Rhodes v Australian Fisheries Management Authority
[2006] FCA 1220
•8 SEPTEMBER 2006
FEDERAL COURT OF AUSTRALIA
Rhodes v Australian Fisheries Management Authority [2006] FCA 1220
ADMINISTRATIVE LAW – review of decision of AAT which affirmed decision of Australian Fisheries Management Authority to cancel fishing permit relating to Southern Shark Fishery in Bass Strait region – interpretation of 2003 Southern and Eastern Scalefish and Shark Fishery Management Plan and Offshore Constitutional Settlement to extent either imposed ‘limited entry’ or ‘no new permits’ policy – whether Tribunal erred in finding as relevant to refusal to grant fishing permit enforcement of AFMA’s cost recovery procedures – claim of denial of natural justice in relation to processes implemented by Australian Fisheries Management Authority up to time of cancellation of applicant’s fishing permit
Fisheries Management Act 1991 (Cth) ss 17, 32, 38, 39
Administrative Appeals Tribunal Act 1975 (Cth)Offshore Constitutional Settlement
Southern and Eastern Scalefish and Shark Fishery Management Plan 2003Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 discussed
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 discussed
Re Green and Australian Fisheries Management Authority (2004) 81 ALD 194 referred to
Legione v Hateley (1983) 152 CLR 406 discussed
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 discussed
National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 referred to
R v Small Claims Tribunal and Homewood; Ex parte Cameron [1976] VR 427 referred to
Cameron v Cole (1943) 68 CLR 571 referred to
Hoskins v Van Den-Braak (1998) 43 NSWLR 290 referred to
Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 referred to
Gribbles Pathology (Vic) Pty Ltd v Cassidy (2002) 122 FCR 78 discussedDAVID JOHN RHODES v AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
TAD 31 OF 2005CONTI J
8 SEPTEMBER 2006
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
TAD 31 OF 2005
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY ASSOCIATE PROFESSOR DAVIS
BETWEEN:
DAVID JOHN RHODES
ApplicantAND:
AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
Respondent
JUDGE:
CONTI J
DATE OF ORDER:
8 SEPTEMBER 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for review by way of appeal from the decision of the Administrative Appeals Tribunal made on 27 July 2005 be dismissed.
2.The applicant pay the respondent’s costs of the proceedings.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
TAD 31 OF 2005
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY ASSOCIATE PROFESSOR DAVIS
BETWEEN:
DAVID JOHN RHODES
ApplicantAND:
AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
RespondentJUDGE:
CONTI J
DATE:
8 SEPTEMBER 2006
PLACE:
SYDNEY
TABLE OF CONTENTS
The context of the present proceedings for appeal by way of administrative review of a decision of the Administrative Appeals Tribunal, and of the prior decision-making of the respondent Australian Fisheries Management Authority leading to that review........ ........ ........ ........ ........ ........ ........ ........ ........ .. [1]
Circumstances leading to the cancellation of Mr Rhodes’ Southern Shark Fishery (SSF) permit no. 26978 effective from 11 July 2001........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... [8]
Promulgation of Southern and Eastern Scalefish and Shark Fishing Management Plan (‘the SESS Management Plan’) – Mr Rhodes’ subsequent application for participation by way of grant or reinstatement of fishing permit under the auspices of the Plan – decision or reconsideration decision of AFMA........ ........ ..... [23]
Relevant provisions of the Fisheries Management Act 1991 (Cth) (‘the Management Act’) not already extracted in these reasons........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... [35]
Grounds of application for review of AFMA’s decision advanced by Mr Rhodes – the issues which arose for decision-making by the AAT........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ [36]
Whether the Tribunal incorrectly construed the SESS Management Plan and Offshore Constitutional Settlement as imposing a ‘no new permits’ or ‘limited entry’ policy upon AFMA – the implications of that policy in relation to Mr Rhodes’ contentions and AFMA’s responses........ ........ ........ ........ ........ ........ ........ ...... [41]
Whether breach of natural justice occurred on AFMA’s part........ ........ ........ ........ ........ ........ . [58]
Conclusions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [67]REASONS FOR JUDGMENT
The context of the present proceedings for appeal by way of administrative review of a decision of the Administrative Appeals Tribunal, and of the prior decision-making of the respondent Australian Fisheries Management Authority leading to that review
This is an appeal in the nature of administrative review of the reasons for decision of Associate Professor B W Davis AM, a part-time member of the General Administrative Division of the Administrative Appeals Tribunal (‘the AAT’), given on 27 July 2005 in Hobart. That decision of the AAT reviewed an earlier decision made by a delegate of the Australian Fisheries Management Authority (‘AFMA’), an authority recently formed to administer fisheries management on behalf of the Commonwealth under the Offshore Constitutional Settlement of 2000 (‘OCS’), being a decision made on 11 July 2001 to cancel fishing permit no. 26978 relating to the Southern Shark Fishery (‘SSF’), which permit had been issued by AFMA to the applicant Mr Rhodes on 1 March 2001. Mr Rhodes testified as to being a fisherman for some 35 years prior to the establishment of the OCS, having held a Tasmanian state shark gillnet license ever since such State license system was established. Mr Rhodes’ fishing permit no. 26978 had somewhat incongruously allowed Mr Rhodes a quota of zero or nil kilograms of gummy and school shark. Subsequent to that essentially adverse decision of AFMA of 11 July 2001, made adversely to him, Mr Rhodes applied on 29 September 2003 to AFMA for a new permit in relation to the SSF, which application was however rejected on 12 November 2003. Mr Rhodes thereupon requested a review specifically of the latter rejection decision, but that review was dismissed by AFMA on 29 January 2004.
It is appropriate that I record in temporal sequence the steps taken by the parties to present to the AAT the issues purportedly arising for resolution. I say ‘purportedly’ because Mr Rhodes’ outline of submissions in chief, AFMA’s submissions in response and Mr Rhodes’ submissions purportedly in reply present a somewhat confused picture of the issues to be addressed. The AAT proceedings were commenced against AFMA by a handwritten application for review presented by Mr Rhodes to the AAT on 23 February 2004, and were made referrable solely to that most recent above decision of AFMA of 29 January 2004. The threadbare basis of the application was stated in Mr Rhodes’ handwriting as follows:
‘I believe I am entitled to a permit for various reasons. I was under financial difficulties at the time.’
Ultimately Mr Rhodes proposed five issues for resolution by the AAT and subsequently AFMA proposed three differently framed issues for resolution by the AAT, with the consequence of a somewhat uncertain extent of joinder of issues. Accordingly the issues arising for ultimate resolution by the AAT fell for resolution largely in accordance with what the parties individually presented as their respective perceptions of the issues arising.
Counsel for Mr Rhodes contended in written submissions to the Federal Court, by way of threshold summary, that the AAT erred principally by:
(i)incorrectly construing the Southern and Eastern Scalefish and Shark Fishery Management Plan 2003 (‘the SESS Management Plan’) and the OCS as imposing a ‘no new permits’ policy upon AFMA;
(ii)incorrectly finding as relevant to the refusal to the grant of a permit generally the enforcement of AFMA’s cost recovery procedures;
(iii)incorrectly finding that in the course of cancelling permit no. 26978 AFMA had afforded Mr Rhodes natural justice.
AFMA attacked the formulation of each of those three contentions as not raising questions of law. AFMA disputed that any such policy as in (i) above was implemented in any event, and further that (ii) would have to be reformulated to read, ‘whether the AFMA’s cost recovery procedures were a relevant consideration to the decision whether to grant the [applicant] a new fishing permit’, in order to be capable of raising a question of law. Further, it was contended by AFMA that (iii) above disclosed a failure on the applicant’s part to appreciate the nature of the Tribunal’s task.
