Skoljarev, Ivo v Australian Fisheries Management Authority

[1996] FCA 464

CATCHWORDS

ADMINISTRATIVE LAW - application of policy to management of a fishery.

Howells v Nagrad Nominees Pty Ltd (1982) 66 FLR 169
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SKOLJAREV -V- AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY

NG 981 of 1995

Burchett, Einfeld & Kiefel JJ
Sydney
13 May 1996

IN THE FEDERAL COURT OF AUSTRALIA )  
  )
NEW SOUTH WALES DISTRICT REGISTRY )    NG 981 of 1995
  )
GENERAL DIVISION                 )

BETWEEN:IVO SKOLJAREV

Appellant

AND:AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY

Respondent

CORAM:    Burchett, Einfeld & Kiefel JJ.
PLACE:    Sydney
DATE:     13 May 1996

ORDERS OF THE COURT

THE COURT ORDERS THAT the appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA )  
  )
NEW SOUTH WALES DISTRICT REGISTRY )    NG 981 of 1995
  )
GENERAL DIVISION                 )

BETWEEN:IVO SKOLJAREV

Appellant

AND:AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY

Respondent

CORAM:    Burchett, Einfeld & Kiefel JJ.
PLACE:    Sydney
DATE:     13 May 1996

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J.:  What I am about to deliver is the judgment of the Court. 

This is an appeal from a decision of Davies J, dismissing an appeal from a decision of the Administrative Appeals Tribunal constituted by a Deputy President, Mr B J McMahon.  The present appeal is but the latest step in a long litigation, going back to an application lodged by the appellant on 25 April 1986 under the Plan of Management governing the South East Fishery, made in 1985 under the former Fisheries Act 1952.  This Plan of Management inaugurated a new governmental policy of restriction of the fishery on both economic and conservational grounds.  It established a criterion for admission to the relevant area of the fishery by reference to an applicant being, and I quote,

"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."

For reasons which were elaborated in the decision of the Tribunal, the appellant satisfied a portion only of this criterion.  He had fished as specified between 1 January 1980 and 6 July 1981, but his boat had not continued to operate in the region.  Between 1978 and 1981 the appellant had used his boat to trawl there each winter, but he had not done so since 1981.  Reasons were urged on his behalf to justify a relaxation of the policy embodied in the plan of management.  They included a holiday in his European homeland; the theft of his trawling gear, which he was a long time replacing; his ignorance of the steps taken to introduce the then new policy restricting the fishery, said to have been contributed to by his difficulties with the English language; financial problems; and delays occasioned by major overhauls and repairs to his trawler.

However, there were some factors which might have reduced the impact of his difficulties, and all these matters have been taken into account in the various decisions.  On a number of occasions, it was thought that, on the whole, the policy of the government should be implemented, and that the appellant's degree of commitment to the fishery was not sufficient to
require a different conclusion.  The Tribunal decision with which we are concerned related to the years 1994 and 1995.  By 1994, the relevant plan was a plan of 1991, continuing the original 1985 plan so far as concerned the exclusion of persons who had not been admitted to the fishery.  Its terms were adopted following successive expiries, so as to have the effect that in 1994 it was a criterion to have had a boat in the fishery on 31 December 1991, or to have introduced one since.

Again in 1995, a further policy decision made it a criterion to have had a boat entitlement on 31 December 1994.  Each of these policy decisions was seen by the Tribunal, as we read its reasons, as reflecting an overall policy maintained since 1985.  We can see no error in that approach, but if the policy position should rather be seen as involving a succession of policies, no different consequence would follow.  For each of the policies can only sensibly be understood as continuing, for the ensuing period, the existing policy considerations applicable to a grant of a right to fish in the fishery.  The Tribunal accepted that the whole story must be taken into account, and it treated the policy considerations that might operate adversely to the appellant as a broad matter of policy, open to be qualified by cogent considerations operating in his favour.

That is how it should have seen the matter.  Policy, as Fox and Franki JJ pointed out in Howells v Nagrad Nominees Pty Ltd (1982) 66 FLR 169 at 195 is not "a series of fairly precise requirements."  It should be seen in broad terms, from which departure may occur for cogent reasons in an individual case.  Here, the Tribunal said:

"It is necessary to have regard to the history of his applications to understand why he was unable to satisfy these criteria.  This history is part of the general matrix of facts which is to be taken into account in considering whether there are cogent reasons for not applying policy".

However, as regards the 1994 decision, the Tribunal took the view that, since the period for which application had been made had expired, there was nothing to review.  Cf. Thomas v Appleton (1994) 35 ALD 481, a decision of a Full Court. This approach was said to be wrong, and to have affected the decision in respect of 1995, because it advanced the date as at which a boat entitlement would have to be shown.

We do not agree that, supposing the decision to be wrong, as the Trial Judge held it was, the suggested consequence follows.  Davies J thought it did not.  We agree with him in that respect.  The broad approach taken by the Tribunal meant that consideration of the 1995 decision, which was the matter of practical importance, was in no way prejudiced.  Nor can we detect any error in the Tribunal's treatment of the question whether the broad policy should be allowed to govern the decision.  It was argued that the Tribunal failed to apply the test laid down by Brennan J in Re Drake v Minister for
Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645, where he said:

"When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.  Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny."

Earlier on the same page, he had said:

"These considerations warrant the Tribunal's adoption of a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary.  If it were shown that the application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice."

We do not read the Tribunal's reasons as revealing any such failure as this argument asserted, and the passage already quoted from those Reasons is entirely to the contrary effect.  Similarly, we do not read the Tribunal's references to the question of the commitment of the appellant to the Fishery as evincing any erroneous approach.  For these reasons, the appeal will be dismissed.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment of the Court.

Associate:

Date:  13 May 1996

Counsel for the Appellant:       Mr A.W. Street with
  Ms M.S.C. York

Solicitors for the Appellant:        Thomson Rich O'Connor

Counsel for the Respondent:      Mr P. Roberts

Solicitors for the Respondent:    Australian Government
  Solicitor

Date of hearing:                 13 May 1996