Searl v Director General, NSW Fisheries - [2000] NSWADT 53

No judgment structure available for this case.

CITATION: Searl -v- Director General, NSW Fisheries [2000] NSWADT 53

DIVISION: General Division

PARTIES:
APPLICANT
Grahame Searl
RESPONDENT
Director General, NSW Fisheries

FILE NUMBER: 993158

HEARING DATES: 13/10/99, 30/11/99, 22/12/99

SUBMISSIONS CLOSED: 12/22/1999

DATE OF DECISION:
05/11/2000

BEFORE: Skinner PM - Judicial Member

APPLICATION: Fisheries Management Act - fishing licence - transfer of endorsement on licence - Fishing licence - transfer of endorsement on licence

MATTER FOR DECISION: 1. Motion by respondent submitting lack of jurisdiction.
2. Principal matter.

LEGISLATION CITED: Fisheries Management Act 1994

CASES CITED: Ex parte Berry: Re Kessel (1936) 36 SR (NSW) 485
Jack -v- Smail (1905) 2 CLR 684
Doyle -v- Commissioner of Police [1999] NSWADT 84
Kioa -v- West & Anor (1985) 159 CLR 550
Haoucher -v- Minister for Immigration (1990) 169 CLR 648

REPRESENTATION: APPLICANT
D S Inverarity, barrister
RESPONDENT
J D Bingham, solicitor (13/10/99)
J Crespo, barrister (30/11/99 & 22/12/99)

ORDERS: 1. Orders 2 and 3 sought by the Respondent in its Notice of Motion dated 22 September 1999 are refused and the motion is dismissed.; 2. The decision under review is affirmed.; 3. No award as to costs.

Application

1 This is an application by Mr Searl for review by this Tribunal of a decision by the respondent which the applicant characterises in his Application for Review filed with the Tribunal on 15 July 1999 as:

‘The refusal by NSW Fisheries to permit the transfer of the endorsement to fish in the Ocean Fish Trawl Restricted Fishery- Southern Zone attached to fishing business number: 876’.

2 As required by the pro forma used in the Tribunal, the applicant annexed to the Application for Review what he understood to be a copy of the decision. This was comprised of two letters to him from the respondent dated 27 May 1999 with enclosures. One letter advised him of the decision and reasons for same. The other letter enclosed documents including a ‘Restricted Fisheries – Interim Transfer Agreement’ and documents indicating the status of the applicant’s ‘fishing business’ (Fishing Business No. 876) and ‘validated catch history’ of that fishing business. The terms used are terms of art from the legislative and administrative scheme governing the fishing industry in NSW, which is set out in detail below.

3 The effect of the documents enclosed in the second letter was explained in the first letter as:

‘the proposed transferee of FB 876 . . . would not be eligible for an endorsement in this [ocean fish trawl (southern zone) restricted] fishery under the current transfer policy’.

4 The respondent submitted that this correspondence of 27 May 1999 did not constitute a ‘refusal by NSW Fisheries to permit the transfer of the endorsement’ as alleged by the applicant. Indeed the respondent raised preliminary objections as to the jurisdiction of the Tribunal in relation to this application, by way of Notice of Motion dated 22 September 1999.

The respondent’s motion challenging jurisdiction

5 The Motion came on for hearing before me on 13 October 1999. On that day I indicated to the parties that the procedure that I would adopt would be to hear all the evidence and submissions on the substantive application and deal with the jurisdictional point at the conclusion of the proceedings. Essentially, this was because it was necessary to hear the whole case in order to comprehend the complex legal and administrative scheme involved. The proceedings were adjourned for further hearing to 30 November 1999.

6 On 18 November 1999 I caused the registry of the Tribunal to write to the parties informing them that it was my opinion as then informed in the hearing on 13 October 1999 that the Tribunal had jurisdiction, and the parties ought prepare for the further hearing of the application on that basis. However, throughout the further hearing of the application I allowed further submissions from the respondent as to the jurisdiction issue. Nonetheless, I now confirm my original decision that the Tribunal has jurisdiction, for the reasons I set out below.

7 The applicant relied on s 126 of the Fisheries Management Act 1994 (‘the Act’), in particular paragraph 126(1)(b), as founding the jurisdiction of the Tribunal. Sec 126 relevantly provides:

126 Applications to Administrative Decisions Tribunal for reviews of certain decisions

8 There was no issue between the parties that the applicant’s commercial fishing and the endorsement thereon authorising access by the applicant to the ocean fish trawl restricted fishery southern zone came within the definition of ‘relevant authority’ as used in paragraph 126(1)(b) – see s 125 of the Act.

