Reed v Minister for Fisheries

[2003] NSWADT 44

CITATION:	Reed -v- Minister for Fisheries [2003] NSWADT 44
DIVISION:	General Division
PARTIES:	APPLICANT Allan Jeffrey Reed RESPONDENT Minister for Fisheries
FILE NUMBER:	023204
HEARING DATES:	11 December 2002
SUBMISSIONS CLOSED:	03/07/2003
DATE OF DECISION:	03/07/2003
BEFORE:	Higgins S - Judicial Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Fisheries Management (General) Regulation 2002 Administrative Decisions Tribunal Act 1997 Fisheries Management (General) Amendment (Restricted Fisheries) Regulation 1997 Fisheries Management Act 1994
CASES CITED:
REPRESENTATION:	In person V Pastor, Solicitor
ORDERS:	The Tribunal has no jurisdiction to hear the application.

1 On 10 September 2002, Mr Reed lodged an application with the Tribunal for a review of the decision by the Department to refuse his application for additional access to the Macleay River Region Estuary General Restricted Fishery.

JURISDICTION

2 Ms Pastor, on behalf of the Minister for Fisheries, submitted that the Tribunal’s jurisdiction to hear Mr Reed’s application arose by virtue of s.126(1)(b) of the Fisheries Management Act, 1994 and s.38 of the Administrative Decisions Tribunal Act, 1997.

3 Mr Reed made no submissions in respect of the Tribunal’s jurisdiction and it was not considered further during the course of the hearing.

4 Having had the opportunity to examine the factual circumstances giving rise to Mr Reed’s application, in the opinion of the Tribunal, there is a real issue as to whether the Tribunal has jurisdiction in this matter.

EVIDENCE

5 The facts in this matter were not disputed and may be summarised as follows:

a) Mr Reed is the owner of fishing business no. 1326.

b) Since 1988, Mr Reed has been involved in estuary general fisheries in the Hawkesbury and Macleay River regions. During the months of April, May and June each year, Mr Reed has been engaged in estuary general fishing in the Macleay River region. He does this to compliment his other fishing activity, ocean haul fishery, which he is engaged in at that time in that region.

c) In 1997, Parliament enacted legislation that declared the estuary general fishery to be a restricted fishery (see Fisheries Management (General) Amendment (Restricted Fisheries) Regulation, 1997). Mr Reed’s commercial fishing licence was granted an endorsement to fish in this newly created restricted fishery. That endorsement was granted with no restrictions or conditions attached to it, which meant that he could fish in any estuary along the NSW coast. However, the estuaries along the coast were divided into seven regions and fishers were allocated to the region in which they lived. The purpose of this, as explained by Ms Pastor, was for fishers to participate (e.g. vote) at a local level in the Management Advisory Committee. Mr Reed resided near the Hawkesbury and was therefore allocated to region 4 for voting purposes.

d) In July 1998, the Department issued a discussion paper concerning a proposal to zone the estuary general fishery into two or more bioregions with each bioregion being distinguished on its biological and physical characteristics. In that discussion paper the Department stated that the proposal to introduce a zoning scheme arose from fishers fishing in regions other than their primary or home regions.

e) On 20 December 1999 the Minister for Fisheries approved the recommendations of the Estuary General Management Advisory Committee relating to the introduction of a zoning scheme in the estuary general fishery. That scheme retained the seven voting regions and introduced three new bioregions; southern bioregion, central bioregion and northern bioregion. The seven bioregions all came within one of these bioregions. Under this zoning scheme, endorsement holders were to be limited to operating within one of the seven regions used for voting purposes. This would be their primary region and endorsement holders were able to elect which region was their primary region on the basis of their primary fishing history or their permanent residence. The scheme also enabled endorsement holders to gain access to estuaries beyond their primary region if they met the relevant catch history criteria for that region. However, endorsement holders could only gain access to estuaries that were within their bioregion. At the same time the Minister announced that the scheme would be introduced in two stages, with stage 1 being the allocation of the primary operating region to each fisher as well as seeking applications from those who wished to obtain access in other regions.

