Puglisi v Director, NSW Fisheries

[2000] NSWADT 105

Set aside by Appeal: Set aside by appeal on 26/2/2001

CITATION:	Puglisi & ors -v- Director, NSW Fisheries [2000] NSWADT 105
DIVISION:	General Division
PARTIES:	APPLICANTS Guissepe Puglisi Grazia Puglisi Mario Puglisi Bobby Puglisi Augustino Puglisi Claudio Puglisi RESPONDENT Director, NSW Fisheries
FILE NUMBER:	993049; 993121
HEARING DATES:	22/05/2000
SUBMISSIONS CLOSED:	05/22/2000
DATE OF DECISION:	08/04/2000
BEFORE:	Wilson K - Judicial Member
APPLICATION:	Fisheries Management Act - fishing licence- endorsement on licence - Fishing licence - endorsement on licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Fisheries Management Act 1994
CASES CITED:
REPRESENTATION:	APPLICANTS F Corsaro with D Inverarity, barristers RESPONDENT C Cory, solicitor
ORDERS:	That the Minister refer this matter back to the Panel together with instructions that the Panel take into account that commercial and economic factors are significant reasons for the purpose of the Regulation and that the Panel also be instructed that the endorsement of licences is not the primary tool for regulating the resource of fish in the zones.

BACKGROUND

1 The Applicants in these matters belong to a family who have been commercial fishers for many years with their main location being on the South Coast. This decision deals with both applications as the issue relating to each is exactly the same. The individual application relates to the motor vessel, Charissa and the joint family application relates to the motor vessel, Graci P.

2 The Applicants applied for endorsements in respect of the Ocean Fish Trawl Restricted Fishery - Southern Zone and Northern Zone, by an application dated 29 October 1996. To gain an endorsement the Applicants were required to satisfy the criteria set out in the Fisheries Management (General) Regulation 1995 and, in particular, clause 187(1) and (2) of those Regulations.

3 The Minister for Fisheries, as the Administrator, made a decision with respect to the Applicants’ application and refused to grant the Applicants an endorsement for Ocean Fish Trawl (Northern Zone). The basis of the Applicants’ failure was notified in a letter dated 21 February 1997 and it related to the failure to have submitted at least five Ocean Waters Catch Returns in the years from 1991 to 1993 that would indicate that the person took fish from the designated area and took fish to a notified amount.

4 The Applicants requested a review of the determination refusing the endorsement and the request for review was pursuant to clause 214A of the Regulations. The Minister for Fisheries set up a panel, the Review Panel, pursuant to clause 214B of the Regulations and a review was conducted.

5 Under the Regulations, if an applicant does not meet the strict requirements for eligibility, there are a number of categories which the Administrator can consider. The Applicants agree that they did not meet the strict criteria but pressed a case that sought to convince the panel which conducts the review under the Regulations that they should be eligible for endorsement on the basis that they were engaged in fishing during the period and for other significant reasons (that are not attributable to the fault of them) they were unable to satisfy the eligibility criteria. This is a re-statement of what is set out and relates to the Review Panel in clause 214C(2)(c)(iii).

6 Evidence was provided to the Review Panel that the Applicants had been fishing in Commonwealth waters between Barrenjoey Point and Point Danger every year since 1986 and had expressed a desire to the NSW Fisheries in 1993 to ensure that the history of Charissa trawling those waters was established and preserved. The Applicants also claimed that they had not been properly advised by the relevant authorities of the long term fishing rights in the Northern Zone. Evidence was also provided of their commercial operations up until 1990.

7 The Review Panel issued a report to the Minister pursuant to clause 214B(3) of the Regulations which was dated 31 August 1998. The recommendation of the Panel was as follows:

“The Review Panel is not satisfied that the applicant meets the established criteria for the allocation of the Ocean Fish Trawl Restricted Entry - Northern Zone endorsement and recommends to the Minister that the application be refused.

