Sawyer, P.C. v Secretary to the Depratment of Primary Industry

[1988] FCA 265

Re: PHILLIP CHARLES SAWYER
And: SECRETARY TO THE DEPARTMENT OF PRIMARY INDUSTRY
No. VG128 of 1987
Administrative Appeals Tribunal

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Sweeney(1), Northrop(2) and Ryan(1) JJ.

CATCHWORDS

Administrative Appeals Tribunal - Appeal - Refusal of endorsement of licence for boat to be used for trawl fishing - Management Plan - criteria to be followed - exercise of discretion - whether "error of law".

Fisheries Act, 1952 (Cth.) Ss.8(1), 9(4)

Re Robinson and Secretary, Department of Primary Industry (14 August 1986; 10 ALD 302)

Re Evans and Secretary to the Department of Primary Industry (18 December 1985; 8 ALD 627)

HEARING

MELBOURNE

#DATE 1:6:1988

Counsel for the applicant: Mr B.J. Shaw Q.C. Mr J.G. Santamaria

Solicitor for the applicant: Messrs. Behan and Speed

Counsel for the respondent: Dr R.A. Sundberg Q.C. Mr R.A. Brett

Solicitor for the respondent: Australian Government Solicitor

ORDER

The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from a decision of the Administrative Appeals Tribunal, constituted by Deputy President Mr I.R. Thompson, Mr R.A. Sinclair and Mr M.C. Trinick, given on 7 May 1987, in which the Tribunal affirmed the decision under review.

1. That decision, by a delegate of the Minister of State for Primary Industry, was to refuse to endorse under sub-section 9(4) of the Fisheries Act 1952 ("the Act") a licence in respect of a boat still to be built or acquired by the applicant so as to authorise its use for activities, by way of fishing, that were prohibited by a notice in force under sub-section 8(1) of the Act. That prohibition related to trawl fishing in what is known as the South Eastern Trawl Fishery ("SETF") and was imposed as part of a management plan for the SETF.

2. Both parties before the Tribunal agreed that the circumstances in which that plan was devised were correctly set out in Re Robinson and Secretary, Department of Primary Industry (14 August 1986; 10 ALD 302) in the following terms:
   
   

"LEGISLATIVE BACKGROUND TO CONTROLS ON FISHERIES SUBJECT TO COMMONWEALTH JURISDICTION

8. The controls on entry to the SETF were introduced under the Fisheries Act 1952 (Cth.) and in accordance with the objectives set out in s.5B of the Act which provides:-

'In the administration of this Act, the Minister shall have regard to the objectives of -

(a) ensuring, through proper conservation and management measures, that the living resources of the Australian fishing zone are not endangered by over-exploitation; and

(b) achieving the optimum utilization of the living resources of the Australian fishing zone.

. ...'

Part III of the Act provides for the regulation of fisheries by way of - the declaration of proclaimed waters (s.7), the regulation of fishing (s.8), and the granting of licences (s.9).

Proclaimed Waters: s.7

A declaration of proclaimed waters (the Australian Fishing Zone) was made pursuant to s.7 of the Act on 20 September 1979 (Government Gazette 26 September 1979).

Regulation of Fishing: s.8

Sub-section 8(1)(c) of the Act empowers the Minister by notice published in the Gazette to prohibit the taking of fish, or fish included in a class of fish, specified in the notice, by a method or equipment specified in the notice. For present purposes four fisheries notices apply to the SETF.

Licences: s.9

S.9 of the Act provides:

'(2)The Minister or the Secretary may grant to a person a licence in respect of a boat authorizing the use of the boat by that person, or a person acting on his behalf, in, or in a specified area of, proclaimed waters for taking fish and for processing and carrying fish that have been taken with the use of that boat.'

'(4)The Minister or the Secretary may endorse a licence granted under sub-section (2) or (3) in respect of a boat so as to extend the licence to authorize the use of the boat, at any time or during a period specified in the endorsement, for activities by way of fishing that are prohibited by a notice in force under sub-section 8(1), being a notice identified in the endorsement.'

The notices referred to in the last paragraph prohibit the taking of fish other than certain prawn species, by trawling in three separate but contiguous areas of proclaimed waters off South Eastern Australia except by boats with licences endorsed under sub-section 9(4). On 18 September 1984 application forms were released setting out the entry criteria and information required in support of an application for endorsement of a Commonwealth Fishing Boat Licence to authorise use of that boat in the SETF. (These were being distributed in october 1984).

MANAGEMENT STRUCTURE FOR FISHERIES SUBJECT TO COMMONWEALTH JURISDICTION

9. The matters set out here are derived from a study of the 'T' documents (the s.37 documents filed in this particular case), the 'TP' documents filed in reference to this and all other SETF applications, and the affidavit of B.J. Scott, O.I.C., Fisheries Management Policy Section, Management and Development Branch, Australian Fisheries Service, of the Respondent Department - dated 21 April 1986.

10. The Minister for Primary industry is responsible under s.5B of the Fisheries Act 1952 for ensuring through proper conservation and management measures that the resources of the Australian Fishing Zone ('AFZ') are not endangered by over-exploitation and optimum utilization is attained.

In co-operation with Fisheries Authorities in the States and other countries, the CSIRO's Division of Fisheries Research and the Bureau of Agricultural Economics, the Australian Fisheries Service ('AFS') co-ordinates the collection of relevant biological, economic and other data on our fisheries and prepares Management plans and proposals for various fisheries for consideration by the Minister.

State authorities are the Commonwealth agents in the issuing of Fisheries Licences and in the surveillance and enforcement of Commonwealth Fisheries law and regulations as they apply to Australian fishermen.

A network of Committees, as indicated above, has been established to advise Ministers on the management of Commonwealth Fisheries. In recent years these Advisory Committees have included representatives from the fishing industry, and have circulated Management Issues papers and draft Management Plans before the submission of recommendations to Ministers.

Major changes to management arrangements for particular fisheries are submitted to the Australian Fisheries Council ('AFC'). The Council is the major fisheries policy consultative body consisting of State Ministers responsible for fisheries, together with the Commonwealth Ministers for Primary Industry and Science. The AFC is advised by the Standing Committee on Fisheries

('SCF') which comprises the senior advisers to the Ministers.

THE SOUTH EASTERN TRAWL FISHERY (SETF)

11. The history of the SETF is in brief that it was centred off N.S.W. and commenced in the early 1900's. It developed as a single species fishery based on tiger flathead, and was the principal source of fresh fish for the Sydney/Melbourne markets.

In 1936 Danish Seiners commenced operating and forced trawlers further offshore. These apparently dominated the fishery until 1960. The modern phase commenced with market acceptance of other species, grounds further offshore became of increasing importance and otter trawlers once more dominated the fishery (these apparently operating more efficiently in deep water). During the 1960's and 1970's the number of Danish Seiners gradually decreased, and the number of trawlers increased. Development of management concerns arose in the late 1970's when a rapid increase in effort occurred with the entry of large trawlers, particularly off N.S.W.

The development of the deepwater trawl grounds off southern N.S.W. and eastern Victoria in the late 1970's and large gemfish catches therein was the major reason for the rapid increase in the size of the fleet and introduction of large trawlers. Annual captures of gemfish exceeded 5,000 tonnes but have since fallen to about 3,000 tonnes.

The reduction of the gemfish catch and the demise of the Southern Bluefin Tuna Fishery on the east coast, when combined with the rapid increase in both catching capacity of the fleet and costs (particularly fuel), resulted in economic problems for the participants.

