Relf v Minister for Fisheries

[2001] NSWADT 93

CITATION:	Relf v Minister for Fisheries [2001] NSWADT 93
DIVISION:	General Division
PARTIES:	APPLICANT Scott Charles Relf RESPONDENT Minister for Fisheries
FILE NUMBER:	003330
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	05/02/2001
DATE OF DECISION:	06/05/2001
BEFORE:	Rice S - Judicial Member at 1
APPLICATION:	Fisheries Management Act - fishing licence- endorsement on licence - Fishing licence - endorsement on licence - Jurisdiction
MATTER FOR DECISION:	Preliminiary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fisheries Management (General) Regulation 1995 Fisheries Management Act 1994
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT C Cory, solicitor
ORDERS:	1 The application is dismissed; 2 No order as to costs

1 The Tribunal does not have jurisdiction to review the decision identified by Mr Relf. This means that Mr Relf is unsuccessful and his application is dismissed.

Background

2 Mr Relf owns fishing business FB509. He does not hold a commercial fishing licence.

3 Section 103(2)(c) of the Fisheries Management Act (‘FM Act’) says that a person may hold a commercial fishing licence only if he is authorised by the regulations to do so.

4 Clause 135 of the Fisheries Management General Regulation (‘FM Reg’) says relevantly:


(1) For the purposes of section 103(2)(c) of the Act, the following individuals are authorised to hold a commercial fishing licence:
. . . . .
(b) an individual who satisfies the Minister that he or she (either alone or together with other individuals) owns the whole of a recognised fishing operation or that he or she is the nominated fisher of a person who owns the whole of a recognised fishing operation,
. . . . .
(2) For the purposes of this clause, a recognised fishing operation is a fishing business that falls into any of the following categories:
the catch history associated with the business (as determined by the Director in accordance with this clause) exceeds 5 tonnes, or $10,000 in value, in at least 2 years out of the years 1986 to 1990 (inclusive) and 1 year out of the years 1991 to 1993 (inclusive),
. . .
(3) The catch history associated with a fishing business is the historical takings of fish for sale by or in connection with a fishing business. The catch history is to be determined by the Director in such manner as the Director considers appropriate, having regard to the records, kept by the Director, of fish taken for sale by any person involved in the business, or of fish taken for sale by use of a licensed fishing boat operated by the business, or to a combination of both . . .

5 In short, to hold a commercial fishing licence a person must own a “recognised fishing operation”, which is a fishing business whose catch history satisfies the prescribed requirements.

6 Mr Relf has not applied for a commercial fishing licence. In anticipation of applying for one he attempted to establish the status of his fishing business as a “recognised fishing operation” by reference to his catch history.

7 As provided for in cl.135(3) the Director determined Mr Relf’s catch history, and said that it does not meet the prescribed requirements for a “recognised fishing operation”.

8 It appears from correspondence on the file, although I cannot see a copy of the relevant document, that Mr Relf then made a “restricted fisheries catch history review application”. I infer from the fact that the review application was dealt with by a review panel, that Mr Relf’s review application was treated by the Director as a “review request” under cl.214A of the FM Reg.

9 A review panel is established by the Minister under cl.214B to consider a review request. That is what happened in Mr Relf’s case; the review panel reported to the Minister (cl.214D), recommending that the catch history determined by the Director not be amended. That is what the Minister decided. The Minister’s decision to not amend the catch history was advised to Mr Relf in a letter dated 19 September 1999.

Invalid decision

10 The Minister only came to make the decision because the review panel process had taken place. But by cl.214A(2) of the FM Reg a review request, for which a review panel is established, “may be made only in respect of an eligibility or catch history determination that relates to the following (my emphasis):

(a) a class C endorsement in the ocean hauling restricted fishery, or
(b) any endorsement in the following fisheries:
(i) the ocean prawn trawl restricted fishery,
(ii) the ocean fish trawl restricted fishery,
(iii) the ocean trap and line restricted fishery,
(iv) the estuary prawn trawl restricted fishery,
(v) the estuary general restricted fishery.”
11 The catch history determination in respect of which Mr Relf made a review request did not relate to any of the matters set out in cl.214A(2), all of which are types of licence endorsements. It related to the existence or not of a “recognised fishing business”.