f) On 17 July 2000, as part of the implementation of stage; Mr Reed completed a zoning application form. In that form he agreed that his provisional region was region 4 (Hawkesbury). That is, this was his nominated primary region. He also requested access to region 3 (Macleay River Region) and region 5. He also ticked “yes” to the question of whether he considered the implementation of the zoning would adversely affect his personal circumstances. He then went on to explain that it would affect him because he worked seven months of the year in region 5, three months of the year in region 3 and three months of the year in region 4. He stated that he had been fishing in region 4 and 5 for twenty years and in all three regions for about ten years.

g) Mr Reed was subsequently advised that he was successful in gaining interim access to the Hawkesbury River Region. At the same time he was advised that he had been refused interim access to the Macleay River Region. The basis of the refusal was that he had not provided sufficient evidence of fishing history to meet the criteria in respect of fishing in that region. On 21 May 2001 Mr Reed made an application for a review of the decision to refuse him access to the Macleay River Region.

h) On 5 June 2001, the Minister, pursuant to the Fisheries Management Act, 1994, closed all estuary general restricted fisheries. However, fishers who had been provided with an endorsement to fish in these fisheries were given a permit under s.37 of the Fisheries Management Act, 1994 so that they could continue to fish in the areas they had previously been entitled to fish in. In the case of Mr Reed he was given a permit to fish in both the Macleay River and the Hawkesbury River estuaries.

i) On 28 September 2001, the Director of Fisheries wrote to Mr Reed advising him that his application for additional access to the Macleay River Region had been refused. The letter also stated that irrespective of the refusal his application would proceed to stage 2 of the process, which would allow his application to be considered under the final estuary zoning rules. It was also noted that his s.37 permit remained valid until 31 March 2002 or until his review was finalised. That permit was subsequently extended to 30 September 2002 or the date on which final notification of zoning was forwarded to the fisher, whichever occurred first.

j) On 1 September 2002, Mr Reed received notification of the outcome of his application for additional access to the Macleay River Region. That notification stated that his application had been refused on the ground that the Macleay River Region was in a different bioregion to that of his primary region and therefore access to this region was contrary to the zoning scheme. The Notice does not state who the decision maker was but it was accompanied by a general letter to all estuary general fishing business owners from Dianna Watkins, principal manager (fisheries services), which advised these owners that stage 2 of the estuary general zoning assessment had been completed.

k) On 9 September 2002 Mr Reed was issued with a new commercial fishing licence, which had attached to it endorsements for three restricted fisheries. One of these was an endorsement for estuary general restricted fishery in respect of several classes of fishing. The endorsement states that the primary region is 4 and makes reference to the Hawkesbury River and various conditions of the licence, which includes condition 5 which states as follows:

“5. ESTUARY GENERAL FISHERY:
The licence holder is only authorised to take fish for sale in the estuary general fishery in the primary region(s) and
other areas specified on the endorsement”.

6 Conferral of jurisdiction on the Tribunal to review a reviewable decision is set out in s.38 of the Administrative Decisions Tribunal Act, 1997. That section provides, so far as is relevant, as follows:

“38(1) Conferral of review jurisdiction:
The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides
that applications may be made to it for a review of any such decision (or class of decisions) made by an administrator:
a) in the exercise of functions conferred or imposed by or under the enactment,
b) in the exercise of any other functions of the administrator and identified by the enactment”.

7 S.126 of the Fisheries Management Act (“FM Act”) makes provision for certain decisions under the Act to be reviewable by the Tribunal. That section insofar as development provides:

“S.126(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); and
c) the suspension or cancellation of the person’s relevant authority.”

