Rouse v Minister for Fisheries

[2002] NSWADT 46

Set aside by Appeal: Set aside by Appeal on 19/12/2002

CITATION:	Rouse v Minister for Fisheries [2002] NSWADT 46
DIVISION:	General Division
PARTIES:	APPLICANT John Rouse RESPONDENT Minister for Fisheries
FILE NUMBER:	013301
HEARING DATES:	28/02/02
SUBMISSIONS CLOSED:	02/28/2002
DATE OF DECISION:	04/05/2002
BEFORE:	Higgins S - Judicial Member
APPLICATION:	Fisheries Management Act - fishing licence - revocation of conditions on licence - Fisheries Management Act - fishing licence - revocation of endorsement on licence - Fishing licence - revocation of conditions on licence - Fishing licence - revocation of endorsement on licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fisheries Act 1994 (QLD) Fisheries Management (General) Regulation 1995 Fisheries Management Act 1994
CASES CITED:	Oliver and Thomson v Minister for Fisheries [2002] NSWADT 28 Cootes v Director, New South Wales Fisheries [2001] NSWADT 65
REPRESENTATION:	APPLICANT J Fuggle, solicitor RESPONDENT C Cory, solicitor
ORDERS:	1 The Minister's decision to revoke the endorsement allocated to Mr Rouse's commerical fishing business and to revoke the conditions, other than those prescribed by the regulations on the boat licence of his fishing boat the "Sue Maree" (LFB 11598) is set aside; 2 In substitution the decision is made not to revoke the endorsement allocated to Mr Rouse's commercial fishing business and not to revoke the conditions, other than those prescribed by the regulations, on the boat licence of their fishing boat the "Sue Maree" (LFB 11598).

A: BACKGROUND

1 This is an application to review the decision, of 29 November 2001, by the delegate of the Minister for Fisheries (“the Minister”) to revoke the endorsements on Mr Rouse’s commercial fishing business and to revoke the conditions, other than those prescribed by the regulations, on the boat licence of his fishing boat the “Sue Marie”. The basis for the revocation was the voluntary “transfer/surrender” to the Government of Queensland, by Mr Rouse, of his Queensland fishing licence that was attached to the “Sue Marie”. The Minister’s delegate stated that this “transfer/surrender” was “inconsistent with the NSW licence splitting policy and the objects of the Fisheries Management Act 1994 and could result in an increase in fishing effort in NSW waters”.

2 On 7 December 2001 Mr Rouse made an application to the Tribunal seeking review of the Minister’s decision. At the same time he made an urgent application for a stay of the Minister’s decision. That application was granted and has continued in operation.

3 Mr Rouse is the owner of a commercial fishing business that involves ocean prawn trawl fishing. He has been a commercial fisherman for some time. He built his first boat in 1979 and fished in NSW managed fisheries. He sold his fishing business in 1984 due to ill health. In 1994 he again entered into the fishing industry when he purchased the "Sue Maree" and the licenses attached to it from a Queensland vendor. This vessel was authorised to operate in Queensland and after Mr Rouse purchased the vessel he also purchased another vessel, which was authorised to fish in NSW managed ocean prawn trawl fishery. With the approval of the Director of NSW Fisheries, he transferred the NSW entitlements attached to the second boat to the “Sue Maree”, which became licensed fishing boat No LFB 11598. That is, from that date, he was what the Department of NSW Fisheries has described as a “dual licensed operator”, which is a common situation. This means that his fishing activities in waters off NSW are governed by the Fisheries Management Act 1994 (NSW) (“FM Act”) and the Fisheries Management (General) Regulations 1995 (“FMG Regs”) and his fishing activities in Queensland waters are governed by the Fisheries Act 1994 (Qld)(“Queensland Act”).

New South Wales fishing activities
4 Mr Rouse is the owner of fishing business no 183. He does not hold a commercial fishing licence under the FM Act and uses other licensed commercial fishers for his fishing business.

5 Mr Rouse’s fishing business has been the holder of an entitlement to an ocean prawn trawl restricted fishery endorsement (inshore and offshore classes of endorsement), under the FM Act, since 1 March 1997. This entitlement allows him to nominate a licensed commercial fisher to which this endorsement can be attached for the purpose of his business. This endorsement authorises that person to take fish for sale in the ocean prawn trawl restricted fishery (inshore and offshore) for Mr Rouse’s fishing business.

6 Mr Rouse's fishing boat, the "Sue Maree" is licensed under the FM Act (LFB 11598). This licence is due to expire on 18 March 2002.

7 Boat licence LFB 11598 is subject to the following conditions:

“OCEAN PRAWN TRAWL RESTRICTED FISHERY, Offshore - Pl. Fishing Closure Notification OP1 - Offshore Prawn Trawling. The boat may be used to trawl for prawns in ocean waters more than three nautical miles from the baselines of the territorial sea, using not more than 44.4 metres length of headrope. The boat may be replaced by a larger boat as provided in the Offshore Prawn Trawling Management Rules, Version 1.2. This authorisation is transferable with the fishing boat licence.
FISHING CLOSURE NOTIFICATION OG1 - OFFSHORE COMMERCIAL FISHING. The boat may be used to take fish in ocean waters more than three nautical miles from the baselines of the territorial sea.”
8 It is these conditions, which entitle the “Sue Maree” to be used to catch fish in NSW offshore prawn trawl restricted fishery.

Queensland fishing activities
9 Mr Rouse's Queensland licence was a full licence in that the “Sue Maree” was entitled to fish in any part of Queensland's managed ocean prawn trawl fisheries that extended north from the NSW boundary.

