the Tribunal found that the suspension of Mr Prideaux's Commercial Fishing Licence was the correct and preferable decision and his licence was suspended from 22 December 2011 to 31 August 2012.

Background

1. Mr Peter Prideaux (applicant) is a commercial fisherman who was convicted in February 2008 of interfering with crayfish pots, which were not his, off Lancelin in 2006.

2. Following that conviction, the Chief Executive Officer (CEO) of the Department of Fisheries decided in March 2011 to suspend the applicant's Commercial Fishing Licence (CFL) until 31 August 2012.

3. The applicant then applied to this Tribunal to review that decision and the matter was heard on 6 and 7 September 2011.

Issue

Should the applicant's Commercial Fishing Licence be suspended?

Facts

1. The applicant is an experienced commercial fisherman and holds a CFL No 89017 with an expiry date of 2 March 2012.

2. The applicant and his son, Mr Benjamin Prideaux (son), are also the holders of a Fishing Boat Licence (FBL) No 1863 for the licensed fishing boat 'Marlin' (LFB F322).

3. The applicant and his son are also the holders of West Coast Rock Lobster Managed Fishery Licence No 1480 (MFL 1480) which permits them to use the licensed fishing boat 'Marlin' in accordance with MFL 1480 to engage in fishing for rock lobster.

4. On 1 October 2008, they also became the holders of West Coast Rock Lobster Managed Fishery Licence No 1400 (MFL 1400).

5. On 11 January 2008, the applicant was convicted for fishing for rock lobster on 18 May 2006 with rock lobster pots that did not have appropriately sized escape gaps pursuant to reg 38(2)(b) of the Fish Resources Management Regulations 1995 (WA) (FRM Regulations).

6. The statement of facts in that matter read:

   The accused is a commercial rock lobster fisherman and a skipper of licensed fishing boat F322 'Marlin'.  The vessel 'Marlin' is licensed to fish in the West Coast Rock Lobster Fishery.

   On 18 May 2006 the Fisheries Officers were on board the vessel 'Marlin' while the accused and his crew pulled and reset rock lobster pots to catch rock lobster in the waters west of Lancelin.  The location of the waters off Lancelin fall between the latitudes of 21 [degrees] 44 [minutes] and 34 [degrees] 44 [minutes] South.

   102 pots were pulled on the relevant date; 99 of which had escape gaps smaller than those allowed by the Regulations.

7. The accused pleaded guilty to the charge and was fined $1,000 with costs of $569.20.

8. On 18 February 2008, the applicant was convicted, pursuant to s 172(b) of the Fish Resources Management Act 1995 (WA) (FRM Act), of interfering with fishing gear, namely, crayfish pots, on 11 May 2006 in the waters off Lancelin when he was neither owner of that gear, nor acting with the authority of the owner of that gear.

9. The statement of facts before the Magistrate on that occasion read as follows:

   The accused is a commercial rock lobster fisherman and skipper of license[d] fishing boat F322 'Marlin'.  The vessel 'Marlin' is licensed to fish in the West Coast Rock Lobster Fishery.

   On 11 May 2006 the accused was pulling and resetting his rock lobster pots to catch rock lobster in the waters off Lancelin.  The accused pulled two rock lobster pots that belonged to another person without that person's authority.  Four tagged rock lobster that had been placed in the rock lobster pots belonging to the other person were found in the accused's catch.

10. The accused pleaded guilty to the charge and was fined $2,500, with costs of $669.20.

11. By letter dated 7 March 2008, the then CEO of the Department of Fisheries, Mr PJ Millington, wrote to the applicant explaining that he had been advised that on 18 February 2008 the applicant had been convicted of contravening s 172 of the FRM Act, and that he (the CEO) deemed it very serious.  He explained that, pursuant to s 143 of the FRM Act, he was empowered to cancel, suspend or refuse to renew the applicant's authorisation and stated:

    I have considered the matter before me having due regard for the better interest of the fishing industry and the serious nature of the offence of which you were convicted.  My current view is that I should instruct the Registrar to suspend your CFL.

    I am prepared to consider any written submission you care to make concerning this matter. …

12. By letter dated 20 March 2008, solicitors for the applicant replied to the CEO, following which a further letter was written by the CEO to the applicant's solicitors dated 18 April 2008, to which they replied by letter dated 23 April 2008.

13. Nothing further appeared to transpire in the matter until 10 March 2010, when a letter was sent to the solicitors for the applicant enquiring whether they still acted, to which they replied by letter dated 12 March 2010 that they did.

14. Again, nothing was heard until 18 January 2011, when a letter was sent to the solicitors for the applicant addressing the matters raised by them in April 2008.

15. Several further letters then crossed between the parties culminating in a letter of 28 March 2011 in which Mr Bruno Mezzatesta, the Director of Regional Services with the Department of Fisheries as delegate of the CEO, wrote to the applicant's solicitors, stating:

    For the reasons set out in this and in previous correspondence I have decided to suspend your client's CFL under section 143 of the Act.  The period of the suspension will expire at the end of 31 August 2012.

16. On 14 April 2011, the applicant filed an application with this Tribunal to review that decision pursuant to s 149(1) of the FRM Act.

17. It was common cause before this Tribunal that the operation of any suspension will not begin until this Tribunal determines the matter.

Applicant's evidence and submissions

1. Five witnesses were called on behalf of the applicant, with a further five witness statements presented unopposed.

2. The five witnesses called were:

   •the applicant, Mr Peter Prideaux;

   •his son, Mr Benjamin Prideaux;

   •Mr James Paratore, a commercial fisherman, a pharmacist and representative on the Western Rock Lobster Council and Western Australian Fishing Industry Council;

   •Mr Clinton Moss, commercial fisherman and member of the Western Rock Lobster Council; and

   •Mr Christopher Chubb, a scientist active in the industry.

