Rhodes and Australian Fisheries Management Authority
[2005] AATA 707
•27 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 707
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2004/21
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID JOHN RHODES Applicant
And
AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
Respondent
DECISION
Tribunal Associate Professor B W Davis AM (Part-time Member) Date27 July 2005
PlaceHobart
Decision The decision under review is affirmed.
..............................................
Part-Time Member
CATCHWORDS
Fisheries - review of decision cancelling permit - school and gummy shark - quota - Tasmanian shark gillnet licence - offshore constitutional settlement (OCS) - total allowable catch (TAC) - allocation policy - licence fee - levy - limited entry - catch record - cost recovery - economic efficiency - exceptional circumstances
LEGISLATION:
Fisheries Management Act 1991 (Cwth) Sections 3, 4, 17, 32, 38, 111, 165
Fisheries Administration Act 1991
Fishing Levy Act 1991
AUTHORITIES:
Bannister Quest Pty Ltd v Australian fisheries Management Authority (AFMA) Federal Court 14 August 1997, 819/1997
Drake & Minister for Immigration & Ethnic Affairs, (No 2) 1979, 2 ALD 634
Nikac and Others v Minister for Immigration & Ethnic Affairs (1998) 20 FCR 50
Skoljarev v AFMA (1995) 39 ALD 517
Re Zalups & AFMA (2003) AATA 908
Ajka Pty Ltd v AFMA (2001) AATA 258 (30 March 2001)
Ajka Pty Ltd v AFMA (2003) FCA 248 (26 March 2003)
Re Jetopay Pty Ltd v AFMA (1993) 32 ALD 209
P W Adams Pty Ltd v AFMA (1994) 49 ALD 68
P W Adams Pty Ltd v AFMA (1995) 60 FCR 387
Re Wait v AFMA (2002) AATA 159 (8 March 2002)
White and AFMA (2005) AATA 174 (28 Feb 2005)
Green & AFMA (2004) AATA 426 (29 April 2004)
REASONS FOR DECISION
27 July 2005 Associate Professor B W Davis AM (Part-time Member) DECISION UNDER REVIEW:
1. The decision under review is a decision made by a delegate of the Australian Fisheries Management Authority (AFMA) on 12 July 2001 to cancel fishing permit no. 26978 in the Southern Shark Fishery, the permit being held in the name of David John Rhodes. At the time a quota of zero kilograms of gummy and school shark had been allocated to the permit.
ISSUES:
2. The applicant has claimed a number of issues are involved in the case:
(a) the permit was cancelled before he had an opportunity to be heard, which was a denial of natural justice;
(b) the cancellation was unfair because his financial difficulties were already known;
(c) to rigidly apply a ‘no new entrants’ policy under the management plan was inappropriate as exceptional circumstances existed and these were cogent reasons to waive extant policy;
(d) he was not a new entrant to the fishery, having possessed a Tasmanian shark licence for many years; and
(e) if a new licence was granted, zero quota was unfair, being irrational and going against AFMA’s economic efficiency objective.
3. The respondent has summarised the principal issues as follows:
(a) Should the applicant be granted a Gillnet Hook and Trap Fishery (GHTF) permit pursuant to Section 32 of the Fisheries Management Act 1991 (the Act)?
(b) Should AFMA’s policy that no additional permits be granted in the GHTF (ie a limited entry policy) be applied in the applicant’s case?
(c) Are there any circumstances in the applicant’s case that would amount to cogent reasons for not applying the policy?
LEGISLATION:
4. The relevant legislation is the Fisheries Management Act 1991, sections 3, 4, 17, 32, 38, 111 and the Fisheries Administration Act. There are a number of AFMA policy documents and reports, as well as some scientific studies, which will be noted as case determination proceeds.
STANDARD OF PROOF:
5. The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal.
BACKGROUND:
6. David John Rhodes is a professional fisherman of some 35 years experience, primarily operating in the Bass Strait region in waters surrounding Flinders Island and other adjacent islands. He has served on working groups relating to the Tasmanian rock lobster fishery, the Tasmanian scallop industry advisory committee and the Southern Shark Industry Council.
7. Mr Rhodes claims to have held a Tasmanian State Shark Gillnet licence ever since such entitlements were put in place and to have paid State fees regularly. The situation has now changed, with the Commonwealth Government administering the shark industry under the Offshore Constitutional Settlement (OCS) of 2000.
8. Mr Rhodes applied for a Commonwealth fishing permit for school and gummy shark on 19 December 2000, claiming he could only afford $80 of the $150 fee, advising he would pay the remainder later. On 1 March 2001 AFMA issued permit no. 26978 to the applicant, at the same time sending an account for the management levy ($400). Zero quota of school and gummy shark was allotted and Mr Rhodes claims he faxed AFMA seeking a review, thinking he did not have to pay the levy until the review of quota allocation was completed. He was under severe financial pressure at the time and could not afford the levy.
9. He claims not to have received any correspondence from AFMA during April, May or June 2001, warning him about possible suspension or cancellation of the permit if he did not pay his levy. During this time he was in a ‘remote area of Tasmania’, picking gum nuts for seed on Flinders Island and another island.
10. On or about 12 July 2001 AFMA cancelled the permit. He was shocked at this decision, given the request for review of quota and believing that at most he would suffer suspension of the permit. At the time his financial crisis was ongoing, involving a marriage settlement, high costs for repair of a vessel and dealing with a threatened bank foreclosure.
11. On 22 February 2002 Mr Rhodes wrote to AFMA further requesting review of the decision to cancel his permit, but this was refused.
12. The applicant then decided to apply for a new permit for the gillnet hook and trap fishery, his application being dated 29 September 2003. This application was rejected by AFMA on 12 November 2003. Mr Rhodes states that he was devastated, having been a fisherman for 35 years and with this vocation virtually the only one he had known. He had therefore decided to apply for review by the Administrative Appeals Tribunal.
13. The respondent has challenged some aspects of Mr Rhode’s version of events and various claims made by him. In particular they reject the notion his permit was cancelled without providing ample opportunity for him to respond to prospective suspension or cancellation. His initial request for review was in respect of quota, not the permit and he was unable to satisfy the quota allocation criteria based on catch history between 1994 and 1997. AFMA sent many reminder notices and attempted to contact him from March 2001 onwards, to which the applicant did not respond. It was not until February 2002 that he was in contact with AFMA once more. His new application, dated September 2003 was rejected because by then a ‘limited entry’ policy was in force. AFMA contends that all its decision were lawfully made and with ample opportunity for Mr Rhodes to make his case which he failed to do.
THE AAT HEARING:
14. The AAT hearing was conducted in Hobart on 20 and 21 April 2005. The applicant was represented by Dr Clive O’Connor of counsel and the applicant by Ms D Mortimer of counsel.