The South Western Sector of the Fishery has been developed over more recent times. Again there was a very rapid increase in the catching capacity of the fleet operating in this Sector and this resulted in the extension of the Management Plan to include all Commonwealth waters from Barrenjoey Point (off Sydney) to Kangaroo Island, South Australia.

THE LEAD-UP TO MANAGEMENT OF THE FISHERY

12. Problems arose initially apparently on the east coast and this resulted in a joint media release on behalf of the Commonwealth and State Ministers on 7 July 1981 warning that consideration was being given to 'a proposal to limit the fishery fleet in waters extending from northern N.S.W. into eastern Bass Strait'. The Minister said that 'any commitments after 6 July 1981 to acquire a new vessel will not qualify a person for entry to the fishery'.

The Ministers were concerned about the fact that the large increase in fishery capacity, and the decline in catches of some of the main species, were reducing catch rates, and when combined with increasing costs would reduce the profitability of the fleet. They were also concerned that the fish stocks could be threatened from over-exploitation.

These developments, together with the decline in tuna catches (many trawlers participating in the tuna fishery as well), resulted in the extension of fishing further south. As many of the trawl fish species are common to the whole area and east coast fishermen saw the need to re-locate their operations in more southerly waters, fisheries authorities began to consider proposals to extend controls on entry throughout the fishery. Moreover there was a rapid build-up in the number and size of vessels entering or being built for the South Western Sector of the fishery.

These factors led to the announcement of 16 January 1984 by the Minister for Primary Industry that a draft Management Plan had been developed for the whole industry.

The Minister was apparently mindful that open access to fisheries elsewhere in Australia and other countries has resulted in major conservation, economic and social problems. He was concerned that problems had already resulted on the east coast and could rapidly extend throughout the fishery. The management action taken for the South Eastern Trawl Fishery is supported in a broad sense by the resolutions of the World Fisheries Conference held in Rome in 1984 and by the resolutions of the Australian Fisheries Conference held in Canberra early in 1985.

DRAFT MANAGEMENT PLAN DEVELOPED BY THE SEFC

13. The South Eastern Fisheries Committee ('SEFC') is an inter-government body as has been indicated above, meeting together with a representative from the CSIRO. The body is responsible for advising the Standing Committee on Fisheries of policy options and management arrangements in the south eastern waters of Australia and is provided with biological and technical advice by several research groups including the Demersal and Pelagic Fish Research Group consisting of Commonwealth and State fishery scientists. In August 1984 the SET Management Advisory Committee took over the role of advising Ministers on management of the SETF.

A discussion paper was produced in 1981 for the industry by SEFC and outlined the structure and known biological status of the fishery and presented a number of management options available at the time. The paper proposed a limited entry management regime for the east coast region, leaving unrestricted access in the western area of the fishery. In 1981 it was believed that the western area of SET would sustain additional fishing pressure. Copies of the discussion paper were distributed to State Fisheries Authorities and then to inspectors and it is said, to fishermen.

The matter of interim assistance for the SETF was referred to the Industries Assistance Commission

('IAC') by the Minister, after representation from the industry claiming that irreparable damage would result to the industry if assistance was not provided. The industry was seeking immediate relief from the financial pressures faced by fishermen on the east coast. They called for controls on imports of fish, particularly from New Zealand. In view of the economic pressures on the fishermen, the Bureau of Agricultural Economics

('BAE') prepared a submission to the IAC and this was before the Tribunal. The submission was based on the analysis of market information and on field survey data collected during 1982 and presented a compilation of economic data. The submission warned that with the persistence of the market conditions at the time, the economic recovery of the fleet to a state of profitability experienced in 1979-1980 may never again occur. However, the BAE did not support the provision of short-term financial assistance, and pointed out that the appropriate management of the fishery would address what was a longer term structural problem. The documents filed indicate that the IAC was in agreement with the BAE submission and recommended against assistance at the time, considering that much of the evidence presented at the hearing before it, related to long-term matters. The Government accepted the advice of the IAC. The Minister re-emphasized that he was concerned about the fishing effort in the eastern area and advised that discussions were proceeding with N.S.W., and only vessels which could show a firm commitment prior to 7 July 1981 would be eligible to participate in any management regime implemented. The Primary Industry Press Release advising the industry of this decision was circulated.

14. Following agreement by the SEFC that as far as possible fisheries should be managed as a whole and not be sub-divided unnecessarily, SEFC recommended discussions be held between the Commonwealth and Tasmanian Governments for the development of a Draft Management Plan covering the whole SET region. The resultant management proposals were endorsed by SEFC; the Tasmanian Fisheries Development Authority was concerned that any Management Plan must take account of their development priorities. Apparently discussions were protracted, four State Governments being involved and Tasmania having special problems in not wishing to stop development of Tasmanian based fisheries enterprises, while N.S.W. was pushing for very tight controls on access to the fishery.

A report to Ministers provide a summary of progress towards development of a management regime. Also, the Standing Committee reported on the need to have a paper for circulation to industry at an early date but recognized this would not be possible until a number of details in the Plan, such as access rights, and entry criteria for East Coast and South Western Zone, had been resolved.

A Draft Management Plan was developed following consultation between the various authorities and at that time consultation with industry was carried out primarily by the State Fisheries Authorities.

The SET Task Force (an industry-government body) was set up to consult with industry over the contents of the proposed plan and report back to Government. Composition and terms of reference of the Task Force were announced in a Media Release of 16 January 1984.

The aims of the Plan were to constrain the growth of total fishing capacity while allowing controlled development of under-utilized areas and species. The Plan divided the Fishery into two Management Zones. It was considered that effort in the traditional (Eastern Trawl Fishery) was more than sufficient to fully exploit the fish resources, so stringent entry criteria were proposed there. In the developing zone (off Tasmania and Western Sector), criteria were less stringent and designed to achieve controlled development of under-utilized areas and species.

The Draft Management Plan was said to have been widely published in metropolitan and coastal newspapers. A Media Release of 16 January 1984 advised of the Plan's release, and it was also announced in the Australian Fisheries Magazine. Multiple copies were distributed to State authorities and district fisheries inspectors who are said to have distributed them to industry.

At the time the Draft Plan was released, fishermen and other interested parties were invited to make submissions to the SET (Industry-Government) Task Force. The Task Force undertook visits to a number of ports in the various States. At these meetings there appears to have been widespread support for the introduction of limited entry and the establishment of an Industry-Government Management Committee. Industry indicated that it believed caution should be exercised given the economic difficulties on the east coast and the need to thoroughly assess the state of the fish stocks. While agreeing on the need for limited entry arrangements, some fishermen and State Governments adjacent to the South Western area felt that the Plan must allow for controlled and rational development.

Dr. Radway Allen, in a report of March 1984 summarizing the conclusions of a Workship on Trawl Fisheries Resources, stated that there was potential for the development of major Demersal fisheries - at least for Blue Grenadier, Orange Roughy, and Oreo Dories in the Western Zone. Dr. Radway Allen noted however that the data base was not comprehensive and he recommended additional research and the implementation of a comprehensive log book program.

The Task Force accepted Dr. Radway Allen's advice that there was scope for further development of some deepwater species in the South Western Sector of the fishery and agreed on the need to improve the data base and step up research efforts. Many on the Task Force were concerned that available trawl grounds were limited, and when combined with the restricted market for fresh fish, they considered that development of the South Western Sector of the fishery should proceed cautiously.