3. The five witness statements presented unopposed all dealt with the applicant's character.

4. The applicant's evidence and submissions covered essentially six sub­issues, namely:

Delay

The applicant pointed to the three years that had elapsed since his conviction in February 2008 through to the decision to suspend his licence in March 2011 and the events that had taken place since that time and argued that, in light of such delay, no suspension should be imposed.

Other licence approvals and renewals

The applicant pointed to the fact that in November 2008 he was granted approval for the transfer to him of a managed fishery licence for which he had to be deemed a 'fit and proper person' and the CEO could not now turn around and say he was not a fit and proper person.

Furthermore, in 2008, 2009 and 2010, the applicant's CFL had been renewed each year without any restriction or condition.

Lack of court suspension

The applicant argued that, because the court at the time of the applicant's conviction in February 2008 did not see fit to cancel or suspend the applicant's licence at that time, as it was open to the court to do under s 223 of the FRM Act, the CEO should not now do so.

Impact of the suspension on the applicant

The applicant raised the issue of hardship, explaining the impact the suspension would have on him, particularly in light of having committed to leasing a substantial number of additional pots for the current rock lobster season and that his son is also engaged in other employment.

The circumstances under which the offence occurred

Here the applicant dealt with what had happened on the day of the incident on board his vessel and that he had been fully co­operative following the event.

The applicant's character

All of the applicant's witnesses spoke well of his character, his long history in the industry and particularly his increased involvement in the representative side of the industry since his conviction.

1. The applicant argued that, based on all of those sub-issues and the evidence put forward to support them, no suspension should be imposed.

2. Although only briefly synopsised above, all of the evidence put forward an behalf of the applicant has been carefully considered and taken into account by the Tribunal.

Respondent's evidence and submissions

1. The respondent called two witnesses, the first being Mr John Lobby, Manager of Compliance and Regional Support for the Department of Fisheries in Western Australia, and the second, Mr Gerardus Segers, Senior Fisheries and Marine Officer Special Projects with the Department.

2. Both witnesses provided the Tribunal with written statements of evidence, gave oral evidence and were cross-examined in respect of their evidence.

3. Counsel for the respondent explained the Department's case in the following terms:

   We say here suspension of the CFL is warranted for a range of reasons and none of these reasons will be new to you.  They are all contained in our statement of issues, facts and contentions.  Firstly we say that the offence is one, that is the offence under section 172, is one involving dishonesty, interfering with someone else's gear and effectively taking that person's rock lobster and passing it off as part of his own catch.  It's an offence against another fisherman rather than the resource generally, and when I talk of an offence against the resource, an example would be catching rock lobster[s] that are under­size.  That impacts on the resource as a whole, whereas this has an impact on another specific person.

   There is an importance within this type of industry to protect social capital, cooperation and goodwill.  The nature of fishing, and in particular rock lobster fishing, requires pots to be set and left for a period of time, potentially in the areas of the ocean where there is poor surveillance or no surveillance whatsoever.  Given that is the case then cooperation and goodwill is needed to ensure that the fishery manages ­ proceeds in an orderly manner in an efficient way.  Offences of the type under section 172 lead to distrust and disrespect between fishermen and there is evidence that the industry as a whole frowns upon this sort of behaviour.  It's considered to be a worse type of offence to undertake.

4. The respondent put an extensive number of documents before the Tribunal, in an initial bundle dated 27 May 2011 and a supplementary bundle dated 19 August 2011, along with the documents attached to the statements of both Mr Lobby and Mr Segers.

5. The evidence of both Mr Lobby and Mr Segers was essentially that tampering with another fisherman's gear was a serious offence which created distrust amongst fishermen and was detrimental to the social harmony of the industry.

6. The respondent referred to what they described as a longstanding 'policy' in respect of offences of this type to which they said regard ought to be had.  However, it became clear during the hearing that, although there may have been a policy under the previous Fisheries Act, it does not appear that any policy has been formally adopted as to how matters should be dealt with under s 143 of the FRM Act.  Some evidence was given that a policy may currently be being developed.  However, for the purposes of deciding this matter, the Tribunal has had no regard to the issue of policy.

7. A review of the decision of the CEO by this Tribunal is by way of a hearing de novo and in their closing submissions, both parties agreed that the Tribunal's discretion in standing in the shoes of the original decision­maker and applying s 143 of the FRM Act is unfettered but must be discharged according to law.

Consideration

1. As outlined above, although both parties accepted that the CEO's power under s 143 of the FRM Act and the Tribunal's power on review is unfettered, there are boundaries to such discretion.

2. In Motor Vehicle Industry Board and Dawson [2006] WASAT 8 (Dawson), this Tribunal, at [21] and [22], set out the following relevant statement of Mason J in Minister for Aboriginal Affairs v Peko­Wallsend Ltd (1986) 162 CLR 24 at 39 (Peko­Wallsend), where he touched on the relevant considerations which an administrative decision­maker is obliged to take into account.  He stated:

   What factors a decision­maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion.  If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive.  If the relevant factors … are not expressly stated, they must be determined by implication from the subject­matter, scope and purpose of the Act. … [W]here a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far [sic] as there may be found in the subject­matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard …

3. The Tribunal, in Dawson, then went on to state, at [24] ­ [26]:

   A decision whether to cancel a person's licence or other authorisation to engage in a particular activity because of offences will usually be made in one of two types of circumstances. The first situation involves consideration by a court of what sentence to impose on a person convicted of certain types of offences for the purposes of Part 15 of the Sentencing Act 1995 (WA) ­ which deals with licences in relation to motor vehicles, firearms and marine vessels ­ or comparable legislation. In such cases the disqualification or cancellation becomes part of the sentence for the offence. The principles relevant to the exercise of the discretion to disqualify a person in such circumstances are examined in cases such as Schamotta v The Queen [2002] WASCA 262 at [7] ­ [13] and Binns v Gardiner [2002] WASCA 337 at [54] ­ [63]. In such cases it is necessary to consider both a punishment factor and a protective purpose.