10 In late 2000, as part of a structural adjustment scheme for the east coast trawl fishery of Queensland, the Queensland Government introduced an integrated package of management arrangements to cap and reduce by 15% the fishing effort in this fishery (“the Queensland scheme”). The scheme introduced a system whereby fishers licensed to fish in these waters were given a specified number of days per year for which they could use their commercial fishing vessel to fish in the Queensland managed waters. The scheme also included an offer for voluntary “transfer/surrender” to the Government of existing Queensland commercial fishing licences. Mr Rouse was entitled to participate in the voluntary “transfer/surrender” scheme, as he was a holder of the relevant Queensland licence that was attached to the “Sue Maree” (LFB 11598).

11 Invitations to participate in the scheme were made in early October 2000 and closed on 10 November 2000. To participate in the scheme, licence holders were required to make a tender offer identifying their Queensland licence(s) and a value for which they were prepared to “transfer/surrender” their licence(s) to the Queensland Government.

12 Prior to these changes, the Queensland east coast trawl fishery had been managed in a similar manner to that which this fishery is and has been managed in NSW waters under the FM Act and the FMG Regs.

ADT Hearing
13 Mr Rouse’s application was heard in Lismore on 28 February 2002. Ms Cory, on behalf of the respondent, tendered into evidence a series of documents, many of which are referred to hereafter in this decision, including a statement of reasons for the decision dated 29 November 2001which was filed pursuant to s.49 of the Administrative Decisions Act 1997 (“ADT Act”) (Exhibit 1).

14 Mr Fuggle, on behalf of Mr Rouse, and Ms Cory, on behalf of the respondent, both provided detailed written submissions for the hearing.

B: ISSUES
15 The issues raised in this matter are the same as those that were raised in the application of Oliver and Thomson v Minister forFisheries [2002] NSWADT 28. In summary these are:

(a) whether the Minister's decision under ss 104(6) and 108(6) of the FM Act was in effect a cancellation of Mr Rouse's commercial fishing licence and the "Sue Maree" fishing boat licence. If it was of such an effect, then it was ultra vires as the Minister had no power under ss. 104(4) and 108(4) of the FM Act to cancel the respective licences on the grounds of contravening the licence splitting policy. That is, Mr Priestly submitted that the Minister had used the revocation power to do what he could not do under his powers of cancellation;
(b) in the alternative, Mr Fuggle for the applicant, argued that the Minister’s powers of revocation were something short of cancellation of a licence;
(c) whether the “transfer” or “surrender” of Mr Rouse's Queensland licence was in fact contrary to the licence splitting policy. Mr Fuggle submitted that it was not a “transfer” but that it was a “surrender” and not covered by the licence splitting policy. Ms Cory for the respondent submitted that it did not matter whether there was a “transfer” or “surrender”, as the essence of the licence splitting policy was preventing increased commercial fishing effort, in NSW managed fisheries. She also submitted that the onus rested on the applicant to satisfy the Minister that the “transfer/surrender” of his Queensland entitlement did not give rise to an increased commercial fishing effort in the respective NSW managed fisheries for which he had been endorsed;
(d) the final issue, was whether the decision was unjust in any event if it is found that the Minister had exercised his power of revocation correctly and the “transfer/surrender” of the Queensland licence was contrary to the licence splitting policy.
C: JURISDICTION OF THE TRIBUNAL
16 Section 126 of the FM Act makes provision for certain decisions under that Act to be reviewable by the Tribunal. That section insofar as it is relevant provides:
“s.126(1) A person who is dissatisfied with any of the following decisions under this Part may apply to the Administrative Decisions Tribunal for a review of the decision concerned:
(a) the refusal to issue a relevant authority to the person or to renew the person’s relevant authority;
(b) the imposition of conditions on the person’s relevant authority (otherwise than by regulation); and
(c) the suspension or cancellation of the person’s relevant authority.
17 The term “relevant authority” is defined in s. 125 of the FM Act to mean a commercial fishing licence, an endorsement on a commercial fishing licence, a fishing boat licence, the registration of a member of the crew of a boat, or a fish receiver’s registration.

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

“64(1) In determining an application for a review of a reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decisions in the circumstances of the case.”
19 The term “Government policy” is defined in s.64(5) to mean a policy that is adopted by the Cabinet, or the Premier or any other Minister and which is to be applied in the exercise of discretionary powers by administrators. S.64(2) provides that the Premier or any other Minister may certify, in writing that a particular policy was government policy in relation to a particular matter and s.64(3) provides that the Tribunal is to take judicial notice of the contents of that certificate. In this case, no such certificate was in existence, however there is no dispute that such a policy formed part of the 1996 Licensing Policy of NSW Fisheries.