9 The applicant contended that the respondent had refused to allow the transfer of the endorsement on the commercial fishing held by the applicant as part of his fishing business and which allowed him to fish in the restricted fishery known as the ocean fish trawl (southern zone) restricted fishery, and that this was the imposition of a condition on that authority.

10 The respondent submitted that the applicant had no standing in respect of the decision to be reviewed. The respondent submitted that, in summary:

11 An analysis of the legislative and administrative scheme reveals that whether or not they are themselves transferred as such, restricted fishery endorsements are able to be obtained, subject to certain criteria being met, by transferees of fishing businesses who would not otherwise, but for the transfer to them of the fishing business, be able to obtain an endorsement.

12 This is as the result of the application by the respondent of ‘guidelines relating to the transfer of fishing businesses’ – see clause 212Y of the Fisheries Management (General) Regulation 1995 (‘the Regulations’), below. These guidelines are issued by the Director from time to time and are authorised but of course quite distinct from the Regulations, which are made pursuant to s 289 of the Act.

13 The guidelines applying at all material times in this case were those issued by the respondent in November 1996 in a publication entitled ‘NSW Fisheries Licensing Policy – Version 2’ (‘the November 1996 Policy’), and amendments thereto which were listed in paragraph 7 of and annexed to the affidavit of Paul Murphy sworn 22 September 1999 and filed by the respondent.

14 The applicant was granted the subject endorsement on his commercial fishing on 8 April 1999. He then sought to sell his fishing business together with that endorsement. It was when his solicitor wrote to the NSW Fisheries seeking approval of same that he was informed by the respondent that the proposed transferees of his fishing business would not be eligible for an endorsement – see paragraph 3 above.

15 Whether or not licences are themselves property or confer property rights has been considered before by Australian courts in different contexts. See e.g. Ex parte Berry: Re Kessel (1936) 36 SR (NSW) 485. In that case Jordan CJ said at p 488:

Jack v Smail

Mullen v Hood

16 Ex parte Berry was about liquor licences, but the passage quoted applies to licences generally and to the licence the subject of the instant case, mutatis mutandis – for example the endorsement of the applicant’s commercial fishing restricted him not only to a geographical area for fishing but also to fishing from a particular boat, or its authorised replacement.

17 In Jack v Smail, above, which was a case inter alia about a grocer’s licence Grifith CJ referred at p 704 to the ‘qualified transferability’ of same, and similar licences.

18 In my opinion, there is clearly created by the legislative and administrative scheme regulating endorsements to fish in restricted fisheries, in particular the ocean fish trawl restricted fishery southern zone, a system of qualified transferability of endorsements in certain circumstances.

19 Whether or not the new owner of the fishing business, or his or her nominee, needs a fresh commercial fishing licence appropriately endorsed personal to him or her or the nominee to enable access to the restricted fishery, there is a scheme in place and operating that transfers authority to do certain acts which would be unlawful if not licensed, i.e. rights to fish in restricted fisheries.

20 It is true that the decision under review may be incorrectly or imprecisely described by the applicant in his Application for Review as a ‘refusal to permit the transfer of the endorsement’. However, despite the respondent’s contention that endorsements themselves are not transferable, and only the catch history and other criteria for the issue of endorsements are transferable, the guidelines themselves in places clearly refer to the transfer of endorsements. See e.g. the passages quoted below from the first paragraph of the Interim Transfer Policy in section 7.0 of the November 1996 Policy, and the internal ‘Briefing’ of 1 July 1998.

21 Further, the Act by s 114 anticipates authorisation by the Regulations of transfer of endorsements, not transfer of catch history. The latter is the means, the former the end, and even a cursory philosophical consideration of the concept of transfer of ‘history’ establishes why that is a logical distinction.

22 Whether the respondent’s decision be described as a refusal to allow the qualified transferability that the applicant would otherwise be entitled to expect, or the imposition of a further qualification upon transferability and hence the endorsement and the commercial fishing licence, I am cognisant of s 73(3) of the Administrative Decisions Tribunal Act 1997 (‘the Tribunal Act’) which provides:

The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

23 In my opinion, whatever the technicalities or legal forms of the process by which a transferee of a fishing business can claim an endorsement which attached to the fishing business before it was transferred, the decision of the respondent as evidenced by the 27 May 1999 correspondence has clearly imposed a condition on the applicant’s endorsement and his commercial fishing licence, and therefore comes within s 126(1)(b) of the Act.