Subsequently to the filing of the initiating process on 23 February 2004, AFMA provided to the AAT on 13 July 2004 a statement of the issues arising before the AAT framed in chronological sequence of the material events which had occurred between 1 March 2001, when Mr Rhodes was granted a Southern Shark Fishery (‘SSF’) permit no. 26978, and 29 January 2004 when AFMA determined that Mr Rhodes’ Gillnet Hook and Trap Fishery (‘GHATF’) permit application would not be granted. In the meantime AFMA had cancelled Mr Rhodes’ SSF Permit no. 26978 on 11 July 2001 as above stated. On 6 April 2004, AFMA had caused to be filed in the AAT a so-called Section 37 Statement, purportedly pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), which referred to ‘Relevant Decision of 12 November 2003’ of AFMA and the ‘Reviewable Decision of 29 January 2004’, and which particularised the background to both decisions. The submissions of the parties on the present appeal focused largely on the documents which I have recorded and reviewed in these reasons.
I should add for completeness that on 13 August 2004, Mr Rhodes filed in the AAT proceedings below a document headed ‘Statement of Fact (sic) and Contentions’ which:
(i)denied the receipt of correspondence addressed by AFMA to him during April and May 2001 (though not correspondence of 1 March and 21 March 2001); and
(ii)asserted failure on AFMA’s part ‘to comply with its statutory obligation to undertake a s 65 review of the applicants quota allocation by 6 June 2001’ (see par 6 of the Statement of Fact).
In contrast somewhat to that Statement of Fact and Contentions of 13 August 2004, there was filed on behalf of Mr Rhodes on 24 August 2005 a notice of appeal to the Federal Court which purportedly raised 15 ‘questions of law’, the fifteenth dividing into three segments, and additionally particularised 17 ‘grounds relied upon’. That notice of appeal was expressed in generalised or unspecific terms, and the orders sought thereby did not substantially reflect relief of the scope which might normally be available in proceedings for administrative review. Once again, AFMA characterised that pleaded material of Mr Rhodes as seeking no more than merits review. In the result, the Federal Court was not presented with mutually agreed issues arising on the present appeal. Moreover I would observe that much of what I have recorded above, as presented by Mr Rhodes, was somewhat confusing as well as unspecific. In any event, it was the AFMA decision of 12 July 2001 to cancel Mr Rhodes’ SSF permit no. 26978 that became largely the focus of initial controversy, and it is AFMA’s ultimate refusal of 29 January 2004 to reinstate the cancelled SSF permit no. 26978, and to refuse a new permit to Mr Rhodes which the principal submissions of the parties to the appeal seemingly addressed.
Circumstances leading to the cancellation of Mr Rhodes’ Southern Shark Fishery (SSF) permit no. 26978 effective from 11 July 2001
Mr Rhodes was described in evidence placed before the Tribunal as a professional fisherman of some 35 years experience, whose fishing operations had been conducted primarily in waters of the Bass Strait region surrounding Flinders Island and other adjacent islands. His recognition in the Tasmanian fishing industry was said to be exemplified by his service on working groups relating to the Tasmanian rock lobster fishery, the Tasmanian scallop industry advisory committee and the Southern Shark Industry Council. Mr Rhodes had apparently held a Tasmanian State shark gillnet license since the time the original Tasmanian State licensing arrangements were put in place, being arrangements which required the payment of licensing fees on an annual basis.
The Tribunal recorded that shark fishing had been taking place for many years in the waters off the coasts of the States of Victoria, Tasmania and South Australia, and that the species harvested were largely gummy shark and school shark. The Tribunal further recorded that ‘… there have been concerns over many years about depletion of biomass due to catch rates, slow growth rates of the species, and the fact that they produce few young at a time’, and that it was a consequence of those concerns that the management of the SSF was ceded by those States to the Commonwealth in the year 2000 as part of the OCS arrangements. Prior to that time, and since the 1980’s, the SSF had been the subject of a number of management initiatives, which included industry consultation. Following industry consultations in the 1990’s, namely the 1997 Southern Shark Fishing Management Advisory Committee and the 1999 Southern Shark Allocation Advisory Panel, an agreement was reached that quota allocations should be assessed on the basis of each fisherman’s best three years of verified catch in respect of the period of four years from 1994 and 1997 inclusive. The Panel published its final report on 15 July 1999, in which the need to identify any ‘exceptional circumstances’ was acknowledged for the purpose of assessment. Those circumstances were apparently never defined. Also identified by that Advisory Panel was the need to take into account factors which might create inequalities amongst particular fishing entitlements.
By Memorandum of Understanding bearing date 17 November 2000 signed on behalf of the Commonwealth of Australia, AFMA and the States of South Australia, Tasmania and Victoria, arrangements were entered into ‘with respect to The School and Gummy Shark Fishery in Waters Relevant to [those States]’. Amongst the objectives of that Memorandum of Understanding appearing within clause 12 thereof was the following:
‘(g)ensuring individual fishers in a fishery, who come under the Commonwealth’s jurisdiction as a result of OCS Arrangements, are treated on a fair and equitable basis with all other fishers in the school shark and gummy shark fishery.’
By clause 14, it was declared that ‘[a]ll licensed fishers… may apply for a Commonwealth shark fishing concession under this Memorandum’, and further that ‘AFMA will give the above listed fishers 60 days, from notification, to apply for a Commonwealth shark fishing concession’. By clause 15, it was stipulated that ‘… school shark and gummy shark will be managed by determining the total allowable catch (TAC) of each species, allocating the Commonwealth component of the TAC to individual Commonwealth fishing concession holders as individual quota…’. By clause 16, it was further stipulated that ‘[t]he initial allocation mechanism to apportion the TAC of school shark and gummy shark amongst the… sectors within the [SSF]...’ was to be as thereafter particularised. By clauses 36 to 39, it was stipulated inter alia that AFMA would ‘restrict Commonwealth shark fishing concessions to their area of access as stated on their previous State and/or Commonwealth fishing concessions’, reference being made to the purpose of the management restrictions of those provisions to address ‘the concerns of AFMA, [nominated Tasmanian State Departments] and Tasmanian fishers and Commonwealth fishers that there be no increase in demersal fishing capacity within coastal waters, due to the potential impact [that] an increase could have on the stocks of State managed scale fish species and potential impacts on the school shark entering nursery areas’.
Mr Rhodes applied on 19 December 2000 to AFMA for a Commonwealth fishing permit for the catching of school and gummy shark by completing a four page pro forma document headed ‘Application for Fishing Permit’, which stated his postal address as ‘c/- Lady Barron P.O. Flinders Island Tas 7225’, and his location as ‘1331 Coast Rd Lady Barron Tas 7255’. Incidentally but insignificantly, AFMA misspelt ‘Barron’ in a number of its subsequent communications and documents. Disclosed by Mr Rhodes on that application form was his telephone, mobile and fax numbers respectively, his fishing vessel details inclusive of reference to its name ‘Silver Spray’, its length of 49 feet, its breadth of 16 feet and its weight of 32 tonnage. The method of dispatch of that application form to AFMA adopted by Mr Rhodes was by way of facsimile transmission. The application fee prescribed on that AFMA form of application was $170.00, and the address for return of the completed form to AFMA was specified as its post office box number or its fax number in Canberra. Mr Rhodes tendered payment of only the sum of $80.00 in the context of dispatch of his application to AFMA, and informed AFMA that he would pay the balance of $90.00 at a later time. Whether payment of that balance was ever made does not seemingly appear from the documentary material in evidence, but as matters transpired, any such shortfall in payment would not seem to have been material in any event to the subsequent decision-making of AFMA complained of by Mr Rhodes.