THE SETF MANAGEMENT PLAN

15. The SET Task Force noted that the eastern area of the fishery was experiencing serious economic difficulty and that there was need for cautious approach to the further development of the fishery. In view of these concerns, the Task Force recommended that the management regime come into effect on 1 January 1985. A series of amendments and adjustments to the SEFC Draft Plan were also proposed including a freeze on all unrestricted licences pending introduction of arrangements to contain and reduce catching capacity in the Eastern Sector, and pending assessment of the commercial viability of exploiting under-utilized deepwater species in the South Western Sector.

The report to the AFC by the Standing Committee summarized events since the previous AFT Meeting. It provided Ministers with recommendations of the Task Force, noting these were supported by all industry and Government members with the exception of N.S.W. which did not then endorse the full contents of the Plan. The Standing Committee supported many of the Task Force recommendations but in view of the N.S.W. objection to zoning, no agreement was reached. The AFC noted the recommendations of Standing Committee. However, in view of N.S.W. strong opposition to the division of the fishery into zones, Council did not reach agreement on the proposed Plan. It was proposed that the Minister meet with the various State Ministers to finalize management arrangements.

Following the AFC Meeting, further discussions were held with senior officers and the Minister for Primary Industry contacted the N.S.W. Minister. It was then agreed to implement the Management Plan but emphasis was given to the freeze on unrestricted licences and the temporary nature of the zoning arrangements.

IMPLEMENTATION OF THE FINAL MANAGEMENT PLAN

16. The final Management Plan differed from the SEFC Draft Plan as it provided for the introduction of an additional zone in the Eastern Sector, a freeze on licences throughout the industry for two years, establishment of a Management Advisory Committee and a freeze on trawl vessel replacements except in emergency situations, until longer term management measures were implemented. The SET Management Advisory Committee ('SETMAC') consists of representatives from fishermen, processors, the fishery marketers, the four State Fisheries Authorities involved, the CSIRO and AFS. The Terms of Reference given to SETMAC were to co-ordinate the management of SETF, advise AFC through SCF of management development and research needs and provide a forum for consideration of administrative and management submissions.

After the Minister was fully briefed a Press Statement was released announcing the Plan - in August 1984. Copies of the Press Statement were distributed to State Fisheries Authorities which distributed the Plan to fisheries inspectors and fishermen. Details were also set out in 'Australia Fisheries'.

A meeting of licensing officers was held on 28 November 1984. The meeting sought to establish a consistent set of guidelines to assist each State in objecively assessing applicants' claims, and resolved that the Review Panel should be independent from the licensing body.

The SETMAC meeting reports sought to advise industry of a number of administrative details and impending management arrangements to clarify ambiguities and to address concerns of the industry. In principle these reports were designed to keep industry fully informed of progress and the implementation of the plan and assist in soliciting feedback to the Committee. A warning was issued on 23 October against fishermen anticipating obtaining restricted licences. The warning was issued because of the large number of vessels applying to be licensed.

The SET Review Panel was established to collect

information on applications for endorsement to Sectors of the fishery with a view to preparing a report for the Minister's Delegate Dr. Bain, Director of AFS. The Panel is chaired by Mr. P. Burns of AFS and includes a senior experienced representative from each State involved.

The report of the third SETMAC meeting showed the progress in implementation of the Plan, details of a proposal for amendments to the Plan, including an increase in the number of industry representatives on Committee, and progress towards establishment of a log book program. This report was distributed to all SET fishermen. The meeting of licensing officers considered new applications, developed uniform approaches and procedures for issue of endorsement, considered additional information provided on applications previously considered, and requested advice from SETMAC to define further requirement criteria and to clarify ambiguous or unreasonable clauses.

A fourth SETMAC meeting was held, the primary purpose apparently being to allow members to discuss options for implementation of the Plan with the Minister. Items centred around progress in implementing the Management Plan and it was indicated that of 224 applicants, 67 had been rejected. Following discussions with the Minister, SETMAC recommended implementation of the Plan subject to a number of significant amendments being incorporated.

The amendments to the Plan were made following a large number of requests from fishermen and, in particular, those from NS.S.W. and Victoria. It was noted that the situation off the east coast had deteriorated further as a result of increased costs and reduced landings of tuna. Also the number of vessels qualifying for the South Western Sector was greater than expected, particularly the number of large trawlers. Accordingly, it was agreed that no additional restricted licences would be issued for the South Western Sector during the period of the licence freeze. An additional criterion was set for access to Region B of the Eastern Sector (Criterion D). Conditions were announced for doing away with the internal boundaries.

On 7 May 1985 the Minister announced the commencement date for the Management Plan and provided details of the amendments to the Plan.

At its fifth meeting SETMAC noted final arrangements for implementation of the Plan, including the Minister's announcement that the fishery would be closed on 3 June 1985, and a number of changes to the Plan. The Committee clarified certain points in the Plan following requests from the Licence Review Panel.

Further development of the Management Plan includes consideration of a longer term boat replacement policy and the issue of restricted licences. The Committee have requested further biological and economic assessments to assist in this task.

The BAE undertook to update its economic assessment, and a consultant was commissioned to assess the situation in Portland. The BAW noted that the cash operating surplus for the entire fishery had fallen on average by 13% since 1981. The consultant reported that the rapid build-up in catching capacity in the South Western Sector would place strains on the market at least in the short term. The Demersal and Pelagic Fish Research Group reviewed the yield estimates for Blue Grenadier (the main species taken in the South Western Sector) and reduced the previous yield estimates.

The SETMAC agreed that in view of the economic situation of the fleet, and the uncertain situation with regard to sustainable yield estimates for the main species, a cautious management approach is required. The Committed has recommended that a boat replacement policy be implemented based on an unitisation system with any replacement subject to the forfeiture of 20% of entitlements. This recognizes the need to contain and reduce the catching of the fleet throughout the fishery. These proposals are said now to be close to finalization prior to submission of the proposals to the Australian Fishing Council.".

1. The final plan provided, inter alia, for "a freeze on licences throughout the industry for two years, establishment of a Management Advisory Committee and a freeze on trawl vessel replacements, except in emergency situations, until longer term management measures were implemented".

2. There were some subsequent amendments to the plan including an agreement not to issue any additional restricted licences in the South Western Sector of the SETF during the period of the licence freeze.

3. The Management Plan had no statutory force and the Minister had an unfettered discretion to grant an endorsement to a person who did not meet the criteria set by the Minister. Particulars of the policy and the discretion are set out in full in the Tribunal's reasons including a statement, at page 13 by the President of the Tribunal (Davies J.) and Mr Sinclair in Re Evans and Secretary to the Department of Primary Industry (18 December 1985; 8 ALD 627 at p 643) relating to the criteria for entering a particular fishery as follows:
   
   

"In these circumstances, it seems to us that the Tribunal ought to apply the policy enunciated by the Minister for Primary Industry save in so far as it finds there are special or unique circumstances which ought to be taken into account. This is particularly so as the policy enunciated by and given effect to by the Minister for Primary Industry has led to a restructuring of the industry and has affected adversely or beneficially a large number of fishermen in Victoria and Tasmania. Many fishermen have received an appropriate endorsement upon their fishing licence and may well have acted on the faith of the restriction in' (scallop) 'vessel numbers. Many other fishermen have either failed to apply for an endorsement or been refused an endorsement because they have not met the eligibility criteria. The credibility of the administrative process requires that a Scheme having such effects be applied uniformly, subject to any unique circumstances that arise. A finding in favour of one applicant who does not meet the eligibility criteria and who has no special or unique circumstances would lead to arbitrary and unjust decision-making.".