   The second context in which consideration of disqualification may arise is when a decision­maker must take into account previous conduct or convictions (but in a context unrelated to the sentencing for such convictions) in order to decide whether to disqualify a person from undertaking certain types of activities.  Examples included banning a person from being a director of a company or, as in the present case, disqualifying a person from holding, or obtaining, certain types of occupational licences.  It is well recognised in this context that the power should be exercised for the purpose of protecting the public and the maintenance of appropriate professional standards, although its exercise may have a punitive effect: see generally Rich v Australian Securities and Investments Commission [2004] HCA 42 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ at [34] and [35] and the authorities referred to therein.

   In exercising the power, regard is ordinarily paid to the kinds of factors identified by Wheeler J in Tavelli v Johnson unreported; Supreme Court of WA Library No 960693; 25 November 1996 at pages 6 ­ 7 and Barker J in Coulthard v Henneker [2003] WASCA 187 at [44] ­ [50]. This involves consideration of matters such as the nature of the offence, the circumstances in which it occurred, whether the offence reflects adversely on the character of the offender, relevant changes in the person's circumstances, and character generally since the time the offence occurred.

4. The factors identified by Wheeler J in Tavelli re Johnson unreported; Supreme Court of WA Library No 960693; 25 November 1996 (Tavelli) were also referred to by both parties, with the applicant using them as a template to fashion the six sub­issues referred to above.

5. The following passage from Real Estate and Business Agents Supervisory Board and Mavaddat [2008] WASAT 193 (Mavaddat) at [14] provides a concise statement of the object of disciplinary proceedings:

   … The object of imposing disciplinary penalties is the protection of the public, and notwithstanding that the exercise of disciplinary powers may involve a great deprivation of the person disciplined, there is no element of punishment involved ­ NSW Bar Association v Evatt (1968) 117 CLR 177. As well as the protection of the public, disciplinary penalties serve to maintain proper professional standards ­ Paridis v Settlement Agents Supervisory Board [2007] WASCA 1997 at [25]. It is also necessary to deter others who may be of a like mind to transgress in the future ­ Jemielita v Medical Board of Western Australia (unreported, WASC, Library No 920584, 13 November 1992) per Owen J.

1. From the evidence before this Tribunal, it is clear that a breach of s 172 of the FRM Act is seen in the industry as a very serious offence.

2. Apart from Mr Lobby's and Mr Seger's views on the matter, four commercial fishermen, including the applicant and his son, gave evidence at the hearing.  Each was asked his view in respect of an offence under s 172 of the FRM Act and each stated as follows:

   Applicant (T:26, 6.9.2011):

   It's not a very good thing to be in an industry like this and be accused of probably one of the most abhorrent things, which is pulling someone else's pots and ­ you know, with the connotations there of stealing and taking food out of another person's kid's mouth and all those sorts of things.  It's probably one of the worst things that can happen to you in terms of an offence.  I know that the fisheries seem to think, if you take a sustainability thing, like if you're caught with undersized crays or breeders or something, that's worse for the industry, but as far as the actual fishermen themselves are concerned, it's one of the worst things that can happen.

   Applicant's son (T:47 ­ 48, 6.9.2011):

   … Well, among cray fishermen [sic] it's not very good at all really.  They look down upon you pretty much for being convicted of something like that …

   …

   … Basically it's just interfering ­ messing around with someone else's gear.  You have your pots out there, you leave them on the ocean and you want to think that when you come back to them the next day that [sic] you will be the only one that's been to them basically and people not understanding the circumstances of the situation would just not take that in a very good way.

   Mr James Paratore, a commercial fisherman and representative on the Western Rock Lobster Council and Western Australian Fishing Industry Council (T:63, 6.9.2011):

   … My own personal view is that each case should be considered, you know, on its own merits on a case­by­case basis and that as it currently stands[,] the CEO has the power to administer that.  If a suspension of 12 months is deemed satisfactory in terms of a disciplinary action, then I have no problems with that and I don't believe anyone in the industry would.  My one comment would be that that particular discretion from a fishing industry point of view should be at least exercised in a timely manner and that would be my one concern, that there would be some consistency applied to the suspension and so long as there was consistency applied, the merits of the case were considered …

   Mr Clinton Moss, a commercial fisherman and also a member of the Western Rock Lobster Council (T:66, 6.9.2011):

   … I think they're worse, mostly because every fisherman is vulnerable to someone else pulling their pot and when you're learning and starting with fish as I was on my own in 2000, it's a hard learning curve.  I spent four years of basically like an apprenticeship getting nowhere.  So to have that fear of someone else pulling your gear or dragging it, that was always one of my biggest fears.

3. Clearly, therefore, the fishermen themselves regard a breach of s 172 of the FRM Act as a very serious matter and, as s 143 of the FRM Act allows the CEO to cancel, suspend or refuse to renew a licence for a conviction under that section, the legislation also regards it as serious.

4. The Tribunal will now deal with the six sub­issues raised by the applicant to support their contention that no suspension should be imposed:

Delay

1. It is acknowledged that there was a three year delay between the date of the applicant's conviction in February 2008 until the decision to suspend his licence in March 2011.