D: LICENCE SPLITTING POLICY
20 The licence splitting policy is described in the NSW Fisheries Licensing Policy (Exhibit 2 at 10), dated November 1996, as follows:

“The Commonwealth and the State have a general policy of not allowing licences to be split. For example, where a boat is licensed by both a State and the Commonwealth or by more than one State, or has multiple authorisations attached to the boat or owner, no transfer can take place, unless all the boat licences, endorsements and fishing authorisations for the boat are being transferred to the same new owner or are surrendered . Similarly, a boat replacement cannot take place unless all facets of a licence or licences are being placed on the new boat or are surrendered.
The licence splitting policy is considered essential at this stage and will strictly apply to fishing businesses and other related policies outlined in this document. Proposals regarded as licence splitting or contrary to the intention of the policy will not be approved. ”
(Underline added)
21 Originally, a licence splitting policy grew out of a national approach to the increasing number of limited or restricted fisheries through the Australian Fisheries Council (“the Council”). The Council is made up of Commonwealth, State and Territory Ministers responsible for fisheries and the initial policy was formulated by way of resolution in 1984 (Exhibit 4). The introduction to the resolution states:
“Council considered a report by Standing Committee which noted that with the increase in the number of limited entry fisheries and the number of boats with licences endorsed for two or more such fisheries, the potential for increased fishing capacity by allowing the transfer of endorsements individually to separate boats (or licence splitting) was a cause of concern .” (emphasis added)
22 This policy was revised in 1987 to take into account the proposed Offshore Constitutional Settlement (OCS) (Exhibit 3). The OCS arose out of an agreement between the Commonwealth and the States whereby they each agreed to exchange powers of control over certain fisheries. For example, management of the entire prawn trawl fishery and the line and trap fishery came under the control of the States. That is, under the OCS, NSW became responsible for these fisheries not only in its own waters but also those directly beyond its waters that had previously been the responsibility of the Commonwealth.

23 The 1987 licence splitting policy, as revised, provided as follows:

“The Commonwealth, States and Northern Territory shall ensure that, where a boat is authorised to operate in one or more fisheries, transfers of licences, authorisations and/or endorsements, or any other fishing entitlement will not be permitted that would result in a separation of any part of the licensed package unless there is prior agreement from all the authorities which may reasonably be expected to be affected by such an agreement.
In particular this means:
(i) where a boat is authorised to operate in a managed fishery or fisheries (Commonwealth, State, Northern Territory or joint authority), the package of licence, authorisations/or endorsements which are in force for that boat shall not be broken regardless of whether the buyer is a VAS or the transaction is characterised as a lease or short-term transfer ;
(ii) in other fisheries, a person holding a state boat licence and Commonwealth boat licence shall not separate those licences;
(iii) where a fishery arrangement under OCS has been introduced, a vessel which, prior to the arrangement, required both a Commonwealth and State licence, authorisation and/or endorsement, that package shall not be separated after the Offshore Constitutional Settlement is introduced, except to surrender part of the package.
NOTE : Exceptions to (i), (ii) or (iii), must be endorsed by the appropriate management advisory committee(s) and must be approved by the appropriate Commonwealth or state management authorities.
(words in italics are those which were added in the revision of the policy)
24 Paragraph (i) is the relevant paragraph in this application because the “Sue Maree” (LFB 11598) was authorised to fish in NSW and Queensland managed fishery.

E: 1990 & 1994 OCEAN PRAWN TRAWL MANAGEMENT RULES
25 In December 1990, NSW Fisheries issued a Fisheries Management Plan (“the 1990 Management Plan”) for East Coast Trawl Fishery, in preparation for the formal transfer of the Commonwealth controlled east coast ocean trawl fishery that was adjacent to the NSW waters, to NSW under the OCS. Part A of the 1990 Management Plan related to the newly acquired responsibility, which was described as “offshore prawn trawl fishery”. This Management Plan was revised in 1994 in the form of ocean prawn trawl management rules.

26 I have described in detail the management objectives of the 1990 Plan and the 1994 revised rules, insofar as they relate to NSW managed ocean prawn trawl fishery, in my decision of Oliver and Thomson v Minister for Fisheries [2002] NSWADT 28. The essence of these was to require any commercial fisher wishing to fish in this fishery to be the owner of a licensed fishing boat that was specifically authorised, by way of an endorsement, to fish in this fishery. There were four classes of this endorsement; a P1, P2, P3 and P4 endorsement. Entitlement to such an endorsement was dependent on the boat satisfying the prescribed catch history during a prescribed period. Once an endorsement had been issued, the management rules placed restrictions on the fishing gear that could be used on the boat and restrictions on the replacement and up grading of the boats to which the endorsement was attached. At the same time all boats authorised to fish in this fishery became unitised in that the hull size and engine capacity of each boat were measured and units were attributed to that measurement.

27 The other significant feature of the 1990 Management Plan and the 1994 revised rules was that P1, P2 and P4 class endorsements were transferable. This gave these entitlements a commercial value, which the boat licence holder could transfer with the boat or transfer from his boat onto another boat with the same or similar units.

28 In this case, the "Sue Maree" (LFB 11598) replaced an existing vessel owned by Mr Rouse, which had been given a P1 class endorsement. It appears that this entitlement was transferred to the “Sue Maree” from the second licensed fishing boat purchased by Mr Rouse in 1994 in accordance with the 1990 Management Plan and the 1994 revised rules.

29 The provisions of the FM Act and the FMG Regs have been in force since January 1995, and they adopt some of the management rules, which applied previously.

30 I have dealt in detail with the relevant legislative provisions in my decision of Oliver and Thomson v Minister for Fisheries [2002] NSWADT 28. I will repeat some of these in a summary form.

Objects of FM Act
31 Subsection 3(1) of the FM Act provides that the objects of the Act are to “conserve, develop and share the fishery resources of the State for the benefit of the present and future generations”.

32 Subsection 3(2)(a),(b)&(c) of the FM Act provides that the above mentioned objects include, conserving fish stocks and key fish habitats (s. 3(2)(a)), conserving threatened species, populations and ecological communities of fish and marine vegetation (s. 3(2)(b)) and to promote ecologically sustainable development (s. 3(2)(c)).