15. In an opening address Dr O’Connor for the applicant argued that Mr Rhodes had applied for and received a fishing permit which contained absurd conditions and which was subsequently cancelled without genuine attempts to contact him and without adequate consideration of his request for review of zero quota of school and gummy shark. It was a denial of natural justice to a man who in the 1980’s under State provisions was catching up to 20 tonnes of shark per year. Under the new provisions he had applied for a quota of two tonnes per year, which was a minor amount and its allocation would not affect a fishery where the TAC (Total Allowable Catch) and biomass were in dispute anyway. There were cogent reasons to depart from extant policy, given his client’s exceptional circumstances of financial difficulty and need to maintain his livelihood.
16. David John Rhodes was then sworn as witness, providing a proof of evidence outlining his fishing experience and circumstances. He stressed that he had operated in several varieties of fisheries for 35 years, principally around the lower half of Flinders Island and the waters of adjacent islands such as Cape Barren and Clarke Islands. Operating under Tasmanian state licences he had caught up to 20 tonnes of school and gummy shark per year, until such time as a fish processing plant at Lady Barron township on Flinders Island had closed. He was then forced to consider catching other species than sharks, including scallops and scalefish, some of which he sold locally. There were freezing and freight difficulties to Victorian markets and mainland Tasmania, so he had supplemented income by muttonbirding during its season, using a 20 tonne container freezer so the birds could be shipped to Bridport in boxes on a weekly basis.
17. When jurisdiction over shark fisheries was transferred from the State to the Commonwealth in 2000, he had applied in December of that year for a permit and quota. He was granted permit number 26978 on 1 March 2001, but with zero quota. Shortly after he received a request to pay the permit fee of $150 and a quota levy of $400. He was in financial difficulties at the time and forwarded only $80 of the permit fee, indicating he would pay the remainder when he could afford it. He had sought a review of quota on 20 March 2001 and assumed no action would be taken until his review of quota was completed. He was not in a position to lease quota at that time.
18. The applicant claims not to have received any correspondence from AFMA in mid to late 2001, being absent from Lady Barron most of that time, working for his brother picking gumnuts for seed on Flinders Island and another island. In response to a question from counsel, he stated that if someone had desperately sought to reach him, a note could have been left at this home or contact via the police.
19. He was aware verified catch history was necessary to obtain shark quota, but assumed logbooks from his Tasmanian shark licence would suffice. He had sought records from the State Department of Primary Industries in Tasmania, but was now aware they had been provided to the parties in slightly different form, as well as some handwritten figures he himself had prepared. (There was a brief intermission, during which counsel for the applicant and respondent agreed to meet so that exhibits could be more clearly numbered and consistency in quotation assured). Catch records for more than one vessel were involved.
20. Mr Rhodes indicated his financial difficulties during the period 2000-2003 arose from several sources, but primarily from high repair and refitting costs for a vessel (nearly $20,000) and then separation from his wife, which involved time out from fishing, for counselling and then matrimonial dispute settlement. It imposed an enormous emotional strain as well.
21. Mr Rhodes claimed he had sought review of quota within the 28 days allowed. AFMA had failed to reply within the specified period of 45 days. He was aware a buyback scheme was operating to reduce fishing effort but it did not appeal to him because of his desire to remain active within the industry.
22. During cross-examination he was asked about a claim few others were fishing the waters he frequented, therefore granting him a limited quota would not affect survival of shark species. Mr Rhodes indicated it was closure of the fish processing plant at Lady Barron township which had forced him to consider the species he should be targeting. He possessed two State licences, but now could only treat shark as a by-catch. He was forced to consider the limited employment prospects in other vocations in the Bass Strait islands and whether disposal of assets was essential, given his financial crisis.
23. He was queried about a number of dealings in respect of vessels and gear from year 2000 onwards, including disposal of a rock lobster licence and a scallop licence. He stated he could not remember precise dates or details, but thought he had sold the rock lobster licence in year 2000 for about $20,000 plus $10,000 for each of five pots. He had retained the scallop licence until such time as he applied for the Commonwealth shark permit in 2001, but he had disposed of it around that time for approximately $20,000.
24. The applicant indicated that under a partnership agreement between himself and family, the Rhodes group had owned three vessels during the 1990’s, namely the ‘Burslem’, the ‘Veronica May’ and the ‘Silver Spray’. He had operated the partnership, selling the ‘Veronica May’ in 1996 for about $6,000; retaining the ‘Silver Spray’ until 2003, selling it for around $15,000 after retaining some gear beforehand. He had purchased a shark cat, the ‘Antagonist’ in 2003 for $11,000, while the freezer for mutton birds had been obtained earlier in 2000 for around $6,000.
25. Mr Rhodes admitted he could not find a copy of the letter he claims to have sent to AFMA querying quota, but including an $80 postal order as part-payment of the permit fee. AFMA indicated it had no record of this correspondence, despite the existence of several measures for safeguarding documents. AFMA queried whether the letter and payment had been sent at all, or was being confused with matters relating to Tasmanian licences. Mr Rhodes denied such a claim, but admitted he could not recollect details of what had transpired.
26. The applicant was then asked about his catch records, which he claimed were entered into Tasmanian logbooks while at sea or soon after. He acknowledged that AFMA was seeking verified catch records via sales dockets or other primary evidence, but he did not possess them.
27. A series of questions were put by counsel for the respondent concerning his claimed inability to pay the $150 permit fee and $400 quota levy in March 2001. It appeared Mr Rhodes was scalloping and harvesting mutton birds while at various times buying and selling assets. Mr Rhodes responded by saying that his marriage break-up and debts owed to various people were to blame and there was no correspondence from AFMA during April, May or June 2001, warning him about possible cancellation of the permit, if he did not pay the levy. He did not know about suspension or cancellation until February 2002, which prompted him to write to AFMA seeking further review of their decision to cancel his permit. He later applied for a new fishing permit in September 2003, which was refused.
28. The respondent queried Mr Rhodes version of events. The Bass Strait islands are not so remote that multiple correspondence cannot reach there. The applicant had admitted visiting the township of Lady Barron on several occasions for brief periods during mid to late 2001. The claim he was ‘virtually uncontactable’ was false. Mr Rhodes had admitted making no arrangements about correspondence during periods away from home, but claimed he had been defamed by some verbal comments by islanders about his debt situation and absences. Mr Rhodes said he could not afford to renew his State fishing licences at the time. The bank had taken portion of the money gained from sale of assets and in 2003 he had been forced to sell his house, which yielded $110,000, much of which went in marriage settlement. He was in severe financial difficulties throughout.
29. Mr Rhodes refuted the notion he had become aware of cancellation of his permit in September 2001; stating it was a telephone conversation in February 2002 which informed him of the decision. He was also surprised to learn that AFMA believed some of his catch summaries were incorrect because of inadvertent switch from trunked weights to total weights of catch. AFMA indicated it would be the State fisheries figures they would rely upon.