2. Some explanation as to the reason for this, which dealt mainly with internal problems within the Department of Fisheries, was put forward by the respondent's witnesses.  It is unfortunate such a delay occurred, as it is always best that action that relies on an event such as a conviction to ground its reasoning should be done in a timely manner for a variety of reasons.

3. Although it is regrettable that such a delay took place, the Tribunal needs to examine that delay in the context of a review of the CEO's decision.

4. In Hewett v Medical Board of Western Australia [2004] WASCA 170, Miller J considered the issue of delay by the Medical Board of Western Australia (Board) in concluding an inquiry regarding allegations of infamous or improper conduct made against a medical practitioner and the extent to which that delay had been excessive and caused prejudice to the medical practitioner. The Board in that case had taken over 10 years to conduct its inquiry and deliver its decision. At [106], Miller J stated:

   The effect of long delay between the date of allegations and the time at which they are considered by a disciplinary tribunal was the subject of the following observations by McHugh JA in Herron v McGregor (1986) 6 NSWLR 246 at 254 ­ 255:

   'The public interest requires that complaints be lodged and dealt with as expeditiously as possible:  see Birkett v James (at 329).  A person with reasonable ground for complaint, therefore, should pursue it with reasonable diligence.  Memories fade.  Relevant evidence becomes lost.  Even when written records are kept, long delay will frequently create prejudice which can never be proved affirmatively.  As the United States Supreme Court said in Barker v Wingo (at 532) "what has been forgotten can rarely be shown".  In some cases delay makes it simply impossible for justice to be done:  Birkett v James (at 317­318, 327).  In R v Lawrence [1982] AC 510 at 517, Lord Hailsham LC pointed out that: "Where there is delay the whole quality of justice deteriorates." The difficulties in ascertaining the truth about a matter after time has done its work are vividly portrayed by Street CJ in the Report of the Royal Commission of Inquiry into Certain Committal Proceedings Against K E Humphreys (July 1983).

   …

   Because delay creates prejudice and injustice, the policy of the law for over 300 years has been to fix definite time limits for prosecuting civil claims (usually a maximum of six years) and for 150 years to fix definite time limits for prosecuting summary criminal offences.  Equity, though not bound by the common law limitations, applied them by analogy.  The reasons which have impelled the legislature to fix time limits in civil and many criminal cases are equally applicable to disciplinary proceedings.  When a number of years has elapsed since the conduct occurred, the lodging of a complaint prima facie needs justification although, of course, there can be no fixed rule.'

5. In the present case, none of the issues referred to in the passage in Herron v McGregor (1986) 6 NSWLR 246 (Herron) referred to by Miller J, such as memories fading or relevant evidence becoming lost, were factors.

6. What, in fact, the applicant put forward was that his circumstances had changed and that a suspension now would be more onerous on him than if it had occurred in 2008.  The reason for this was that, following his conviction in 2008, he had largely withdrawn from the industry but, due to changes in the quota system, he is now once again becoming more actively involved and had committed with his son to leasing a large number of additional pots.  Furthermore, his son, who is also a qualified skipper and works the family fishing business with his father and had effectively carried the business since 2008, had, for career purposes, taken a position with a large tourism charter vessel and would be less available to skipper the crayfish activities as he had been in the past.

7. As stated in Mavaddat:

   Notwithstanding that the exercise of disciplinary powers may involve a great deprivation of the person disciplined, there is no element of punishment involved …

8. It is recognised that, at whatever time a suspension of the type contemplated is imposed, it will impact on the applicant.

9. The issue of delay in the context of proceedings such as the present is relevant for the reasons set out by Miller J in Hewitt, in particular, the prejudice it may cause a party in defending themselves against disciplinary proceedings.

10. Although there was delay in the current matter, no prejudice of the type envisaged by Miller J occurred, and the applicant was fully able to put his case before this Tribunal.  It is acknowledged that the applicant may have made business decisions in the course of running his business that will be impacted upon, but that is not a prejudice that is caused by reason of delay.

11. There will be impact both on the applicant and his family by the operation of any suspension; however, the delay involved in this case is not reason enough not to impose a suspension.

Other licence approvals and renewals

1. There was, in effect, two parts to this sub-issue.  The first dealt with the transfer of a managed fisheries licence (MFL) to the applicant in November 2008 and the second was the renewal of the applicant's CFL in 2008, 2009 and 2010.

The transfer of the MFL

1. An MFL or managed fisheries licence means a licence granted under s 66 of the FRM Act.

2. In the FRM Act, 'authorisation' means a licence or permit.

3. Section 66(2) states:

   An authorisation may authorise a person, or persons acting on that person's behalf, to engage in fishing or any fishing activity of a specified class in a managed fishery or an interim managed fishery …

4. Section 66(3) states:

   The entitlement a person has under an authorisation may be limited by reference to all or any of the following ­

   (a)a quantity of fish that may be taken;

   (b)a quantity of fishing gear that may be used or carried;

   (c)a boat, vehicle or aircraft, or a number of boats, vehicles or aircraft, or a class or length of boat, vehicle or aircraft, that may be used;

   (d)a number of persons that may operate;

   (e)an area of land or waters;

   (f)a period of time;

   (g)any other factor.

1. Section 66(4) states:

   For the purposes of subsection (3), the extent of an entitlement under an authorisation may be expressed in terms of units of entitlement defined in the management plan.

2. A CFL, or commercial fishing licence, means a licence granted under the regulations authorising a person to engage in commercial fishing.

3. Regulation 121(1) of the FRM Regulations states:

   A person, other than a person referred to in section 91(d) of the Act, who  engages in commercial fishing must hold a commercial fishing licence. (The reference to s 91(d) is not relevant for present purposes.)