33 Subsection 3(2)(d), of the FM Act provides that consistently with the above mentioned objects, the object of the Act is also “to promote viable commercial fishing and aqua-culture industries” (s. 3(2)(d)), to promote quality recreational fishing opportunities (s. 3(2)(e)) and to “appropriately share fisheries resources between the users of those resources” (s. 3(2)(f)).

34 S. 222A of the FM Act provides that the Minister for Fisheries and the Director of NSW Fisheries are to administer the Act in accordance with the objectives of the Act.

Licensing Provisions
35 Underpinning the management of commercial fishing, is the requirement to be licensed. This means being licensed as a commercial fisher (ss. 102 and 104(4) FM Act) and using a licensed commercial fishing boat (ss. 107(1) and 108(4) FM Act). Failure to have such licences and to engage in commercial fishing constitutes an offence.

36 A commercial fishing licence is valid for 1 year or such other period as provided and it is not transferable (ss. 104(4)(b) and 104(4)(d) FM Act).

37 A commercial fishing licence, however, does not entitle the licence holder to take fish in a "restricted fishery" unless he is authorised to do so by an endorsement on his licence (s.112(1)FM Act). A "restricted fishery" is one that is so declared under the FMG Regs (s.111(1) FM Act). This is discussed more fully below.

38 Provision is made for the Minister to cancel or suspend a commercial fishing licence on the grounds provided for in the regulations (s.104(4)(e) FM Act and cl. 140 FMG Regs). The grounds for cancellation or suspension include, conviction for specified offences, contravening the conditions or endorsements on a licence, or the licence holder has sold or disposed of his licensed fishing boat and the Minister is of the opinion that the holder is not able to maintain a viable fishing operation because the holder has insufficient number of licensed boats or catch history.

39 Subsection 104(6) of the FM Act provides:

“ The Minister may , at any time by notice in writing to the holder of a commercial fishing licence, revoke or vary the conditions of or endorsements on the licence or add new conditions or endorsements. This subsection does not apply to conditions described by the Regulations”. (emphasis added)
40 The issue of a boat licence is governed by s 108 of the FM Act. S. 108(4)(a) provides that the licence for a boat is subject to such conditions as are prescribed by the FM Regs or specified in the licence. The prescribed conditions are those contained in cl. 145 of the FMG Regs. Cl. 145(e) and (f) contain specific restrictions for boats that are authorised to be used for prawn trawling in the Clarence River and offshore waters. In respect of prawn trawling in the Clarence River, cl. 145(e) provides that the length, depth or breadth of the boat is not to be altered and places restrictions on the increase of the power rating of the engine of the boat.

41 In respect of a licence that authorises the use of a boat for prawn trawling in offshore waters, cl. 145(1)(f) contains similar restrictions in respect of the power rating of the boat. These having applied under the 1990 Management Plan.

42 Paragraph 108(4)(b) of the FM Act provides that a licence for a boat remains in force for the period of 1 year or such other period as is specified in the licence. Paragraph 108(4)(c) provides that a boat licence may be renewed form time to time in accordance with the regulations (se cl.146 of the FM Regs).

43 Paragraph 108(4)(d) of the FM Act provides that the Minister may cancel or suspend a boat licence in the circumstances authorised by the FMG Regs. These are contained in cl. 148 of the FMG Regs and are similar in terms to those contained in cl. 140 in respect of the cancellation and suspension of a commercial fishing licence. However, there is an additional ground where the licence holder has transferred his right to the boat licence in accordance with cl 150 of the FMG Regs or if the boat is lost at sea or otherwise disposed of by the licence holder (cl. 148(g) of the FMG Regs).

44 S. 108(6) provides that:

“ The Minister may , at any time by notice in writing to the holder of a licence for a boat, revoke or vary the conditions of the licence or add new conditions. This subsection does not apply to conditions prescribed by the Regulations.” (emphasis added)
45 Unlike a commercial fishing licence, a boat licence is transferable. Such a transfer is governed by cl. 150 of the FMG Regs, which has been enacted pursuant to the general provision contained in s.108(8) of the FM Act. Cl. 150(1) gives the Director of NSW Fisheries a discretion to approve the transfer of the right to a fishing boat licence in accordance with that clause. Cl 150(5) provides that the Director may refuse to approve a transfer on any of the grounds on which the Minister may refuse to issue a fishing boat licence (see cl 144).

Restricted Fishery
46 As mentioned above, s 111(1) of the FM Act provides that the regulations may declare that a fishery, other than a share management fishery, to be a restricted fishery for the purpose of the FM Act. These provisions are contained in Part 8 of the FMG Regs, the majority of which came into force on 1 March 1997 as a new regime of managed fisheries under the FM Act.

47 In this case, the relevant restricted fishery is the ocean prawn trawl fishery, which is created pursuant to cl 175 of the FMG Regs and which is regulated by the provisions in Division 2 of these regulations.

48 The term “endorsement” is defined in cl. 174 of the FM Regs to mean “an endorsement on a commercial fishing licence authorising the holder of the licence to take fish for sale in the restricted fishery”.

49 Pursuant to s. 113 of the FM Act, the eligibility criteria for an offshore endorsement for ocean prawn trawl restricted fishery is limited to owning a licensed fishing boat with an OP1 endorsement (cl. 178(2) FM Regs). This is an endorsement from the Director of NSW Fisheries authorising prawn trawling in waters closed to prawn trawling under the fishing closure notification. It is essentially a P1 endorsement as provided for under the 1990 and 1994 revised management rules for ocean prawn trawl managed fishery.