The Review Panel wishes to draw the attention of the Minister that it is satisfied, on the evidence presented, that the applicant historically participated in the gem fish run up the Eastern Coast of South Eastern Australia and in doing so, trawled waters north of Barrenjoey Headland during the months of July, August and September until 1987.

The Panel is also satisfied on the evidence that the imposition of trip limits on gem fish catches rendered Northern Zone fish trawling uneconomic for this applicant, which state that it is only desirous of targeting gem fish should an increase in stocks enable an increase in trip limits to an economically viable level.

To that extent the applicant is a victim of circumstance brought about, in part, by the determination of the criteria for fishery.”

8 The Minister confirmed the Review Panel’s recommendation and the Applicant was notified of this decision on or about 3 November 1998.

CONTEXT AND REGULATORY FRAMEWORK

9 The substance of the factual matters in this application are not in dispute. The hearing before the Tribunal was limited to counsel addressing the Tribunal as to the proper structure of the regulatory process and, in particular, how the administrative appeal process relates to that.

10 It is important to understand, as early as possible in this matter, that the internal review process whereby the Minister sets up a panel creates a limitation on the Minister in terms of the action that can be taken once the Panel makes its recommendations. In essence, the only discretion that a Minister has once the Panel makes a recommendation, is to decide to refer the matter back to the Panel together with comments or recommendations for further consideration. This comes about by virtue of the operation of clause 214D of the Fisheries Management (General) Regulation 1995. Other than the action referred to above, the Minister must follow the recommendations of the Panel.

11 In relation to this Panel, it is also important to note that there is a limited review available, that is, that parties must have made their application by a certain date in 1997 for an Application for Review. The relevance of the role of the Minister in regard to the Panel is significant. In respect of the second decision made by the Minister, he was following the recommendation of the Panel and other than deciding to refer the matter back to the Panel, he had no other option under the Regulations. It is clear then that once a party applies for the internal review mechanism, the effective decision-maker, leaving aside a referral back, is the Panel. The statutory decision, however, rests with the Minister. Parties who would have made an application against an adverse decision by the Minister in first instance, directly to the Administrative Decisions Tribunal or previously to the District Court, would have had a much broader scope of merit review and an opportunity to argue discretionary decision-making than those that took the route provided by the Regulations. One question that does arise here is whether the purpose of the Regulations was to assist applicants or whether they should be given a restricted view. In my view, the Regulations should be constructed if it can reasonably be done, so that the rights and interests of applicants for review are given a broad and fair meaning.

12 The other matter which is of importance is the fact that the Government policy in relation to restricting the over fishing of the fish resource in particular zones is implemented by way of imposing restriction in relation to particular types of fish. Whilst there is implicitly some management exercise in the number of licences that can be granted, once these licences are in place there is no open market or basis on which new entrants can apply for a licence. If these applicants do not have the appropriate endorsement to fish in the Northern Zone, then they will not be able to make a new application.

13 In the Panel’s recommendation there is a clear acknowledgment that economic viability and circumstances that apply to the Applicants have had some impact although the Panel decided that the matter could be viewed, in terms of their recommendation, outside of taking these matters into account.

THE MATTER FOR DETERMINATION

14 The Tribunal is satisfied that the matter under review is the decision made by the Minister for Fisheries after receiving the recommendation of the Review Panel.

15 The decision taken by the Minister related to his power under the Regulations. The Tribunal does find it somewhat difficult to fully appreciate the notions behind the limitation that is implicit in the Regulations on the role of the Minister for Fisheries in the internal review process that is set out. Such a review process does, in effect, hand over the decision-making power that the Minister has to the independent Panel.