30. Dr O’Connor in re-examination of his client asked some questions about monies received from sale of assets. Mr Rhodes indicated that sale of his house for over $100,000 yielded only $30,000 - $40,000 once some debts were paid. Similarly the sale of his vessel ‘Silver Spray’ had only returned about $15,000, after paying $9,500 for repairs to the boat. Dr O’Connor submitted this was evidence of the hardship his client faced. There were further expenses relating to taxation, payments to investment nominees and accountants.
31. Dr O’Connor drew attention to some unworkable conditions relating to permits which required notification of ship movements and the like. He also drew attention to three research papers about shark populations, arguing it was difficult to determine shark biomass, thus an additional small allocation of quota would not threaten the species. Counsel for AFMA requested it be supplied with the date and publication details and any verification of these documents, given there was substantial scientific evidence both school and gummy sharks in Australian waters were under severe threat. It was for this reason a more rigorous management regime had been introduced.
32. In her opening address for the respondent Ms Mortimer drew attention to the fact the decision under review related to cancellation of a permit, not quota. If the Tribunal was mindful of issuing a permit to the applicant the Tribunal could determine conditions relating to that permit, but would have to bear in mind the potential impact on other fishermen and the industry as a whole. AFMA would argue that the prudent and correct decision was to leave the original decision affirmed ie that AFMA had acted lawfully in cancelling Mr Rhodes permit. Ms Mortimer noted that the OCS arrangements which were agreed in year 2000 expressly contemplated no increase in fishing capacity and the resultant management plan involved only verified catch data as a ‘limited entry’ policy applied.
33. She also drew attention to a number of AFMA documents dealing with management of the Southern Shark Fishery (SSF), procedures for catch report and verification and the process for issuing, suspending or cancelling permits.
34. Rohan Stuart Wilson, Senior Compliance Manager, AFMA, was then called as a witness and sworn. He tendered a proof of evidence outlining recent developments in shark policy but dealing in more detail with cost recovery procedures and provisions for dealing with unpaid or overdue levies, instalment payment arrangements, the suspension or cancellation of permits and reasons why the applicant should not be granted a new permit. He emphasised there were a number of inbuilt safeguards by AFMA to prevent or correct error and check that legislative provisions were being fully followed.
35. He was questioned why there were sometimes high suspension figures and far fewer cancellations of permits. He indicated that once applicants realised action might be taken, they paid up promptly. It was quite feasible for clients to arrange a schedule of instalment payments, provided they contacted AFMA to discuss options. He had checked the data base in Mr Rhodes’ case; no permit part-payment had been received, nor had the applicant contacted AFMA in 2001 to arrange any payment plan.
36. Mr Wilson was closely questioned by Dr O’Connor about the allocation and later suspension and cancellation of permit 26978. Mr Wilson said that although he was currently a compliance officer, he had not been involved in initial issue of the permit in March 2001, nor any conditions attached to it. Dr O’Connor asked whether zero quota meant Mr Rhodes had no fishing rights in the shark fishery; Mr Wilson said it allowed Mr Rhodes to lease quotas for shark and the permit had commercial value in itself.
37. In further cross-examination the process for identifying Total Allowable Catch (TAC) was discussed. Mr Wilson drew attention to prior consultation with the industry each year before the figure was determined and quota allocated. Mr Wilson stressed that a fishing right was a different legal entity to a condition on a permit.
38. Mr Wilson was then questioned as to whether he had accepted the request from Mr Rhodes to review quota. He indicated he had responsibility at the time and after considering Mr Rhodes case, it was his decision to terminate the reconsideration. Mr Rhodes had made a new application for a fishing permit in September 2003, but he had left the section responsible prior to that time. It was his understanding there was no provision to reinstate a permit once it had been cancelled. New applications were dealt with on their merits and in 2003 the management plan included a ‘no new entry’ provision.
39. Dr O’Connor asked whether there was ever any unused quota. Mr Wilson responded that it occurred in some years as once TAC was determined and allocated it was up to individual fishermen to decide the extent of their fishing effort. He was not involved in setting the TAC; it was based on the best available scientific information at the time about biomass and catch experience within the industry.
40. Mr Wilson was also queried about the number of permits. He stated he was not responsible for that area of AFMA’s operations but understood there was a policy in place prohibiting new entrants to the shark fishery. Dr O’Connor said Mr Rhodes was not a new entrant having been in the industry many years. Mr Wilson said AFMA would apply whatever shark policy existed at the time and Mr Rhodes’ application for a new permit in 2003 was his first in the Commonwealth jurisdiction generated by the OCS agreement. Different rules applied than State fisheries. The applicant’s experience in the latter field was noted, but he had no verified catch data for the relevant period 1994-1997 and thus did not qualify for a Commonwealth licence. To act otherwise would subvert AFMA’s compliance and enforcement initiatives.
41. In concluding re-examination Dr O’Connor asked whether the applicant had received the same consideration all other small operators were supposed to receive in the transfer from State to Commonwealth jurisdiction. Mr Wilson & Ms Mortimer responded that the applicant had been treated the same as all other clients in being granted a permit but then had failed to pay prescribed fees and levies without adequate explanation. It was because he had no verified catch data for the period 1994-1997 that he was granted zero quota.
42. The parties sought the opportunity to rely upon written final submissions given their involvement in a number of other Fisheries cases. Leave was granted.
43. Dr O’Connor’s final written submission canvassed a wide range of issues and claimed there were a number of deficiencies in AFMA policy and procedures which had penalised his client who had not been afforded natural justice. Dr O’Connor argued that the limited entry policy had not been clearly articulated and there were cogent reasons to depart from existing policy by recognising the exceptional circumstances Mr Rhodes had faced. He was critical of unreasonable catch verification procedures and the viability and economic efficiency of the industry would not be affected if the applicant was granted a permit and small quota.
44. AFMA’s final submission emphasised that although the decision under review related to cancellation of permit 26978 on 12 July 2001 and the subsequent refusal to issue a new permit in 2003, the applicant had not appealed against permit cancellation in 2001 and 2002, but focused almost entirely on the issue of quota. There was no power to reinstate a permit once cancelled and Mr Rhode’s application for a new permit in September 2003 was correctly refused under a valid limited entry policy.
45. The applicant had complained about injustice, but had engaged in the sale and purchase of substantial assets in the period 2001-2003 but never paid requisite fees and levies that amounted to a few hundred dollars. The applicant had made personal choices about which fish species to target and must have been aware that verified catch history was essential in the shark industry, yet relied solely upon logbooks. While he mentioned exceptional circumstances once, he had failed to provide any substantial evidence about such a claim, so there were no cogent reasons for AFMA to depart from the catch verification process. The 2003 SESS Management Plan was valid and AFMA was required to operate within its provisions and related policy documents. AFMA’s decisions were thus lawfully made.
SUBMISSIONS IN REPLY
46. A further submission in reply was lodged by the applicant on 4 July 2005. This had not been foreshadowed during the Tribunal hearing or final submissions, hence the Tribunal was reluctant to consider it. The respondent (AFMA) had no objection however, other than arguing some content was inadmissible, an argument the applicant immediately disputed. The Tribunal decided to take the submissions of both parties in, on grounds of natural justice, with relevant aspects being discussed later in this document.