4. Section 73 of the FRM Act states:

   A commercial fishing licence, fishing boat licence or any other licence granted under the regulations does not authorise a person to use a boat for fishing or engage in a fishing activity in a managed fishery or an interim managed fishery.

5. In simple terms therefore, a person must hold a CFL to engage in commercial fishing but it is an MFL which is the licence that grants the quota of fish that may be taken.

6. A person holding a MFL may authorise another party to act on that person's behalf to catch the quota allocated under the MFL.  That other person would, of course, need to also hold a valid CFL and a valid FBL, but in essence, an MFL can be held by an investor who has no intention to fish personally but merely wishes to rent or lease out the quota entitlement under the MFL for gain or reward.

7. A CFL on the other hand authorises the holder to personally engage in the activity of commercial fishing, whereas an MFL does not carry such an entitlement.

8. Section 140 of the FRM Act deals with the issue of transfers of licences such as MFLs, FBLs and CFLs.  Section 140(2) states:

   The CEO may refuse to transfer an authorisation or a part of an entitlement ­

   (a)if in the CEO’s opinion the proposed transferee ­

   (i)is not a fit and proper person to hold the authorisation; or

   (ii)does not satisfy guidelines under section 247 relating to foreign persons holding, controlling or having an interest in authorisations;

9. At paras 22 ­ 27 of his statement of evidence, the applicant stated:

   22.On or about 29 September 2008, I purchased Managed Fishery Licence No. 1400 and Fishing Boat Licence Number 1356 from Keith Pearce following his retirement as a rock lobster fisherman.

   23.The purchase of Keith Pearce's MFL and Fishing Boat Licence was conditional upon the transfer into my name being approved by the Department.

   24.On or about 31 October 2008, I received a letter from the Senior Licensing Officer for the Chief Executive Officer of the Department dated 31 October 2008.  The letter referred to my conviction and requested written advice as to why I should be considered fit and proper to hold the MFL. …

   25.In response to the Department's letter, I wrote to the Senior Licensing Officer for the Chief Executive Officer of the Department suggesting that the renewal of our MFL for 2009 and in previous years provided evidence that the Department had considered me to be a fit and proper person to hold an MFL. …

   26.…

   27.On or about 5 November 2008, Ben and I received a letter from the Senior Licensing Officer for the Chief Executive Officer of the Department advising that the application from Keith Pearce to transfer Fishing Boat Licence No. 1356 and the West Coast Rock Managed Fishery Licence No. 1400 had been granted. …

10. The applicant contended that, as he had been judged fit and proper for the transfer of that licence, and that transfer took place after his conviction under s 172 of the FRM Act, the CEO regarded him as a fit and proper person and his CFL should therefore not be suspended.

11. As explained above, an MFL does not entitle the holder to actively fish; for that, one needs a CFL.

12. It is also noted that the MFL and the FBL referred to were transferred to both the applicant and his son jointly and not just to the applicant.

13. It is the applicant's CFL that has been suspended.  That is the licence which allows him to actively take part in fishing and it was his activities, as an active fisherman using his CFL, for which he was convicted in February 2008.

14. Furthermore, reg 122 of the FRM Regulations under the heading 'Grant of commercial fishing licence' states:

    If a person applies to the CEO for the grant of a commercial fishing licence authorising that person to engage in commercial fishing and the CEO is satisfied that it is in the better interests of the fishing industry to grant the licence the CEO may do so.

15. The matter the CEO must be satisfied of to grant a CFL therefore is that 'it is in the better interests of the fishing industry'.

16. The Tribunal is satisfied that the CEO could reach a decision that a person, jointly with someone else, is a fit and proper person to hold an MFL or indeed an FBL, which would entitle them to invest in and profit from the fishing industry but not to actively take part, yet not be satisfied that the same person should be granted a CFL on the basis that it is not in the better interests of the fishing industry.

17. In the circumstances, therefore, although the CEO found that the applicant was a fit and proper person to whom an MFL and an FBL could be transferred jointly with his son in November 2008, it is not determinative of whether the CEO may or should suspend the applicant's CFL.

Renewals of CFL

1. Insofar as the renewal of the applicant's CFL in 2008, 2009 and 2010 is concerned, both s 68 of the FRM Act and reg 134 of the FRM Regulations are relevant.

2. Under the heading 'Renewal of licences and permits', s 68 of the FRM Act states:

   If a person applies to the CEO for the renewal of an authorisation, the CEO is, subject to sections 136A and 143, to renew the authorisation. (Section 136A of the FRM Act is not relevant for present circumstances.)

3. Regulation 134 of the FRM Regulations under the heading 'Renewal of licences' states:

   If a person applies to the CEO for the renewal of a licence granted under this Part, the CEO is, subject to section 143 of the Act, to renew the licence.

4. Section 143 of the FRM Act which is mentioned in both s 68 and reg 134 is the very section under which the CEO suspended the applicant's CFL in March 2011.

5. Both s 68 and reg 134 clearly state that, if a person applies for the renewal of their licence 'the CEO is' to renew the authorisation subject to any decision that may have been made under s 143.

6. As no decision had been made under s 143 of the FRM Act at the time of the renewals in 2008, 2009 and 2010, the CEO was obliged under both s 68 and reg 134 to grant the renewals. In doing so, it could not be regarded as implying that the CEO believed that the applicant was a fit and proper person to have his CFL renewed or that it was in the better interests of the industry to do so.

Lack of court suspension

1. When the applicant was convicted of a breach of s 172 of the FRM Act in February 2008, the court had the power to suspend the applicant's CFL.  It would appear, however, from what was before the Tribunal that the prosecutor did not seek such a suspension, nor did the court impose one.