16 The main issue that was pressed by the Applicants in relation to this aspect of the matter was that the Review Panel has misconstrued its role and did not understand its full responsibility in regard to what amounted to other significant reasons that a person might be able to establish that meant that they were not able to satisfy the technical criteria. Considering the reasons which have been set out in full by the Review Panel, the Tribunal is sympathetic with this view. The Tribunal considers that the Panel took a very cursory and limited view of what was open to it for consideration in respect of this application. It is quite clear looking at the terminology in the Regulations that there were a number of circumstances that could be taken into account where applicants were unable to meet the criteria. The Tribunal is of the view that commercial fishermen have a number of issues to deal with in the proper management of their business and in making commercial decisions, there are often factors which are outside of the control of parties but, nonetheless, they are legitimate matters to be taken into account. In this case the Applicants make a sustained argument that there was a combination of features which brought about their decision not to be fishing in this area at the particular time. They say that they have a history in the area, they are commercial fishermen and that for reasons of fishing limits and other matters, it was not economic for them to be in zone in that period. They say that if they had known what the full impact of these regulatory requirements would be, they may have taken a different decision.

17 In the recommendations by the Panel it is quite clear that they were troubled by some of these notions and, indeed, the bulk of the Panel’s recommendations, although misconstruing the regulatory provisions, seems to suggest that if economic circumstances changed in relation to catch limits and profitability, then these Applicants should be given the endorsement some time in the future. The Panel also indicates that the Applicants are victims of circumstance.

18 In the Tribunal’s view, these are matters which should clearly have been considered by the Panel under the terms of the regulation. It was appropriate for the Panel to look at these matters to decide whether such matters were sufficient for the Panel to make a recommendation that there were other significant reasons that the Applicants were unable to satisfy the eligibility criteria. The Tribunal does not consider that the terminology used in the Regulations when they are put in the context of the introduction of a new zonal system, should have been construed in a literate and conservative way. The Tribunal believes that applicants for such endorsement are entitled to a fair and reasonable hearing and the application of simple principles to the words would encourage such a panel to fully consider these matters before making a recommendation. It is clear on the basis of the recommendation that the Panel wrongly considered that such matters were not to be considered by them in making their recommendation to the Minister.

THE ROLE OF THE MINISTER, THE PANEL AND THE TRIBUNAL

19 Considerable time was spent on the issue of what role the Tribunal could take in reviewing these decisions and the inter-relationship between the Minister and the Panel.

20 As a general principle, the Administrative Decisions Tribunal should be in an approximate situation to the decision-maker from which the application comes. In most cases the Tribunal will be able to make an effective decision on the basis of the discretionary power exercised by the original decision-maker.

21 In a case such as this, following that logic means that the Tribunal would be in the same situation as the Minister and the Minister has his capacity to act prescribed by the Regulations.

22 One view of this situation is that section 63(1) of the Administrative Decisions Tribunal Act would override the provisions of the Regulations on the basis that legislation has priority to Regulations also on the basis that the Act commenced in 1998, well after the Fisheries Legislation.

23 There are some obvious intricacies involved in this regulatory arrangement and in terms of good policy, it is preferable for internal review mechanisms to work effectively. The Government policy in relation to this internal review mechanism for these type of licences is clearly set out in the Regulations and relies, at its core, on the effective discharge of its duty by the Review Panel. In the Tribunal’s view this policy should be pursued and the Tribunal should not take any action which could be construed as undermining this process unless it is clear to the Tribunal that there is no other course of action available.

24 Having considered all of the material in this matter, the Tribunal has come to the view that the Panel exercised its role on a too limited appreciation of what a significant reason was in the context of the Regulations. Putting itself in the place of the Minister, the Tribunal considers that it would be appropriate for the Minister to refer the matter back to the Panel and advise the Panel that economic and commercial reasons are significant reasons for the purpose of the Regulation and should be taken into account when the Panel makes its recommendation. The Minister should also advise the Panel that the endorsement of the licences is not the primary tool for protecting species within the zone and that an approach based on this premise would be incorrect.

DETERMINATION

25 For the reasons set out above, the Tribunal pursuant to section 63(3)(d) sets aside the reviewable decisions and remits these matters for reconsideration by the Minister in accordance with the decision of the Tribunal that the Minister should refer this matter back to the Panel together with instructions that the Panel take into account that commercial and economic factors are significant reasons for the purpose of the Regulation and that the Panel also be instructed that the endorsement of licences is not the primary tool for regulating the resource of fish in the zones.