50 The eligibility criteria for an inshore endorsement in this fishery is the same as above with the additional requirement to satisfy the prescribed catch history for this class of endorsement (cl. 178(1) FMG Regs). The catch history is determined under cl.135(3) of the FMG Regs and it is this catch history which is transferable, subject to guidelines, which are issued by the Director from time to time.

51 In this case, as I have already mentioned, the “Sue Maree” (LFB 11598) had a PI endorsement attached to its fishing boat licence. It also received an OPI notification from the Director.

52 The Minister is given a discretion to endorse a commercial fishing licence where the applicant satisfies the eligibility criteria (cl. 179(3) FMG Regs) and once the Minister has endorsed the licence, cl. 180 of the FM Regs provides that an “endorsement remains in force for the period specified in the endorsement, except to the extent that its duration is affected by suspension, or unless it is cancelled”.

53 The grounds on which the Minister may suspend or cancel an endorsement relevant to this application are set out in cl. 182 of the FMG Regs. These grounds include where the holder of the endorsed licence has ceased to be entitled to the endorsement. This power of cancellation or suspension is discretionary and the transfer of the fishing boat to another owner, which made the fisher eligible for such an endorsement, is a matter coming within this sub-clause (Cl. 212Y(1)).

54 Cl. 212Y(1) of the FMG Regs provides:

“(1) a person ceases to be entitled to an endorsement in a restricted fishery if any part of the fishing business that made the person eligible for the endorsement is sold or disposed of. For example if a person sells the licensed fishing boat that made the person eligible for an endorsement, the person ceases to be entitled to such an endorsement.”
55 S. 114 of the FM Act provides that a person who acquires any part of a fishing business from another does not thereby become eligible for an endorsement in a restricted fishery unless that transfer is in accordance with guidelines relating to the transfer of fishing businesses issued by the Director (cl. 121Y(2) FMG Regs).

G: EVIDENCE AND FINDING OF FACTS
56 I find that in March 1997, Mr Rouse was formally advised by the Director that his fishing business was entitled to an endorsement to fish in the ocean prawn trawl restricted fishery (inshore and offshore). The Director’s “Notice of Entitlement” for the endorsement contains the following statement:

“This entitlement remaining in force unless revoked by the Director or replaced by the issue of another entitlement.
The holder of this entitlement must retain current fishing licenses and/or boat licenses in order to be eligible for and to continue to hold validated catch history and endorsement (s) associated with the fishing business in accordance with the Fisheries Management (General) Regulations 1995 and the New South Wales Licensing Policy”
57 At the hearing of a similar matter ( Oliver & Thomson ), Ms Cory, on behalf of the respondent, informed the Tribunal that the entitlement as contained in a notice of this kind remained in force and was not re-applied for each year. That is, unlike a commercial fishing licence, which was renewed each year, the notice of entitlement was ongoing so long as the fisher or the fishing business remained eligible for the entitlement that had been given. At the same time it was on the basis of this notice that the Minister attached the respective endorsement onto the commercial fisher’s fishing licence each year it was renewed.

58 Accordingly, I find that the notice of entitlement was in effect the endorsement, or the entitlement to fish in a restricted fishery as provided for under s. 113 of the FM Act and the relevant Division of Part 8 of the FMG Regs.

59 It is not disputed that Mr Rouse’s fishing business continued to have a nominated fisher who was the holder of a current commercial fishing licence and that he remained the holder of a current fishing boat licence for the “Sue Maree" (LFB 11598)” as required under the notice.

60 The endorsements to which Mr Rouse’s fishing business was entitled to did not contain any restrictions on the number of days he was able to fish in the respective NSW restricted fisheries. That is, subject to any closure to these fisheries, by the Minister under Division 1 of Part 2 of the FM Act, his business was entitled to take fish for sale from these restricted fisheries for 365 days each year if it chose to do so. The only restrictions placed on him were those contained in the P1 authorisation attached to the “Sue Maree” (LFB 11598) boat licence.

61 According to a document tendered by Ms Cory (Exhibit 1, page 14), the days fished, during 1988 to 2001, by the “Sue Maree” in Queensland managed fisheries were as stated in the table below. The table also identifies the days fished by the “Sue Marie” in NSW managed fisheries in the years 1995 to 2001:

-	88	89	90	91	92	93	94	95	96	97	98	99	00	01
QLD	0	102	204	128	150	174	11	29	95	92	165	100	0	0
NSW	105	73	33	0	0	0	0	0	46	12	82	30	202	89

62 The above mentioned table also shows the days fished by the boat, which the “Sue Marie” replace in 1995, in NSW managed fisheries during the years 1988 to 1994.

63 On the basis of the document tendered by Ms Cory, the "Sue Maree" has fished exclusively in NSW managed fisheries in years 2000 and 2001.

64 In his statement dated 21 February 2002 and in his sworn evidence Mr Rouse stated that at the end of 1999, he made a decision to fish exclusively in NSW managed fisheries as it was not economical for the boat to travel to Queensland. I accept Mr Rouses evidence and find that he decided to fish exclusively in NSW managed fisheries prior to the Queensland scheme offer.

65 In the document tendered by Ms Cory (Exhibit 1 at page 14) in which the above mentioned figures are contained it is stated:

“Regardless of the activity of the vessel in the different waters the fact remains that once the Queensland boat licences of previously dual licensed vessels (NSW?QLD) have been transferred owners are forced to shift all their available time into fishing in NSW waters. Until such time as NSW adopts a similar management regime of days fished as in Queensland there is no way that fishing effort can be capped in cases where boat licences are split and transferred separately. The licence splitting policy should therefore be upheld.”
66 It is not disputed that on about 26 October 2000, Steve Dunn, Director of Fisheries issued a notice addressed to “All NSW Licensed Queensland Ocean Prawn Trawl Fishery concessional endorsement holders concerning the “Queensland East Coast Trawl Fishery Structural Adjustments Scheme – 2000” (Exhibit 1 at page 25). The notice stated that if as a result of participation in the Queensland scheme a prawn trawl operator “disposes of the Queensland component of their fishing business (as defined by NSW) then NSW Fisheries will revoke the associated NSW endorsements”.