The Tribunal in Re Robinson went on to say:

"We adopt what the Tribunal said in the passage in Re Evans referred to above as being equally applicable to matters involving refusal of trawl fishing endorsements. We should respectfully wish to add the comment however, that we do not regard the Tribunal's reference to 'unique circumstances' where secondly appearing therein, to be intended either to derogate from the earlier and later references to 'special circumstances' or to suggest that the circumstances of an individual case must be unique before a discretion should be exercised in variation of overall policy.".

1. One of the grounds of appeal relied upon by the applicant was that the Tribunal "erred in law in applying Re Evans to the facts of the present case and in particular to the South Eastern Sector of the South Eastern Travel Fishery".

2. The criteria for endorsement of a licence for the SETF under s.9(4) of the Act are described in the application form for such endorsement as "Entry Criteria".

3. Criterion A in respect of the Eastern Sector Region A read:
   
   

"The holder of a current Commonwealth Fishing Boat Licence for a boat which has been used to fish commercially for fish or royal red prawns using trawl gear or Danish seine nets in Region A of the Eastern Sector between 1 January 1980 and 6 July 1981 and can provide proof that the boat for which endorsement is sought has continued to operate in Region A of the Eastern Sector.".

1. Criterion A in respect of Region B was, mutatis mutandis, expressed in similar terms.
   

In respect of the South Western Sector, Criterion A read:

"The holder of a current Commonwealth Fishing Boat Licence for a boat which has trawled or Danish seined commercially for fish in the South Western Sector in the period 1 January 1983 to 16 January 1984.".

1. The circumstances applicable to the applicant were set out by the Tribunal at pages 17 and 18 as follows:
   
   

"It is not in dispute that the applicant has not at any time met the criteria for either region of the Eastern Sector or for the South Western Sector. However, it is against the background of those criteria that it is necessary to consider whether there are any special or unique circumstances justifying the endorsement of a licence in respect of a boat to be acquired by him.".

1. In ground 2 of its amended notice of appeal the applicant challenged this statement, saying:
   
   

"(2) That the Tribunal erred in law in finding that it was not in dispute that the applicant had not at any time met the entry criteria for an endorsement of a licence for either Region A or Region B the Eastern Sector or for the South Western Sector of the South Eastern Trawl Fishery when it was in dispute, and the applicant had at all times maintained an entitlement under the criteria to replace his vessel pursuant to the said criteria.".

The Tribunal went on to say of the applicant:

"He is in a somewhat unusual situation ... in that he owned a boat which sank and has not been replaced. His boat, the 'Shanidar', was engaged in trawl fishing from 1977 until mid-1982; it sank in June 1982. It is not in dispute that between 1 January 1980 and 6 July 1981 the 'Shanidar' operated in both regions A and B of the Eastern Sector and that, if it had not sunk and had continued to operate in both those regions, he would have met criterion A in respect of both those regions. Similarly, if the 'Shanidar' had contined to trawl fish for part of the year out of Portland, as it did between 1977 and 1981, and had done so during the period between 1 January 1983 and 16 January 1984, he would have met criterion A in respect of the South Western Sector also.".

1. The Tribunal then dealt with the position of the applicant following the sinking of the "Shanidar" and the delay in building or buying a replacement boat as a result of personal and financial difficulties. He had, however, during 1984 bought a new boat for use in connection with his abalone diving but that boat was not suitable for use as a trawler.

2. He submitted an application for endorsement in December 1984 but this was rejected. The application was reconsidered by a review panel which came to the conclusion that under the criteria he was not qualified for endorsement as it was "unable to find grounds under management arrangements for (the) application to be approved". The decision under review by the Tribunal was then made by the delegate of the Minister.

3. The Tribunal went on to say at page 23:
   
   

"The applicant gave evidence of his reasons for not having replaced the 'Shanidar' or entered into an irrevocable financial commitment to do so before 16 January 1984. His evidence in respect of his financial situation in 1982 and 1983 was supplemented by documentary evidence. We accept that, although he was paid an amount in excess of $260,000 by the insurers for the loss of the 'Shanidar', after repayment of loans secured on the boat and discharging his other debts he was left with only about $20,000. We accept also that during 1982 and 1983 the price obtained by divers for abalone was at its lowest for some years; his income was considerably less than it had been in previous years. He gave evidence that, during the period of 12 months immediately after the boat sank, the disputes between his former de facto wife and himself and the resulting litigation occupied his time and attention and that it was the reason why during that period he took no steps to acquire a replacement boat.

He said that during the latter part of 1983 his financial assets were not sufficient for him to acquire a boat; he would not have been able to obtain from a lending institution sufficient money to do so. However, by then he had learned that in 1984 the government of Victoria was to make abalone licences transferable by sale, so that thereafter they would have a substantial capital value. He said that he intended in 1984 to borrow against the security of his abalone licence or, if necessary, to sell it, in order to finance the purchase of a boat to replace the 'Shanidar'. In his letter to the Director, Fisheries Division, in August 1983 he referred to 'the proposed changes to abalone licence matters'. He said that after 16 January 1984 he was in a 'Catch 22' situation; he was unable to meet the criteria in the draft management plan and could not find out what the criteria in the final plan would be. Mr Moore (a Bank Manager) was not prepared to recommend a loan to purchase a boat unless he could be assured that it could be used for trawling. That 'Catch 22' situation, he said, persisted after the criteria in the management plan as finally implemented were known late in

1984. The evidence discloses that he tried to obtain an assurance that, although he did not meet those criteria, a licence for any boat he purchased would be endorsed; he was unable to obtain any such assurance.".

1. It was submitted to the Tribunal that the applicant's case was unique and that there were special circumstances justifying the endorsement of a licence for a boat to be purchased by him.

2. The Tribunal at page 25 of its Reasons said in relation to its discretion:
   
   

"However, for the discretion to be exercised to grant the applicant an endorsement for a replacement boat in spite of his not meeting the criteria, the circumstances of his inability to meet them must have been such that it is appropriate for it to be so exercised. It is our understanding of the plan as originally drafted and as implemented that, because the resources of fish in the SETF are limited, it is necessary to restrict the number of trawlers operating in the fishery to such as will provide their operators with a reasonable return for their investment and their work. That has necessitated the exclusion of some persons who would have liked to operate trawlers in the fishery. The plan provides, in effect, that only those who have shown a substantial commitment to trawl fishing in the SETF are allowed to trawl there. It would not be appropriate, therefore, to grant an endorsement to a person unless at all relevant times he had such a commitment. The criteria were clearly designed to enable most of those with such a commitment to obtain an endorsement automatically. Where the criteria are not met, a commitment must have been demonstrated which correlates with the commitment required of those who meet the criteria.".