On 1 March 2001 AFMA sent a pro forma notification in response to Mr Rhodes’ application, which attached what was identified as a ‘Fishing Permit’ numbered 26978 for ‘Commercial Fishing’ in relation to the ‘Southern Shark Fishery’. The form of notification was in a standard printed form and included ‘PERMIT ATTACHMENT B’, which contained the following:
‘This attachment shows the trunked weight of school shark and gummy shark allowed to be taken under the authorisation of your fishing permit, subject to the conditions on that permit.
The amounts relate to your entitlement of quota species, resulting from initial allocation or from the transfer of quota, or to trip limits which have been imposed on certain species.
This attachment should be retained at all times with your fishing permit.
A new attachment will be issued after any transactions involving transfer of quota are completed.
If you have any questions please contact me on:
(phone) (unstated but already appearing at top of letter)
(fax) 02 6272 5426.Registrar.’
However that fishing permit no. 26978, to which of course I have already referred, recorded Mr Rhodes’ quota of kilograms for each of gummy shark and school shark as zero.
That attached document constituting fishing permit no. 26978 bearing date 1 March 2001, and addressed of course to Mr Rhodes, contained the following:
‘This Fishing Permit authorises the use of the boat specified in Schedule 3 by the Fishing Permit holder, or a person acting on behalf of the permit holder, for the activity specified in Schedule 1 and subject to the conditions specified in Schedule 4 of this Fishing Permit.’
Schedule 1 referred to a ‘Start Date’ of 1 March 2001 and an ‘Expiry Date’ of 31 December 2001, and the nominated licensed ‘Activity’ specified in Schedule 1 was that of ‘Commercial Fishing Southern Shark Fishery 3 Gillnets’. Reference was made in Schedule 3 to the description of Mr Rhodes’ vessel named ‘Silver Spray’ as having the township of Lady Barron as its ‘Home Port’. Next appeared in the permit was a ‘Declaration’ in the following printed terms:
‘Pursuant to Sub-section 32(1) of the Fisheries Management Act 1991 I, as an Authorised officer of the Australian Fisheries Management Authority, hereby:
a.grant a Fishing Permit to the holder described above authorising the use of the boat described in Schedule 3 for the activity described in Schedule 1.
b.state that the Fishing Permit shall have effect for the period specified in Schedule 1 and shall be subject to the conditions specified in Schedule 4 and any variations to the conditions as notified in writing to the Fishing Permit holder.’
The ‘Area of Waters’ nominated in Schedule 2 to the permit for Mr Rhodes was as set out below, once more in printed form:
‘(A) In coastal waters relevant to the State of Tasmania.
(B)In the area of waters bounded by the line, commencing at the point of Latitude 40o South, Longitude 140 o57.9' East; running thence south along the meridian of Longitude 140 o57.9' East to its intersection with the outer limit of the Australian Fishing Zone; thence generally southerly, easterly and northerly along that outer limit to its intersection with the parallel of Latitude 39 o12' South; thence west along the parallel to its intersection with the meridian of Longitude 143 o40' East; thence south along that meridian to its intersection with the parallel of Latitude 40 o South; and thence west along that parallel to the point of commencement, excluding area (A) above.’
Reference again appeared to ‘… school and gummy shark’ as the subject of the permit.
Schedule 4 to this purported fishing permit granted to Mr Rhodes set out conditions as to minimum specifications of fish weight allowable for retention (and thus for sale) by him as permit holder. Conditions 1, 2 and 3 of Schedule 4 included the following (there were altogether 27 conditions contained in Schedule 4):
‘SCHEDULE 4 – CONDITIONS
1.This Fishing Permit allows fishing by the methods, and subject to the restrictions specified in Attachment A.
2.This Fishing Permit allows the taking or carrying of gummy shark (Mustelus antarcticus) and school shark (Galeorhinus galeus). Any school and gummy shark taken under the authority of this Fishing Permit must exceed 45 centimetres when measured in a straight line from the middle of the posterior edge of the aftermost gill-slit to the ventral insertion of the caudal fin.
3.This Fishing Permit only allows fishing for a quota species if:
(a)the weight specified in the Quota column 1 (seasonal quota holdings) of the species limit table in Attachment B in relation to that quota species is greater than zero; and
(b)the total trunked weight of fish taken is less than the weight specified in the Quota column of the species limit table in Attachment B in relation to that quota species.
….’
Attachment A specified permissible fishing gear, inclusive of nets. Attachment B related to ‘Species Limits’, which referred to the two nominated species of gummy shark and school shark, but however with zero kilograms designated to each by way of ‘quota’.
The reason for zero being recorded for each of those nominated shark species would appear to have been at least not solely for the reason that Mr Rhodes had made no payment, punctually or at all, of the Southern Shark Fishery levy of $400.00 (being an exaction separate from the earlier application fee of $170.00) the subject of an AFMA invoice or statement bearing date 5 March 2001 attached to the standard printed form of notification of 1 March 2001 (ante) addressed to him care of ‘Lady Baron Post Office Flinders Island Tas 7255’. I have said ‘at least not solely’ because according to [41] of the Tribunal’s Reasons for Decision, ‘[i]t was because he had no verified catch data for the period 1994-1997 that he was granted zero quota’. Nevertheless the subsequent correspondence emanating from AFMA, to which I will shortly refer, indicates that non-payment of the $400.00 levy appears to have been a reason for cancellation. The accompanying ‘remittance advice’ contained the statement ‘[i]f you have any queries regarding this levy notice or you wish to enter into an arrangement to pay the levy, please call Mrs Leslie May...’. There was no suggestion in the evidence that any such payment arrangement was sought, much less made.
Mr Rhodes responded to those zero quota allocations by lodging on 20 March 2001 in handwritten letter form a so-called ‘appeal for a Quota allocation for The Southern Shark Fishery’ upon the basis of ‘exceptional circumstances’, which he thereafter sought to particularise in the terms set out below:
‘…
During the qualifying period I was principally involved in rock oyster and scallop fishing. Because we had no factory or ice making facilities on the Island I was severely limited to shark fishing operations. The availability of airfreight when needed also was detrimental. I made efforts to move and sell shark but after several attempts gave up and used my catches for rock lobster bait. Most of my catches were recorded in my log-books at the time and were submitted to the Tasmanian Fisheries.
I have had extensive involvement in the shark fishery and was principally involved in this fishery when we had an operational factory on the island. In fact my first vessel was the Doris Cruise which was purchased from Brian Bailey complete with gear when the NZ mercury issue was on about 30 years ago. I was heavily involved in shark fishing with the “Frances Drake” when P.K. Oysters operated a factory here. Since then I have had the “Curlew”, “Veronica May” and “Silver Spray” and have had shark fishing gear aboard these vessels until recently. I own two hydraulic spools and have recently bought a 20 ton freezer so that I could operate commercially again because of our isolation and the problems with freight and ice.
Enclosed is a list of my catches during the qualifying period. This can be verified by the Statistics Section, Marine Resources Division Department Primary Industries Water and Environment TAS.
I trust you will treat my appeal in a fair and equitable manner…’.
Details of ‘catches of school and gummy shark’ made by Mr Rhodes in relation to the period of time from February 1994 to December 1997 were thus attached to his notice of appeal. Payment of the levy of $400.00 had still not been made by Mr Rhodes to AFMA, which appears to have remained the case, so far as the evidence stands.
AFMA promptly acknowledged, by letter to Mr Rhodes of 21 March 2001, the foregoing request for reconsideration of the non-allocation of any shark quota as notified to him in AFMA’s letter of 21 March 2001, and stated that the delegate therein named would ‘… now undertake a reconsideration of this matter… under [section] 165 of the Fisheries Management Act 1991’. Section 165 of the Management Act is headed ‘Reconsideration by AFMA and right to review by Administrative Appeals Tribunal’. In the meantime systematic reminders for payment of the management levy of $400.00 were sent by AFMA to Mr Rhodes (Levy Reminder Notices of 21 March 2001 and 9 April 2001 are in evidence), with no response however, as I have foreshadowed, by way of payment.