67 The notice also stated that: “If as a result of trading quota allocated for fishing days, the holder of a quota allocation disposes of a significant part their quota allocation, then the NSW Fisheries will revoke the associated NSW endorsements. At this stage the figure of 50% of quota has been discussed as being significant but no final level will be set without further consultation with the Management Advisory Committee.”

68 I find that the terms of the notice were such that the reader of the notice could only interpreted the notice as applying to concessional endorsement holders and not all NSW endorsement holders who also held Queensland entitlements (“the dual licence holders”). Mr Rouse was not a concessional endorsement holder.

69 No oral evidence was called by NSW Fisheries, however, I accept that after this notice was written, a decision was made to adopt this position for all dual licence holders.

70 I find that Mr Rouse became aware of his entitlement to participate in the Queensland scheme in early October 2000 and that he completed the requisite application form on 24 October 2000 (Exhibit 1 at page 66).

71 I accept the evidence of Mr Rouse that he did not discuss the Queensland proposal with any one including someone from NSW Fisheries as it was his view that the Queensland scheme did not breach any of the licence splitting policies as he believed he was “surrendering” his Queensland licences to the Queensland Government.

72 I also find that Mr Rouse did not become aware of the position of the Minister in respect of dual NSW and Queensland entitlement holders being successful in the Queensland scheme until after he had lodged his application. I also find that he did not receive a copy of the above mentioned notice, dated 26 October 2000, from the Director, until some time in the following year.

73 It is not disputed that Mr Rouse was a successful participant in the Queensland scheme and that, on 23 July 2001, the Acting Director of Fisheries wrote to him advising him that he intended to revoke his NSW fishing endorsements associated with his fishing business and inviting him to show cause “why your NSW fishing endorsements should not be revoked, and why licence conditions enabling fishing in NSW waters relevant to your business should not be revoked.” (Exhibit 1 at page 22)

74 In this letter the Acting Director also states “Any submissions should clearly address the issue of the potential for increased effort in the NSW sector of the prawn trawl fishery.”

75 I note this letter does not set out under which authority or power the Acting Director proposed to make the revocations. Nor are there any grounds specified in the letter for such a revocation, other than a “potential for increased fishing effort”, which is presumed by the Acting Director. That is, the Acting director has requested Mr Rouse to rebut that presumption.

76 Furthermore, there is no explanation as to why the Acting Director took such a long time to write this letter when Mr Rouse had been advised some 6 months previously of his success in the Queensland scheme and NSW Fisheries had already sent out notices to show cause to other successful participants in the Queensland scheme.

77 Notwithstanding the lack of particularity of the show cause letter, Mr Fuggle, the solicitor for Mr Rouse responded on 4 September 2001. In that response he referred to material that had been provided in the earlier matters of Messrs Oliver and Thomson and Mr Picton, as he had acted for them also.

78 Attached to Mr Rouse’s statement (Exhibit A) was a letter dated 16 January 2001 from the Queensland Government addressed to Messrs Oliver and Thomson, which acknowledged receipt of their Queensland entitlements as a result of their participation in the Queensland scheme. That letter makes reference to the “surrender” of these entitlements and not the transfer thereof. Mr Rouse stated in evidence that he received this document in October last year. In my opinion for the reasons stated below, nothing turns on the use of this word in this letter.

REASONS FOR DECISION
79 The FM Act, the FMG Regs and the administrative arrangements that surround them are complex and as stated by Ms Caldwell, if NSW had a similar management scheme to that which was introduced in Queensland under the Queensland scheme the matters that are in issue in this application may not have arisen.

80 Notwithstanding this comment, the task before the Tribunal is to determine whether the decision of the Minister is the correct and preferred decision having regard to the factual material before it and the relevant provisions of the legislation and any policies or administrative arrangements under which the decision was made (s. 63(1) ADT Act).

Power of Revocation
81 In this case the Minister made his decision on the basis of Mr Rouse’s successful participation in the Queensland scheme and he has purported to have made his decision in the exercise of his discretion under ss. 104(6) and 108(6) of the FM Act. The parties have not been able to point to any decisions on, or relevant to, these particular sub-sections.

82 The term “revoke” is not defined in the FM Act. It is defined in the Concise Oxford Dictionary (tenth edition) to mean “to end the operation of (a decree, decision, or promise)”. On the other hand the term “cancel” is defined in this Dictionary to mean “decide that (a planned event) will not take place – annul or revoke …”.

83 Other than s. 222A of the FM Act, which provides that the Minister must administer the Act in accordance with its objectives, the Act does not provide any express limitations or guidance on how and in what circumstances the discretion in ss. 104(6) and 108(6) is to be exercised. This is in sharp contrast to the power of cancellation, be it for a commercial fishing licence (s. 104(4) FM Act), a fishing boat licence (s.108(4) FM Act) or an endorsement under Part 8 of the FMG Regs. These powers of cancellation all provide specific grounds on which this power may be exercised.