1. After further discussing evidence given by or on behalf of the applicant in relation to his financial position, and whether "there was action which he could have taken but failed to take to try and resolve the impasse which apparently faced him", the Tribunal expressed its findings of fact in these words:
   
   

"Having considered all the evidence, we have come to the conclusion that the main reason why the applicant made no effort to try to raise funds for the purchase of a boat before 16 January 1984 was his dissatisfaction with the low price of fish and a reluctance to burden himself with debt in order to own or operate a trawler at a time when the profitability of such operation was uncertain. We are satisfied on the balance of probabilities that he was waiting to see how things developed in the trawling industry before committing himself to the purchase of another boat. If in September or October 1983 he had really wished to purchase a half share in a boat with Mr McDonald, he would have made more of an effort to obtain a loan sufficient to enable him to do so. Mr McDonald would have been able to finance his half share without difficulty. We should also have expected him both then, and later, to have extended his search for finance beyond the local branches of the State Bank and Westpac Banking Corporation. The Commonwealth Development Bank and the Rural Finance Commission had lent him money for the building and equipment of the 'Shanidar'. He gave evidence that he thought that he had a bad reputation with the Commonwealth Development Bank. However, he had discharged in 1982 all his obligations to it and to the Rural Finance Commission. From January 1984 onwards, it was known that from April of that year he would have acceptable security for a loan in the form of his transferable abalone licence.

We have concluded also that in 1984 he did not take action such as we should have expected of a person committed to re-entering the SETF. He is a well educated, highly articulate man, as is evidenced by letters he has written, of which copies were tendered in evidence, and by the manner in which he gave evidence at the hearing. He had previously taken a leading part in making representations to Ministers and government officers in relation to fishery matters. If his commitment to re-entering the SETF had been substantial, it is most unlikely that he would not have read the draft management plan soon after it was published; if he had done so, he would have realised that the criteria proposed in it would exclude him. In the first paragraph of the foreword to the plan it was stated that it was being 'circulated as a discussion paper' and comment was 'sought from interested parties'. It was stressed that at that time the governments of the Commonwealth and the States of Victoria, New South Wales, South Australia and Tasmania were 'not committed to implementation of the draft plan'. The South Eastern Trawl Task Force visited the major trawling ports in the SETF; it visited Portland on 28 February 1984. If the applicant had been substantially committed to re-entering trawl fishing in the SETF and he had read the proposed criteria in the draft management plan and seen that they would exclude him, we should have expected him to make urgent representations to the Task Force and to officers of the Department of Primary Industry and possibly the Minister. Yet he did not do so.

We have come to the conclusion, therefore, that, although the applicant was a pioneer of the trawling industry in Portland, operated the 'Shanidar' as a trawler in it from 1977 until early 1981 and 'leased' it for operation as a trawler for about another year after that, he did not maintain a substantial commitment to trawl fishing after it sank. On a balance of probabilities we find that he refrained from purchasing a new boat, either on his own or in partnership with someone else, because he was not convinced that it would be profitable to do so. Only when the price of fish had risen did he decide to buy another boat and resume trawl fishing in the SETF, if he could. Even then he did not pursue the matter with urgency until 1985.

He presented his case on the basis that his situation was unique or special essentially because for a period after the 'Shanidar' sank he lacked the funds to replace it. We accept that that should be recognised as a significant circumstance; but lack of financial resources of itself is not an uncommon phenomenon. For the applicant's situation to be regarded as unique or special so as to justify the granting of an endorsement under section 9(4) he would have needed to demonstrate throughout that period a very positive attitude to trawling. We have found that he failed to do so. We have come to the conclusion, therefore, that the circumstances are not such as to make it appropriate that an endorsement should be granted. Accordingly the decision under review must be affirmed.".

1. The Tribunal was said to have made an error of law in that it failed to consider the possibility that the applicant was entitled, or should have been treated as entitled, to the endorsement which he sought, and that it proceeded on the incorrect basis that it had been conceded that the applicant was not eligible under the Entry Criteria. The short answer to this submission is that it was quite clear that the applicant did not in fact meet the criteria at the time he made his application or at any subsequent time. In these circumstances it is not to the point to enter upon a detailed study of the transcript before the Tribunal to determine whether the concession was, or was not made.

2. It was also submitted that the Tribunal erred in law in applying Re Evans. In our opinion, it was proper for the Minister to formulate the entry criteria as guidelines for consideration by himself and his officers. The Tribunal was entitled to have regard to them. It was clear from the transcript that it did not seek to apply them slavishly in dealing with the applicant's case.

3. Before the Tribunal, the applicant contended that his case was a special one by reason of his long association with trawl fishing. The Tribunal considered this submission carefully and rejected it on the facts.

4. In our opinion, the applicant has failed to show that the Tribunal made any error of law.

5. We would dismiss the appeal with costs.

JUDGE2

One of the purposes of the Fisheries Act 1952 is to regulate fisheries within Australian territorial waters extending 200 nautical miles from the land limits of Australia. The word "fisheries" is not defined in the Fisheries Act but is to be given its widest meaning and includes the business of catching fish or taking other products of the sea. By definition in the Fisheries Act, "fishing" means the taking of fish, and includes the processing of fish that have been taken or the carrying of fish that have been taken. The present appeal relates to fisheries within the territorial waters adjacent to the south east parts of Australia and in particular relates to boats used in trawl fishing in those waters. The boats are registered under State laws but the use of those boats for fishing in those waters is regulated pursuant to the provisions of the Fisheries Act. Thus, under sub-sections 9(2)(a) and 9(3)(a), the Minister or the Secretary is empowered to grant "to a person a licence in respect of a boat authorizing the use of the boat by that person, or a person acting on that person's behalf, for taking fish in proclaimed waters" and "to a person a licence in respect of a boat authorizing the use of the boat by that person, or a person acting on that person's behalf, for carrying, or processing and carrying, in proclaimed waters, or a specified area of proclaimed waters, fish that have been taken with the use of another boat" respectively.

1. This appeal relates to the exercise of the power conferred by sub-section 9(4) of the Fisheries Act. That sub-section is set out:-
   
   

"(4)Subject to sub-section (8AB), the Minister or the Secretary may endorse a licence granted by virtue of paragraph 2(a) or 3(a) in respect of a boat so as to extend the licence to authorize the use of the boat, at any time or during a period specified in the endorsement, for activities by way of fishing that are prohibited by a notice in force under sub-section 8(1), being a notice identified in the endorsement."

1. For present purposes, sub-section (8AB) is not relevant, but it should be noted that sub-section (4) is directed to the giving of an endorsement with respect to a licence granted under sub-section 9(2)(a) or sub-section 9(3)(a). The endorsement authorizes the use of the boat so licensed by extending the use of the boat for identified activities "by way of fishing that are prohibited by a notice in force under sub-section 8(1)." That sub-section empowers the Minister, by notice published in the Gazette, to prohibit identified activities. One of the identified activities is "the taking, processing or carrying of fish, or fish included in a class of fish specified in the notice;" paragraph 8(1)(a). Another identified activity is "the taking of fish, or fish included in a class of fish, specified in the notice, by a method or equipment specified in the notice;" paragraph 8(1)(c). Sub-section 8(4E) provides that where a notice under sub-section (1) prohibits activities in respect of which an endorsement may be made under sub-section 9(4) and an endorsement is made pursuant to that sub-section in respect of a licence in force in respect of a boat, the prohibition contained in the notice under sub-section 8(1) does not apply in relation to the use of the boat during any period during which the endorsement has effect. Thus it is apparent that under this legislation, an endorsement under sub-section 9(4) constitutes an item of property in that it enables a person to carry on a fishery with respect to a boat which otherwise could not be carried on. An inference to be drawn from these provisions suggests that an endorsement is a valuable item of property.