24 Further in my opinion, whether this was a distinct decision by the respondent pursuant to the guidelines, or a mere application of the guidelines which therefore themselves constitute the decision, it arises from the guidelines and is thus, per s 126(1)(b) of the Act, ‘otherwise than by regulation’.

25 Counsel for the respondent made a further submission in relation to jurisdiction. As set out below, s 112 of the Act provides that ‘the authority conferred by . . . an endorsement is subject to such conditions as are prescribed by the regulations or attached to the endorsement by the Minister’. Counsel for the respondent submitted that s 112(2) prescribed the only two ways that a condition can be imposed on an endorsement, and neither were in evidence here. I agree with him as to the latter proposition – certainly clause 213 of the Regulations prescribes the method of ‘attachment’ by the Minister, and that is not the situation here, and from the preceding paragraph it is evident that I am not of the opinion that what I hold to be a condition was prescribed by the regulations.

26 However, in my opinion subs 112(2) is clearly referring to the authority conferred by the endorsement pursuant to subs 112(1) – that is, ‘to take fish for sale in a restricted fishery’. ‘Authority’ is used in a different context in s 126 of the Act, as part of the defined (in s 125) phrase ‘relevant authority’. The imposition of a condition as to transferability of the endorsement is a different thing altogether to the prescription of a condition upon the taking of the fish for sale pursuant to the endorsement.

27 The applicant is a person [legitimately able to be] dissatisfied with the decision and thus under s 126(1)(b) of the Act entitled to apply to this Tribunal for review. The applicant is an ‘interested person’ within the meaning of s 55(1)(a) of the Tribunal Act.

28 In my opinion the decision of the respondent is reviewable by this Tribunal.

29 Finally, no issue was raised by the respondent as to the requirement in paragraph 55(1) (b) of the Tribunal Act for, subject to subs 55(2), an internal review of the decision to have been finalised. In my opinion, such an internal review sufficient to meet the requirements of s 53 of the Tribunal Act was carried out in any event. After receipt of the correspondence of 27 May 1999 the applicant by letter from his solicitors dated 3 June 1999 wrote to NSW Fisheries and sought ‘that the decision contained in the department’s letter of 27 May be reviewed’. On 15 July 1999 the Department responded. The Statement of Reasons filed by the respondent pursuant to s 49 of the Tribunal Act indicates that ‘the Minister reconsidered the matter’. There is nothing to suggest that the requirements of s 53(3) of the Tribunal Act were not satisfied.

30 In any event if I am wrong in my determination as to the conducting of an appropriate internal review, I would be satisfied that the requirements of subs 55(2), in particular paragraph 55(2)(c), have been met.

31 I hold that that the Tribunal has jurisdiction to hear his application.

The legislative and administrative scheme

32 The above heading advisedly includes a reference to the administrative aspects of the scheme governing the fishing industry in NSW. A very large part of the framework of governance relevant to this application, i.e. as to the transfer of fishing businesses, is embodied not in substantive or subordinate legislation but, per clause 212Y of the Regulations, in ‘guidelines relating to the transfer of fishing businesses issued from time to time by the Director’.

The Act

33 Sec 3 of the Act provides:

3 Objects of Act

(

1 Part 4 of the Act contains provisions for licensing and other commercial fisheries management. Division 1 deals with commercial fishing licences. Sec 102(1) provides:

102 Commercial fishers required to be licensed

(1) A person must not take fish for sale from waters to which this Act applies unless the person is authorised to do so by a commercial fishing licence.

2 Sec 103 provides:

103 Who may hold

36 Subsec 104(4) provides:

104 Provisions relating to licensing of commercial fishers

37 Division 2 of Part 4 deals with commercial fishing boats. In order to use them to take fish for sale from NSW waters, they must be licensed also.