LEGISLATION AND POLICY
47. It is common knowledge that many of the world’s fisheries are under stress and governments have intervened to try to ensure sustainability of species and attempt to protect the viability of operators. Australia has not been immune from such structural adjustments, resulting in two new statutes in the early 1990’s, namely the Fisheries Management Act 1991 and the Fisheries Administration Act 1991. A new organisation called the Australian Fisheries Management Authority (AFMA) was also established.
48. Section 3 of the Fisheries Management Act 1991 sets out the objectives which must be pursued by AFMA in the performance of its functions. It provides that:
“3. (1) The following objectives must be pursued by the Minister in the administration of this Act and by AFMA in the performance of its functions:
(a) implementing efficient and cost‑effective fisheries management on behalf of the Commonwealth; and
(b) ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development and the exercise of the precautionary principle, in particular the need to have regard to the impact of fishing activities on non‑target species and the long term sustainability of the marine environment; and
(c) maximising economic efficiency in the exploitation of fisheries resources; and
(d) ensuring accountability to the fishing industry and to the Australian community in AFMA’s management of fisheries resources; and
(e) achieving government targets in relation to the recovery of the costs of AFMA.
(2) In addition to the objectives mentioned in subsection (1), or in section 78 of this Act, the Minister, AFMA and Joint Authorities are to have regard to the objectives of:
(a) ensuring, through proper conservation and management measures, that the living resources of the AFZ are not endangered by over‑exploitation; and
(b) achieving the optimum utilisation of the living resources of the AFZ
but must ensure, as far as practicable, that measures adopted in pursuit of those objectives must not be inconsistent with the preservation, conservation and protection of all species of whales”.
49. AFMA is also required to take into account the precautionary principle which is defined in section 4 of the Fisheries Management Act as having the same meaning as in clause 3.5.1 of the Intergovernmental Agreement on the Environment, a copy of which is set out in the Schedule to the National Environment Protection Council Act 1994. Clause 3.5.1 of that Schedule reads:
“Plans of Management
17. (1) Subject to subsection (1A), AFMA must, in writing, after consultation with such persons engaged in fishing as appear to AFMA to be appropriate and after giving due consideration to any representations mentioned in subsection (3), determine plans of management for all fisheries.
17. (1A) If , in all the circumstances, AFMA is of the view that a plan of management is not warranted for a particular fishery, AFMA may make a determination accordingly, including in the determination its reasons for making the determination.
...
17. (2) Before determining a plan of management for a fishery, AFMA must prepare a draft of the plan, and by public notice:
(a) state that it intends to determine a plan of management in respect of the fishery; and
(b) invite interested persons to make presentations in connection with the draft plan by a date specified in the notice, not less than one month after the date of publication of the notice in the Gazette; and
(c) specify:
(i) an address from which copies of the draft plan may be obtained; and
(ii) an address to which representations may be forwarded
17. (2A) In addition to issuing a public notice under subsection (2) and before determining a plan of management for a fishery, AFMA must notify the persons and organisations listed in the register established under section 17A, at their addresses as shown on the register of the terms of the public notice”.
50. In pursuing these statutory objectives AFMA is required to carry out a variety of other functions specified in various sections of the Fisheries Management Act 1991. These have been summarised by Drummond J in Bannister Quest at pp508-509. The functions include preparation of management plans for a fishery (s17(1) of the Fisheries Management Act), the power to grant statutory fishing rights in managed fisheries (ss17(6)(b), 21, 22 and 31 of the Act) authorise the use of a specified Australian boat by a person for fishing in a specified fishing (s32(1)), specify the conditions to be attached to such a permit (s32(6)), the permit conditions as to the fish that may to taken and the methods or equipment that may be used (s32(7)), and the power to impose, or vary or revoke conditions on fishing permits (s32(8)).
51. It is also one of AFMA’s functions under the Fisheries Administration Act 1991 (FAA) “... to consult and co-operate, with the industry and members of the public generally, in relation to ...” its activities (s7(c)). The consultation process requires AFMA to consult with persons or bodies representative of the whole or part of the fishing industry, with the Commonwealth and State governments and their authorities having functions relating to fisheries and also with persons (including members of the scientific community) having a particular interest in matters associated with the industry “... for the purpose of considering any matter, or obtaining information or advice, relating to the performance of its functions” (s9 of the FA Act). AFMA is also authorised to establish Management Advisory Committees (“MACS”) to “... assist it in the performance of its functions and the exercise of its powers in relation to a fishery” (ss55 and 56 of the FA Act).
52. The bare recital of these objectives and functions masks the reality of translating them into policies, principles and operational administration of the Act. Given that multiple objectives are involved, tradeoffs are inevitable in AFMA’s decision-making.
53. Shark fishing occurs in waters off the coasts of Victoria, Tasmania and South Australia, as well as in Commonwealth waters, an area broadly described as the Southern Shark Fishery (SSF). The species caught are largely gummy sharks and school shark but there have been concerns over many years about depletion of biomass due to catch rates, slow growth rates of the species and the fact they produce few young at a time. Until recently, responsibility for management of the SSF was shared between the Commonwealth and States but following a Memorandum of Understanding in 1999, as part of the Offshore Constitutional Settlement (OCS) in 2000, management was ceded to the Commonwealth.
54. By way of further background, the SSF has been the subject of a number of management initiatives from the 1980’s onward. Initially controls over shark catch were by way of ‘input controls’ on gear and licences, but when these restrictions failed to control over-exploitation, ‘output controls’ were substituted. A number of industry publications and reports, as well as policy statements were issued by AFMA, recommending an amended approach, involving an annual review of the quantity of shark stock and the imposition upon members of the SSF of a catch level, known as Total Allowable Catch (TAC). This would then be allocated to each individual member of the SSF using an agreed formula. Following further industry consultation via a Shark MAC (Southern Shark Fishing Management Advisory Committee) in 1997 and a Southern Shark Allocation Advisory Panel in 1999, it was agreed that quota allocation should be on the basis of each fisherman’s best three years of verified catch for the four year period between 1994 and 1997 inclusive. it was thought this catch history would ‘accurately reflect present relative economic positions of concession holders within the fishery”.
55. The panel ultimately published its final report on 15 July 1999 and acknowledged the need to identify any ‘exceptional circumstances’ and take into account any factors which might create inequalities amongst fishing entitlements. However the term ‘exceptional circumstances’ was not defined or discussed.
ANALYSIS
56. Turning more directly to the Rhodes case, the Tribunal is required to conduct a de-novo review, taking all evidence into account as well as relevant statutory provisions and prior case determinations.
57. The applicant seeks review of a decision of AFMA to cancel permit no. 26978 on 12 August 2001 and a quota allocation of zero kilograms of school and gummy shark. It is necessary to determine whether the cancellation was lawfully made and only if that appeal is successful what implications might arise in respect of quota allocation.