On 9 May 2001, AFMA wrote to Mr Rhodes and thereby suspended his SSF fishing permit no. 26978 for the reasons therein set out, being reasons framed as follows (the emphasised words below reflect the format of the original text):
‘AFMA records indicate that $400.00 SSF Fishery management levy relating to fishing permit no 26978 remains unpaid. I must inform you that in accordance with AFMA’s policy on these matters, this fishing permit is SUSPENDED from the date of this letter. You are NOT permitted to operate in this fishery for the period that the suspension remains in force. The relevant AFMA fisheries management and compliance sections have been notified of this situation.
This action is consistent with advice provided to you on the levy overdue notice you were sent 9-Apr-01. You were advised that you had failed to make your first payment before or on its due date, and had forfeited the right to pay this levy by instalments. The full levy amount outstanding is now overdue and incurring a penalty charge of 20% per annum, accumulating daily for each day the levy remains unpaid. You were also informed that failure to pay this levy within 14 days of the due date (23-Apr-01) would result in your fishing permit being suspended.
The suspension of your fishing permit will remain in force until the outstanding levy is paid or you have entered an arrangement to pay, or your fishing permit is cancelled. Upon payment of the remaining management levy or entering into an arrangement, the suspension will be revoked and your fishing permit reinstated. You will then be sent an invoice for the 20% per annum penalty that is payable on overdue level payments.
You have 7 days from the date of this letter to either pay the outstanding levy of $400.00, or enter into an arrangements to pay. If you do not do so by 17-Apr-01, your fishing permit will be CANCELLED and the debt will be passed to the Attorney Generals Department for legal action to commence. Further, this non-payment means you will no longer be eligible to conduct any future fishing activity on the basis of having held this permit.
If you are not satisfied with this decision you may within 21 days from the date of this letter request AFMA to reconsider this decision. The 21 day period may be extended if you apply in writing to the Managing Director, Australian Fisheries Management Authority, PO Box 7051, Canberra Mail Centre, ACT 2610, prior to the expiry of the 21 days. If you are not satisfied with the outcome of that reconsideration you may, subject to the provisions of the Administrative Appeals Tribunal Act 1975 apply to the Commonwealth Administrative Appeals Tribunal through the registry in your State for a review of the decision.
If you wish to discuss this matter further, please call the Senior Licensing Officer, Leslie May… .’
It will be seen that although the license suspension was expressed to take effect immediately, cancellation of the license was said to follow in the event of non-payment of the levy of $400.00, or absence of ‘an arrangement’ in that regard, within seven days, which would be by 16 May 2001; however the letter required payment by 17 April 2001, doubtless because of some unexplained delay in dispatching the letter forthwith upon composition thereof. No such payment of $400.00 appears to have ever been made by Mr Rhodes, as I have already foreshadowed, nor was there any response by Mr Rhodes to that AFMA letter, so far as the evidence extends. In any event, any such shortcomings in the composition of the AFMA letter were effectively superseded by the AFMA communications which followed.
The communications from AFMA to Mr Rhodes which thereafter followed are summarised below:
(i)Letter of 25 May 2001 from AFMA to Mr Rhodes, which once more foreshadowed automatic cancellation of his permit for non-payment of the $400.00 levy, in the absence of payment thereof this time by 5 June 2001 or his ‘mak[ing] contact with’ the senior licensing officer/writer of the letter;
(ii)Letter of 12 July 2001 from AFMA addressed to Mr Rhodes, which stated that ‘[y]ou have been given ample time to pay this levy and AFMA has been more than reasonable in providing you with opportunities to meet your obligations’, and further that ‘… your fishing permit, no. 26978 is cancelled, effective today (11 July 2001)…’, and ‘[y]ou are now no longer eligible to conduct any fishing activity in the Southern Shark Fishery…’; and
(iii)Letter of 2 August 2001 from AFMA to Mr Rhodes, which confirmed cancellation of his permit, and which purportedly ‘… terminated the reconsideration of [your] shark quota allocation’.
There is no evidence of any response by Mr Rhodes to those letters, other than what is recorded below.
On 26 February 2002, Mr Rhodes wrote to AFMA and sought to explain his absence of response at least to its letters of 9 and 25 May 2001, due to the ‘legal and financial difficulties’ of his matrimonial disputes, asserting that ‘I did reply to either that letter [of 25 May 2001] or that letter… of the 9th May 2001 within a short period stating that I was having legal and financial difficulties because of my ex-wife…’. He asserted that he ‘intended to pay the levy when I could afford to’, and that he was entitled to the allocation of ‘the quota’. He explained that ‘at the time I had employment picking gumnuts for seed on a remote island and was virtually uncontactable until Sept…’. He further asserted that he never intended to surrender his State (Tasmanian) license, because he wanted to retain the right ‘to fish for shark in the future as I had for most of my life’. He requested the grant of the permit he had previously applied for, being a permit which he said he assumed was being held in suspension until the levy was paid. There was no basis in the AFMA letters to support that claimed assumption. No payment of the $400.00 levy was subsequently tendered. There was no immediate response from AFMA to that letter of Mr Rhodes. Moreover there remained a further apparent hurdle of Mr Rhodes to overcome, being the absence of what the Tribunal found below to have been the non-provision by him of any ‘verified catch data from the period 1994-1997’, and hence the allocation notified to him on 1 March 2001 of a ‘zero quota’.
It is appropriate to record, at this stage of my narrative of events, that the Tribunal found ‘considerable difficulty in accepting the applicant’s version of events’, and further that ‘[t]he 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’. The Tribunal further found that Mr Rhodes ‘made little or no attempt to monitor mail during visits to Cape Barron township’. The Tribunal further recorded that Mr Rhodes testified that ‘… he assumed non-payment of fees would be treated merely as a temporary expedient, with him meeting his obligation when he could’, but further found that ‘[t]he 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’. Those adverse findings of the Tribunal were in my opinion open to be made from the evidence.
Promulgation of Southern and Eastern Scalefish and Shark Fishing Management Plan (‘the SESS Management Plan’) – Mr Rhodes’ subsequent application for participation by way of grant or reinstatement of fishing permit under the auspices of the Plan – decision or reconsideration decision of AFMA
On 5 September 2003 the SESS Management Plan was promulgated under s 17 of the Fisheries Management Act 1991 (‘the Management Act’) which empowered AFMA to establish ‘plans of management for all fisheries’. Hence that promulgation occurred more than two years after the cancellation of Mr Rhodes’ fishing permit no. 26978. Section 5 of the SESS Management Plan set out its ‘objectives’, which include by par (a) ‘to implement efficient and cost-effective fisheries management of the fishery on behalf of the Commonwealth’. Section 6 was headed ‘Measures by which the objectives are to be attained’, paras (c) to (f) thereof reading as follows:
‘(c)implementing a scheme of entitlements for people to fish in the fishery consisting of boat SFRs and fishing permits;
(d)determining reference points for maintaining ecologically sustainable stocks of each species taken in the fishery;
(e)determining harvest strategies for quota species that will maintain their numbers above reference points, and setting TACs consistent with these harvest strategies, taking account of information from relevant management advisory committees and fishery assessment groups;
(f)setting TACs, and determining harvest strategies and reference points, for non-quota species;’
The statutory abbreviation SFR refers to ‘statutory fishing right’, and a ‘boat SFR’ is defined by the SESS Management Plan to mean ‘… a statutory fishing right that allows the holder of the right to use a nominated boat to fish in an area using the method specified in the certificate of grant.’ The meaning of TAC has earlier been indicated (ie total allowable catch). Section 7 of the SESS Management Plan, headed ‘Performance criteria against which measures taken may be assessed (Act s 17(5))’, stipulated by subpar (j) of sub-clause (1) thereof as follows:
‘(1)The performance criteria against which the measures taken may be assessed are as follows:
…
(j)that access to the fishery is limited through regulating the number of fishing concessions;
….’