2. This appeal is brought by the applicant from a decision of the Administrative Appeals Tribunal which affirmed a decision to refuse to grant an endorsement under sub-section 9(4) of the Fisheries Act. The appeal is limited to questions of law and is within the original jurisdiction of the Federal Court. The notice of appeal does not set out in clear terms what questions of law are raised and thus it is necessary to refer in some detail to the facts of the case.

3. A number of unusual features arise with respect to this appeal. An endorsement under sub-section 9(4) is granted in respect of a licence granted by virtue of paragraph 9(2)(a) or 9(3)(a). Such a licence is called a Commonwealth Fishing Boat Licence. But in the present case, the applicant does not have a Commonwealth Fishing Boat Licence. Further, such a licence must have been granted in respect of a boat. But in the present case, the applicant does not have a boat. On these facts, there is much to be said for the view that neither the Minister nor the Secretary has power to give an endorsement under sub-section 9(4) in respect of a non-existent Commonwealth Fishing Boat Licence and in respect of a non-existent boat.

4. Further, sub-section 9(4) does not itself specify factors to be considered by the Minister or Secretary in exercising the power conferred on them by that sub-section. Under the sub-section the power is unfettered but the power must be exercised having regard to the objects of the Act. As part of a regulatory power with respect to fisheries in territorial waters, it is obvious that conflicting policies must arise. Stated broadly, the mere existence of fisheries highlights the conflict between conservation and exploitation of resources. The Fisheries Act recognises this conflict and seeks to resolve it by express statutory provision, namely s.5B. That section is set out:-
   
   

"5B.In the administration of this Act, the Minister shall have regard to the objectives of -

(a) ensuring, through proper conservation and management measures, that the living resources of the Australian fishing zone are not endangered by over-exploitation; and

(b) achieving the optimum utilization of the living resources of the Australian fishing zone,

but shall ensure, so far as practicable, that measures adopted in pursuit of those objectives shall not be inconsistent with the preservation, conservation and protection of all species of whales."

1. In exercising the power conferred by sub-section 9(4) the Minister and the Secretary must have regard to those objectives. They are matters to be taken into account when deciding to give or to refuse to give an endorsement under sub-section 9(4). The words "shall have regard to" have the effect of requiring the Minister or Secretary, when exercising the power conferred by sub-section 9(4), to take into account and to give weight to the stated objectives as a fundamental element in making the decision. It is the duty of the decision maker to take those objectives into account and consider them and give due weight to them, but nevertheless, the decision maker has an ultimate discretion which must be exercised. Generally see Re Hunt; Ex parte Sean Investments Pty. Ltd. (1979) 53 ALJR 552 per Mason J. at p 554 and Murphy J. at p 556.

2. Part III of the Fisheries Act is headed "Regulation of Fisheries." Sections 8 and 9 are within Part III. As a further aspect of the regulation of fisheries, s.7 empowers the Governor-General to declare waters to be proclaimed waters for the purposes of the Fisheries Act. Another aspect of the regulation of fisheries is the power conferred on the Minister to prohibit fisheries; see s.8, but at the same time to licence boats to conduct fisheries; see sub-sections 9(2)(a) and 9(3)(a) and to give endorsements of licences; see sub-section 9(4). The importance of s.7 is illustrated by s.7B which was inserted into the Fisheries Act by s.6 of Act No. 29 of 1985 and came into operation on 31 August 1985. Section 7B empowers the Minister to determine a plan of management for fisheries in proclaimed waters. The section sets out in detail what may be included in a plan of management and while a plan of management is in force for a fishery, the Minister and the Secretary are required to perform their functions and exercise their powers under the Act, including the power under sub-section 9(4), in relation to the fishery "in accordance with the plan of management, and not otherwise"; see sub-section 7B(8).

3. The waters at the south east of Australia are proclaimed waters under s.7 of the Fisheries Act but at present, no plan of management for a fishery has been determined under s.7B with respect to the South Eastern Trawl Fishery, being the fishery relevant for present purposes. It follows, therefore, that s.7B has no application with respect to the present appeal but reference will be made later to a submission made on behalf of the applicant based upon s.7B.

4. Commencing in 1981, the Minister initiated processes for the purpose of regulating more closely the South Eastern Trawl Fishery. To that end, in consultation with the States, the industry, and other expert groups, the Minister began formulating a policy with respect to the South Eastern Trawl Fishery which could become a plan of management under s.7B. To that end, he caused to be published notices, discussion papers, proposals and information to enable all interested persons to participate in the formulation of the policy and the preparation of the plan. The area of the waters to be covered by the policy and plan were identified, the type of fish to be covered were specified and the method and policy of granting Commonwealth Fishing Boat Licences and endorsements under sub-section 9(4) were published and became the subject of consultation. It is not necessary to refer in detail to these documents, but the dates on which they were published were taken up and acted upon when the management plan was published in August 1984. That document is headed "South Eastern Trawl Fishery, Management Plan." At present it is not a plan of management determined under s.7B of the Fisheries Act. It is a lengthy and comprehensive document. It identified the proclaimed waters which are divided into two Sectors, the South Western Sector and the Eastern Sector. The Eastern Sector is sub-divided into two regions, Region A and Region B. Broadly speaking, the South Western Sector commences at the north east corner of Tasmania, extends 200 nautical miles to the east, then follows a line 200 nautical miles around the eastern, southern and western coastline of Tasmania, and continues 200 nautical miles from the southern coastline of Victoria and South Australia to a point 200 nautical miles to the south of Cape Willoughby, Kangaroo Island. The eastern boundary of the South Western Sector is a line extending approximately from the north eastern corner of Tasmania to Cape Conran in eastern Victoria. The Eastern Sector extends to the east and to the north of the South Western Sector 200 nautical miles to the south and east of the coastline of Victoria and New South Wales to a line extending 200 nautical miles to the east of Barranjoey Point in New South Wales. Region B is the southern part of that Sector while Region A is the northern part of that Sector.

1. The Management Plan has an Introduction and 11 Sections titled as follows; 1. Management Objectives, 2. Boundaries of the Fishery and Zoning Arrangements; 3. Entry Criteria, 4. Freeze on the Issue of Endorsements for the South Eastern Trawl Fishery, 5. Issue of Additional Restricted Licences for the South Western Sector, 6. Species and Methods Covered by the Management Plan, 7. Boat Replacement Policy, 8. Transferability, 9. South Eastern Trawl Management Committee, 10. Amendments to Existing Notices and 11. Biological Aspects.

2. It is not necessary to discuss in detail the contents of the Management Plan. It states that restrictions on fishing operations are to come into effect on 31 March 1985 and that any boat operating in the fishery after that date must meet the criteria in Section 3, Entry Criteria, and carry an endorsement on its Commonwealth Fishing Boat Licence. In fact, the restrictions did not come into operation until 3 June 1985. Applications for the licences and endorsements had to be made on a form to be provided by the Department and had to be submitted by 31 December 1984. An unsuccessful applicant had a right of appeal to an appeals committee. Any person operating in the fishery after 31 March 1985 without a licence and an endorsement was liable to prosecution.

3. A study of the Management Plan illustrates clearly that the draftsman had regard to the objectives set out in s.5B of the Fisheries Act.