8 S.125 defines a term “irrelevant authority” to mean a commercial fishing licence, an endorsement on a commercial fishing licence, or a fishing boat licence.

b) Endorsement for Restricted Fishery

9 Section 111(1) FM Act of the makes provision for the regulations to declare that a fishery is a restricted fishery for the purposes of the Act. As mentioned above, estuary general fishery was declared a restricted fishery in 1997 (see Part 8, Division 5 of the Fisheries Management (General) Regulations, 1995, which are reproduced in the Fisheries Management (General) Regulations 2002.

10 Section 112(1) of the FM Act provides that a commercial fishing licence does not authorise a person to take fish for sale in a restricted fishery unless that person is authorised to do so by the Minister by an endorsement on his/her licence.

11 Section 112(2) provides that:

“The authority conferred by such an endorsement is subject to such conditions as are prescribed by the regulations or
attached to the endorsement by the Minister”.

12 Clause 207 of the FMG Regs defines the term “estuary general fishery” to mean a fishery described in clause 11 of schedule 1 to the Act. That clause provides as follows:

“11 Estuary General Fishing
A description of fishery.
The estuary general fishery consists of:
a) the taking of fish from estuarine waters by any lawful method other than prawn trawling, and
b) the taking of fish from ocean beaches by the method of hand picking”.

13 Clause 209 prescribes various classes of endorsement in the estuary general restricted fishery. In summary, the following classes of endorsement are prescribed:

- Hand lining and hauling crew endorsement
- Meshing endorsement
- Prawning endorsement
- Trapping endorsement
- Eel trapping endorsement
- Mud crab gathering endorsement
- Hand gathering endorsement
- Category 1 hauling endorsement
- Category 2 hauling endorsement.

14 Clause 210 of the FMG Regulations set out the eligibility criteria for the various class of endorsement.

15 Clause 278 of the FMG Regulations prescribes the manner in which the Minister may attach conditions, made pursuant to s.112(2) of the FM Act, to an endorsement that is issued under s.112(2) of that Act. That clause, so far as is relevant, provides that conditions are attached by notice in writing served on the person who is the holder of the endorsed commercial fishing licence.

c) Application of Minister’s policy

16 The powers of the Tribunal in determining an application for a review of a reviewable decision is set out in s.63 of the ADT Act. S.64 of that Act provides:

“64(1) In determining an application for a review of a reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy procedures on unjust decisions in the circumstances of the case.”

17 The term “Government policy” is defined in s.64(5) to mean a policy that is adopted by the Cabinet, or the Premier or any other Minister and which is to be applied in the exercise of discretionary powers by administrators. S.64(2) provides that the Premier or any other Minister may certify, in writing that a particular policy was government policy in relation to a particular matter and s.64(3) provides that the Tribunal is to take judicial notice of the contents of that certificate. In this case, no such certificate was in existence, however there is no dispute that the estuary general zoning scheme police was the policy that was applicable in this application.

REASONS FOR DECISIONS

18 The decision for which Mr Reed seeks review is the decision to refuse him access to the Macleay River Region of the estuary general restricted fishery.

19 As mentioned above, the classes of estuary general restricted fisheries are those set out in clause 209 of the FMG Regs. These classes make no reference to the various regions of this fishery as set out in the zoning scheme of the Estuary General Management Advisory Committee and approved by the Minister. However, no issue was taken as to the form of endorsement described on Mr Reed’s commercial fishing licence. The classes of endorsement have been described correctly and the Hawkesbury region is cross-referenced to condition 5, which places a restriction as to which regions Mr Reed is able to fish in this restricted fishery.

20 In my opinion the question of whether the Tribunal has jurisdiction to hear Mr Reed’s application is dependent on how the decision for which he seeks review is categorised. That decision is the decision as reflected in the Notice he received in September 2002 advising him that his application for access to the Macleay River region had been refused. There are 4 possible ways that this decision may be categorised. These are:

a) a refusal to grant an endorsement, in which case the Tribunal clearly has jurisdiction by virtue of s.126(1)(a) FM Act ;
b) a decision to “impose” a condition or an endorsement, in which case the Tribunal clearly has jurisdiction by virtue of s.126(1)(b) FM Act ;
c) a decision to refuse to include a particular entitlement in a condition or an endorsement, which does not come within the literal terms of s.126(1)(a) or (b) of the FM Act ; or
d) a decision to refuse access to the Macleay region pursuant to the zoning scheme, which is not a decision coming within the terms of s. 126 of the FM Act.