38 Division 3 of Part 4 deals inter alia with restricted fisheries. The following are particularly relevant sections:

112 Commercial fishing to be endorsed for restricted fishery

114 Endorsements not transferable

unless authorised by the regulations

116 Other regulations

The Regulations

39 Clause 3 of the Regulations contains definitions of terms in the Regulations, and defines ‘fishing business’ as follows:

fishing business

40 Part 7 of the Regulations contains provisions for licensing and other commercial fisheries management. Division 1 deals with commercial fishing s. Subclause 135 relevantly provides:

135 Who may hold commercial fishing

. . .

41 Subclause 135(2) defines ‘recognised fishing operation’ for the purposes of the clause.

42 Subclause 135(3) provides:

the catch history associated with that business is transferable only in accordance with guidelines issued by the Director from time to time

43 Part 8 of the Regulations deals with and defines restricted fisheries ‘for the purposes of s 111 of the Act’. Division 2A of Part 8, clauses 183 to 191, deals with and defines the ocean fish trawl restricted fishery.

44 Clause 185 defines the fishery to consist ‘of the use of an otter trawl net (fish) to take fish’ from waters that are then defined into two categories, a northern zone and a southern zone.

45 Clause 186 relevantly provides:

186 Types of endorsement in restricted fishery

* Southern zone endorsement

46 Clause 187 relevantly provides:

187 Eligibility for endorsement

. . .

Southern zone endorsement

. . .

fish trawl species

47 Clause 191 deals with the cancellation and suspension of endorsements. Indeed, each of the ten divisions of Part 8 of the Regulations that creates and defines a restricted fishery, and Division 4B that provides for special classes of endorsements, contains a clause dealing with the cancellation and suspension of endorsements – see s 116 of the Act, above.

48 However there is no clause in the Regulations that deals specifically with the transfer of endorsements. Subclause 135(3) deals with the transfer of catch history and Division 4C of Part 8 deals with the entitlements of fishing business owners. Clause 212Y in that Division provides:

212Y Effect of sale or disposal of fishing business on eligibility

except in accordance with guidelines relating to the transfer of fishing businesses issued from time to time by the Director

49 Division 6 of Part 8 of the Regulations sets up a review procedure for, inter alia, eligibility for an endorsement in a restricted fishery. Clause 214A inter alia prescribes time limits – a review request must be made by 31 December 1997. Clause 214B prescribes the conduct of reviews. Clause 214C sets out the grounds for [successful] review. It relevantly provides:

214C Grounds for review

(ii) the person lost his or her commercial fishing boat due to accident or misadventure and the loss substantially affected his or her ability to satisfy the eligibility criteria for the endorsement, or

. . .

50 Clause 214D provides:

214D Action by Minister following review

The Guidelines

51 A copy of the November 1996 Policy, was tendered by the respondent as Exhibit B. Version 1 of the NSW Fisheries Licensing Policy was published as at 9 June 1994. A copy was tendered as part of Exhibit A, but it is only of relevance by way of background to the instant application.

52 The relevant guidelines for the purposes of clauses 135(3) (transfer of catch history) and 212Y (transfer of fishing businesses and issue of new endorsements) of the Regulations and in respect of the whole regime of restricted fisheries which came into effect on 1 March 1997, are those of November 1996 and those described in paragraph 7 of the affidavit of Paul Murphy and annexed thereto.

53 The November 1996 Licensing Policy sets out on p 6 the following:

54 The November 1996 Policy includes in Section 7.0 a detailed ‘Interim Transfer Policy’. It provides in the first paragraph:

participation

transferable

55 It was after the publication of this policy that the Regulations - through clause 212Y which was inserted on 28 February 1997 and clause 135 which was amended between 15 November 1996 and 2 July 1999 - created the system of transfer of catch history rather than transfer of endorsements per se, and the criteria in clause 187, inserted 28 February 1997, for issue of an ocean fish trawl restricted fishery southern zone endorsement based inter alia on catch history.

56 Annexure ‘E’ to Mr Murphy’s affidavit is an internal NSW Fisheries document dated 1 July 1998 entitled ‘Briefing – Eligibility For Endorsements Following Transfer’. It provides, inter alia:

Catch history which satisfies the catch history component of each eligibility criteria, and [etc].

57 Annexure ‘F’ to Mr Murphy’s affidavit is a publication dated 15 July 1998 entitled ‘General information on commercial fishing s and transfer of a fishing business’ which refers to the requirement for a ‘restricted fisheries interim transfer agreement’ issued by NSW Fisheries to be completed by the parties.