4. For the purposes of this appeal, the provisions of Section 3 of the Management Plan are of importance. The Section is headed "Entry Criteria" and specifies criteria to be applied for the giving of an endorsement under sub-section 9(4) of the Fisheries Act. Different criteria apply with respect to the Eastern Sector and the South Western Sector. In each case provision is made for the giving of an endorsement to holders of current Commonwealth Fishing Boat Licences for a boat used at and after specified dates, the dates being dependent upon the date of publication of notices in the procedures followed in the preparation of the Management Plan. Provision was made also for the giving of endorsements with respect to replacement boats provided they complied with the requirements specified. On the material before the Tribunal, it is clear that the applicant did not come within any of the criteria for entitlement to an endorsement contained in the Management Plan.

5. The applicant is a professional fisherman. In 1975 he built and commissioned a boat, the Shanidar. In 1977 he fitted out the Shanidar for deep water trawling and in that year commenced trawling in what is now the South Western Sector. He operated from Portland. In 1978 the Shanidar sank at its moorings. The boat was salvaged and refitted. Between 1978 and 1981 the Shanidar carried out fishing activities by trawling in what is now part of the South Western Sector and part of the Eastern Sector Region B. He operated out of Eden and Portland. From 1981 to 1982 the Shanidar was skippered by persons other than the applicant. She operated by trawl out of Eden and Lakes Entrance in both Sectors. She did other types of fishing as well. The first notice under the proposed Management Plan was issued on 7 July 1981. At that time the Shanidar held a Commonwealth Fishing Boat Licence. If she had continued operating in the two Sectors an endorsement would have been given under the entry criteria specified in Section 3 of the Management Plan. In June 1982, the Shanidar sank and was completely lost. The applicant had financial difficulties and was not able to replace the Shanidar. By September 1983, those difficulties had been resolved to some extent but in order to acquire another boat he had to obtain substantial finance from a bank. He faced a dilemma. In order to make the venture viable financially, he had to be sure that he could obtain a Commonwealth Fishing Boat Licence with respect to the boat acquired and an endorsement under sub-section 9(4) of the Fisheries Act with respect to that licence. He faced difficulty in borrowing money to acquire a boat without having an assurance that he would acquire such a licence and be given an endorsement. The applicant did not want to take the financial risk himself.

6. By September 1983, the applicant was told that he could get a Commonwealth Fishing Boat Licence for a boat acquired to replace the Shanidar. In January 1984, a draft Management Plan for the South Eastern Trawl Fishery was published. The applicant knew of the announcement of that draft plan. He continued looking for a replacement boat. The Management Plan was published on 21 August 1984. The application forms for entry became available in October 1984 and in December the applicant made his application.

7. The application form is in conformity with Section 3 of the Management Plan. The entry criteria are set out in the form and applications are invited from fishermen who meet any of the specified criteria. The applicant did not meet any of those criteria. The criteria are said to be subject to the boat replacement policy as specified on page 2 of the application form. The applicant did not meet the requirements to bring him within that policy. On a strict application of the entry criteria, the applicant was not entitled to an endorsement in respect of his non-existent Commonwealth Fishing Boat Licence.

8. The Tribunal, however, did not proceed on that basis. It accepted the Management Plan. In fact, the applicant accepted that plan in that he made application on the form of application provided for in that plan. In conformity with the requirements of law expressed above, and in accordance with the requirements of the Administrative Appeals Tribunal Act 1975, the Tribunal was required to exercise the powers conferred on the Minister or Secretary by sub-section 9(4) of the Fisheries Act. In exercising that power, the Tribunal had regard to the objectives of the Act as it was required to do by s.5B of the Act. It did this by reference to the policy contained in the Management Plan, but it did not follow blindly that policy. It realised it had an ultimate discretion which it had to exercise on all the material before it. It did this by reference to what it described as special or unique circumstances. I will return to this aspect later in these reasons.

9. For the purposes of the hearing before the Tribunal, it was assumed, contrary to the fact, that the applicant had a Commonwealth Fishing Boat Licence in respect of a boat and thus the only matter for decision was whether an endorsement under sub-section 9(4) of the Fisheries Act should be given with respect to that deemed licence. This deeming provision was to the advantage of the applicant.

10. The applicant was represented by a solicitor at the hearing before the Tribunal. Evidence was led to support a claim that there were special circumstances sufficient to support the giving of the endorsement under sub-section 9(4) of the Fisheries Act. In its reasons for decision, the Tribunal set out at length the history of the Management Plan and the criteria for endorsement of a licence as provided for in that plan. The Tribunal then said:-
    
    

"It is not in dispute that the applicant has not at any time met the criteria for either region of the Eastern Sector or for the South Western Sector. However, it is against the background of those criteria that it is necessary to consider whether there are any special or unique circumstances justifying the endorsement of a licence in respect of a boat to be acquired by him."

1. Before this Court, counsel for the applicant contended that the words in that passage "It is not in dispute that the applicant has not at any time met the criteria for either region of the Eastern Sector or for the South Western Sector" should be construed as meaning the "applicant conceded that he did not meet those criteria"; that in fact the applicant had made no such concession and that in coming to that view the Tribunal was in error which affected its final decision. Counsel for the respondent contended the passage should be taken as meaning no more than a finding that on the facts, it could not be disputed that the applicant did not meet the criteria specified. As a result, at the hearing of this appeal, much time was spent referring to the opening and closing submissions of the solicitor for the applicant and in argument on what was the meaning of phrases used in those submissions.

2. In my opinion, on the facts of this case, this became a sterile or barren argument. The applicant's mythical boat with its mythical Commonwealth Fishing Boat Licence was not operating within either Sector during the periods prescribed by the entry criteria. Nor was the mythical boat a replacement boat within the requirements prescribed by the entry criteria. Nor have the proceedings been conducted on the basis that the mythical boat was deemed to have been so operating or was deemed to be a replacement boat. If either of those matters had been deemed to have existed, an endorsement with respect to the mythical licence would have been given without hesitation. In the context of the facts of these proceedings, the attempt by the applicant to rely upon the existence of a boat he used for abalone fishing can be described, at best, as a red herring. In truth, on the facts of this case, it is clear beyond doubt that the applicant did not come within any of the criteria for entry into the South Eastern Trawl Fishery as contained in Section 3 of the Management Plan. If he had come within any of those criteria, he would have received the endorsement under sub-section 9(4) of the Fisheries Act. In those circumstances, it would not have been necessary for the Tribunal to consider whether there were "special or unique circumstances justifying the endorsement of a licence in respect of a boat to be acquired" by the applicant. It is immaterial whether the applicant conceded that fact or not. In any event, the words should be construed, in accordance with the reality, in the manner suggested by counsel for the respondent.

3. Counsel for the applicant next contended that the Tribunal was in error in having regard to the policy contained in the Management Plan because of the introduction of s.7B into the Fisheries Act in 1985, being a date after the publication of the Management Plan in August 1984, and the fact that no plan of management had been determined under s.7B. This contention was supported by a number of separate submissions. It was argued that the enactment of s.7B had the effect of nullifying the Management Plan published in August 1984. It was argued that until a plan of management was determined under s.7B, the person or body exercising the power conferred by sub-section 9(4) had to have regard to the objectives specified in s.5B and to that end, had to rely upon evidence led in support or opposition to the giving of the endorsement and that in this case, the Tribunal did not do that. It was argued further that in any event the Tribunal blindly followed the policy as expressed in the Management Plan, treating that policy as if it were law and did not exercise its own discretion. It was further argued that on the facts of the case, the refusal to give the endorsement was so unreasonable that there must have been error on the part of the Tribunal.

