Puglisi v Director of Fisheries, NSW Fisheries

[1999] NSWADT 110

CITATION:	Puglisi -v- Director of Fisheries, NSW Fisheries [1999] NSWADT 110
DIVISION:	General
APPLICANT:	Mario Puglisi
RESPONDENT:	Director of Fisheries, NSW Fisheries
FILE NUMBER:	993049
HEARING DATES:	07/22/1999
SUBMISSIONS CLOSED:	07/22/1999
DATE OF DECISION:	17 November 1999
BEFORE:	K P O'Connor DCJ - President
PRIMARY LEGISLATION:	Fisheries Management Act 1994
APPLICATION:	Review of decision to refuse to grant an endorsement -
MATTER FOR DECISION:	Adequacy of administrator's statement of reasons for decision
REPRESENTATION:	Applicant: D Inverarity of counsel instructed by A Broad solicitor Respondent: J Bingham, solicitor, NSW Fisheries
ORDERS:	1. Pursuant to s 52(2) of the tribunal Act, the Tribunal orders the administrator to provide an adequate statement of reasons within 21 days.

1 On 28 October 1998 the Minister for Fisheries (‘the administrator’) refused to grant an application for an endorsement to a commercial fishing licence permitting Charissa Pty Ltd to take fish for sale in the northern zone Ocean Fish Trawl Restricted Fishery. (As to the Minister’s powers, see generally Fisheries Management Act 1994 (‘the Act’) Part 4 Div 3 (ss 111-116).) Mario Puglisi (‘the applicant’) is a director of Charissa Pty Ltd and is the individual who lodged the application, an individual being required to make the application for the company. In refusing the application the administrator approved a recommendation from the Restricted Fisheries Review Panel.

2 The applicant appealed against that refusal to the District Court under s 126 of the Act as it then stood. The matter was transferred to the Tribunal on 15 March 1999 after the amendment to s 126 conferring the review jurisdiction on the Tribunal had taken effect: commenced 1 March 1999, Gov Gaz 26 Feb 1999, p969. Section 126 now 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:

(a) the refusal to issue a relevant authority to the person or to renew the person's relevant authority,

(b) the imposition of conditions on the person's relevant authority (otherwise than by regulation),

(c) the suspension or cancellation of the person's relevant authority.


(2) For the purposes of this section, an application for the issue or renewal of a relevant authority is taken to have been refused if the authority is not issued or renewed within 60 days after the application was duly made.”
3 Under s 125 a ‘relevant authority’ is defined to include an ‘endorsement on a commercial fishing licence’ (definition (b)).

4 In accordance with Tribunal directions, on 29 May 1999 the administrator provided the applicant with a statement of reasons for its decision to refuse the endorsement.

5 The applicant considers the reasons supplied to be inadequate, and has now applied for an order from the Tribunal pursuant to section 52 of the Administrative Decisions Tribunal Act 1997 (‘the Tribunal Act’) requiring the administrator to furnish adequate reasons. Section 52 provides:

“52 Tribunal may order administrator to provide a statement of reasons or an adequate statement of reasons

(1) If an interested person has requested a statement of reasons under section 49 but has not received it within the period specified by or under that section, the Tribunal may (on the application of the person) order the administrator concerned to provide the statement of reasons within such time as may be specified in the order.

(2) If an interested person who requested a statement of reasons under section 49 is given an inadequate statement of reasons, the Tribunal may (on the application of the person) order the administrator concerned to provide an adequate statement of reasons within such time as may be specified in the order.

(3) For the purposes of this section, a statement of reasons is an adequate statement of reasons only if it sets out the matters referred to in section 49.”

6 It will be seen that s 52(3) is critical in that it provides that a statement of reasons will only be adequate if it sets out the matters referred to in s 49. The relevant part of s 49 is sub-s (3) which provides:

“(3) The statement of reasons is to set out the following:

(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the administrator's understanding of the applicable law,

(c) the reasoning processes that led the administrator to the conclusions the administrator made.”