12 The concept of “catch history”, as has been discussed in other cases under this legislation, is used for different purposes throughout the FM Act and FM Reg. In my view the review panel process under Division 6 of Part 8 of the FM Reg does not enable the review by a review panel of the determination of catch history which relates to the existence or not of a “recognised fishing business”.

13 The review panel therefore did not have power to review the Director’s determination of catch history in Mr Relf’s case. The review panel had no power to make a recommendation to the Minister, and the Minister had no power to confirm the Director’s determination to refuse to amend the catch history.

14 Mr Relf’s application to this Tribunal is in respect of a void decision.

15 However, section 6(3) of the ADT Act provides that a decision is deemed valid for purposes of the Act “even if the decision was beyond the power of the decision-maker to make it”. That provision saves the Minister’s decision in this case. The Minister’s decision stands, for purposes of the ADT Act, as a decision under the FM Reg.

16 The decision Mr Relf identifies in his application to this Tribunal is the Minister’s decision to refuse to amend Mr Relf’s catch history. This is the decision Mr Relf wants reviewed. Whether it is, however, a “reviewable decision” depends on s126 of the FM Act.

Reviewable decision

17 A reviewable decision is “a decision of an administrator that the Tribunal has jurisdiction under an enactment to review”: section 8 of the Administrative Decisions Tribunal Act (‘ADT Act’).

18 This Tribunal’s review powers are limited by s38 of the ADT Act: the Tribunal can only review a decision when an enactment provides that applications may be made for a review.

19 In this case the enactment is the Fisheries Management Act (‘FM Act’). Apart from some provisions relating specifically to aquaculture permits, the FM Act makes provision for review of decisions only in s126(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.
20 By s125 of the FM Act, the term ‘relevant authority’ means:

(a) a commercial fishing licence, or
(b) an endorsement on a commercial fishing licence, or
(c) a fishing boat licence, or
(d) the registration of a member of the crew of a boat, or
(e) a fish receiver's registration.

21 I note that no provision for review of decisions is made by the Fisheries Management General Regulation (‘FM Reg’).

22 The decision Mr Relf wants reviewed – the Minister’s refusal to amend the catch history – is not covered by sections 125 and 126 of the FM Act. The decision is therefore not one that is reviewable by this Tribunal. As the Tribunal does not have the power to review the decision, Mr Relf’s application is, technically, misconceived within the meaning of s73(5) of the ADT Act, and should be dismissed on that basis.

23 I note that had the review panel process not been invalidly engaged in, as I describe above in paragraphs 10-13, the Director’s original determination of catch history would similarly not be a reviewable decision. Whether Mr Relf seeks review of the Minister’s decision on the recommendation of the review panel, or of the Director’s initial decision, this Tribunal has no jurisdiction.

Further observations

24 Mr Relf is seeking a review of the catch history determination as a step towards having his fishing business categorised as “recognised fishing business’. That in turn is a step towards his being eligible for a commercial fishing licence. If and when Mr Relf applies for a commercial fishing licence, it might be refused. On the view the Director currently takes as to the catch history, it seems that it would be refused. A decision to refuse the application would be covered by sections 125 and 126 of the FM Act, and could be reviewed by this Tribunal.

25 If the Tribunal were to review that decision it is likely that the issue will be whether, under cl.135 of the FM Reg, Mr Relf is an individual who owns the whole of a fishing business for which the catch history (as determined by the Director) meets the prescribed requirements.

26 It seems to me that the Tribunal, in reviewing the Minister’s decision, would necessarily review the catch history as determined by the Director on which the Minister’s decision is premised. Thus the Director’s determination of the catch history would, in my view, be reviewed if and when Mr Relf seeks review of a decision, based on that catch history, to refuse him a commercial fishing licence.

27 At this stage however, the Minister’s decision on the recommendation of the review panel to not amend the catch history, is not a reviewable decision. The application for review is misconceived.

Order

Accordingly I order the application be dismissed.

I make no order as to costs.