4. Each of these submissions is rejected. It has been established that as a guide to the exercise of statutory powers, a Minister or a Department of State is free to publish a policy to be considered by the person exercising the power. Not only is such a course permissible but in many cases it is desirable. This is so especially where the power conferred is unfettered but the Minister or Department is required to adopt and pursue a policy. Generally see Drake v. Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 per Bowen C.J. and Deane J. at pp 418-422, and the application of policy in a decision made by Brennan J. as President of the Administrative Appeals Tribunal in Drake v. Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 commencing at p 640.

5. For present purposes, the policy of the Minister for guidance of persons making decisions under sub-section 9(4) with respect to the South Eastern Trawl Fishery is contained in the Management Plan. There are a number of aspects of that policy, some of which will be referred to later in these reasons. That policy remains in existence and is to be applied by decision makers according to law. The power conferred by s.7B authorizing the Minister to determine a plan of management does not nullify or bring to an end the policy. No plan of management has yet been determined for the South Eastern Trawl Fishery. The effect of such a determination on the existing Management Plan does not arise for consideration until such a determination is made.

6. In the present case, the Tribunal had regard to the policy as expressed in the Management Plan. The Tribunal recognised the conflict between the two objectives set out in s.5B and the fact that the policy behind the entry criteria in that plan was to prevent the entry of additional boats into the South Eastern Trawl Fishery. At the same time, that policy permitted the entry of boats which had been engaged in that fishery. The right to entry was permitted by the giving of an endorsement under sub-section 9(4) of the Fisheries Act. Thus, under those criteria, licences of boats which were engaged in the fishery at certain times and which boats continued to engage in the fishery were entitled to an endorsement. Likewise, if any boats so engaged were being replaced, the replacement boats were entitled to enter into the fishery provided they came within constraints specified in the criteria. The Tribunal recognised that a discretion was conferred by sub-section 9(4) which went beyond the blind application of the criteria contained in the Management Plan. They had regard to other facts.

7. The case put to the Tribunal was that the facts relied upon by the applicant showed that he had a commitment to the fishery but that because of those facts he could not bring himself within the criteria contained in the entry criteria. Those facts were described as establishing special or unique circumstances. The description used is immaterial. What is important is the question whether the Tribunal was in error in what it did.

8. The Tribunal received much material, some of which was summarised earlier in these reasons. Other material was received including material showing the steps the applicant had taken to acquire a boat and material relating to the boat used by the applicant for abalone fishing. Much attention was directed to what was described as the "Catch 22" situation which earlier in these reasons I described as the dilemma facing the applicant, namely he could not get finance for a new boat without the guarantee of an endorsement and he could not get the endorsement without a boat for which he needed finance. The decision of the Tribunal was based on the assumption that he had a boat with a licence. In truth, the dilemma was caused by the applicant desiring to avoid financial risk.

9. The Tribunal had to exercise the discretion conferred by sub-section 9(4) of the Fisheries Act. This Court in this appeal does not exercise that discretion. The approach adopted by the Tribunal to that exercise of discretion can be illustrated by some extracts from its reasons for decision:-
   
   

"However, for the discretion to be exercised to grant the applicant an endorsement for a replacement boat in spite of his not meeting the criteria, the circumstances of his inability to meet them must have been such that it is appropriate for it to be so exercised. It is our understanding of the plan as originally drafted and as implemented that, because the resources of fish in the SETF are limited, it is necessary to restrict the number of trawlers operating in the fishery to such as will provide their operators with a reasonable return for their investment and their work. That has necessitated the exclusion of some persons who would have liked to operate trawlers in the fishery. The plan provides, in effect, that only those who have shown a substantial commitment to trawl fishing in the SETF are allowed to trawl there. It would not be appropriate, therefore, to grant an endorsement to a person unless at all relevant times he had such a commitment. The criteria were clearly designed to enable most of those with such a commitment to obtain an endorsement automatically. Where the criteria are not met, a commitment must have been demonstrated which correlates with the commitment required of those who meet the criteria.

Mr Coates laid emphasis on the 'Catch 22' situation in which, he said, the applicant found himself from 16 January 1984 onwards. But Mr Pintori of the Australian Government Solicitor's Office, who represented the respondent at the hearing, submitted that the period to which more attention should be given was that between June 1982 and 16 January 1984. In our view we need to look at what the applicant did during both periods, and indeed from 1977 onwards, in order to ascertain whether he demonstrated a sufficiently substantial commitment to trawl fishing. In considering the period after 16 January 1984 we have to consider whether a 'Catch 22' situation really existed during that period or whether, if the applicant had truly been sufficiently committed to trawl fishing in the SETF, there was action which he could have taken but failed to take to try to resolve the impasse which apparently faced him."

1. The Tribunal then considered in detail the material presented to it. The Tribunal then concluded:-
   
   

"We have concluded also that in 1984 he did not take action such as we should have expected of a person committed to re-entering the SETF. He is a well educated, highly articulate man, as is evidenced by letters he has written, of which copies were tendered in evidence, and by the manner in which he gave evidence at the hearing. He had previously taken a leading part in making representations to Ministers and government officers in relation to fishery matters. If his commitment to re-entering the SETF had been substantial, it is most unlikely that he would not have read the draft management plan soon after it was published; if he had done so, he would have realised that the criteria proposed in it would exclude him. In the first paragraph of the foreword to the plan it was stated that it was being circulated as a discussion paper' and comment was sought from interested parties'. It was stressed that at that time the governments of the Commonwealth and the States of Victoria, New South Wales, South Australia and Tasmania were 'not committed to implementation of the draft plan'. The South Eastern Trawl Task Force visited the major trawling ports in the SETF; it visited Portland on 28 February 1984. If the applicant had been substantially committed to re-entering trawl fishing in the SETF and he had read the proposed criteria in the draft management plan and seen that they would exclude him, we should have expected him to make urgent representations to the Task Force and to officers of the Department of Primary Industry and possibly the Minister. Yet he did not do so.

We have come to the conclusion, therefore, that, although the applicant was a pioneer of the trawling industry in Portland, operated the 'Shanidar' as a trawler in it from 1977 until early 1981 and 'leased' it for operation as a trawler for about another year after that, he did not maintain a substantial commitment to trawl fishing after it sank. On a balance of probabilities we find that he refrained from purchasing a new boat, either on his own or in partnership with someone else, because he was not convinced that it would be profitable to do so. Only when the price of fish had risen did he decide to buy another boat and resume trawl fishing in the SETF, if he could. Even then he did not pursue the matter with urgency until 1985.

He presented his case on the basis that his situation was unique or special essentially because for a period after the Shanidar sank he lacked the funds to replace it. We accept that that should be recognised as a significant circumstance; but lack of financial resources of itself is not an uncommon phenomenon. For the applicant's situation to be regarded as unique or special so as to justify the granting of an endorsement under section 9(4) he would have needed to demonstrate throughout that period a very positive attitude to trawling. We have found that he failed to do so. We have come to the conclusion, therefore, that the circumstances are not such as to make it appropriate that an endorsement should be granted."

1. In my opinion, the applicant has not shown any error on the part of the Tribunal. It did not blindly follow the entry criteria but had regard to the particular facts affecting the applicant. It exercised its own discretion according to law. Nor is that decision so unreasonable that there must have been error on the part of the Tribunal.

2. I would dismiss the appeal with costs.