7 The full text of the statement of reasons follows:

“STATEMENT OF REASONS FOR DECISION PURSUANT TO SECTION 49, ADMINISTRATIVE DECISIONS TRIBUNAL ACT, 1997

APPLICANT: MARIO PUGLISI

ADMINISTRATOR: MINISTER FOR FISHERIES

A The applicant made an application with respect to inter alia the Ocean Fish Trawl Restricted Fishery for both the Southern Zone and Northern Zone (both of which zones are described in clause 186 of the Fisheries Management (General) Regulation 1995 ('the Regulations')) by application dated 29 October 1996.

B The Minister for Fisheries ('the Minister') made a decision with respect to the applicant's application, granted the applicant an entitlement inter alia in relation to the Ocean Fish Trawl Restricted Fishery - Southern Zone and notified the applicant of the decision by letter dated 21 February 1997.

C The applicant lodged an application for review of the Minister's decision by Application for Appeal dated 4 March 1997 for the reasons stated therein, viz:

(i) that the applicant had been fishing in the area since 1972; and

(ii) that the applicant had caught the prescribed catch necessary to qualify for the endorsement;

with respect to the Ocean Fish Trawl Restricted Fishery - Northern Zone.

D The restricted fisheries review panel (as constituted pursuant to clause 214B of the Regulations) carried out a review of the determination relating to the applicant's eligibility for an endorsement with respect to the Northern Zone on 31 August 1998 and provided the Minister with a written report on the matter.

E The Minister determined on 28 October 1998 that the applicant did not qualify for the Northern Zone endorsement.

The reasons for the decision the subject of these proceedings are:

(A) The findings on material questions of fact, referring to the evidence or other material on which those findings were based:

1 The Minister has confirmed, pursuant to clause 214D(I)(a) of the Regulations the determination of the review panel that the applicant did not satisfy the eligibility criteria for an endorsement in respect of the Ocean Fish Trawl Restricted Fishery - Northern Zone.

2 The Minister has found that on the basis of the validated catch history and other documentary evidence including written submissions of the applicant that the applicant was ineligible for an endorsement in respect of the Ocean Fish Trawl Restricted Fishery - Northern Zone.

3 The evidence upon which the findings on material questions of fact were made included:

(a) Monthly catch returns for the period 1986 to 1993.

(b) South-Eastern Trawl Fishery Log Reports (Commonwealth Government Department of Primary Industry) of various dates;

(c) Letter from Department of Agriculture to Charissa Pty Ltd dated 15 December 1986;

(d) Letter from M Puglisi to NSW Fisheries dated 31 March 1993;

(e) Letter from NSW Fisheries to M Puglisi dated 20 April 1993;

(f) Letter from Poulos Bros To Whom it May Concern dated 27 August 1998;

(g) Letter from Poulos Bros (Wholesale Pty Ltd) To Whom it May Concern (undated);

(h) Letter from Department of Agriculture to Charissa Pty Ltd dated 7 February 1986;

(i) Letter from Department of Agriculture to Charissa Pty Ltd dated 12 February 1986;

(j) Letter from M Puglisi to Hon. B. Martin dated 8 January 1999.

(B) The Administrator's understanding of the applicable law:
1 The Minister, prior to the review carried out by the review panel, made a decision under clause 188 of the Regulations upon considering the eligibility for endorsement of the criteria set out in clause 187 of the Regulations.

2 The review panel conducted a review as provided for under clause 214B of the Regulations, taking into account the grounds for review set out in clause 214C.

3 The Minister, under clause 214D(I) of the Regulations could, in accordance with the decision of the review panel, confirm the determination of the review panel or set that determination aside and substitute a new determination, or alternatively, refer the matter back to the review panel for further consideration. In view of there being no new evidence for the Minister to consider since his initial decision (before the determination of the review panel), the Minister confirmed the determination of the review panel.

(C) The reasoning processes that led the Administrator to the conclusions the Administrator made:

1 The Minister, in making his decision, took into consideration the applicant's validated catch history as evidenced by the applicant's monthly catch returns and net registrations for the purposes of assessing the endorsements to which the applicant was entitled.

2 The review panel, in carrying out its review of the Minister’s decision, also took into consideration the information and data provided by the applicant comprising the validated catch history and other evidence as referred to in paragraph (A) 3 above. In addition, the review panel also took into consideration the applicant’s having been involved in the gemfish run into waters north of the Southern Zone and the effect on the economic viability of the applicant’s fishing as a result of the imposition of trip limits on gemfish catches.