2. Section 223 of the FRM Act, under the heading 'Court may cancel or suspend authorisation', states:

   (1)If a court convicts a person of an offence against this Act the court may, in addition to any other penalty imposed under this Act, cancel, or suspend for any period, any authorisation held by the person.

   (2)A court must not cancel or suspend an authorisation under subsection (1) unless the prosecutor, or a person acting for or on behalf of the prosecutor, applies for the cancellation or suspension.

3. The applicant maintains that this is a relevant factor, as it was open to the court do so, it did not do so and the CEO should therefore not do it now.

4. In Dawson set out above, the Tribunal dealt with this issue explaining that there are two different regimes.  For the purpose of clarity, we repeat that passage, which states:

   A decision whether to cancel a person's licence or other authorisation to engage in a particular activity because of offences will usually be made in one of two types of circumstances. The first situation involves consideration by a court of what sentence to impose on a person convicted of certain types of offences for the purposes of Part 15 of the Sentencing Act 1995 (WA) ­ which deals with licences in relation to motor vehicles, firearms and marine vessels ­ or comparable legislation. In such cases the disqualification or cancellation becomes part of the sentence for the offence. The principles relevant to the exercise of the discretion to disqualify a person in such circumstances are examined in cases such as Schamotta v The Queen [2002] WASCA 262 at [7] ­ [13] and Binns v Gardiner [2002] WASCA 337 at [54] ­ [63]. In such cases it is necessary to consider both a punishment factor and a protective purpose.

   The second context in which consideration of disqualification may arise is when a decision-maker must take into account previous conduct or convictions (but in a context unrelated to the sentencing for such convictions) in order to decide whether to disqualify a person from undertaking certain types of activities.  Examples included banning a person from being a director of a company or, as in the present case, disqualifying a person from holding, or obtaining, certain types of occupational licences.  It is well recognised in this context that the power should be exercised for the purpose of protecting the public and the maintenance of appropriate professional standards, although its exercise may have a punitive effect: see generally Rich v Australian Securities and Investments Commission [2004] HCA 42 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ at [34] and [35] and the authorities referred to therein.

5. That reasoning is relevant in the present case.  Furthermore, s 143(2) of the FRM Act specifically deals with the issue by stating:

   The fact that an authorisation has not been cancelled or suspended under section 223 or 224 is not to be taken as preventing the CEO from cancelling, suspending or refusing to renew the authorisation under this section.

1. In the circumstances, although the actions of the CEO in the present case fall squarely into the second context described in Dawson, the matter is put beyond any doubt by s 143(2) of the FRM Act, which makes it absolutely clear that, although the Magistrate did not suspend or cancel the applicant's CFL in February 2008, the CEO is not prevented from doing so.

Impact of suspension or hardship

1. The applicant and his son both gave evidence at the hearing of the potential impacts the proposed suspension might have on their business and on the ability of the applicant's son to continue with his alternative source of employment in the tourism charter industry.

2. This may well be so, and it is an issue that is raised in many vocational/disciplinary issues.

3. However, as stated in Mavaddat:

   The object of imposing disciplinary penalties is the protection of the public, and notwithstanding that the exercise of disciplinary powers may involve a great deprivation of the person disciplined, there is no element of punishment involved ­ NSW Bar Association v Evatt (1968) 117 CLR 177. As well as the protection of the public, disciplinary penalties serve to maintain proper professional standards ­ Paridis v Settlement Agents Supervisory Board [2007] WASCA 1997 at [25]. It is also necessary to deter others who may be of a like mind to transgress in the future ­ Jemielita v Medical Board of Western Australia (unreported, WASC, Library No 920584, 13 November 1992) per Owen J.

4. Further, Kennedy J in The Registrar, Real Estate and Business Agents Advisory Board v Barnett unreported, Full Court of the Supreme Court in WA, Library No 170426, 26 August 1997, stated at page 9:

   The fact that the respondent could be prevented from earning an income in the calling which he knows is also irrelevant if he is unable to maintain the personal standards which the Act requires.

5. In the circumstances therefore, although it is acknowledged that there will be some economic detriment to the applicant and his family due to a suspension, it is not a reason that should prevent a suspension from being imposed if it is the correct and preferable thing to do.

The circumstances under which the offence occurred

1. In respect of this issue, the applicant referred to the facts as they happened on the day of the offence, and his actions on board his vessel and afterwards.

2. It is not the function of this Tribunal to review the correctness of the conviction and while it stands, the conviction invokes the power to make the order under s 143 of the FRM Act.

3. In respect of the day in question, there may have been some confusion in the applicant's mind as to why the pots he pulled were where they were, but he knew they were not his and, after pulling the first pot and confirming it was not his, he still went on and pulled the second pot.  Rock lobsters from those pots were found in the applicant's catch.

4. In the context of Tavelli from where this sub-issue arises, although the actual facts of the offence on the day it occurred are relevant and are noted, an equally important issue is whether they occurred in the course of or related to the carrying out of the occupation of the applicant which, in this case, they clearly did.

1. The applicant was operating as a fisherman under his CFL on the day in question and was licensed to pull his own pots, not somebody else's.  He did so, and pleaded guilty to doing so.

2. Applicant's character

3. As outlined earlier, each of the applicant's witnesses spoke well of the applicant and, particularly, his recent involvement in the representative side of the industry since mid 2009.