58 Annexure ‘G’ to Mr Murphy’s affidavit is a publication dated 12 July 1999 entitled ‘Restricted Fisheries Endorsements Transfer Guidelines’. Counsel for the applicant pointed out that that document post-dated the applicant’s request to the respondent for approval of the transfer of the endorsement. That is so, but counsel for the respondent submitted that the document accurately reflects the guidelines for transfer set by the respondent as at the relevant time, and I accept that submission upon the evidence. The contents of Annexure 'G’ are clearly consistent with the November 1996 Policy and the other annexures to Mr Murphy’s affidavit.

Relevant Facts

59 The facts were largely not in dispute between the parties, at least as to matters that I ruled were relevant. The applicant introduced through his evidence and that of Mr Bell and Dr Prince material criticising the appropriateness of the criteria prescribed by clause 187 of the Regulations for eligibility for a southern zone endorsement in the ocean fish trawl restricted fishery, and the respondent took issue with this material.

60 In Doyle v Commissioner of Police [1999] NSWADT 84 President O’Connor DCJ held that the Tribunal could make findings relating to the validity of delegated legislation relating to a reviewable decision, but only ‘where a compelling case can be demonstrated by the applicant rather than one that is merely arguable’. In this case, the applicant did not seek to really attack the validity of clause 187, nor could he on the evidence presented. Accordingly, I ruled that although the evidence as to the ‘catchability’ of the species set out in subclause 187(7) was admitted for the purposes of my informing myself as to matters relevant to the application, I would not review the validity or the appropriateness of the eligibility criteria in clause 187.

61 The applicant’s fishing business was a recognised fishing operation for the purposes of clause 135 of the Regulations, and at all relevant times he held a commercial fishing under the Act. At all relevant times the boat the ‘Gracie M’ was a licensed fishing boat under the Act and part of the applicant's fishing business.

62 In January 1996 the applicant lodged an Application for Catch Validation relevant to his catch history. Ultimately his catch history was determined and ‘validated’ by the respondent and he was advised formally of that determination by letter dated 30 June 1997.

63 The catch history was determined as a ‘boat history’ under the guidelines used by the respondent pursuant to clause 135(3) of the Regulations, and as set out in Section 6.0 of the November 1996 Policy. Clause 6.3 of the November 1996 Policy provides:

Fishers who purchased a boat or boats in a boat history business receive the catch history which is attributable to that boat.

64 The applicant did not, and does not, take issue with the catch history assessment by the respondent.

65 On 8 November 1996 the applicant inter alia applied for an ocean fish trawl restricted fishery southern zone endorsement on his commercial fishing . That application was refused.

66 The applicant then initiated the review procedures under Division 6 of Part 8 of the Regulations.

67 Eventually, a hearing was conducted on 16 June 1998 by a duly constituted review panel, and a report of the panel’s decision pursuant to clause 214C(2) of the Regulations, dated 22 January 1999, was sent to the Minister. The report stated:

The Review Panel is of the view that the applicant’s situation is unique and that he should be the subject of a recommendation under Regulation 214C(3) that the applicant be allocated an Ocean Fish Trawl Southern Zone Endorsement’.

68 Although the panel referred to Regulation 214C(3), which reference was picked up and repeated in some of the subsequent correspondence between the parties, and in submissions to me, it seems common ground that the panel actually made its recommendation under clause 214C(2)(c)(iii) of the Regulations.

69 The review provisions in the Regulations are drafted such that it is clear that although persons such as the applicant may be held by the review committee to be deserving of an endorsement under paragraph 214C(2)(c), there is no deeming that the eligibility criteria is therefore met. Rather it is waived for that person because of subjective matters particular to him or her

70 The review panel did not include any other decision or recommendation in its report to the Minister, as to transferability or other condition affecting the endorsement, as it could have done under clause 214C(3).

71 The respondent wrote to the applicant on 8 April 1999 advising that the Minister had approved his eligibility for the ocean fish trawl restricted fishery southern zone endorsement. It is nowhere expressed in the material before me but the Minister must have proceeded under subclause 214D(2) of the Regulations.

72 It was the evidence of the applicant in paragraph 15 of his affidavit sworn 11 October 1999 that: 'At no time did I receive any notification that any condition had been imposed upon the or the endorsements contained thereon restricting the transfer'.