3 The review panel also considered whether inter alia the applicant was engaged in fishing during the relevant period and for other significant reasons not attributable to his fault, the applicant was unable to satisfy the eligibility criteria.

4 The review panel also took into consideration those policies concerning the taking of gemfish in the Ocean Trawl Restricted Fishery and the economic viability relating thereto.

5 The Minister noted the findings of the review panel and confirmed his decision.

Dated: 24 May 1999

(Signed): J Bingham Solicitor for Administrator”

8 The applicant’s contentions are that the statement of reasons is defective in that each of the paragraphs (a), (b) and (c) of s 49(3) are not satisfied.

Assessment

9 Clearly recitals A to E of the statement are helpful in that they provide history, but they do not fall into categories (a), (b) or (c) of s 49(3). That is acknowledged in the lay-out of the statement, with the words “the reasons for decision etc” introducing the body of the document.

10 In assessing the adequacy of reasons, an approach should not be taken which is unduly burdensome on administrators. However, the reasons should be sufficiently precise to enable a reasonable person placed in the position of a disappointed applicant to understand why the negative decision was made. The disappointed applicant needs to be given enough information to enable him or her to understand the reasoning process, and the weight or otherwise given to material considered.

11 A number of Commonwealth cases have dealt with the issue of adequacy, usually in the context of the requirements of s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (‘the ADJR Act’). The Administrative Appeals Tribunal and the Federal Court have held that to be adequate, the reasons given must be intelligible, must deal with substantial issues raised for determination and must expose the reasoning process adopted: see Re Palmer and Minister for the Capital Territory (1978) 1 ALD 193; 23 ALR 196; Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500; ARM Constructions Pty Ltd v DCT (1986) 10 ALN N118; 10 FCR 197; Ansett Transport Industries (Operations) Pty Ltd v Taylor (1987) 18 FCR 498; 12 ALD 547; 73 ALR 193; Hatfield v Health Insurance Commission (1987) 15 FCR 487; 14 ALD 131; 77 ALR 103; Dornan v Riordan (1990) 21 ALD 255; 95 ALR 451.

12 In Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500, Woodward J, said that such a requirement:

“ … requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say in effect: “Even though I may not agree with it, I now understand why the decision was made against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging.”

That requires that the decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation.”

13 In Soldatow v Australia Council (1991) 22 ALD 750, Davies J said that the ADJR Act required (at 750-1):

“Section 13 (1) requires proper and adequate reasons which are intelligible, which deal with the substantial issues raised for determination and which expose the reasoning process adopted. The reasons need not be lengthy unless the subject matter requires but they should be sufficient to enable it to be determined whether the decision was made for a proper purpose, whether the decision involved an error of law, whether the decision-maker acted only on relevant considerations and whether the decision-maker left any such consideration out of account.”

14 An authoritative exposition on the requirements of Commonwealth FOI law that parallel requirements (a) and (c) of s 49(3) of the Tribunal Act is given by Professor Peter Bayne, Senior Member, Commonwealth Administrative Appeals Tribunal in the case of Luton v Commissioner of Taxation, 19 February 1996 (unreported), ATT No 10751 at paras [26] and following, involving the refusal of a Freedom of Information Act request. There the aggrieved applicant alleged that a statement of reasons for refusal was inadequate.

15 In relation to the requirement (a) - “that the administrator refer to findings on material questions of fact, referring to the evidence or other material on which those findings were based” - Professor Bayne deals at length with the distinction between ultimate, material and primary questions of fact. He notes that this requirement does not require every finding of fact to be listed. Those that must be addressed are the ultimate questions of fact, being those that an administrator must be satisfied about in order to make a legally valid decision. Requirement (a) does not extend to findings on facts of very small detail in the chain of reasoning. The findings should cover those findings of primary facts which are of some importance in the process of reasoning to the conclusion that an ultimate fact exists. Whether a fact is of ‘some importance’ is to be assessed primarily from the perspective of the person who will be provided with the reasons statement.