4. Wheeler J in Tavelli provided guidance in respect of the issue of prior convictions and character, and how they should be assessed.  Her Honour stated, at pages 6 ­ 7:

   In Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156, Dixon CJ and McTiernan and Webb JJ said:

   'The expression "fit and proper person" is, of course, familiar enough as traditional words when used with reference to offices and perhaps vocations but their very purpose is to give the widest scope for judgment and indeed for rejection ... .'

   It must be stressed therefore that there can be no inflexible rules and no policy but that the discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework.

   With that caution borne firmly in mind, however, some factors relevant to prior convictions can be listed.  Convictions will, in my view, generally be regarded as more serious in the statutory context if:

   (1)they occur in the course of or relate to the carrying out of the occupation of inquiry agent.  See New Broadcasting Ltd v Australian Broadcasting Tribunal (1987) 73 ALR 420;

   (2)they are offences of dishonesty, broadly understood.  This is so because, as I apprehend it, the Act is concerned with the integrity of the gathering and presenting of material in Court and that material may be suspect, where the character of the agent suggests dishonesty;

   (3)they occur while the person is the holder of a licence under the Act;

   (4)they are otherwise so serious, either in themselves or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the person committing them.

   Indications that a person may be of good character and a fit and proper person notwithstanding previous convictions may be gleaned from the following factors:

   (1)where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes.  See Good v Medical Board of WA; unreported; SCt of WA; Library No 940678; 6 December 1994 at 31 and the cases there cited.  The understanding demonstrated will generally carry more weight if it can be shown that it is demonstrated by the person's actions as well as by the person's words;

   (2)if the offences were committed a substantial time ago.  I would not suggest, however, that any set period will result in the expunging of the effect of previous convictions on character and much will depend on the additional factors I list and, in appropriate cases, on others;

   (3)any change in the person's circumstances from the time of the commission of the offences which indicates that the factors giving rise to the offences have been eliminated;

   (4)a person's character generally since his commission of the offences including his lack of offending, age, family support, paid and voluntary work and character references.  As to character references, I would caution that they will often be of more value if it appears from their terms that they were made in full knowledge of the fact of the commission of the offences.

5. In the present case, the offence for which the applicant was convicted meets all of the four criteria which Wheeler J stated would generally be regarded as more serious in the statutory context.  That is:

   •the offence occurred in the course of the applicant's occupation;

   •it is an offence of dishonesty, broadly understood;

   •it occurred while the person was the holder of a licence; and

   •it is so serious, either in itself or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the person committing it.

6. Wheeler J also set out the factors that may counterbalance those criteria, which are:

   •whether the person convicted demonstrated genuine remorse and contrition, true insight and understanding;

   •if the offences were committed a substantial time ago;

   •any change in the person's circumstances from the time of the commission of the offences which indicates that the factors giving rise to the offences have been eliminated; and

   •a person's character generally since his commission of the offences including his lack of offending, age, family support, paid and voluntary work and character references.

7. As far as this case is concerned, the offence was not committed 'a substantial time ago', nor has there been any change in the applicant's circumstances by which the factors that gave rise to the offence have been eliminated as he is still carrying on the same occupation.

8. As to the issue of genuine remorse, character and lack of offending, although the applicant is clearly sorry for what has occurred, he was principally concerned about his own reputation and the damage that it had suffered, although it is recognised that since mid 2009, he has taken an active role in the industry.

9. The applicant has not reoffended, although, by his own admission, he has largely been absent from fishing since his conviction.

10. Furthermore, the provisions of s 224 of the FRM Act under the heading 'Automatic cancellation of authorisation if 3 offences are committed in any 10 year period' must be noted.  Section 224 states:

    (1)If ­

    (a)the holder of an authorisation, or a person acting for or on behalf of the holder, is convicted of a prescribed offence against this Act; and

    (b)in the CEO's opinion the offence relates to an activity being carried out, or purporting to be carried out, under the authorisation,

    the CEO must, as soon as practicable, notify the Registrar of that fact and the Registrar must record the conviction on the register in respect of the authorisation.

    (2)If the Registrar records 3 or more convictions in respect of an authorisation in any 10 year period the Registrar must notify the CEO of that fact and the CEO must, by notice in writing given to the holder of the authorisation, cancel the authorisation.

11. The applicant is currently on two convictions, any further conviction before January 2018 would see the applicant's licence automatically cancelled.

12. Having examined the six sub­issues raised by the applicant, the Tribunal must now consider, as per s 27 of the State Administrative Tribunal Act 2004 (WA), what is the correct and preferable decision.

13. In determining this matter, the Tribunal must be guided by the legislation with which it is dealing.  As Mason J in Peko­Wallsend stated:

    What factors a decision-maker is bound to consider in making a decision is determined by construction of the statute conferring the discretion.

14. The objects of the FRM Act are set out in s 3(2), which includes:

    …

    (c)to enable the management of fishing, aquaculture and associated industries, aquatic eco-tourism and other tourism reliant on fishing; (Emphasis added)

    …

15. Another relevant issue is the guidance offered by reg 122 of the FRM Regulations referred to earlier which states under the heading 'Grant of commercial fishing licences':

    If a person applies to the CEO for the grant of a commercial fishing licence authorising that person to engage in commercial fishing and the CEO is satisfied that it is in the better interests of the fishing industry to grant the licence the CEO may do so. (Emphasis added)

16. In the context of the FRM Act therefore, the management and the better interests of the fishing industry are important and relevant considerations.

17. Prior to this Tribunal being given jurisdiction in these matters, reviews were conducted by the Fisheries Objections Tribunal of Western Australia (FOT).

18. In the matter of Andrea Corrao and Executive Director, Fisheries WA (FT 7 of 1999) (Corrao), the FOT reviewed a decision of the Executive Director also pursuant to s 143 of the FRM Act to cancel the CFL of a commercial fisherman, and to direct the Registrar not to renew that CFL for 12 months.