58. Mr Rhodes makes a series of claims about the permit cancellation and refusal of a new application in 2003. In outline summary the claims are as follows:
(a) he was denied natural justice by suspension and cancellation of his permit before being granted an opportunity to present his case;
(b) his financial difficulties and exceptional circumstances were known to AFMA at the time;
(c) it was inappropriate to rigidly apply a ‘no new entrants’ policy to him, given his long involvement in the shark industry;
(d) zero quota allocation was irrational and against the economic efficiency objective; and
(e) there were cogent reasons to waive extant policy and grant him a quote based on catch history
59. The respondent’s view is that the primary issue is cancellation of the fishing permit and this was lawfully made. The Tribunal should consider whether there were any compelling reasons to put aside extant policy; it is AFMA’s view such circumstances did not exist. If allotment of a new or revised quota to an individual was in prospect, the Tribunal would have to consider the implications for other fishermen and economic efficiency of the industry as a whole.
CANCELLATION OF THE PERMIT
60. The applicant applied for a Commonwealth shark fishing permit on 19 December 2000. Permit number 26978 was issued on 1 March 2001; Mr Rhodes was warned suspension of the permit for non-payment of fees was contemplated on 9 April 2001; suspension occurred on 9 May 2001 and the permit was cancelled on 12 July 2001. On each occasion AFMA urged Mr Rhodes to be in contact if he had any queries or wished further consideration of his position. Apart from a fax to AFMA on 20 March 2001 requesting a review of quota, no contact with the applicant occurred until 26 February 2002.
61. Mr Rhodes claims not to have received any correspondence or notice from AFMA during the period April, May and June 2001 and states that during this time he was in a ‘remote area’ of the Bass Strait Islands, picking gum-nuts for his brother. Under cross-examination he admitted being in the township of Lady Barron for brief periods on several occasions, but claimed he had not made any arrangements about mail, but it would have been feasible to contact him by leaving a note at his home or via the police.
62. There is ample evidence AFMA made several attempts to contact him by phone, mail and the local police during the period 9 April 2001 to 3 August 2001, with no response. It is unsurprising that AFMA wrote off both his levy invoice and penalty in September 2001, because by then his fishing permit had been cancelled. Mr Rhodes claims to have written to AFMA after the permit suspension and before cancellation, but there is no record such correspondence was received, or the $80 part-payment of licence fee was ever forwarded. The applicant is unable to produce any copy to verify its despatch.
63. It should also be noted there is no explanation of Mr Rhodes’ location or activities during the period September 2001 to February 2002, apart from a later affidavit from one of Dr O’Connor’s staff that ‘Mr Rhodes was out at sea’.
64. The Tribunal has considerable difficulty in accepting the applicant’s version of events. The Bass Strait islands are not large relative to mainland Tasmania and the Tribunal knows from personal experience it is possible to penetrate most areas of Flinders, Clarke and Cape Barren Islands within 24-48 hours, thus ‘remoteness’ is limited. It is equally clear Mr Rhodes made little or no attempt to monitor mail during visits to Cape Barron township. A more plausible explanation is that Mr Rhodes was avoiding potential creditors and correspondence concerning financial affairs, including requests from AFMA for permit fees and levy payment. But that is speculation, which must be put aside as the Tribunal considers only tangible evidence.
65. The applicant has stated he assumed non-payment of fees would be treated merely as a temporary expedient, with him meeting his obligation when he could. Ignorance of the law is no excuse, particularly when he had long experience in the fishing industry and personal involvement in policy-making. The implications of non-contact and non-compliance with provisions of the legislature should have been obvious to him, especially when regularly advised to contact AFMA if he had queries or problems.
66. The statutory provisions for issuing, suspending or cancelling permits are contained in Sections 32, 38 and 39 of the Fisheries Management Act 1991:
“32 Grant of Fishing Permits:
(1) AFMA may upon application made in the approved form, grant to a person a fishing permit authorising, subject to subsections (1A), (1B), (1C) and (1D), the use by that person, or by a person acting on that person’s behalf, of an Australian boat for fishing in a specified area of the AFZ or a specified fishery
(1A) ....
(1B) ....
(1C) The permit does not authorise the use of an Australian boat unless the boat complies with any conditions to which the permit is subject
38 Suspension of Fishing Concessions:
(1) AFMA may by written notice given to the holder of a fishing concession, suspend the operation of the concession if:
(a) any fee, levy, charge or other money relating to the concession is not paid as it becomes due, or
(b) it has reasonable grounds to believe that:
(i) there has been a contravention of a condition of the concession; or
(ii) ....
(c) ....
39 Cancellation of Fishing Concessions:
(1) AFMA may, by notice in writing given to the holder of a fishing concession, whether or not it has previously suspended the fishing concession, cancel the concession if:
(a) ....
(b)....
(c) any fee, levy, charge or other money relating to the concession is not paid or the holder does not enter into an arrangement satisfactory to AFMA in relation to the money within which period
(d) ....”
67. In addition to the above, the Fisheries Management Act 1991 applies sections of the Fishing Levy Act 1991 to provide for payment of fees by instalments and for penalties to be imposed in non-payment occurs and levies and other amounts have to be recovered. (see also Sections 109, 1110, 111 and 112 of the Fisheries Management Act 1991)
68. Placing the applicant’s evidence in the context of these statutory provisions, the Tribunal finds Mr Rhodes was not treated unfairly or denied natural justice. His 2001 fishing permit was speedily granted as soon as OCS provisions came into effect; AFMA gave repeated opportunity for Mr Rhodes to pay prescribed fees and levies, his failure to do so still left room for negotiation which he failed to take up; and when the permit was ultimately cancelled the procedures adopted were strictly in accordance with established policy and the 2001 Southern Shark Fishery Management Plan.
69. Mr Rhodes has argued these actions were unfair because AFMA was already aware of his financial difficulties. While one must feel sympathy for his situation, they were of domestic origin and not attributable to AFMA. There is no express provision in the AFMA legislation to take an interventionist role in the individual circumstances of an applicant’s case, other than if, at the time that individual claims exceptional circumstances. Mr Rhodes did use that phrase once at the outset of his request for review of quota, on 20 March 2001, but did not state reasons for this claim, but rather focused on fishing history. Nonetheless further aspects of ‘exceptional circumstances’ will be discussed later in this determination.
QUOTA ALLOCATION
70. Sections 32(5)(7) and (8) of the Fisheries Management Act 1991 authorises AFMA to place conditions, such as quota or allowable catch on permits and Section 39 permits amendment or cancellation of such provisions in certain circumstances. It follows that when permit 26978 was suspended on 9 May 2001 and later cancelled on 12 July 2001, any rights attached to the permit then fell away. However Mr Rhodes had earlier applied for review of quota on 20 March 2001 and that request must be considered here.