16 The questions which the administrator should ask in preparing the statement, Professor Bayne suggests, are these:

• What did the administrator consider to be the major issues of fact to be addressed in the making of the decision?
• What did the person affected by the decision consider to be the major issues of fact to be addressed in the making of the decision?
• If relevant, what did other persons with a relevant interest in the matter consider to be the major issues of fact to be addressed in the making of the decision?

17 As there is no precise equivalent to requirement (b) of s 49(3) in Commonwealth FOI law, Professor Bayne does not deal with this point in detail.

18 In my opinion, to satisfy requirement (b) (that the administrator explain his or her understanding of the applicable law), the administrator should refer to the provisions in statute or regulations relevant to the matter. Where relevant he or she should also refer to leading authorities interpreting those provisions. The references to the statutory provisions (including regulations) should, ideally, set out the full relevant text or be provided in the form of attachments. The references to case-law need only, I consider, be paraphrased.

19 As to the requirement (c) (the reasoning processes that led the administrator to the conclusions the administrator made), Professor Bayne’s observations are also relevant. There needs to be a rational connection shown between the findings of fact and the decision. Bayne describes the task as follows at [53]:

“In our context of administrative decision-making, one can say that when stating the reasons, the decision-maker links up the findings on material facts to the decision-maker’s understanding of the law relevant to the issue, and then provides reasoning which demonstrates why it is that the law justifies the decision made.”

20 The Tribunal is itself approaching the question of the adequacy of the reasons furnished in this case with, at this stage, only a limited understanding of the statutory scheme affecting the decision. The Tribunal has not as yet dealt to conclusion with any applications for review dealing with the decision-making that surrounds commercial fishing licences, and in particular endorsements to fish in restricted zones. It might be said, therefore, that the Tribunal is ideally placed to put itself in the shoes of a disappointed applicant with a reasonable perspective in assessing the adequacy of the statement provided.

21 The statement of reasons measured against the criteria enunciated above has the following gaps:

• no express statement of what are the ‘eligibility criteria’ for an endorsement in respect of a Northern Zone restricted fishery endorsement of the kind applied for
• no reference to the contents of the validated catch history
• no express indication of what ‘other documentary evidence’ was taken into account apart from the applicant’s written submissions
• no itemisation of what were regarded as the material questions of fact, and what the findings on them were
• no statement of the relevant law, including relevant texts from the five regulations mentioned, being cl 187, cl 188, cl 214B, cl 214C and cl 214D(1)
• no reasons are given for rejecting evidence and submissions upon which the applicant relied, or what weight they received
• no detailed explanation is given as to the economic viability factors both as they relate to the applicant and to wider concerns to do with the taking of gemfish from the restricted fishery
• policy is referred to, with no detail.

22 At the hearing the solicitor for the administrator, Mr Bingham, gave an outline of, what appears to be, a complex system of administrative decision-making. He noted that substantial responsibility for decision-making lies with the Restricted Fisheries Review Panel comprising a retired magistrate, an industry representative and a departmental representative. The Panel makes a recommendation to the Minister.

23 There may be issues as to who should be responsible for formulating the reasons for decision.

24 Where the Minister adopts the recommendation of the Panel, the provisional view of the Tribunal is that the Panel would be responsible for preparing reasons for decision. The provisional view of the Tribunal is that the Minister would be obliged to prepare additional or substitute reasons in circumstances where the recommendation of, and reasons given by, the Panel was varied or rejected.

25 The Tribunal also notes the submissions of Mr Bingham that different clauses of the Regulations, involving different criteria, operate at different stages of the decision-making process. It may be necessary, therefore, for reasons statements to be differently composed where there is an initial refusal and where there is a refusal after reconsideration. These are matters, ultimately, for the administrator to address.

26 The points of criticism of the reasons made by me are similar to those advanced on behalf of the applicant by Mr Inverarity of counsel.

27 The Tribunal is satisfied that the reasons were inadequate in that it does not set out the matters referred to in s 49(3) of the Tribunal Act.

Determination

28 Pursuant to s 52(2) of the Tribunal Act, the Tribunal orders the administrator to provide an adequate statement of reasons within 21 days.