19. In that case, similar to the present case, the fisherman, Mr Corrao, had been convicted of a contravention of s 172 of the FRM Act and fined $500.

20. That matter bore some similarities to the present case in that Mr Corrao was convicted of an offence in circumstances where the Department of Fisheries had, as in the present case, marked a number of rock lobsters and placed them in a number of pots marked with the licence number of another person and a number of the marked rock lobsters were found in Mr Corrao's catch.

21. In its reasons for decision in that case, the FOT stated:

    … the successful management of the Western Rock Lobster Fishery as a managed fishery requires honesty on the part of all participants.  It is essential that there be trust between fishermen.  Once pots are set on the high seas they are at the mercy of all comers.  Because unauthorised interference is hard to detect although suspicions of such conduct are widespread, there is no objective information as to its extent.  I accept that if trust broke down between fishermen the consequences for the Fishery would be serious. …

    …

    … the Director's jurisdiction under s143 is akin to the jurisdiction of a professional or vocational regulatory authority to exclude, permanently or temporarily, offenders against the criminal law or vocational standards, from further participation in the profession or vocation. …

    [Mr Corrao]'s conduct was serious by any measure even though it is far from the most serious breach of the Act which can occur.  In my view the exclusion of [Mr Corrao] from acting as master for his boat for 12 months is an appropriate response.  This exclusion will send a salutary message to the industry as a whole that dishonesty of this kind will result in the offender's exclusion from the industry. …

22. In the present case, the Tribunal notes in particular the views of the four commercial fishermen, including the applicant and his son, outlined earlier, all of whom confirmed the seriousness of the offence and the Tribunal agrees and adopts the sentiments set out above in Corrao.

23. Trust between fishermen is essential.  As stated by the applicant's son at T:48, 6.9.2011:

    You have your pots out there, you leave them on the ocean and you want to think that when you come back to them the next day that [sic] you will be the only one that's been to them …

24. Unauthorised interference is hard to detect, but when it is detected, fishermen must know that there will be consequences and that appropriate professional standards will be maintained.

25. It is unfortunate that there was a delay between the applicant's conviction and the suspension by the CEO.  As Mr Paratore stated, 'discretion from the fishing industry point of view should be at least exercised in a timely manner' and that is something the Department should take note of.

26. However, as Mr Paratore also stated:

    If a suspension of 12 months is deemed satisfactory in terms of disciplinary action, then I have no problems with that and I don't believe anyone in the industry would.

27. The Tribunal notes the efforts the applicant has made to become involved in the industry and the character references presented on his behalf.  However, taking into consideration all of the matters raised by the applicant, the Tribunal is not satisfied that, either individually or combined, they provide a reason not to suspend the applicant's CFL when taking into account the objects and intention of the FRM Act referred to above.  

28. The applicant was convicted of a serious offence.  In his own words, he described it as 'one of the worst things that can happen'.

29. Under s 143 of the FRM Act, the applicant's CFL could have been cancelled.  Indeed, because of the operation of s 224 of the FRM Act, another conviction within the next six years will mean the applicant's licence will be cancelled automatically.

30. In all the circumstances therefore and in particular for the maintenance of standards in the industry, the Tribunal is satisfied that it is the correct and preferable decision that the applicant's CFL be suspended.

31. The Tribunal agrees with and would affirm the CEO's decision of 28 March 2011 to suspend the applicant's CFL.  However, for the reasons set out below, the Tribunal will vary that decision.

Period of suspension

1. As set out earlier, the CEO wrote to the applicant by letter dated 28 March 2011 stating:

   For the reasons set out in this and in previous correspondence I have decided to suspend your client's CFL under section 143 of the Act.  The period of the suspension will expire at the end of 31 August 2012.

   following which the applicant lodged an application to review that decision on 14 April 2011.

2. By operation of the FRM Act and in particular s 150(c), the applicant's CFL continues in force until this application is determined.

3. Evidence before the Tribunal confirmed that the intention of the CEO was to suspend the applicant's CFL for a full rock lobster season, with the suspension coming to an end on 31 August 2012, the last day of the current season.

4. The Tribunal recognises, however, that the current season commenced on 15 November 2011 while the Tribunal was considering this matter, and notes that, by the date of publication of this decision, approximately three to four weeks of the current season will have passed, and it is also reasonable that the applicant should be allowed an opportunity to order his affairs before the suspension comes into effect.

5. In the circumstances, the Tribunal will vary the decision of the CEO and order that the applicant's CFL will be suspended commencing at midnight on 22 December 2011 and that the suspension will continue until midnight on 31 August 2012, as decided by the CEO.

6. It is recognised that due to the way the dates have fallen, the applicant will only now be suspended for approximately eight and a half months of a nine and a half month season.  However, the Tribunal notes that the purpose of the suspension is not to punish the applicant but rather to maintain appropriate professional standards in the industry.

7. In the circumstances, for the reasons set out above, the CEO's decision of 28 March 2011 will be varied and the applicant's CFL will be suspended from midnight on 22 December 2011 until midnight on 31 August 2012.

Orders

1.The decision of the Chief Executive Officer of the Department of Fisheries dated 28 March 2011 is varied.

2.The applicant's Commercial Fishing Licence No 89017 is suspended as and from midnight on 22 December 2011 until midnight on 31 August 2012.

3.The Chief Executive Officer of the Department of Fisheries is to cause notice of this decision and the Tribunal's reasons to be published in accordance with section 148(1)(d) of the Fish Resources Management Act 1994 (WA).

I certify that this and the preceding [138] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR M SPILLANE, SENIOR MEMBER