71. The applicant claims he lodged his application for review within the prescribed 21 days from date of quota notification, but AFMA failed to respond with the requisite 45 days (Sunday 6 May 2001). His claim is incorrect, in that he was warned on 9 April 2001 suspension of the licence (and hence any attached conditions) was contemplated and given no response, the permit was then suspended on 9 May 2001, ie within a few days of the requisite period.
72. It should also be noted that Mr Rhodes had earlier voluntarily abandoned shark fishing in favour of rock lobster, scallops and scale fish and some land-based activities once the fish processing plant at Lady Barron closed. Any small shark catch was either used as bait or sold locally.
73. Nonetheless Mr Rhodes is correct in his claim of being a long-term shark fisherman with logbook catch history during the relevant qualifying period 1994-1997 inclusive. There are some errors in respect of weight of fish; however Tasmanian Department of Primary Industry figures lend some support to his claims although sometimes failing to distinguish between school shark and gummy shark species.
74. In the view of the Tribunal AFMA was obliged to consider the applicant’s catch history during the process of quota allocation in 2001, even though he had no verified catch history. There is no evidence before the Tribunal to indicate precisely how Mr Rhodes claims were treated, but presumably they were evaluated in accordance with AFMA’s prescribed Catch Verification Procedures, agreed with industry and described in FAP document No 8, Verifying Catch History, August 1999. It should be noted that the existence of catch history does not of itself guarantee quota allocation, as several factors are involved.
75. The significance of catch verification criteria and procedures must be emphasised. During the period 1997-1999 when AFMA was in close consultation with the shark fishing industry to clarify how Total Allowable Catch (TAC) and quota allocation would be determined, all parties were agreed verified catch data was essential, even though such procedures might prove complex to operate. The agreed procedures were ultimately set out in Fisheries Administration Paper No. 8, Verifying Catch History (August 1999) and an accompanying document General Guidelines for AFMA Officers Verifying Shark Catch, approved by the AFMA Board on 30-31 August 1999. Both should be read in conjunction with Southern Shark Fishery 2001 Management Arrangements (AFMA January 2001) and the Final Report of the Independent Allocation Review Panel for the Southern Shark Fishery (October 2003).
76. All documents make it clear that both primary and secondary verifiable documents are required before quota allocation can be determined. Primary documents include handling documents from fish co-operatives or marketing authorities and invoices, receipts, sales dockets and carrier assignment notes prepared at the time of transaction. Secondary sources include logbooks, financial records used for income taxation purposes, bank statements or records of other receipts where such claims can be directly related to a financial record.
77. AFMA warns that logbooks filled out by skippers and catch return to fisheries authorities are not appropriate for establishing catch history, except as secondary sources of information, due to concerns some operators might attempt to falsify logbooks to claim higher ITQ allocations. However the procedures recognise that if a particular operator’s logbooks are judged to be accurate, the records may be used to determine the breakdown of catch into a division between gummy shark and school shark species.
78. In seeking quota allocation, Mr Rhodes’ principal difficulties were not only that he lacked verified catch history, but also was unable or chose not to supply any supplementary information such as bank statements or income taxation figures which might have aided his case. If AFMA had attempted to impute quota on the basis of logbook entries or State fishing returns alone, then it would have been bound to consider the economic impacts on all others engaged in the Southern Shark Fishery, which would have proved a very difficult task. In any case there are numerous AAT and Federal Court decisions demonstrating it is the economic efficiency of the industry as a whole which must be considered, rather than the personal benefits of individual operators. (See, for example, Bannister Quest v AFMA (1997) 77 FCR 503; Adams & AFMA (1995) 60 FCR 387; and Wait v AFMA (2002) AATA 159 (8 March 2002)
79. The Tribunal notes that in Wait v AFMA (2002) AATA 159 (8 March 2002) it was held fishing was a commercial enterprise, hence it was incumbent upon operators to keep sufficient financial information to demonstrate a linkage between claimed catch and income and expenditure information for income taxation purposes. Without such information it would be unjust to assign an imputed quota to an individual operator since relativities would be distorted for all others, unless the TAC was increased or amended quotas were assigned for a particular TAC. The Tribunal has no jurisdiction to review or amend the TAC or the plan of management.
80. There are no cogent reasons in Mr Rhodes’ case for the Tribunal to depart from extant policy, including catch verification procedures. Mr Rhodes was aware of the latter, but did not meet its requirements, because he sold part of his catch for cash and had no receipts and used the remaining shark catch as bait for his rock lobster fishery. This was a commercial judgement but meant he had no receipts or fully documented weights for his catch.
81. Catch is financially valuable and all concession holders have to comply with FAP No 8, as well as pay fees and levies on time, in order that costs of the verification process can be met. Mr Rhodes sought to evade this process; seeking to derive an advantage not available to other concession holders. This can only be regarded as unfair, but was terminated by cancellation of his permit and thus any attached rights.
82. To summarise, the Tribunal has not identified any specific information which indicates the zero quota allocation was wrong or that the Tribunal should intervene to impose some imputed quota. The reality is that Mr Rhodes failed to meet requirements of the management plan and catch verification process and failed to pay prescribed fees and levies. His permit was cancelled and with it any entitlement to quota.
LIMITED ENTRY FISHERY
83. Counsel for the applicant has raised a number of other concerns which will now be dealt with serially. The applicant has argued that the 2003 SESS Management Plan is invalid and any quota allocation under it is invalid as there is no articulated limited entry policy in existence. This is a somewhat surprising claim, given that limited entry into the Commonwealth shark fishery has existed since 1988 because of rapid decline in shark biomass. A management plan in April 1988 created a limited entry gillnet fishery, reducing nominal capacity and resulting in some restructuring of the fishing fleet. In April 1991 the number of nets in the fishery was further reduced by a third and controls on the long-line fishery, which took 25 percent of the catch were introduced in 1994 through hook permits, which were allocated according to prescribed entry criteria. The area of the fishery was extended under OCS arrangements in 2000 but the OCS arrangements expressly contemplated no increase in fishing capacity.
84. The 2003 SESS Plan contemplated continuation of the policy of limited entry into this fishery, as Section 7(kj) required AFMA to regulate (limit) the number of permit holders. This was an express reinforcement of the policy and AFMA was bound by it. When the applicant sought a new permit in September 2003 he should have been aware any decision would be based on extant policy at the time. He perhaps believed he was not a new entrant, having operated in the shark industry for many years. However this was not really the case; when permit 26978 was cancelled in July 2001 he was advised it was not feasible to reinstate the permit as no such provision existed. He was also informed that non-payment of requisite fees and charges meant that once the permit was cancelled he could no longer use it as a basis for making further applications in the future. He was permitted 21 days in which to apply for reconsideration of this decision, but did not do so, being incommunicado at the time.