73 In a letter dated 10 May 1999 the applicant through his solicitors advised NSW Fisheries that he was ‘selling the endorsements held by him in . . . the Ocean Fish Trawl Restricted Fishery (Southern Zone) . . . concurrent[ly] with . . . a sale . . . of the FV “Gracie M”’. The letter requested an Interim Transfer Agreement for execution by the parties.

74 On 27 May 1999 the respondent wrote to the applicant as set out in paragraphs 2 and 3 above.

75 On 3 June 1999 the respondent’s solicitors wrote requesting a review of the decision, as noted above. On 15 July 1999 the respondent wrote to the applicant confirming the decision.

76 Neither the applicant nor the proposed transferees from him could then seek review by a review panel under Division 6 of Part 8 of the Regulations as the time limit for same had long since expired.

77 On 15 July 1999 the applicant applied to this Tribunal for a review of the decision of the respondent expressed in the correspondence to him of 27 May 1999.

Decision

78 Despite the complexity of the legislative and administrative framework governing the transfer of endorsements a clear policy is ultimately evident upon analysis of the relevant provisions as set out above.

79 The policy of NSW Fisheries as per the guidelines issued by the Director and his delegates, pursuant to the authority to do so conferred by s 114 of the Act and clauses 135 and 212Y of the Regulations, is that catch history is the key element in the eligibility criteria for an endorsement and that to obtain an endorsement on his or her a proposed transferee must have sufficient catch history. For a southern zone endorsement in the ocean fish trawl restricted fishery, clause 187(2)(b) of the Regulations clearly defines the required catch history.

80 As noted above the applicant did not satisfy this catch history criteria – by definition paragraph 214C(2)(c)(iii) of the Regulations only applied if the eligibility criteria was unable to be satisfied by the applicant.

81 Such exception to the eligibility criteria only exists in clause 214C of the Regulations, which is not applicable to the decision under review.

82 The Director has not seen fit to issue a guideline creating such a subjective discretion in respect of transferees similar to that which exists in clause 214C of the Regulations. The policy of NSW Fisheries is to not allow to transferees an exception excusing lack of eligibility criteria. Indeed, given the terms of clause 187 of the Regulations, it seems to me that there would be no legislative basis to do so, under the Act or the Regulations - see my comments below.

83 Sec 64 Tribunal Act provides:

64 Application of Government policy

Government policy

84 There is no evidence before me that strictly establishes the existence of a ‘Government policy’ within its meaning as defined in this section. The Director is not the Minister. However, such a distinction is a fine one. In any event the decision under review involved the application of policy that has been carefully struck after wide consultation with stakeholders and in respect of a resource requiring careful management for the benefit, as the Act states in its objects, of present and future generations. In reviewing such a decision I would have to be persuaded by powerful and cogent considerations if I were not to give effect to the policy of the Government where same can be clearly ascertained.

85 Such policy can be so ascertained here, and is consistent from the general to the particular and as the examination of the relevant provisions moves down the hierarchical ladder.

86 Sec 3 of the Act sets out the fundamental intention of the legislature. The primary objects of the Act and its subordinate legislation are those as to conservation set out in subs 3(2)(a), (b) and (c). Subsecs 3(2)(d), (e) and (f) are expressed to be consistent with the three preceding objects.

87 As to the Regulations, the criteria in clause 187(2)(b) was set after detailed consultation with experts and participants in the industry. The machinery of transferring catch history was widely publicised in advance and has been applied now for several years. The Regulations have adopted a means of establishing entitlement to catch history to administer the end of regulating access to restricted fisheries. A discretion to re-assess or vary the eligibility criteria was vested in the review panel process, which however could only be exercised by 31 December 1997. Otherwise, discretion and flexibility as to policy has been vested in the respondent for exercising by way of the issue of guidelines from time to time.

88 As to the guidelines, paragraph 3 of the objectives to same assists the applicant’s case to some extent, as does paragraph 2, although the applicant is able to dispose of his fishing business in all respects other than the subject endorsement, including his catch history. Nonetheless, despite objective 3 the other objectives and the tenor and detail of the policy as set out in that document and the other relevant material are clear, and it is apparent that the respondent has consciously decided to not create a discretion to re-assess or vary the endorsement eligibility criteria for transferees.