Section 61 of the SESS Management Plan headed ‘Transitional – general’ contained transitional provisions as to engagement ‘in fishing in the fishery’ in favour of permit holders, until the later publication of a gazettal in effect to the contrary. Section 62 of the SESS Management Plan, headed ‘Transitional – quota species’, provided as follows:
‘(1)The notice published under section 61 may provide that this section has effect, for a quota species, from the day on which section 61 ceases to have effect until the day specified in a notice published in the Gazette under subsection (2) for that species.
(2)For each quota species for which this section has effect, AFMA must publish a notice in the Gazette stating that this section ceases to have effect on a day specified in the notice.
(3)The day specified in a notice under subsection (2) must not be earlier than the day on which the notice is published.
(4)Despite section 20, a person may engage in fishing for a quota species for which this section has effect in a part of the area of the fishery if the person holds a boat statutory fishing right or fishing permit that authorises the person:
(a)to fish in that part of the area of the fishery; and
(b)to take an amount of fish of that species.’
Section 20 of the SESS Management Plan stipulated as to the entitlement to ‘fish in the fishery for a non-quota species’, being an entitlement which required by subsection (1) the holding of ‘a fishing permit or boat statutory fishing right granted in relation to the fishery…’. Of course Mr Rhodes had ceased to hold as from 11 July 2001 his former statutory fishing right.
It appears that on or about 29 September 2003, Mr Rhodes filled out and sent to AFMA a standard form of application for fishing permit under the Management Act, whereby he sought permission to fish in relation to a ‘Proposed Area of Operation’, for ‘flathead’, ‘pike’ and ‘gummy shark’, though no reference was made to school shark, for what that may matter. Details of his boat ‘Antagonist’, his proposed fishing gear, proposed type and area of operation and his Tasmanian State license details were provided. The application was entered on the AFMA licensing register on 2 October 2003 and bore a handwritten note of 14 October 2003 that ‘David [Rhodes] will fax a letter with reasons why this permit should be renewed’. On or about 14 October 2003, Mr Rhodes had a telephone conversation with an AFMA officer identified as ‘Megan’, in which he apparently sought to explain his delay in making application for what he described as his Commonwealth ‘entitlement’. Mr Rhodes also wrote at about that time an undated letter to AFMA, stamped as received on 15 October 2003, ‘concerning my application to activate my shark permit which [AFMA] said had been cancelled’, and narrated the hardships, financial and otherwise, to which he claimed to have been subjected, and asserted in conclusion that ‘I can now afford to pay the necessary fees’. A yet further communication was sent by Mr Rhodes to AFMA, which was marked as received by AFMA on 20 October 2003, and outlined the exigencies of what he claimed to have been his ‘severe financial hardship’, including the fact that ‘[t]he sale of my house was unavoidable because the bank had taken all steps to foreclose and the matter had been to court…’.
AFMA replied at length to Mr Rhodes by its letter of 12 November 2003. That letter of AFMA referred to ‘your application for a fishing permit in the Gillnet Hook and Trap (GHAT) Fishery and the request to reinstate your previous Commonwealth entitlement 26978’, and asserted that ‘… your application for a new permit [would be treated as] separate from your request to reinstate your previous entitlement’. AFMA set out its decision and reasons therefore in summary as follows:
‘… I have reviewed the [Management Act], [the OCS] arrangements between the Commonwealth and the State of Tasmania for both scale fish, school and gummy shark species, the [Management Plan] and the current management arrangements for the GHAT Fishery. I have also considered AFMA’s limited entry policy which prohibits the issue of new permits in formally managed fisheries. The GHAT Fishery is a formally managed fishery, therefore, on the basis of this limited entry policy your application has been refused’.
Thereafter AFMA spoke of its reasons for decision, inclusive of the need to limit the number of operators in ‘efficient and responsible fisheries’ ‘… as a necessary first step in any management of fishery resources’, and to do so ‘[e]ven where there has not been concern that overfishing may be occurring’. AFMA also observed that ‘[i]n the absence of control, open access systems will invariably lead to over-exploited resources and declining returns for all participants’. The letter indicated an unwillingness to reinstate Mr Rhodes’ so-called ‘previous fishing entitlement 26978’, [and referred in that regard to] ‘the length of time that has passed since the cancellation’. The letter concluded that ‘[i]f you are still not satisfied after AFMA has reviewed this decision, you may then ask the [AAT] to review the decision’.
Mr Rhodes faxed to AFMA on 12 December 2003 a handwritten request bearing date 9 December 2003 as to ‘reinstatement…’ of ‘my previous Commonwealth entitlement 26978 in the GHAT’. Mr Rhodes explained that he had not previously made ‘full payment’ because he had been under severe financial pressure, largely by reason of his marriage breakdown, and of a consequential property settlement in favour of his wife and a threatened bank foreclosure, and further of his subjection to high costs of repair to his fishing vessel. He asserted that ‘[r]e-instatement of entitlement 26978’ would ‘[n]ot increase the total catch of the Shark fishery because it is now Quota managed’, and would ‘[h]elp reduce the overall catch because all shark caught will [cease] to be covered by quota…’, and would also ‘[r]educe waste, dumping and degrading associated with the urge to tax the value of fish under the bycatch provision’. He thus made the claim, seemingly by implication, that any such reinstatement in his favour would be covered by the existing GHAT quota. He pressed for reconsideration as to his entitlement to ‘my Commonwealth permit’, in particular because (to cite the text of his testimonial evidence in that regard):
·‘I qualified for my original State 3 net entitlement;
·I did not elect to hand my State entitlement in for financial reward;
·I applied for transition from the State to Commonwealth fishery;
·My gear allocation and catch history would have been taken into account for future management of the fishery;
·I paid the original application fee and advised that I was not in a [position] to pay the management levy but would do so as soon as possible;
·I believed my permit was being held in abeyance until the levy was paid.’
As to the last of the above factors, I have already referred to what seems to have been my uncertainty as to whether the original permit application fee of $170.00 was ever paid in full; no documentary or other material as to payment in full was tendered by Mr Rhodes in support of the assertion above as to payment of ‘the original application fee’. As to non-payment of the SSF Fishery management levy, Mr Rhodes claimed that he never received from AFMA during April, May or June 2001 correspondence to the effect of any warning of suspension or cancellation of his fishing permit no. 26978 if he did not pay the levy, but so much is at odds with the text of the AFMA correspondence I have earlier identified. During that period of time, it was Mr Rhodes’ assertion incidentally that he was not living within any locality for effective communication, having been then engaged (as I have already recorded as to his claim in that regard) in a remote area of the Flinders Island in picking gumnuts for seed, and also on another island. Extracted below is Mr Rhodes’ concluding explanation made in that letter of 9 December 2003, in relation to that acknowledged delay in payment which preceded his formal request to ‘consider my circumstances and situation carefully and consider my application’:
‘I did contact AFMA when I thought I would be in a financial situation to pay my fees. I had several phone calls with Leslie May explaining my situation and circumstances. As my financial situation did not improve until recently I was not in a position to pursue the matter. From explanations given during these calls I believed the permit would be re-issued when all necessary fees were paid.
I did not think that I was in danger of losing my entitlement. I assumed the Commonwealth had a similar process to Tasmania where licences could be held in abeyance. Had I known that I would lose the entitlement I would have made every effort or arrangement to secure it. Why would I let a permit with a value be lost when I could have accepted money as reimbursement. I am returning to fishing and will be taking shark as part of my catch. I just hope reason prevails and that my access to the shark fishery is reinstated.’