85. The Tribunal notes there are a number of AAT case determinations and Federal Court judgements which confirm that a limited entry policy is valid in this and other fisheries. See, for example, Wait & AFMA (2002) AATA 159 (8 March 2002), also Ajka Pty Ltd & AFMA 2003 FCA 248 (26 March 2003) and Green & AFMA 2004 AATA 425 (29 April 2004)
86. Given the above, the applicant’s claim that a limited entry policy was invalid is rejected. The matter of ‘cogent reasons’ and ‘exceptional circumstances’ will be dealt with later in this decision.
NEW PERMIT APPLICATION
87. Having failed to have the earlier permit reinstated, Mr Rhodes sought a new permit in the GHTF (Gillnet, Hook and Trap Fishery) on 29 September 2003. This was rejected on 12 November 2003, after he had written on 15 October 2003, requesting reinstatement of the earlier permit and a further letter dated 20 October 2003, indicating he was now more solvent but still faced financial difficulties.
88. There is no provision in the Fisheries Management Act 1991 for a permit to be reinstated once it is cancelled, thus Mr Rhodes’ new application had to be considered on its merits under policy provisions at the time (2003). The application for a new permit included areas of waters not included in the previous permit and thus had to be treated separately from his endeavours to have the previous permit reinstated.
89. AFMA wrote to Mr Rhodes on 12 November 2003, setting out reasons why it could not reinstate permit 26978 and would not issue a permit in the GHAT Fishery; primarily on grounds that a limited entry policy applied and it was not prepared to increase the number of operators in the fishery. There was a supplementary reason stated, namely that given the low biomass of the shark fishery it was necessary to invoke the precautionary principal agreed in paragraph 3.5.1 of the 1992 Intergovernmental Agreement on the Environment (IAE), entered into by the Commonwealth, State and Territory Governments of Australia, as follows: “Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental damage”. In other words, AFMA was recognising that assessment of biomass and TAC was a difficult business, based on best available information from AFMA, other scientific institutions and the industry itself, but where any doubt existed it was preferable to act in the interests of sustainability of the species rather than increase pressure on the stock.
90. Mr Rhodes wrote again to AFMA on 9 December 2003, requesting a review of the decision not to grant him a permit. He was advised by phone on 29January 2004, confirmed in a letter date the same day, that a new permit was refused on several grounds, including that of limited entry provisions. The Tribunal has now reviewed this matter and whatever the outcome, has not detected any deficiency in process, or error in interpreting extant statutory and policy provisions AFMA relied upon in making its determination.
ECONOMIC EFFICIENCY
91. 91. Counsel for the applicant raised a number of issues concerning economic efficiency within the fishing industry and presented a view that allowing Mr Rhodes a small allotment of quota would not make a significant impact on biomass, which could not be accurately assessed anyway, but might improve the economic efficiency of the industry because unused quota would now be taken up.
92. 92. As earlier indicated, AFMA must pursue a number of objectives identified in Section 3 of the Fisheries Management Act 1991, of which economic efficiency is only one. Sustainability of the industry as a whole and identification of an appropriate catch regime are others. Economic efficiency is taken to include cost-effective management involving recovery of administration, verification and compliance costs from operators granted access to the fishery.
93. 93. These measures have repeatedly been tested in the AAT and Federal Court. See, for example, Bannister Quest v AFMA (1991) FC 819 (14 August 1991), where it was held individual circumstances must be considered in decision-making, but it is economic efficiency of the industry as a whole which is the primary objective. In Skoljarevv AFMA (1995) 39 ALD 517, a similar conclusion was reached. In P W Adams Pty Ltd v AFMA (1998) 49 ALD 68, it was decided AFMA’s objectives involved the public interest, rather than the separate interests of individual participants in the industry, thus AFMA had the discretion to determine statutory fishing rights, but only in a way which would maximise collective economic benefits to participants in the industry as a whole. This point was reinforced in Wait v AFMA (2002) AATA 159 (8 March 2002) where it was noted independent experts had advised AFMA over-capacity existed in the industry and the primary focus should remain on limited entry and economic efficiency of the industry as a whole.
94. 94. Given the above the Tribunal finds that the applicant’s claim that allotting him a small quota would not disturb relativities and improve efficiency must be rejected.
EXCEPTIONAL CIRCUMSTANCES
95. As earlier noted the final report of the Independent Review Panel for the Southern Shark Fishery, October 2003, recognised the need to consider exceptional circumstances and potential inequalities, but did not define or discuss these phrases. The Act does not define the term either and over time attempts to clarify the issue in individual cases has led to debate about other phraseology, such as ‘special circumstances’, ‘unique circumstances’ or ‘cogent reasons to depart from policy’. Assistance as to meaning has therefore been sought via decisions of other Courts and Tribunals or from dictionary meanings.
96. Unfortunately dictionary definitions do not provide much guidance. As Hedigan J stated in Kent v Wilson (2000) VSC 98 (28 March 2000) in an appeal heard in the Victorian Supreme Court:
“he Magistrate’s dictionary definition remains shrouded in mystery, if not doubt. My resort to the Shorter Oxford Dictionary and the Macquarie fails to find “not typical” (the key part of the magistrate’s construction of “exceptional circumstances”) as finding a place in the definition of exceptions. By and large “exceptional” is defined as being “unusual, or an unusual instance or extraordinary””
97. Examinations of terms such as ‘exceptional circumstances’, ‘special circumstances’ or ‘cogent reasons’ in some fisheries and other cases are equally ambiguous. Note discussion in Skoljarev and AFMA (1996) 22 AAR 311, Wait and AFMA (2002) AATA 159 (8 March 2002), Green and AFMA (2004) AATA 426 (29 April 2004) and White and AFMA (2005) AATA 174 (28 February 2005).
98. In the latter case Handley J provided a useful summary of some of the principal issues and determinations. Included is a statement made by His Honour Wilcox J in Nikac and Others v Minister for Immigration and Ethnic Affairs (1998) 20 FCR 65 as follows:
“.. the term “exceptional circumstances” postulates a criterion which is both vague and subjective. Every case is different, so that there are always some aspects of a case which may be regarded as exceptional. The question inevitably arises: exceptional compared with what? Even if it be conceded that there is nothing very exceptional about drug offences appearing upon a list of convictions, there will always be differences in the circumstances of those offences. For example, I would not myself have thought that the particular offences committed by Nikac were of such a nature as to constitute a reason for taking the unusual step of declining to accept the recommendation of the tribunal, by whom both the offences and all the other relevant circumstances were considered. But it is impossible to categorise a different view as being devoid of plausible justification. Like beauty, “exceptional circumstances” lies in the eye of the beholder”
99. This approach was accepted by the Full Federal Court in Hicks v Aboriginal & Torres Strait Islander Commission (2001) FCA 586, however a note of caution arises in Kent v Wilson (2000) earlier cited where Hedigan J identified the need to consider context:
“. The facts must be examined in the light of the Act, the legislative intention, the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation.