21 Having regard to the facts, in my opinion the decision for which Mr Reed seeks review falls within (d) above. It is clearly not a decision to refuse the grant of endorsement or a decision to include a particular e3ntitlement in the endorsement he was granted as the entitlement is not one that is relevant to that grant.

22 However, the decision does indirectly involve a decision to impose a condition on the endorsement in that his endorsement is restricted to fishing in the Hawkesbury region. However, Mr Reed has no quarrel with this particular condition being imposed. What he seeks review of is the decision not to include the Macleay River region as part of the condition to his endorsement. That is, the refusal to impose a condition in these terms. The question is whether such a refusal comes within the terms of s. 126(b) of the FM Act.

23 Section 126(b) of the FM Act expressly states that an applicant may seek review of a decision, which is a decision for the “imposition” of conditions on the person’s relevant authority. The decision by the Minister, to impose the condition he has imposed on Mr Reed’s commercial fishing licence, pursuant to s.112(2) of the FM Act is clearly a decision coming within the terms of s. 126(b).

24 The term “imposition” is defined in the Macquarie Dictionary 2nd edition to mean:

“the laying on of something as a burden, obligation etc”

25 This ordinary meaning would not include the refusal of laying a burden in particular terms. Whether the term “imposition”, as contained in s.126(1)(b) of the FM Act should be given a wider meaning than its ordinary meaning must be determined from its context within s.126 and the Act generally. In this regard it is noted that s.126(1)(a) of the FM Act specifically uses the term “refusal”. Parliament did not include that term in s.126(1)(b) of the FM Act, which indicates that Parliament intended that the ordinary meaning should apply.

26 Accordingly, in the opinion of the Tribunal, even if the decision can be categorised as coming within (c) above, the Tribunal has no jurisdiction to hear Mr Reed’s application as the decision does not come within the terms of s. 126(b) of the FM Act.

27 In this case, in the opinion of the Tribunal, the essence of the decision for which Mr Reed seeks review is not the decision, which imposes a condition on his commercial fishing licence. What he seeks review of is the decision, which preceded that decision and which appears to have been made by the administrators of the Department in accordance with the Minister’s policy as reflected in the zoning scheme. As a result of this decision a further decision was made by the Minister to impose a condition on Mr Reed’s commercial fishing licence restricting his access to estuary general fishing, other than the Hawkesbury River region.

28 Accordingly such a decision does not come within the ambit of s. 126 of the FM Act and for these reasons the Tribunal finds that it has no jurisdiction to hear Mr Reed’s application.

29 In the event that this finding is incorrect, and that it has jurisdiction, the Tribunal finds that the Minister’s decision to refuse to include a condition on Mr Reed’s endorsement for estuary general fishery for access to the Macleay region is the correct and preferred decision.

30 The Minister’s power in regard to conditions as contained s.112(2) of the FM Act is not limited in any way. In this case, the condition imposed on Mr Reed’s licence was as a result of recommendations made by the Estuary General Management Advisory Committee, which represents fishers in this restricted fishery. The zoning scheme applied equally to all fishers who had been given endorsements in this restricted fisheries and had been formulated in consultation with the relevant fishers. Accordingly, it cannot be said that the zoning scheme was in any sense unfair or unjust (s.64(1) Administrative Decisions Tribunal Act).

31 The Tribunal understands Mr Reed’s concern but notes that he was aware of the discussions that were taking place at the time and was informed about the proposed zoning scheme and its acceptance by the Minister for implementation by the administrators. There is no evidence that the administrators implemented that policy other than within the terms of the scheme.

32 The Tribunal orders that it has no jurisdiction to hear Mr Reed’s application.