The theme of the letter as to his subjective beliefs is at least not wholly consistent with the material events which I have earlier recorded from the evidence.
By a comprehensive letter dated 22 December 2003 to Mr Rhodes, AFMA recorded ‘… your facsimile [was] received 15 December 2003 requesting a consideration of AFMA’s decision to refuse to reinstate your Gillnet, Hook and Trap Fishery permit number 26978’, and thereafter stated that ‘AFMA will now undertake a reconsideration of this matter, as provided for under subsection 165 of the [Management] Act, with (sic) the 45 day review period commencing on 15 December 2003, being the date the submission was received’. The letter further stated inter alia that ‘[t]he delegate may require further information on your circumstances in relation to the review than what you have already provided…’. However there is no evidence of any such information being so sought subsequently by or on behalf of AFMA. Incidentally, subsections 165(5) and (6) of the Management Act, relating to AFMA’s obligations to reconsider its decisions, read as follows:
‘(5)AFMA must, within 45 days after receiving the request, reconsider the relevant decision and may make a decision:
(a)in substitution for the relevant decision whether in the same terms as the relevant decision or not; or
(b)revoking the relevant decision.
(6)Where, as a result of a reconsideration under subsection (5), AFMA makes a decision in substitution for or revoking the relevant decision, AFMA must, by written notice given to the person who made the request under subsection (2) for the reconsideration:
(a)inform the person of the result of the reconsideration; and
(b)give the reasons for the decision.’
A six page internal file minute dated 9 January 2004 of the Acting Senior Licensing Officer to the Ministerial delegate (Mr Lippapis), headed ‘Section 165 reconsideration of AFMA’s decision to refuse reinstatement of permit no 26978’, set out the background to the controversy which arose in relation to Mr Rhodes; there was reference in that regard to the authority of s 32(1) of the Management Act to suspend or cancel for non-payment of levies. The internal file minute also observed that ‘[a] permit holder has 21 days in which to appeal this decision, under section 165 of the AFMA, and in failure to do so, AFMA does not have any discretion to reinstate a permit after a permit has been cancelled. Reference was also made to subsection 39(1)(c) which permits a cancellation of a fishing concession for non-payment of ‘any fee, levy, charge or other money relating to the concession’. Also recorded in that file minute were segments concerning the ‘History of the GHAT Fishery’, reasons for ‘The Need for Limited Entry Management’, the ‘Issues’ arising in relation to Mr Rhodes and finally the ‘Recommendations’. Two concluding matters relating to this AFMA decision were recorded as follows:
‘30.A removal of the limited entry policy may significantly add to the concerns surrounding the status of school shark stocks.
31.Granting this permit is inconsistent with the objectives of the current SESS management plan.’
As earlier indicated, the foregoing abbreviation SESS is for ‘Southern and Eastern Scalefish and Shark Management Plan’. The recommendations made by the minute were ‘not to reinstate permit no 26978 or issue a new GHAT permit…’.
Subsequently on 29 January 2004, AFMA’s delegate conveyed to Mr Rhodes reasons for not reinstating his cancelled SSF permit no. 26978, and for not issuing to him a new permit for the ‘Gillnet, Hook and Trap Fishery’. The delegate explained his decision-making role to be to satisfy himself as follows:
·‘that the policy in place is legally valid,
·if found to be valid, examine the decision under review to ensure that it has been made in accordance with that policy; and
·consider whether there are strong reasons or special circumstances relating to your individual situation which may justify the departure from that policy in your case.’
On the same day as the above letter of 29 January 2004 was written, but apparently prior to completion of the letter, a brief file note was made by an AFMA officer (not identified but inferentially being the writer of that letter) which included the following:
‘I asked Mr Rhodes how long he had been on the remote island. Mr Rhodes stated he was there for 6 months and returned home at around August 2001.’
Under the heading ‘Has the Decision Under Review Been Made In Accordance With This Policy’, the following answer was recorded by the delegate:
‘Yes. The decision to not reinstate permit number 26978 is consistent with there being no provision under the Fisheries Management Act 1991 to reinstate a cancelled permit. The second decision to not issue a new permit is consistent with Section 7(j) of the Southern and Eastern Scalefish and Shark Fishery Management Plan where “access to the fishery is limited through regulating the number of fishing concessions”.’
Under the heading ‘My Decisions’ the following then appeared, after citation of s 39(1)(c) of the Management Act (to which I have already referred and the full text whereof is later extracted):
‘My decision is that the cancelled permit cannot be reinstated as there is no provision under the Fisheries Management Act 1991 to reinstate a cancelled permit. The only option is for AFMA to issue a new permit.’
I do not understand that restricted interpretation to have been challenged.
Under the heading ‘Special Circumstances Relating To Your Individual Situation Which May Justify A Departure From That Policy’, the following conclusion was set out by AFMA (the emphasis to the extent of non-italics below was that of the author of the letter of 29 January 2004):
‘Although I empathise with your situation of financial & marital difficulties at the time, the facts are with regard to:
· Financial hardship preventing payment of levies
When the levy notices were issued to you, although you state that you advised AFMA of financial difficulties at various times, a financial arrangement was not made with AFMA nor referred to. A financial arrangement could have prevented the cancellation of your permit.
·Harsh treatment regarding Clause 39(c) [the reference below should be of course to section 39(1)(c)] stating AFMA “may cancel” your permit.
Letters dated 9 May 2001 and 25 May 2001 from AFMA are acknowledged as having been received by you at that time, in your letter dated 26 February 2002. Although Clause 39(c) states “may cancel”, these letters have clear warning that your permit will be CANCELLED, and offered the option to enter into a financial arrangement.
Although you state that you wrote to AFMA re one of these letters, your letter was not received by AFMA. You also state that AFMA’s further several attempts to contact you had failed due to being employed on a remote island where you were virtually uncontactable. From dates provided by you in your letter dated 26 February 2002 and your telephone call today 29 January 2004, I estimate the period of time you were on the remote island to be between either February or March 2001 and August or September 2001. The situation of your permit was not followed up on until your letter dated 26 February 2002 where you state:
“It wasn’t until last week that I came across your letter of 25 May 01 that I realised I had not received a reply to my response, hence the phone call from me regarding the status of my permit which I assumed was being held in suspension until the levy was paid.”
You also state:
“I did not think that I was in danger of losing my entitlement assumed the Commonwealth had a similar process to Tasmania where licenses could be held in abeyance. Had I known that I could lose the entitlement I would have made very effort to secure it.”
Correspondence from AFMA clearly stated the consequences if the levy was not paid or a financial arrangement was entered into. These warnings had warned of the loss of the entitlement and correspondence from AFMA did not state of the ability to hold a licence in obeyance (sic).
A previous fax from you to AFMA on 21 March 2001 requesting an appeal for quota allocation in the Southern Shark Fishery at the same period of time you were on the remote island, requested receipt confirmation by phone which was honored (sic) by AFMA on the same date. I believe the same attempt to ensure your entitlement was safeguarded would be to request a receipt of the letter to AFMA which has gone missing, and if this receipt had not been received shortly after by you that you would have made contact with AFMA sooner than your letter dated 26 February 2002.’
AFMA concluded the letter by drawing attention to Mr Rhodes’ right to seek a review of its decision by the AAT within 28 days, being a right of review which Mr Rhodes exercised by filing an application for review by the AAT on 23 February 2004. There is no evidence of any response from Mr Rhodes to that letter.