Courts have been both slow and cautious about essaying definitions of phrases of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors”
100. Moreover a further constraint exists, in that policy must not be pursued so relentlessly that it constitutes an injustice to the individual whose particular circumstances are being examined. As Brennan J noted in Re Bannister Quest Pty Ltd v AFMA (1997) FCA 819:
“..if it were shown that the application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice”
101. Turning more directly to Mr Rhodes’ case, the applicant claimed in early 2001 exceptional circumstances existed because of his financial crisis, but never submitted a detailed argument supporting his case which during 2001 and 2002 was focussed almost entirely on quota, rather than cancellation of his fishing permit or other matters.
102. Counsel for the applicant has subsequently placed reliance upon White and AFMA (2005) AATA 174 (28 February 2005) where a shark fisherman suffered a number of problems impeding fishing effort, but did not lose his licence and was granted an allocation of quota, not withstanding potential impacts on others in the fishery.
103. The particular circumstances were that Mr White suffered the onset of severe diabetes, which virtually shut him out of the industry for several years by having to engage a skipper and deck crew to earn income. His boat was later destroyed by fire, but fortunately most of his earlier catch records were verified, thus all that was required was to find a suitable substitution period for the normal eligibility period 1994-1997. The Tribunal recognised such an approach was problematical, but considered it appropriate given the circumstances of the case.
104. It would be quite inappropriate to compare Mr White’s situation with that of Mr Rhodes; rather it is essential to consider the applicant’s own circumstances and decide whether in any sense they are ‘exceptional’.
105. The Tribunal accepts that Mr Rhodes has been a long-term operator in various fisheries in and around the Bass Strait islands and has served on industry committees which must have involved him in some of the structural adjustments that all such operators have faced since the 1980s. This being so, he should have been cognisant with current and emergent situations during the OCS agreement for the States to cede control of the Southern Shark Fishery to Commonwealth control.
106. Nonetheless he claims to have been devastated when permit 26978 was cancelled and a new permit application in September 2003 was refused. He claims to have earlier caught up to20 tonnes of shark per year until the processing plant at Cape Barren closed, but there is no evidence before the Tribunal this was the case and Tasmanian DPI catch records show small shark figures throughout the 1990’s.
107. It may appear unjust for AFMA to have cancelled his permit for failure to pay permit and levy fees of a few hundred dollars, at a time when he claims to have been in dire financial circumstances, but as his own evidence has shown, he was engaged in buying and selling assets worth thousands of dollars during 2001-2003 and made personal decisions about payment priorities.
108. He was repeatedly invited to contact AFMA to discuss the situation but did not do so, keeping aloof from the agency until early 2002, by which time his permit and quota allocation were cancelled. As earlier noted AFMA’s decisions were made strictly in accordance with statutory provisions and deadlines.
108. The Tribunal has some sympathy with Mr Rhodes’ situation in late 2003 when he had suffered serious financial difficulties and placed hope on grant of a new permit, perhaps assuming he was an established operator and not a new entrant. But he was a new operator in at least two respects; he had not applied for a Commonwealth licence before, involving waters he had not fished before. He has admitted he did not have verified catch data which the industry itself had demanded and did not provide any further argument than State catch records to support his claims. It is also uncontested that he made personal commercial choices as to which fish species to target and shark was not his top priority.
110. Bringing all this material together, a question arises as to whether Mr Rhodes’ claim of financial difficulties constitutes ‘exceptional circumstances’. The Tribunal considers it does not; numerous other fishermen were faced with similar difficulties as structural change in the Southern Shark Fishery occurred and some adopted the ‘buy-back’ arrangement available to leave the shark industry and shift to other species. Mr Rhodes claims loss of shark quota lost him his livelihood, but he appears to continue to be engaged in the fishery industry and continuity of State licences exists for species other than shark.
111. In summary, Mr Rhodes situation illustrates the vicissitudes fishermen face, but financial difficulties which arose even before his application for permit 26978 and have continued since were more a matter of failed commercial judgements and domestic circumstances than any decisions by AFMA. The claim for ‘exceptional circumstances’ is not made out.
SUBMISSIONS IN REPLY
112. This discussion has become rather prolix, given the wide ambit of issues and claims raised by the applicant, but there is one further matter to be dealt with, namely the late submissions in reply lodged on 4 July 2005. As earlier indicated this prospect had not been foreshadowed during the Tribunal hearing or written final submissions, but the respondent had no objection, other than argument some content was inadmissible, a point then disputed by the applicant.
The issues raised by the applicant relate to cancellation and reinstatement of permit, denial of natural justice, cost recovery, catch verification policy, non-payment of levy and fish stocks and TAC, all of which have been considered by the Tribunal in earlier discussion. There are only a few matters which require further comment here.
113. Dr O’Connor claims that under Section 32 of the Act it was always open to the Tribunal to intervene and grant a new permit and quota. Both the Tribunal and AFMA (paragraph 32) concede this point, but the real issue is whether cogent reasons exist to adopt such an action. After considering voluminous submissions the Tribunal decided it was not in the interests of the industry to do so.
114. The applicant claims Mr Rhodes’ application for a new permit was a situation of renewal or reinstatement, however the Act makes no provision for such to occur.
115. Claims of denial of natural justice have already been dealt with and refuted.
116. Dr O’Connor claims his client only became aware of FAP8 after the relevant period had elapsed. The document had existed since 1999 and a long-term fisherman, who had been involved in shark policy deliberations would surely be aware of the catch verification policy; indeed Mr Rhodes in evidence admitted he was aware of the provisions (paragraphs 16 and 22).
117. The applicant queries the state of knowledge of fish stocks and method of determining TAC. Nobody considers such research simple, but how are figures to be arrived at other than best estimate level? The figures are set using latest scientific evidence in close consultation with industry, using methods the industry has agreed to.
SUMMARY
118. The applicant is critical of many of AFMA’s policies and procedures, questioning the validity of permit allocation and cancellation, catch verification, quota allocation, limited entry provisions and failure to recognise exceptional circumstances. The Tribunal has examined these matters in fine detail and finds they are valid in law, developed in consultation with the industry and supported by a number of case determinations by the AAT and Federal Court.
119. Claims of denial of natural justice must be refuted as AFMA has provided a wide range of opportunities for review and appeal which were not taken up by the applicant. The onus was not on AFMA to make the case for him.
120. The Tribunal has reviewed all available evidence and finds on the balance of probabilities that cancellation of permit 26978 on 12 July 2001 was valid in law; ie the decision under review is affirmed.
121. The Tribunal accepts AFMA’s argument that the GHTF is a limited entry fishery where verified catch history is essential, thus the agency was within its rights to refuse a new permit which would have increased fishing effort.
122. Claims that financial difficulty constitute exceptional circumstances are not made out.
DECISION
123. The decision under review is affirmed.
I certify that the 123 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 20 & 21 April 2005
Date of Decision 27 July 2005
Counsel for the Applicant Dr C O’Connor
Solicitor for the Applicant Thomson Rich O’Connor
Counsel for the Respondent Ms D Mortimer
Solicitor for the Respondent Dibbs Abbott Stillman
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