84 The objectives set out in s. 3 of the FM Act, in my opinion, place primary emphasis on the conservation of fish stocks and at the same time, consistently with that objective, to promote viable commercial fishing. The difficulties this creates for the administrators in administering the Act cannot be underestimated. Since 1990, and after the enactment of the FM Act and its regulations, substantial changes have been made to rationalise the commercial fishing industry in NSW managed fisheries, with a focus on conserving fish stocks. This has been done partly by the introduction of new categories of restricted fisheries where the number of licensed commercial fishermen and licensed fishing boats given access to these managed fisheries have been reduced. In addition restrictions have been placed on the fishing capacity of these licensed fishing vessels and the fishing gear that is used. These changes are ongoing with steps being taken to bring into operation the commercial share management provisions in Part 3 of the Act with further reductions.

85 Access to these restricted fisheries are limited to commercial fishers or the commercial fishing businesses having satisfied the prescribed fishing catch history and who have the requisite licensed fishing boats (Part 8 FMG Regs, in particular cl. 135(3)). Furthermore, this right of access to the restricted fishery is transferable through the transfer of the catch history, or the endorsement to which the catch history relates, to another fishing business, subject to the transfer not being contrary to the licence splitting policy and other restrictions on boat replacement.

86 Accordingly, it is these rights of access (i.e. an endorsement giving access to a restricted fishery), which are of commercial value to the commercial fisher or the commercial fishing business as without such access rights they are unable to take fish for sale in a restricted fishery. That is, these rights and not the licences are what is of value, particularly as they are able to be transferred to another owner or another boat. It is these rights, which form part of the commercial viability to any commercial fishing business.

87 This is because the FM Act and FM Regs provide the commercial fisher or commercial fishing business with some protection against the cancellation or suspension of those rights as the Minister is only able to cancel or suspend those access rights in specified circumstances (e.g. cl. 182 FMG Regs). In the case of offshore and inshore prawn trawl endorsements, a ground for the cancellation of such an endorsement or entitlement is the transfer of the fishing boat licence, which made the fisher eligible for that endorsement. In this case a transfer by Mr Rouse of the “Sue Maree” (LFB 11598) fishing boat licence would entitle the Minister to cancel the endorsements on his commercial fishing licence.

88 The above mentioned protections are of course subject to any changes to the overall management of any particular fishery resource. These changes must be made in accordance with the provisions of the FM Act and the FMG Regs. In this case, there are no such changes.

89 In my opinion a P1 authorised endorsements under the 1990 and the revised 1994 offshore prawn trawling management rules fall into the same category in that the commercial fisher has been given a right that is of commercial value and which cannot be cancelled or forfeited except on the grounds specified in those rules (e.g. transfer of the fishing boat licence to which these endorsements are attached).

90 In my opinion, as a matter of construction, the fact that the legislation expressly sets out the basis on which fishers are eligible for these rights and on what grounds they may be cancelled or suspended by the Minister, indicates that these powers of cancellation and suspension are distinguishable from the power to revoke or remove these rights. As can be seen from the various powers of cancellation and suspension the grounds for exercising that power relate to unlawful conduct by the licence holder, breaches of conditions attached to that licence and changed circumstances of the licence holder which no longer makes him eligible for the particular endorsement. An example of the latter is the transfer of the fishing boat licence to which the endorsement is attached. Another example would be the transfer of the determined catch history under cl. 135(3) of the FMG Regs.

91 Accordingly, in my opinion, the Minister’s power of revocation under ss. 104(6) and 108(6) of the FM Act must be read down to exclude a revocation that would in effect come within one of the grounds on which an endorsement or entitlement can be cancelled, suspended or forfeited under Part 8 of the FMG Regs or pursuant to the management rules for a particular fishery.

92 This means that the question is whether Mr Rouse's successful participation in the Queensland scheme is in fact contrary to the license splitting policy, as it applies in NSW. If the answer is yes, the next question whether such a contravention is a matter to which the Minister is to have regard in the exercise of his discretion to cancel, suspend or forfeit the relevant entitlements or is it a matter to which the Minister may have regard in the exercise of his discretion to revoke these entitlements.

Licence Splitting
93 Mr Fuggle for the applicant submitted that the licence splitting policy was directed at preventing owners of licensed commercial fishing boats that were licensed to fish in more than one managed fishery (one or more State and or Commonwealth managed fishery) from making two boats out of one. Or in other words, creating two commercial fishing business in these managed fisheries, where previously there had been one.

94 Ms Cory for the respondent argued that it was directed at preventing increased commercial fishing effort in any one of the managed fisheries for which the vessel was licensed. By that she meant a significant increase in the number of days annually that the fisher or the fishing business actually fished in NSW managed fisheries. The difficulty with this argument is, as I have already indicated, fishing effort in NSW managed restricted fisheries is not measured in the number of days fished.

95 In my opinion, having regard to the terms of the 1984 national licensing policy and its 1987 revised terms, the objective of the policy was to prevent owners of licensed fishing boats, with entitlements to fish in one or more managed fishery, from making two or more boats out of one, without the approval of the relevant authorities responsible for these fisheries. That is, the focus of the policy was in effect to limit the number of licensed commercial fishing boats operating in managed fisheries. A reason for introducing that policy was the perceived potential for increased fishing effort in these fisheries. This perception was not an imagined one, but at the time, fishing effort in the fisheries the subject of this application, were not measured in days fished by the fisher or his business, it was measured by the number of commercial fishing boats that were licensed to fish in these fisheries. Consequently, a splitting up of the licences to two or more boats meant that this in itself was an increase in fishing effort as there were more boats out there fishing at any one time.