AFMA put in issue to the Tribunal various aspects of Mr Rhodes’ version of events and of the claims which he put forward, and in particular his assertion that his permit was cancelled without having been provided with an opportunity to respond to the threat or prospect of suspension or cancellation of his license. His initial request for review was said by AFMA to relate (in substance) to the absence of availability to him of a quota, and not to the cancellation of his permit or to the circumstance that he was unable to satisfy the quota allocation criteria based on his catch history between 1994 and 1997. The Tribunal recorded in its decision of 27 July 2005 in that regard that ‘AFMA sent many reminder notices and attempted to contact him from March 2001 onwards, to which [Mr Rhodes] did not respond’, and that ‘[i]t was not until February 2002 that he was in contact with AFMA once more’. The documentary material which I have reviewed supports the circumstances so outlined by AFMA and recorded by the Tribunal respectively. AFMA pointed out that Mr Rhodes’ ‘… new application, dated September 2003, was rejected because by then a “limited entry” policy was in force’, and contended that all of its decisions were lawfully made, ‘… and with ample opportunity for Mr Rhodes to make his case which he failed to do’.
Relevant provisions of the Fisheries Management Act 1991 (Cth) (‘the Management Act’) not already extracted in these reasons
AFMA referred to the text of the provisions of the Management Act in relation to the following subjects in particular, the relevance whereof has or will become apparent:
(i)the obligation of AFMA to prepare a plan of management (s 17) and to issue a public notice so as to enable representations to be made in relation thereto; subsections (5) and (6) are reproduced below:
‘(5) … a plan of management for a fishery is to set out:
(a) the objectives of the plan of management; and
(b) measures by which the objectives are to be attained; and
(c)performance criteria against which the measures taken may be assessed.
(6)Without limiting the operation of subsection (5), a plan of management for a fishery may:
(a)determine the method or methods by which the fishing capacity of the fishery or a part of the fishery is to be measured, which may be or include, but are not limited to, a method based on a particular area, a particular species or type or a particular quantity of fish, a particular kind, size or quantity of fishing equipment, a particular number of boats, a particular period of fishing, or any combination of the above; and
(aa)determine, or provide for AFMA to determine, the fishing capacity, measured by that method or those methods, permitted for the fishery or a part of the fishery in respect of a particular period or periods; and
(b)provide for the management of the fishery by means of a system of statutory fishing rights, and other fishing concessions; and
(c)contain a description of the fishery by reference to area, fish species, fishing methods to be employed or any other matter, and
(d)subject to section 28, formulate procedures to be followed for selecting persons to whom fishing concessions are to be granted including, in the case of fishing rights:
(i) the holding of an auction; or
(ii) the calling of tenders; or
(iii) the conducting of a ballot; and
(e)specify the kind and quantity of equipment that may be used in the fishery; and
(f)specify the circumstances in which a statutory fishing right may authorise fishing by or from a foreign boat; and
(g)impose obligations on the holders of fishing concessions; and
….’
It was not contended by Mr Rhodes that the SESS Management Plan contained any provisions not explicitly or implicitly authorised by s 17;
(ii)the authority of AFMA to grant fishing permits and the scope of that authority pursuant to s 32, subsections (1) and (1)(C) whereof reading as follows:
‘(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.
…
(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.’
(the reference above to ‘AFZ’ is to the Australian fishing zone : (see s 4));
(iii)the power of AFMA to suspend fishing concessions inclusively for non-payment of ‘any fee, levy, charge or other money relating to the concession…’ by way of written notice, s 38 headed ‘Suspension of fishing concessions’ containing subsections (1)(a) and (b)(i) reading as follows:
‘(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;
….’
(to that subsection I would additionally set out below subsection (2) of s 38, the operation of which is raised contentiously in a later context:
‘(2)Subject to subsection (3), where a fishing concession is so suspended (otherwise than for the reason mentioned in paragraph (1)(a)), the suspension, unless it is sooner revoked, ceases:
(a)if proceedings for an offence against this Act in relation to the alleged act or omission because of which the concession was suspended are instituted against the holder of the concession, or a person who acted on behalf of the holder of the concession, within one month after the suspension – on completion of the proceedings; or
(b)in any other case – at the end of one month after the suspension.’)
(iv)the power of AFMA to cancel by notice in writing any fishing concession if ‘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 such period as is prescribed after the time at which such fee, levy, charge or other money became due…’ (s 39(1)(c));
(v)the prohibition against engagement in commercial fishing in an Australian fishing zone unless ‘the person is, or is acting on behalf of, the holder of a fishing concession, or a scientific permit, that is in force authorising commercial fishing at that place’ (s 95(1)(a)(i)); and
(vi)the collection of levies, inclusive of interest thereon at 20% per annum upon the amount of levy from time to time remaining unpaid (s 112).
Grounds of application for review of AFMA’s decision advanced by Mr Rhodes – the issues which arose for decision-making by the AAT
A further matter submitted by Mr Rhodes not to have been considered by the AAT, but nevertheless said to have been relevant to the circumstances in which he found himself to be placed, was that his long involvement in the industry, and the potential effects on him of any decision to cancel the permit, gave rise inherently to a legitimate expectation of procedural fairness. The submission begged the question at least as to what was inherently unfair procedurally in the nature and extent of the steps taken and processes implemented by AFMA which merely conformed to the steps and processes required to be put in train in relation to any industry participant who was placed in the same vulnerable position as Mr Rhodes.
A yet further factor said here to have prevailed in Mr Rhodes’ favour against any cancellation of his permit was a lack of urgency in relation to the making by AFMA of its cancellation decision. It was submitted by Mr Rhodes that there was no good reason for AFMA to have made that decision in relation to the cancellation of the permit within a matter of ‘weeks after the suspension’. It was further submitted that the Management Act expressly contemplated the indefinite suspension of a permit, and there was no requirement even to consider cancellation after a suspension. However it was plainly within AFMA’s prerogative to determine whether it should exercise juridical powers and remedies which had crystallised in operation to the extent that it deceased to be appropriate in the contextual circumstances.
Mr Rhodes next submitted that he had been already prohibited from fishing prior to the cancellation of his permit, yet interest on the unpaid levies would continue to accrue at a penal rate. No benefit to AFMA was therefore obtainable from cancellation of the permit, other than AFMA’s view that it could thereupon terminate the need for so-called ‘internal reconsideration’, and that such motivation on AFMA’s part would have been improper in any event. It was further submitted that this would have a ‘very adverse effect’ on Mr Rhodes. It was not however a condition to AFMA’s lawful exercise of regulatory authority to endeavour to divine the particular implications of a permit cancellation personal or peculiar to a defaulting permit holder, so long as the requirements of the stipulated procedure were observed. In that regard the AAT found it sufficient in any event that AFMA had made attempts to communicate with Mr Rhodes prior to the cancellation, such attempts consisting of AFMA’s letters of 9 May 2001 and 25 May 2001, calling a telephone number listed on AFMA records, and requesting on 5June 2001 that the local police get in touch with Mr Rhodes.
Mr Rhodes submitted in any event that since the AAT did not find that he received any of that AFMA correspondence or had any actual notice of AFMA’s intention to cancel the subject permit, and further that the AAT expressly refused to make any finding that Mr Rhodes had deliberately avoided potential creditors, or had received what was described as ‘financial correspondence’, those factors should have rendered inapplicable any issue otherwise arising as to Mr Rhodes’ absence of response to AFMA’s communications related to Mr Rhodes’ default. Instead it was contended by Mr Rhodes that the AAT took the view that his ignorance of AFMA’s intention to cancel his permit was unreasonable. To the extent that that contention did have juridical significance, which I am unable to accept in any event, it is not possible to divine any basis for the extremity of the course which AFMA should have supposedly pursued in an endeavour to communicate relevantly with Mr Rhodes, and to do so prior to exercising its legal rights and remedies.