89 I have considered the submissions of the applicant as to his ‘legitimate expectation’, in the sense that that term is used in the decisions in Kioa v West & Anor (1985) 159 CLR 550, at 582-583 and 616-618, and Haoucher v Minister for Immigration (1990) 169 CLR 648, at 681-682. In my opinion there is no basis on the evidence for applying those principles here. The review panel itself said in its recommendation that the situation of the respondent was ‘unique’. The process by which he obtained the endorsement was subjective and particular to him. There was no indication to him by the review panel or NSW Fisheries, or anything else in evidence before me, that can found a legitimate expectation by the applicant as to rights to transfer that endorsement.

90 In my opinion the policy of the respondent applied in making the decision under review is not contrary to law.

91 Neither am I persuaded that the policy applied by the respondent produces an unjust result as submitted by the applicant. The system of licensing and restricting access to fisheries inevitably means that some persons qualify, some don’t. I can see no unequal application of the legislative and administrative framework to the applicant nor any other basis for accepting the submission and as a consequence not applying what I find to be policy at almost the level which invokes the mandatory provisions of subs 64(1) of the Tribunal Act.

92 I affirm the decision of the respondent as embodied in the letters and enclosures dated 27 May 1999 to the solicitors for the applicant.

Orders

93 The formal orders that I make are:

Comments on administrative scheme

94 In deciding this application, I have had to consider at length and in detail the complex legislative and administrative scheme as set out in this decision. In doing so I have identified what to me seems a flaw in the scheme as currently applied to determine eligibility for endorsement allowing access to the ocean fish trawl restricted fishery and which, whilst not affecting my decision upon this application, seems to me to require comment.

95 A fisher holding a commercial fishing under the Act and Regulations is only eligible for an endorsement authorising the taking of fish for sale in the ocean fish trawl restricted fishery if the eligibility criteria of clause 187 of the Regulations are met. It seems to me that a person acquiring catch history by transfer, pursuant to clause 135(3) of the Regulations and the guidelines, can not thereby meet the criteria provided by subclauses 187((1)(b) or 187(2)(b) as he or she would not have submitted the returns referred to in those two subclauses. Subclause 187(4)(a) which would at first glance seem to address the situation does not in fact do so, read as a whole – i.e. including the last sentence.

96 Clause 187 of the Regulations, and indeed any similar clauses in respect of the other restricted fisheries, should be reviewed by those with the relevant responsibility.

Actions

Download as PDF Download as Word Document

Citations

Searl v Director General, NSW Fisheries [2000] NSWADT 53

Most Recent Citation

Thornton v Minister for Fisheries [2000] NSWADT 131

Cases Citing This Decision

6

Patane v Minister of Fisheries, NSW Fisheries [2006] NSWADT 50

Wardley v Minister of Fisheries [2002] NSWADT 65

Ireland v Minister for Fisheries [2001] NSWADT 198

Cases Cited

6

Statutory Material Cited

1

Doyle v Commissioner of Police [1999] NSWADT 84

Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29

Kruger v the Commonwealth [1997] HCA 27

CITATION:	Searl -v- Director General, NSW Fisheries [2000] NSWADT 53
DIVISION:	General Division
PARTIES:	APPLICANT Grahame Searl RESPONDENT Director General, NSW Fisheries
FILE NUMBER:	993158
HEARING DATES:	13/10/99, 30/11/99, 22/12/99
SUBMISSIONS CLOSED:	12/22/1999
DATE OF DECISION:	05/11/2000
BEFORE:	Skinner PM - Judicial Member
APPLICATION:	Fisheries Management Act - fishing licence - transfer of endorsement on licence - Fishing licence - transfer of endorsement on licence
MATTER FOR DECISION:	1. Motion by respondent submitting lack of jurisdiction. 2. Principal matter.
LEGISLATION CITED:	Fisheries Management Act 1994
CASES CITED:	Ex parte Berry: Re Kessel (1936) 36 SR (NSW) 485 Jack -v- Smail (1905) 2 CLR 684 Doyle -v- Commissioner of Police [1999] NSWADT 84 Kioa -v- West & Anor (1985) 159 CLR 550 Haoucher -v- Minister for Immigration (1990) 169 CLR 648
REPRESENTATION:	APPLICANT D S Inverarity, barrister RESPONDENT J D Bingham, solicitor (13/10/99) J Crespo, barrister (30/11/99 & 22/12/99)
ORDERS:	1. Orders 2 and 3 sought by the Respondent in its Notice of Motion dated 22 September 1999 are refused and the motion is dismissed.; 2. The decision under review is affirmed.; 3. No award as to costs.