96 The national licence splitting policy, however, did not have any application to endorsements attached to commercial fishing licences, such as those provided by the FM Act and the FMG Regs for restricted fisheries.

97 Notwithstanding the national policies, in this case the relevant policy for consideration is the 1996 NSW Licensing Policy. In my opinion, this policy is consistent with that national policy in that it seeks to give effect to that policy.

98 As stated by Judicial Member Rice in Cootes v Director, New South Wales Fisheries [2001] NSWADT 65, a policy such as the 1996 Licensing Policy can not be applied by the administrator, including this Tribunal, inconsistently with the provisions of the relevant law. I find that the policy is consistent with the provisions of the FM Act and the FM Regs in so far as it relates to the transfer of fishing boat licences and the entitlements attached thereto, but not to the extent argued by the respondent.

99 The 1996 Licensing Policy expressly defines the term “transfer” to mean “the change in ownership of a fishing boat licence from one party to another as recognised by the Act” (at page 8 of the policy). The “Act” referred to is the FM Act and the relevant provisions in respect to the transfer of such a licence are those contained in cl. 150 of the FMG Regs. While this relates only to the transfer of the right to a fishing boat licence, as a matter of practice it will also include any entitlements attached to that fishing boat licence such as a PI authorised endorsement for access to the NSW ocean prawn trawl fishery and ocean line restricted fishery. For this reason the 1996 policy on license splitting equally applies to the transfer of these types of endorsements.

100 While NSW has no jurisdiction in respect of managed fisheries coming within the jurisdiction of other states, such as Queensland, the 1996 NSW Licensing Policy contains a requirement that a person when seeking to transfer his NSW boat licence, which has attached to it entitlements from another or other states or the Commonwealth, that person must lodge a transfer application in respect of these other entitlements with the relevant State or Commonwealth authorities. The policy also requires the person to acquire approval of these other authorities to its proposed transfers before the Minister will approve the transfer of the fisher’s NSW entitlements under the FM Act and its regulations (section 5.1.1 at page 28 of the 1996 Licensing Policy).

101 This provision in the policy expressly addresses the issues of concern under the national licence splitting policy. However, in this case, as Mr Rouse did not make an application to transfer the NSW fishing boat licence for “Sue Maree” (LFB98), the question is whether Mr Rouse was required to surrender his NSW fishing boat licence, or the conditions attached thereto, by reason of his successful participation in the Queensland scheme.

102 In my opinion, he was not required to do so for the following reasons:

(a) he did not create two boats out of one. His successful participation as a matter of fact did not create the entry of a new licensed fishing boat in the corresponding Queensland managed fishery. The effect of his successful participation in the scheme was that he surrendered his Queensland licence even though he was compensated for it.
(b) participation in the Queensland scheme was not dependent on the surrender of his NSW entitlements;
(c) there is no provision in the FM Act or FM Regs requiring him to surrender his NSW entitlement of a P1 authorised endorsement for inshore and offshore prawn fishery and his entitlement to the ocean and line endorsement if he ceased to use his boat in Queensland waters. His entitlements to the NSW restricted fisheries concerned were issued independently of the fact that his fishing business or the “Sue Maree” held the Queensland entitlements;
(d) since the end of 1999, and prior to his participation in the Queensland scheme, Mr Rouse has exclusively fished in NSW managed fisheries, which he was entitled to decide to do.
103 Accordingly, in my opinion Mr Rouse's successful participation in the Queensland scheme does not contravene the 1996 NSW license splitting policy. Even if it did, in my opinion, such a transfer would be a matter, which related to the licence holder’s eligibility to hold the particular endorsement and therefore come within the power to cancel or forfeit the NSW endorsements and entitlements. However, as the respondent acknowledges, there is no express provision enabling the Minister to cancel or suspend an endorsement or other entitlement on such grounds.

Increased Fishing Effort
104 I understand the Minister’s concern about increased fishing effort in the NSW restricted fisheries and in my opinion, in certain circumstances, where it can be shown as a matter of fact that commercial fishing effort in this or any other restricted fishery is detrimentally affecting the objective of conserving fish stocks and fish habitats, this may form a ground to exercise the power of revocation under ss. 104(6) and 108(6) of the FM Act. This would be a resource management tool that was not used or directed at any alleged wrong doing or transfer by the endorsement or entitlement holder.

105 However in this case, no evidence was adduced in regard to the question of conserving the resource for which Mr Rouse was given an endorsement, other than the fact that Mr Rouse was now free to fish exclusively in NSW managed waters. In my opinion, without the respondent having produced any environmental evidence of what impact this would have on these particular resources, the Tribunal is left with the fact that the applicant’s entitlements in respect of fishing effort in NSW managed waters has not changed. He has always been entitled to fish in these restricted fisheries for 365 days each year and his eligibility for these entitlements was not dependent on him fishing part of each year in Queensland managed waters. As I have stated I can understand the concerns of the Minister, but to remove Mr Rouse's entitlements to the NSW restricted fisheries because he may now fish in these fisheries for more days than he has previously, but still within his allocated time, would appear to be unfair. This is particularly so when in my opinion he has not breached any conditions of his entitlements or the licence splitting policy.

106 Mr Rouse, on the other hand, has availed himself of a commercial opportunity which I am sure he knew would only exist during the period of transition of the changes in the Queensland managed systems. However, for the reasons I have stated he has not breached any provisions of the FM Act and FMG Regs, which protect his interests as the owner of a commercial fishing business.

107 Accordingly, in my opinion the Minister’s decision is not the correct and preferred decision and should be set aside.