In conclusion, Mr Rhodes submitted that given the very serious implications to him in terms of permanent or temporal deprivation of his fishing concession, the lack of any urgency from the perspective of AFMA, and the structure of the Management Act in terms of ss 38 and 39 thereof relating to ‘suspension and cancellation of fishing concessions’ respectively, natural justice required AFMA to ensure that Mr Rhodes had actual notice of its intention to cancel the permit. It was further concluded that he should have been afforded thereafter reasonable opportunity within which to make submissions in relation to the exercise of AFMA’s discretion as to the course which it proposed to implement consequentially upon Mr Rhodes’ default. That concluding submission assisted to illustrate the extent to which Mr Rhodes persevered with his endeavours for curial intervention in his favour, but a similar adverse response is warranted to that appearing in the preceding paragraphs. No natural justice precedent having conceivable operation in relation to the present circumstances was cited by Mr Rhodes in support of the present or any of his preceding contentions. Nor did Mr Rhodes demonstrate what he would have accomplished in reality by way of establishing the operation of a fishing concession as a consequence of his being able ex hyposesi to fund the unpaid levy at the material time.
Conclusions
The submissions of AFMA arising for consideration in the present proceedings related essentially to each of the following AAT decisions:
(i)that made on or about 11 July 2001 for cancellation of shark fishing permit no. 26978 for non-payment of the $400.00 levy, and notified by communication of that date to Mr Rhodes;
(ii)that subsequently made on 11 November 2003 by way of refusal to reinstate that permit no. 26978, and notified by communication of that date to Mr Rhodes; and
(iii)that further made on 29 January 2004 by way of refusal, or confirmation of earlier refusal, to reinstate that permit no. 26978, and also by way of refusal to issue any new permit, and notified by letter of that date to Mr Rhodes.
As I have earlier recorded, the AAT treated the AFMA decision-making the subject of review as the decision made on 12 July 2001, but it is apparent from [87]-[90] of the AAT’s reasons that the decision-making in dispute was more comprehensively expanded subsequently by the succeeding decisions of AFMA purportedly notified to Mr Rhodes on 12 November 2003 and 29 January 2004 respectively.
I would accept Mr Rhodes’ three foundation contentions, recorded in [4] above, as raising in principle questions of law. The true interpretation of the 2003 Management Plan, to the extent that the same arose rightly for consideration, and being in the nature of governmental regulation, would have inherently raised questions of law for consideration by the AAT. Moreover to the extent that any irrelevant considerations may be shown to have been taken into account by AFMA for the purpose of its relevant decision-making, so much may well have so operated as to have rendered that decision-making ineffective according to law; it appears however that no vitiated decision-making relevantly took place on AFMA’s part. As to the issue raised as to breach of natural justice on AFMA’s part, so much would have also involved inherently a question of law; however I do not think that Mr Rhodes articulated with precision or at all any material circumstances reflective of any cause of action relevantly for breach of natural justice. The task of securing a successful review of AFMA’s decision-making complained of was inherently formidable.
The case of Mr Rhodes presented on the appeal to the effect that the AAT misconstrued the SESS Management Plan as purportedly limiting the number of permit/holders, and further that the AAT refused Mr Rhodes’ application for review by reason of his purported status as a new entrant to the SSF, and yet further that so much was wrongly found by the AAT to have been expressly contemplated by the OCS arrangements, was in each of those aspects misconceived in the light of the evidence I have reviewed. One of the principal contexts to Mr Rhodes’ present application for review by way of appeal has been summarised earlier in these reasons, that being the high level governmental Memorandum of Understanding of 17 November 2000 and the policy reasons underpinning its introduction. Another was Mr Rhodes’ quota allocation subsequently of zero kilograms in relation to both school and gummy shark, as a consequence of his lack of demonstration of any verifiable catch. The permit issued to Mr Rhodes, albeit for a zero kilograms allocation, was subsequently cancelled in any event for non-payment of the levy of $400.00 imposed on him; his reasons given for that non-payment were found by AFMA to be inadequate on the basis of relevant evidentiary material, and the inferences reasonably open to be drawn therefrom. In the course of my consideration of the evidence relating to those critical areas of controversy, I have already detailed the AFMA evidence adduced in the proceedings which provided strong support for the conclusions open to be drawn in its favour, being evidence which Mr Rhodes has not succeeded in rebutting or otherwise in showing to be ineffective.
As I have further foreshadowed, I am unable to accept Mr Rhodes’ case to the effect that either the SESS Management Plan or the OCS arrangements imposed upon AFMA any ‘no new permits’ policy. Factors operating persuasively in rebuttal of that case of Mr Rhodes may be identified from the following circumstances in outline which I have earlier identified and discussed:
(i)The limited extent of the provisions of the Memorandum of Understanding made between the Commonwealth and the relevant States as to allowance for ‘exceptional circumstances’, and as to treatment of individual fishers ‘on a fair and equitable basis’ (see in particular clauses 12 and 14 to 16 thereof), both in the context of the policy adopted by the relevant governments as to ‘no increase in demersal fishing capacity…’;
(ii)the provisions of the SESS Management Plan as to the TAC to be allocated to individual concession holders respectively, and as to restrictions in terms of permissible extent of harvesting of relevant areas in conformity with allocations of quantified quotas.
Nor have I been able to accept the contention of Mr Rhodes that the AAT found incorrectly, as relevant to the refusal to grant Mr Rhodes a permit quota, the enforcement of AFMA’s cost recovery procedures. As I have earlier pointed out in particular in [4] and [16] above, the formulation of that contention by Mr Rhodes in terms of any such finding was misconceived, in that as has been earlier traced in detail in these reasons, what was granted by AFMA to Mr Rhodes on 1 March 2001 was fishing permit no. 26978 on the footing of a quota of zero or nil kilograms of gummy and school shark, because he provided no verified catch data to AFMA for the yearly term of 1994-1997. As I have indicated further in [19]-[20] above, that fishing permit no. 26978 was cancelled effectively as from 11 July 2001 because of non-payment of the $400.00 levy, with the consequence that Mr Rhodes became ineligible from that time to conduct commercial fishing activity in the SSF.
As to Mr Rhodes’ case that AFMA did not afford to him natural justice in relation to the processes implemented by it up to the time of cancellation of his fishing permit, no viable basis has been demonstrated in that regard. What was required generally of prospective participants in the SESS Management Plan was the holding of the requisite permit upon which periodic levies would be duly imposed. Understandably non-payment of levies carried the sanction of cancellation of fishing permits. The evidence demonstrates that no payment was made by Mr Rhodes of his initial levy of $400.00 applicable to the three year period from February 1994 to December 1997, crystallisation in enjoyment of the relevant shark fishing permit involved being based upon payment of that levy.
The case at first instance conducted before the AAT, and also conducted on the present review by this Court by way of appeal, developed its respective complexities, partly because the AAT pleadings were filed virtually contemporaneously and were not such as to reflect what was precisely in issue between the parties. Seemingly as a consequence, Mr Rhodes sought to raise issues on the present appeal which were widely encompassing, and at least some of which were susceptible to characterisation as being outside the scope of legitimate administrative review. Nevertheless I have endeavoured to address each of the issues in accordance with appropriate principles as to administrative review, notwithstanding the extent to which the same involved disputes on the merits.
In my opinion, the grounds of the appeal advanced by Mr Rhodes have not been established, and the appeal must be dismissed with costs.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate:
Dated: 8 September 2006
Counsel for the Applicant: Dr AJ Greinke Solicitor for the Applicant: Thomson Rich O’Connor Counsel for the Respondent: DS Mortimer SC Solicitor for the Respondent: Deacons Lawyers Date of Hearing: 27 and 28 April 2006 Date of Judgment: 8 September 2006
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